United States v. Hendrix

Filing

[9927934] Affirmed; Terminated on the merits after oral hearing; Written, signed, published; Judges Murphy (authoring), Holloway and O'Brien. Mandate to issue.

FILED
Appellate Case: 10-6240

Document: 01018764595

United States Court of Appeals
Date Filed: 12/20/2011 Page: 1
Tenth Circuit

December 20, 2011
PUBLISH

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.

No. 10-6240

KEITH ALLEN HENDRIX,
Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. NO. 5:09-CR-00189-D-1)

C. Merle Gile (Fred L. Staggs, with him on the briefs), Oklahoma City,
Oklahoma, for Defendant-Appellant.
Suzanne Mitchell, Assistant United States Attorney (Sanford C. Coats, United
States Attorney, and Virginia L. Hines, Assistant United States Attorney, with her
on the briefs), Oklahoma City, Oklahoma, for Plaintiff-Appellee.

Before MURPHY, HOLLOWAY, and O’BRIEN, Circuit Judges.

MURPHY, Circuit Judge.

I. Introduction
Keith Allen Hendrix entered a conditional plea of guilty to one count of
Possession with Intent to Distribute in Excess of 50 Grams of Methamphetamine

Appellate Case: 10-6240

Document: 01018764595

Date Filed: 12/20/2011

Page: 2

in violation of 21 U.S.C. § 841(a)(1), and one count of Possession of a Firearm in
Furtherance of a Drug Trafficking Crime in violation of 18 U.S.C. § 924(c)(1)(A).
Pursuant to his plea agreement, Hendrix reserved the right to appeal the district
court’s denial of his motion to suppress evidence seized as a result of a search of
his motel room on December 5, 2008. The district court concluded the search was
supported by probable cause, and exigent circumstances justified the warrantless
entry into the motel room. Exercising jurisdiction pursuant to 28 U.S.C. § 1291,
this court affirms.
II. Background
On December 5, 2008, Oklahoma City Police Officers David Hanes, Ryan
Robertson, and Yancy Forbes were investigating methamphetamine activity at an
Oklahoma City residence. During their investigation, they encountered an
individual with methamphetamine residue on his hands who was in possession of
methamphetamine paraphernalia. The individual approached Officer Hanes and
told him he purchased the methamphetamine from a man named Keith who was
staying in Room 327 of the Extended Stay America motel at 4811 N.W.
Expressway in Oklahoma City. He also gave a physical description of
Keith—approximately 5’6”, short brown hair, and somewhat overweight. The
informant stated Keith had approximately one to two pounds of methamphetamine
in the room and a surveillance camera and video monitor with which he could
view the motel’s north parking lot. He also stated Keith kept the
-2-

Appellate Case: 10-6240

Document: 01018764595

Date Filed: 12/20/2011

Page: 3

methamphetamine in ziplock bags next to the door so it could be accessible for
purchases.
The officers proceeded to the Extended Stay America and parked their cars
in a nearby restaurant parking lot. Proceeding along the south side of the motel to
its west entrance so as to avoid detection by the video monitor, Officers Hanes
and Robertson entered the motel and made contact with the manager. 1 The
manager confirmed there was a Room 327 on the north side of the motel and
accompanied them to the room, which was accessible through an inside hallway.
After arriving at the door to Room 327, Officer Hanes knocked on the door. A
female asked who was there, and Officer Hanes gave a false name. When the
female responded she did not know anyone by that name, Hanes identified
himself as an Oklahoma City Police Officer and turned up the volume on his
police radio to confirm his identity as a police officer. Thereupon, Officers
Hanes and Robertson heard people moving inside the room, doors opening and
closing, and a toilet flushing. These sounds, based upon the officers’ training and
experience, indicated the occupants of the room were attempting to destroy
evidence.
After the occupants of the room refused to open the door, the manager
opened it with his electronic key. While Officer Robertson testified he believed

1

Officer Forbes transported the informant, who did not want his identity
disclosed, and stayed with the informant in the parking lot.
-3-

