## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 18 2004 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DOANE KEITH THOMAS, Defendant - Appellant. No. 03-5041

Appeal from the United States District Court for the Northern District of Oklahoma. (D.C. No. 00-CR-63-H)
Barry L. Derryberry, Research and Writing Specialis t (Paul D. Brunton, Federal Public Defender, and Jack Schisler, Assistant Feder al Public Defender, with him on the brief), Tulsa, Oklahoma, for Defendant-Appel lant. Timothy L. Faerber, Assistant United States Attorne y (David E. O’Meilia, United States Attorney, with him on the brief), Tulsa, Okl ahoma, for Plaintiff-Appellee.

Before EBEL, ANDERSON and McCONNELL , Circuit Judges.

EBEL , Circuit Judge.

Defendant Doane Keith Thomas was convicted under 18 U.S.C. § 922(g)(1) as a felon in possession of a firearm. He now chal lenges the district court’s refusal to suppress the firearm as evidence. We hold that exigent circumstances- 2 -

justified the police officers’ warrantless entry in to the apartment from which the firearm was retrieved, and that once inside the apa rtment the officers were permitted to seize the gun from plain view as evide nce of a crime. Accordingly,
we AFFIRM.

BACKGROUND Tulsa police officer Ron Kawano was on patrol near a four-unit apartment building after midnight on the morning of January 1 , 2000. Kawano observed a man run from the apartment building to a car, say s omething to the effect of “go ahead and kill me,” and run back to the stairwell o f the apartment building. Kawano concluded that the man had gone upstairs, an d he decided to investigate the situation. As he approached the apartments, Kawano heard loud voices arguing in one of the two upstairs units. He walked up a stairway to determine where the argument was taking place, and as he did so the fig ht grew louder. Kawano heard a female voice say “you better put that gun away be fore I call the police” in a tone he described as angry, scared and loud. At that po int, Kawano drew his weapon. When he reached the top of the stairs, the door to one of the apartment units was open and Kawano could see about six or se ven people inside. Among them was Defendant Thomas, who was holding a gun.- 3 -

Thomas then started to move, and Kawano ordered him to stop. Thomas did not comply. Instead, Thomas ran with the gun t owards a hallway near the back of the apartment, stashed the gun in a “closettype storage area,” and continued to run down the hallway into a bedroom. Meanwhile, a screaming woman ran across the apartment in the opposite dire ction. Kawano ordered all of the occupants out of the apartment. Everyone whom he had observed in the apartment, including Thomas, obeyed that order. Kawano had no way of knowing whether or not there were oth ers who remained hidden in the apartment. He and other officers then conducte d a warrantless search of the apartment “[l]ooking for anybody who could have bee n harmed, or injured, dead, anybody inside the apartment.” Kawano testified th at the purpose of the search was to ensure that “nobody had been harmed ... [and ] for our safety, to ensure that there was nobody there who could, well obviously gr ab the one obvious weapon the revolver and use it against us.” During the search of the apartment, the parties agree that the officers saw the gun in plai n view and seized it. Police later learned that the apartment unit belong ed to Thomas’ aunt and uncle. Thomas testified that he had been invited t here to celebrate New Year’s Eve, that he had intended to spend the night there, and that it was “okay” with his aunt and uncle for him to spend the night there. Also, police later learned that Thomas had previously been convicted of a felony of fense.- 4 -

Thomas was charged under 18 U.S.C. § 922(g)(1) for possessing a firearm after having been convicted of a felony. He challe nged the legality of the officers’ entry into the apartment and seizure of t he gun, and the district court denied his motion to suppress the weapon. Thomas e ntered a conditional guilty plea, reserving the right to appeal the denial of h is suppression motion.

DISCUSSION The district court concluded that Thomas had standi ng to challenge the officers’ entry into the apartment and seizure of t he gun, and that both of those actions were constitutional on the merits. We agre e.

