* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### FEB 26 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. DAVID ZOGMAISTER, Defendant-Appellant. No. 03-8005 (D. Wyo.) 02-CR-134-B

ORDER AND JUDGMENT *

Before BRISCOE, LUCERO, and McWILLIAMS, Circuit Judges.

David Zogmaister appeals the district court’s denia l of his motion to suppress the drugs found by police in his motel roo m. Zogmaister entered a conditional guilty plea to a charge of firearm poss ession in furtherance of drug trafficking in violation of 18 U.S.C. § 924(c), pre serving his right to appeal the district court’s denial of his motion to suppress. On appeal, we consider whether the government has met its burden of demonstrating that exigent circumstances-2-

justified the warrantless search of Zogmaister’s mo tel room. We REVERSE

. I In December 2001, agents with the Wyoming Division of Criminal Investigation (“DCI”) received information from con fidential informants that Zogmaister had been traveling to Rock Springs, Wyom ing for the past several months to sell methamphetamine. Based on that inte lligence, DCI opened a criminal investigation regarding Zogmaister’s possi ble drug dealing activities. On February 5, 2002, a confidential informant told DCI agents that Zogmaister was staying in Room 219 at the Inn at Rock Springs, that the informant had been in Room 219 with Zogmaister, and that the room cont ained methamphetamine, heroin, and a firearm. Rather than pursue a warrant at that time, DCI Agen t Craig Jackson and Sweetwater County Deputy Sheriff John Elliot decide d to go to the Inn at Rock Springs; there they observed Zogmaister’s automobil e parked in front of the motel. A “for sale” sign in the automobile’s windo w listed Zogmaister’s telephone number, and the officers hatched a plan t o lure Zogmaister out of his room to question him about his suspected drug activ ity. After a third officer, DCI Agent Dennis Clamen, arrived at the scene, Agent Ja ckson called the listed number, purportedly to inquire about the car; he sp oke to a male who said he would come out to discuss the matter. Minutes late r, Nicole Ables, Zogmaister’s-3-

girlfriend, came out of Room 219 and approached Age nt Jackson; he informed her that he was a police officer, and that he needed to discuss an investigation with Zogmaister. In response to the officers’ questions , Ables informed them that she and Zogmaister had been staying in the motel for tw o days, and that there were no firearms in the room. Following the brief questioning of Ables, the offic ers led her to the motel room and told her to knock on the door. She did so , announcing that she was with some detectives who wanted to speak to Zogmaister. Between thirty and fortyfive seconds elapsed, and Zogmaister opened the doo r, dressed in long underwear. Ables hurriedly walked through the open door into the room and sat on the bed. The officers followed her immediately, positioning themselves around the room. At no point did the officers ask permission to ente r the room, nor did Zogmaister or Ables invite them. Describing their reasons forentering the room, Agent Jackson explained: When [Ables] took off across [the room], the fact t hat the door was open, we just went ahead and entered. For officer safety reasons you’ve got to get out of that doorway. That is where the funnel of fire comes. If somebody starts a firefight as you are entering a room , from years of tactical experience, you want to get out of that do orway. That’s the fatal funnel. That’s where officers are killed at. We want to get in. (3R. at 44–45.) After entering the room, Agent Jackson asked Zogmai ster whether there were any weapons in the room, and Zogmaister answer ed affirmatively. Agent-4-

Jackson retrieved the weapon and asked for permissi on to conduct a more thorough search of the room. Zogmaister granted pe rmission, and a search of the room revealed syringes, a small amount of heroin, 2 .25 ounces of methamphetamine, drug paraphernalia, $3,700 in cash , and two stolen revolvers. Zogmaister filed a motion to suppress the evidence uncovered in the search of the motel room, arguing that the search violated his Fo urth Amendment right to be free from unreasonable searches and seizures. In denying Zogmaister’s motion to suppress on Novem ber 22, 2002, the district court initially based its decision on two conclusions: (1) that Zogmaister lacked a reasonable expectation of privacy, and thu s the Fourth Amendment provided him no protection; and (2) that even if Zo gmaister had a reasonable expectation of privacy, he consented to the search. On December 13, 2002, the government requested that the district court provid e additional factual findings on the subject of exigent circumstances. Specifically , the government requested that the district court find “that Ms. Ables’ unexpected entry into the motel room, where the agents had reason to believe narcotics an d guns were stored, created an exigent circumstance necessitating the officers war rantless entry into the room to ensure their safety.” (1R. at 38.) The district co urt complied with the government’s request in an order issued the same day, adopting verbatim the language suggested by the government and thus findi ng that exigent-5-

circumstances justified the government’s warrantles s search of the motel room. On appeal, the government concedes that Zogmaister had a reasonable expectation of privacy in his motel room. We accep t the concession. The government also concedes, and we agree, that the po lice lacked consent to enter the motel room. Therefore, the sole contested issu e on appeal is whether exigent circumstances justified the government’s warrantles s search of Zogmaister’s motel room. Because we conclude that the governmen t has not met its burden of demonstrating that exigent circumstances existed to enter the room, we
REVERSE