Appellate Case: 10-6240

Document: 01018764595

Date Filed: 12/20/2011

Page: 4

Officer Hanes ordered the manager to open the door, Officer Hanes testified the
manager did so of his own accord. Before the door was opened, the officers drew
their weapons. The door only opened five or six inches because it was latched
with a chain. Through the gap in the doorway, officers could see a female
flushing the toilet. They also saw a male who matched the informant’s
description of Keith. The officers ordered the male to open the door, and he
complied.
The officers then entered the room, where they saw in plain view several
incriminating items, including ziplock bags filled with methamphetamine on a
table near the door, empty ziplock bags, and a scale. The officers also saw a
video monitor which displayed the motel’s north parking lot. Although it was a
cold night, the window was open and the screen had been removed. Just outside
the window were a bag and coat containing additional evidence of illegal drugs.
The officers arrested both occupants of the room, secured the room, and obtained
a search warrant. The next day, officers conducted a search of the room pursuant
to the warrant. During the search they seized additional drugs and paraphernalia,
$32,160.00 in currency, two revolvers, a box of ammunition, and items of
dominion and control reflecting the name Keith Hendrix.

-4-

Appellate Case: 10-6240

Document: 01018764595

Date Filed: 12/20/2011

Page: 5

III. Discussion
A. Standard of Review
When reviewing the denial of a motion to suppress, this court “view[s] the
evidence in the light most favorable to the government, accept[s] the district
court’s findings of fact unless clearly erroneous, and review[s] de novo the
ultimate determination of reasonableness under the Fourth Amendment.” United
States v. Polly, 630 F.3d 991, 996 (10th Cir. 2011) (quotation omitted).
B. Probable Cause and Exigent Circumstances
Absent a specific exception to the warrant requirement, police violate the
Fourth Amendment by entering a residence without a warrant. See Payton v. New
York, 445 U.S. 573, 590 (1980). Guests in a motel room are similarly protected
from warrantless entries. United States v. Parra, 2 F.3d 1058, 1064 (10th Cir.
1993). One such exception is the exigent circumstances doctrine: police may
enter a residence without a warrant where such entry is required to prevent the
imminent destruction of evidence. Brigham City v. Stewart, 547 U.S. 398, 403
(2006). Warrantless entries justified on this basis must be
(1) pursuant to clear evidence of probable cause, (2) available only
for serious crimes and in circumstances where the destruction of the
evidence is likely, (3) limited in scope to the minimum intrusion
necessary to prevent the destruction of evidence, and (4) supported
by clearly defined indicators of exigency that are not subject to
police manipulation or abuse.

-5-

Appellate Case: 10-6240

Document: 01018764595

Date Filed: 12/20/2011

Page: 6

United States v. Aquino, 836 F.2d 1268, 1272 (10th Cir. 1988). On appeal,
Hendrix does not contest that the government satisfied the second and third of
these requirements, but argues the first and fourth requirements were lacking.
1. Probable Cause
Probable cause to search requires “a fair probability that contraband or
evidence of a crime will be found in a particular place.” United States v. Cooper,
654 F.3d 1104, 1124 (10th Cir. 2011) (quotations omitted). Where, as here,
probable cause is based on an informant’s tip, the court makes a probable cause
determination based on the totality of the circumstances, including the
informant’s veracity, reliability, and basis of knowledge. Illinois v. Gates, 462
U.S. 213, 230–31 (1983); United States v. Quezada-Enriquez, 567 F.3d 1228,
1233 (10th Cir. 2009). “These factors are not absolute, independent requirements
that must be satisfied in order for probable cause to exist . . . . [A] deficiency in
one factor may be compensated for by a strong showing of another or by other
indicia of reliability.” Quezada-Enriquez, 567 F.3d at 1233 (citation omitted).
An informant’s tip which provides “highly specific or personal details from which
one could reasonably infer that the informant had firsthand knowledge about the
claimed criminal activity” is more likely to be found sufficient to support
probable cause. Id. (quotations omitted). Further, an informant’s tip is more
reliable if it is confirmed by officers’ independent observations. See United
States v. Artez, 389 F.3d 1106, 1111 (10th Cir. 2004) (informant’s tip that
-6-