A. Standing Fourth Amendment “standing” refers to whether the p arty challenging a search or seizure personally has a legitimate expec tation of privacy that was implicated by the challenged governmental action. See Minnesota v. Carter , 525 U.S. 83, 87-88 (1998); United States v. Jones , 213 F.3d 1253, 1260 (10th Cir. 2000). We review this question de novo, considerin g the evidence in the light most favorable to the district court’s decision. U nited States v. Gordon , 168 F.3d 1222, 1225 (10th Cir. 1999).1 In contrast, a person who is present at another’s home, with permission,

simply for the purpose of consummating a business transaction does not have a reasonable expectation of privacy there. Carter , 525 U.S. at 90-91. - 5 - The Supreme Court has explained that overnight gues ts have a reasonable expectation of privacy in the home of their host. Minnesota v. Olson , 495 U.S. 91, 98 (1990). Further, we have held that even soc ial guests who do not stay the night have a reasonable expectation of privacy in t he host’s home and may therefore challenge a search of the home on Fourth Amendment grounds. United States v. Rhiger , 315 F.3d 1283, 1286-87 (10th Cir. 2003) (Defendant had stayed the night on prior occasions and was a regular soci al guest in the home, even though there was no showing that he was staying ove rnight on the occasion of the search). 1 In light of this precedent, it is evident that Thom as may challenge the search of his aunt and uncle’s home. Thomas testif ied that he was there as a social guest to celebrate New Year’s Eve. Moreover , he testified that he planned to spend the night there and that his plans were “o kay” with his aunt and uncle. Therefore, the search of the apartment and seizure of the gun there implicated Thomas’ legitimate privacy interests.- 6 -

B. Entry into the Apartment “[A]bsent exigent circumstances, the firm line at t he entrance to the house may not reasonably be crossed without a warrant.” Kirk v. Louisiana , 536 U.S. 635, 636 (2002) (internal quotation marks and alter ations omitted). We review the question of whether exigent circumstances justi fied a warrantless entry into a home de novo, evaluating the circumstances as they would have appeared to prudent, cautious and trained officers at the time. See United States v. GutierrezHermosillo , 142 F.3d 1225, 1229 (10th Cir. 1998); United Stat es v. Davis , 290 F.3d 1239, 1243 (10th Cir. 2002). In the instant c ase, we hold that the officers’ entry into the apartment was justified by exigent c ircumstances, namely their need to guarantee the safety of themselves and others. The Supreme Court has recognized several types of e xigent circumstances that may justify a warrantless entry into a home, i ncluding the hot pursuit of a fleeing felon, the imminent destruction of evidence , the need to prevent a suspect’s escape, or the risk of danger to police o fficers or other people inside or outside the home. Minnesota v. Olson , 495 U.S. 91, 100 (1990). In risk of personal danger cases, the basic aspects of the exigent circumstances exception are (1) the officers must h ave reasonable grounds to believe that there is an immediate need to protect the lives or safety of themselves or others; (2) the search must not be motivated by an intent to arrest or seize- 7 -

evidence; and (3) there must be some reasonable bas is, approaching probable cause, to associate the emergency with the place to be searched. Davis , 290 F.3d
at 1242. To be sure, our determination as to whether exigentcircumstances existed will depend on the unique facts of the controversy before us. Id. Yet we are guided in our analysis by cases in which courts hav e held there to be exigent circumstances under analogous conditions. In United States v. Reed , for example, police officers went to a suspect’s home as part of a criminal investigation and saw a man sleeping on the couch with a sawed-off shotgun resting nearby. 935 F.2d 641, 642 (4th Cir. 1991). The Fourth Circuit held that the officers had reasonabl e grounds to believe that they needed to enter the home in order to guarantee thei r own safety. Id. at 643. “Standing at the threshold of Reed’s home and uncertain about how many persons were present in the trailer, the officers in this c ase were faced with an inherently dangerous illegal weapon that could have ... possib ly [been] used against them. Viewing the situation in its totality, the troopers could have reasonably found exigent circumstances.” Id. Similarly, in United States v. Burgos , the Eleventh Circuit held there were exigent circumstances to enter the defendant’s home after officers observed boxes filled with weapons being shipped there. 720 F.2d 1520, 1526 (11th Cir. 1983).- 8 -