. II In reviewing a denial of a motion to suppress, we are required to “accept the trial court’s findings of fact unless they are clearly erroneous.” United States
v. Carr , 939 F.2d 1442, 1443 (10th Cir. 1991) (quotation o mitted). Moreover, “[a] trial court’s determinations which rest upon c redibility and reasonable inferences will not be set aside unless clearly err oneous.” Id. at 1448. We view the evidence in the light most favorable to the gov ernment, id. at 1443, but “[t]he ultimate determination of reasonableness under the Fourth Amendment . . . is a question of law which we review de novo. ” United States v. Ross , 920 F.2d 1530, 1533 (10th Cir. 1990) (quotation omitted ).1 In its brief, the government states: “A thorough review of the record

indicates that the Defendant was a social guest in the motel room at the time the agents entered the room, and therefore had a reason able expectation of privacy in the room.” (Aplt. Br. at 11.) -6- A In support of the government’s concession of the is sue, we note that it is beyond dispute that individuals residing in motel r ooms generally have a reasonable expectation of privacy and thus receive Fourth Amendment protection. Stoner v. California , 376 U.S. 483, 490 (1964). In nonetheless conclud ing that Zogmaister lacked a privacy interest in the motel r oom in which he had been staying, the district court relied on Minnesota v. Carter , 525 U.S. 83 (1998). In that case, the Supreme Court imposed a heightened b urden for demonstrating a reasonable expectation of privacy when the defendan t’s presence in the dwelling was solely for a commercial purpose. Id. at 91; see also United States v. Gordon , 168 F.3d 1222, 1226 (10th Cir. 1999) (applying Cart er ). We conclude that Carteris inapplicable to this case. In Carter , the defendant was in a rented apartment for two and one half hours for the exclusive purpose of packing cocaine; moreover, the Supreme C ourt specifically noted that Carter had not stayed overnight. Carter , 525 U.S. at 90. Thus, Carterprovides an exception to the general expectation of privacy whe n a defendant’s presence in a room is solely for commercial purposes; as the gove rnment now concedes, 1 that is2 At the motion to suppress hearing, Agent Jackson w as asked, “you don’t

dispute that Mr. Zogmaister had been staying in that room for at least a day or two?” Agent Jackson replied, “[t]hat’s correct. W e later substantially verified that.” (3R. at 34.) -7- not the case here. To the contrary, the record ref lects that Zogmaister had been residing in the motel room in question for two days

. 2 Because it is clear from the record that Zogmaister ’s presence in the room was not purely commercial, we hold that Zogmaister had a reasonable expectation of privacy under the Fourth Amendment. Having arri ved at that conclusion, we proceed to analyze whether the government has demon strated the existence of an exception to overcome the general presumption that warrantless searches are unreasonable under the Fourth Amendment.
B A warrantless search is presumptively unreasonable under the Fourth Amendment unless the government can demonstrate the existence of an exception; indeed, “the most basic constitutional rule in the search and seizure area is that exceptions to the warrant requirement must be speci fically established, well delineated, and jealously and carefully drawn.” Un ited States v. Aquino , 836 F.2d 1268, 1270 (10th Cir. 1988) (quotations omitte d). Consent represents one exception to the Fourth Amendment’s warrant require ment. United States v. Pena-Sarabia , 297 F.3d 983, 986 (10th Cir. 2002). As a result, if Zogmaister or3 In its brief, the government states, “the Governme nt does not believe that

the record supports a conclusion that the Defendantimpliedly consented to the officers’ entry into the room.” (Aplt. Br at 11.) -8- Ables consented to the officers’ entry into the mot el room, no violation would have occurred. In addition to finding initially that Zogmaister la cked a reasonable expectation of privacy, the district court found th at Ables consented to the search. Given the government’s concession that the officers lacked consent to enter the