Appellate Case: 10-6240

Document: 01018764595

Date Filed: 12/20/2011

Page: 7

narcotics are being distributed at a particular location can be corroborated through
“controlled buy” at that location).
Here, the relevant probable cause inquiry encompasses all of the
information available to Officers Hanes and Robertson immediately prior to their
first opening the door to Hendrix’s motel room. 2 Before that, the following
information was available to the officers: an informant gave a self-inculpatory
statement indicating he purchased methamphetamine the previous day from a
person in a specific room of a specific motel. The informant provided a physical
description and first name of the person who sold him the methamphetamine. The
informant gave specific details as to the contents of the room, the amount of
methamphetamine kept there, and the room’s location in the motel. The
informant was found with methamphetamine and drug paraphernalia on his person
at the time he gave the information, and was willing to accompany the officers to
the motel.
Upon arrival at the motel, the officers were able to confirm the motel was
located at the address the informant provided. The motel had a room 327 located
on its north side which was occupied. In response to Officer Hanes’s
identification of himself as a police officer, the officers heard considerable

2

The officers needed neither probable cause nor even reasonable suspicion
to speak with the occupants while standing outside the closed door to the motel
room. United States v. Cruz-Mendez, 467 F.3d 1260, 1264–65 (10th Cir. 2006)
(approving “knock and talk” procedure).
-7-

Appellate Case: 10-6240

Document: 01018764595

Date Filed: 12/20/2011

Page: 8

movement, opening and closing of doors, and a toilet flushing. All of this
information provided sufficient independent corroboration of the informant’s tip
that methamphetamine-related activity was likely occurring in the motel room.
Hendrix’s challenge to the search of the motel room on the basis that it lacked
probable cause must therefore fail.
2. Creation of the Exigency
The officers were justified in believing the commotion in the motel room
indicated its occupants were attempting to destroy evidence. See United States v.
Carr, 939 F.2d 1442, 1447–48 (10th Cir. 1991). On appeal, Hendrix does not
contend there were no exigent circumstances justifying entry. Rather, he
contends the officers impermissibly “created the exigency” through bad-faith
avoidance of the warrant requirement. The officers’ bad faith, Hendrix argues, is
shown by their decision to go directly to the motel room at night without first
seeking a warrant or further corroboration of the informant’s tip, giving a false
name, and continually demanding entry after initially being refused. The court
need not consider whether these actions are sufficiently indicative of bad faith
because the Supreme Court’s recent decision in Kentucky v. King, 131 S. Ct. 1849
(2011), obviates the need for such an analysis.
In King, the Court held “Where . . . the police did not create the exigency
by engaging or threatening to engage in conduct that violates the Fourth
Amendment, warrantless entry to prevent the destruction of evidence is
-8-

Appellate Case: 10-6240

Document: 01018764595

Date Filed: 12/20/2011

Page: 9

reasonable and thus allowed.” 131 S. Ct. at 1858. In a footnote, the Court also
described the limits of its holding: “There is a strong argument to be made that, at
least in most circumstances, the exigent circumstances rule should not apply
where the police, without a warrant or any legally sound basis for a warrantless
entry, threaten that they will enter without permission unless admitted.” Id. at
1858 n.4. The Court explicitly rejected an approach, previously relied upon by
some courts, that determined whether police impermissibly create the exigency by
looking to whether officers acted in bad faith. Id. at 1859. Hendrix makes no
argument that Officers Hanes or Robertson created the exigency by “engaging or
threatening to engage in conduct that violates the Fourth Amendment.” Id. at
1858. He also makes no showing that Officers Hanes or Robertson threatened to
enter the motel without permission unless admitted. The record before the court
also does not suggest any factual basis for such an argument. The district court
therefore properly determined the warrantless entry and subsequent search of
Hendrix’s motel room was justified under the exigent circumstances exception to
the warrant requirement.
IV. Conclusion
For the foregoing reasons, the court AFFIRMS the decision of the district
court.

-9-