“The agents were faced with a house laden with arms and an unknown number of people inside. ... Only by entering the house and s earching for persons and weapons could the agents have control of all weapon s which could be used against them or to effect an escape.” Id. Like Reedand Burgos , the officers in the instant case faced a situatio n in which there were firearms inside the home, it was u nclear how many people were inside the home, and the circumstances gave rise to a reasonable fear that the firearms might be used against the officers or othe rs. The officers had just broken up a heated argument in which a firearm had been brandished, one of the participants in that argument had defied police ord ers and stashed the gun in a rear area of the apartment, and the officers had no way of knowing if there were others in the apartment with access to the gun. Under the circumstances of this case, we are satisf ied that the officers had reasonable grounds to believe there was an immediat e need to ensure their safety and the safety of others by guaranteeing that no on e remained in the apartment. Further, as Officer Kawano testified, safety concer ns (not an intent to seize evidence) motivated the officers’ entry into the ap artment, and the emergency was clearly associated with the location searched. The warrantless entry was therefore justified by exigent circumstances. Cf. Davis , 290 F.3d at 1242.- 9 -

“The Fourth Amendment does not require police offic ers to delay in the course of an investigation if to do so would gravel y endanger their lives or the lives of others.” Warden v. Hayden , 387 U.S. 294, 298-99 (1967); see also United States v. Wicks , 995 F.2d 964, 970 (10th Cir. 1993) (“[O]fficers m ay ... conduct a warrantless search if they believe that t heir own lives or the lives of others are at risk.”). In their attempt to subdue a chaotic armed struggle, the officers in this case were not limited to ordering the occupants whom they had seen out of the home and trusting their safety to t he hope that there might be no one else inside who could use the gun stashed there against them.

C. Seizure of the Firearm Under the plain view doctrine, police officers may properly seize evidence of a crime if (1) the officer was lawfully in a pos ition from which the object seized was in plain view, (2) the object’s incrimin ating character was immediately apparent (i.e., there was probable cause to believe it was contraband or evidence of a crime), and (3) the officer had a lawful rightof access to the object. United States v. Sparks , 291 F.3d 683, 690 (10th Cir. 2002). We review de novo the validity of a seizure of evidence under the plain v iew doctrine. United States v. Silkwood , 893 F.2d 245, 247 (10th Cir. 1989).2 Most clearly, there was probable cause to believe that Thomas engaged in

reckless conduct while possessing a firearm in viol ation of Okla. Stat. tit. 21, § 1289.11. Oklahoma courts have held this statute to be applicable in cases in which a defendant brandished a gun in a dangerous s ituation and implied willingness to use it. See Reynolds v. State , 617 P.2d 1357, 1360 (Okla. Crim. App. 1979); Culpepper v. State , 507 P.2d 561, 562-63 (Okla. Crim. App. 1973). Here, officers observed Thomas carrying the gun dur ing a loud argument and heard a woman call out “put that gun away before I call the police.” That is enough to demonstrate a “reasonably fair likelihood of criminal conduct.” Cf. United States v. Gordon , 173 F.3d 761, 766-67 (10th Cir. 1999). - 10 - As noted above, a warrantless entry into a home jus tified by a risk of danger to officers or others must not be motivated by an intent to obtain evidence. United States v. Davis , 290 F.3d 1239, 1242 (10th Cir. 2002). However, o nce lawfully present in the home due to exigent circums tances, the plain view doctrine applies, and police may seize incriminating evidenc e found in plain view within the officer’s lawful right of access. See Coolidge v. New Hampshire , 403 U.S. 443, 465 (1971) (“Where the initial intrusion that brings the police within plain view of such an article is supported, not by a warr ant, but by one of the recognized exceptions to the warrant requirement, t he seizure is also legitimate.”). In the instant case, officers were lawfully within the apartment for the reasons discussed above, and Thomas concedes that the gun was then in their plain view. There was probable cause to believe th at Thomas had used the gun to commit one or more state law offenses during the pr eceding argument, and the gun served as evidence of those crimes. 2 Finally, nothing impeded the officers’- 11 -

lawful right of access to the firearm. Because all of the elements of the plain view exception are satisfied, it was proper to seiz e the gun at that time.

D. Conclusion For these reasons, we hold that officers reasonablyentered the apartment without a warrant under exigent circumstances, and while there properly seized the firearm as evidence of a crime. The district c ourt correctly refused to suppress that evidence on Fourth Amendment grounds. We AFFIRM.