room, 3 and our review of the record, we are persuaded that the district court erred on this point. Because we also conclude that the g overnment did not have consent to enter Zogmaister’s motel room, we are now faced with the interesting prospect of a three-legged stool standing on but one leg. W e examine this sole source of support and the only contested issue—whether the go vernment’s warrantless entry was justified by exigent circumstances. Exigent circumstances may justify warrantless searc hes when: (1) there is probable cause for the search or seizure, and the e vidence is in imminent danger of destruction, Cupp v. Murphy , 412 U.S. 291, 294–96 (1973); (2) the safety of law enforcement or the general public is threatened , Warden v. Hayden , 387 U.S. 294, 298–99 (1967); (3) the police are in “hot purs uit” of a suspect, United States
v. Santana , 427 U.S. 38, 42–43 (1976); or (4) the suspect is likely to flee before the officer can obtain a warrant, Minnesota v. Olso n , 495 U.S. 91, 100 (1990). In-9-

the instant case, the government contends that its warrantless intrusion into Zogmaister’s motel room was justified by exigent ci rcumstances—more specifically, that the safety of Agents Clamen, Jac kson, and Elliot was threatened. While we recognize that concerns for officer safety sometimes may produce exigent circumstances that justify a warrantless se arch, it is the government’s burden to demonstrate the presence of those exigenc ies. United States v. Maez , 872 F.2d 1444, 1452 (10th Cir. 1989). In determini ng whether the government has met its burden, we “evaluate the circumstances as they would have appeared to prudent, cautious and trained officers.” United States v. Cuaron , 700 F.2d 582, 586 (10th Cir. 1983) (quotations omitted). There is “no absolute test for the presence of exig ent circumstances,” United States v. Justice , 835 F.2d 1310, 1312 (10th Cir. 1987) (quotation omitted); however, we have provided a general frame work for analyzing this type of exigent circumstances claim: The basic aspects of the “exigent circumstances” exceptio n are that (1) the law enforcement officers must have reasonable g rounds to believe that there is immediate need to protect their lives or others or their property or that of others, (2) the search must notbe motivated by an intent to arrest and seize evidence, and (3) there must be some reasonable basis, approaching probable cause, to as sociate an emergency with the area or place to be searched. United States v. Smith , 797 F.2d 836, 840 (10th Cir. 1986). We also requ ire that a government assertion of exigent circumstances be “supported by clearly defined4 Though Aquino addressed exigent circumstances in the context of

evidence in imminent danger of destruction, we conc lude that its rationale applies equally to exigent circumstances in the context of concern for the safety of law enforcement or the general public.

5 In United States v. Stewart , 867 F.2d 581, 584–86 (10th Cir. 1989), officers cited safety concerns for their failure to knock and announce in executing (continued...) -10- indicators of exigency that are not subject to poli ce manipulation or abuse .” Aquino , 836 F.2d at 1272 (emphasis added). 4 The three requirements of United States v. Smithare conjunctive; that is to say, the government has the burden of demonstrating each of them in order to overcome the Fourth Amendment’s general presumptionthat warrantless searches are unreasonable. Thus, the government initially m ust demonstrate that the officers had reasonable grounds to believe that the re was an immediate need to protect their lives. To this end, the government p oints to the informant’s testimony that there was a gun in the motel room, t he fact that it took between thirty and forty-five seconds for Zogmaister to ope n the door, and Ables’ purportedly sudden entrance into the motel room whe n Zogmaister opened the door. Whether these factors in their totality are suffici ent to satisfy the first requirement of Smithpresents a close question, but we note that we hav e concluded previously in similar circumstances that concerns for officer safety were not enough to justify a failure to knock and a nnounce. 5 However, assuming5 (...continued)

their warrant; the officers in Stewartrelied on testimony from a confidential informant who had seen the defendant with a gun in the past. While we rejected the officers’ justification in Stewartfor several reasons, our explanation of what might constitute a sufficient set of facts to justi fy exigent circumstances on the basis of officer safety is instructive. Citing Uni ted States v. Spinelli , 848 F.2d 26 (2d Cir. 1988) as a “good example of a situation wh ere an unannounced entry into a home was justified due to the presence of exigentcircumstances,” we pointed to the following specific factors in that case: (1) th at the officers were aware that the defendant had a history and reputation of violence; (2) that the officers had conducted a lengthy surveillance of the suspect; (3 ) that they were concerned that the suspect had become aware of their surveillance; and (4) that flammable liquids were at the scene, and the officers were co ncerned that the defendant would cause an explosion given that he had become aware of their surveillance. Stewart , 867 F.2d at 585–86. Notably, none of those circu mstances were present in Stewart , and neither are they present in the instant case. Zogmaister had no violent convictions on his record. The officers’ s urveillance was relatively short, and they had no reason to think that Zogmaister was aware of it.

