Unpublished Disposition, 881 F.2d 1084 (9th Cir. 1989)

MEMORANDUM^** 

James Bruce Bailey appeals his conviction under 21 U.S.C. § 841(a) (1) for cultivating marijuana, arguing that the trial court erred by upholding the warrantless entry of his residence and denying his claim that the subsequent search of the premises, even though conducted with a warrant, was tainted by the prior warrantless entry. We affirm.

Although the parties to this appeal have concentrated their arguments largely on the question whether exigent circumstances were present to justify the warrantless entry, we note that the undercover DEA agent had been invited into the house by Bailey's co-resident for the express purpose of transacting a drug sale. Once inside, the agent smelled burning marijuana and was shown the drugs he was to buy. Under these facts, the warrantless entry was perfectly legal. See, e.g., Lewis v. United States, 385 U.S. 206, 211-12 (1966); United States v. Miller, 688 F.2d 652, 659 (CA9 1982); United States v. Glassel, 488 F.2d 143, 145 (CA9 1973), cert. denied, 416 U.S. 941 (1974); United States v. Leal, 460 F.2d 385, 389 (CA9), cert. denied, 409 U.S. 889 (1972). The fact that the agent briefly stepped outside was part of the scheme. The stated purpose of this act was to get the money from his car to make the buy. The initial invitation was obviously understood by the parties to extend to all acts in close proximity of time and distance necessary to complete the sale. There was no error on this point.

Because the warrantless entry was legal, there was no taint to the evidence seized during the subsequent search with a warrant.

AFFIRMED.