6 We do not address whether the government has met S mith ’s third requirement, that “there must be some reasonable ba sis, approaching probable cause, to associate an emergency with the area or p lace to be searched.” Smith , 797 F.2d at 840. -11- arguendo that it was reasonable for the officers to have perceived a generalized danger, the second requirement of Smithcreates an additional stumbling block for the government. 6 According to Smith , exigent circumstances can justify a warrantless s earch only if the search is “not [] motivated by an inten t to arrest and seize evidence.” 797 F.2d at 840. Without this requirement, the exi gent circumstances exception would constitute a substantial loophole in our Fourth Amendment jurisprudence.-12-

If the government could use the exigent circumstanc es exception to justify warrantless searches when searches were motivated b y an intent to seize evidence, officers could conduct warrantless searches for dru gs any time they had reason to believe that the suspect possessed a gun or posed apotential danger. Thus, Smith requires that a warrantless search not be motivatedby an intent to search for evidence. To this point, the officers claim in their depositi ons that when they accompanied Ables to the motel room, their motivati on was simply to speak to Zogmaister outside of his room and had nothing to d o with actually searching the room. Of course, no direct evidence runs counter t o the officer’s testimony; who but the officers could attest to their motivation? Despite the absence of direct evidence to impeach the officers’ stated motivation s, however, we have grave concerns about the government’s offer of proof on this issue. In our view, two sets of facts in the record militate against the officers’ assertions. First, it is undisputed that the offic ers suspected that the room contained methamphetamine, and moreover, the office rs testified that they suspected Zogmaister of dealing the drugs. We cons ider it unlikely, given these undisputed perceptions on the part of the officers, that the officers’ desire to search the motel room for drugs did not influence t heir decision to enter the room.-13-

In addition to this consideration, we are troubled by the officers’ decision to follow Ables into the room given the other choic es available to them at that moment in time, any of which would have reduced the threat to their safety rather than increasing it. Agent Jackson testified that w hen Ables entered the room, he and the other officers followed her because the doo rway represented a dangerous funnel of fire. Certainly, that characterization o f the doorway made it an area to be avoided at all costs. However, the record refle cts that when Ables entered the room, the officers were not in the doorway at all. Instead, when Ables entered, the officers were standing to the side of the door; in their depositions, the officers specifically testified that in their positions to t he side of the door, they were “protected . . . by [the] walls”—out of the funnel of fire. (3R. at 45.) Thus, even if we assume that the officers reasonably perceived the doorway to be a dangerous funnel of fire, Ables’ entrance into the room put t hem in no immediate danger. In fact, the officers had options, each of which wo uld have kept them out of the perceived danger and each of which was less dan gerous than the action they ultimately took. Prudence suggests that to avoid t he funnel of fire apparently represented by the doorway, a course other than entryinto that doorway would have been wise. Other choices were certainly avail able; the officers could have chosen to obtain a search warrant. Having elected not to do so in the first instance, they could have remained outside of the r oom and asked Zogmaister to-14-

speak with them in the hallway. Instead, the offic ers chose to enter the room and thereby apparently increase their immediate danger. Thus, the result of the officers’ action of following Ables into the room w ithout a warrant was not the avoidance of a reasonably perceived danger, but rather the e xacerbationthereof. Despite abundant evidence indirectly suggesting that the officers’ actual reason for entering the motel room was ultimately t o search the room for the drugs they thought it contained, we are hard-presse d to draw such a conclusion absent direct testimony by the officers themselves. We recognize that such problems of proof might be endemic to Smith ’s second requirement given that it mandates an inquiry into the officers’ specific mot ivations. Those problems in mind, we look to Aquino , which requires that exigent circumstances be “supported by clearly defined indicators of exigenc y that are not subject to police manipulation or abuse .” 836 F.2d at 1272 (emphasis added). Much like the second prong of Smith , the requirement that the government not create its own exigency stems from our concern “that the police not be placed in a situation where they can create the exception, because well-meaning police officers may exploit such opportunities without suf ficient regard for the privacy interests of the individuals involved.” Id. ; see also United States v. Mikulski , 317 F.3d 1228, 1233 (10th Cir. 2003) (counseling agains t the “manufacture of exigencies”); United States v. Morgan , 743 F.2d 1158, 1163 (6th Cir. 1984)-15-

(noting that in the context of a warrantless arrest , “police officials . . . are not free to create exigent circumstances to justify their wa rrantless intrusions”); United States v. Allard , 600 F.2d 1301, 1304 n.2 (9th Cir. 1979) (“If exig ent circumstances were created, they resulted from the agent’s own conduct”). Though motivated by the same concerns as Smith ’s second prong, the requirement in Aquino is more helpful to us in cases like the one before us because it does not require us to inquire into the officers’ motivation s, a role better suited for the fact-finder. Rather, the Aquino requirement allows us to evaluate the objective evidence and simply determine whether the indicator s of exigency were subject to police manipulation or abuse. In the instant case, we conclude that even if the o fficers reasonably perceived that they were in danger, they improperly created their own exigency. From the time they called Zogmaister feigning inter est in his car, the officers entirely controlled the action. Once Ables came do wn to see them in response to their call, the officers walked her back to the mot el room, directed her to knock, and did not prevent her from entering the room. Th e officers’ course of action represents a clear example of the government creati ng its own exigency and thus attempting to circumvent the Fourth Amendment’s req uirements. Indeed, “[t]he Fourth Amendment guards against such‘bootstrap’ arguments serving as a basis for the warrantless se arch of a person’s home.”-16-

United States v. Anderson , 981 F.2d 1560, 1568 (10th Cir. 1992). Therefore, we conclude that the government has failed to satisfy its burden of demonstrating that exigent circumstances justified the officers’ warrantless entry into Zogmaister’s motel room.
III Accordingly, we REVERSE

. Judge McWilliams dissents.

Entered for the Court

Carlos F. Lucero Circuit JudgeNo. 03-8005, United States v. Zogmaister

BRISCOE, Circuit Judge, concurring: I concur in the result but I reach that result by adifferent route. Judge
Lucero concludes the officers “did not prevent [Ables] fr om entering the room” and thus created their own exigency in an attempt t o circumvent the Fourth Amendment. Op. at 15. However, the district courtfound the officers did not expect Ables to enter the motel room. Specifically , the district court described her entry as “unexpected.” ROA, Vol. I, Doc. 39. That factual finding is subject to review only for clear error. See United States v. Scroger , 98 F.3d 1256, 1260 (10th Cir. 1996) (applying clear error standard of review to district court's determination that officers “did not manipulate or abuse the circumstances” to create the exigency); United States v. Carr , 939 F.2d 1442, 1448-49 (10th Cir. 1991) (applying clear error standard of review to d istrict court's finding that, although exigency was foreseeable, critical factors creating exigency were not subject to police manipulation or abuse). Because I cannot conclude the district court's finding was clearly erroneous, I do not agr ee that the officers created an exigency by not preventing Ables’ entry. Rather, I conclude the officers’ subsequent entry into the room was not justified bythe safety concerns urged by the government. The “existence of exigent circumstances is a mixed question of law and fact.” United States v. Davis , 290 F.3d 1239, 1241 (10th Cir. 2002). The distri ct-2-

court’s factual findings are accepted unless they a re clearly erroneous, but “the determination whether those facts satisfy the legal test of exigency is subject to de novo review.” United States v. Flowers , 336 F.3d 1222, 1228 (10th Cir. 2003). When the purported exigency concerns police officersafety, one basic aspect of the exigent circumstances exception is that “office rs must have reasonable grounds to believe that there is immediate need to protecttheir lives.” United States v. Smith , 797 F.2d 836, 840 (10th Cir. 1986) (emphasis adde d). Here, the facts as found by the district court do not establi sh that the officers had reasonable grounds to believe there was an immediat e need to enter the motel room to protect their lives. The government argues that Ables’ unexpected entry into the motel room created a dangerous situation which justified entry . See United States v. Aquino , 836 F.2d 1268, 1271 (10th Cir. 1988) (stating that “[w]hen police seek to enter a home without a warrant, the government bears the bu rden of proving that sufficient exigency exists”). The government conte nds it would have been “dangerous, if not downright foolhardy” for the off icers to remain outside the room “not knowing where Ms. Ables was going or whatshe [was] going to do once she got there.” Aple. Br. at 15. However, th ere is no evidence in the record that the officers had reason to believe Ables was v iolent or willing to use a gun or that the officers had to enter the room as a result . Zogmaister was wearing long-3-

underwear and was not carrying a gun when he answer ed the door. Neither Zogmaister nor Ables made any threatening gesture. Although a confidential informant had told officers there was a gun in the motel room, there was no evidence presented at the suppression hearing regar ding the informant’s background or history of reliability as an informant. See United States v. Avery , 295 F.3d 1158, 1167 (10th Cir. 2002) (criminal hist ory and history of reliability as informant are two factors to be considered in de termining whether probable cause is established). Moreover, there is no indic ation in the record that the informant suggested that either Zogmaister or Ables was likely to use the gun if confronted by police. I agree with Judge Lucero that it appears the officers safely could have avoided the doorway (the so-called “funn el of fire”) instead of rushing through it.