Unpublished Disposition, 886 F.2d 1320 (9th Cir. 1987)

MEMORANDUM^* 

Steven Mickle timely appeals from his conviction, upon entry of a plea of guilty, for manufacturing methamphetamine in violation of 21 U.S.C. § 841(a) (1) (1982). Mickle contends that the district court erred in denying his motion to suppress evidence seized in a warrantless search of his apartment because: (1) the police officers who searched the apartment did not have probable cause justifying their entry; (2) there were no exigent circumstances excusing the officers' failure to obtain a warrant; and (3) the government failed to establish that a telephone warrant could not have been obtained before the officers entered the apartment. We affirm.

* At suppression hearings held on June 29 and July 20, 1987, before the Honorable Owen M. Panner, the following evidence was adduced. On April 26, 1987, at approximately 7:25 p.m., Salem, Oregon police officers were dispatched to Apartment One at 355 14th Street upon a report that a gunshot had been fired in the apartment and that a dog had possibly been injured. The report also indicated that the occupants of the apartment had been arguing and sounded intoxicated.

Salem Police Officer Herbert Oakland proceeded immediately to the apartment complex and knocked on the door of Apartment One. When he got no response, Officer Oakland spoke with Jack Bryant, a neighbor who lived in an adjacent apartment and who initially had reported the incident to the police. Bryant repeated to Officer Oakland his claim that he had heard a gunshot and a woman exclaim that her dog had been shot. At the suppression hearing, Bryant testified that when he spoke to Officer Oakland at the scene, he told the officer that he was not sure whether anyone was still in the apartment.

Another neighbor, Pamela Schwartzkopf, also testified at the suppression hearing that she told an unspecified officer that there was no one in the apartment because the residents had taken the dog to a veterinarian. Schwartzkopf admitted on cross-examination, however, that she did not actually see the occupants leave the apartment, but that other neighbors had told her the Mickles had left.

Backup Officers Cheever and Slater arrived at the apartment complex a few minutes after Officer Oakland and checked all the doors and windows to Apartment One, but were unable to evoke a response or to determine if anyone was inside the apartment. At the suppression hearing, Officer Cheever testified that, while inspecting the doors to the Mickles' apartment, he passed an open window through which he heard a stereo playing. He further testified that the second time he passed the window, the stereo was no longer playing.¹  Officer Slater also testified that, prior to entering the apartment, Cheever told him that he had heard a stereo playing which moments later was shut off.

After completing their preliminary inquiries and their inspection of the exterior of the building, the officers knocked again at the front door of Apartment One but received no response. Officer Cheever discovered that the door to Apartment One was unlocked, opened the door and called out "Salem Police officers." The three officers then entered the apartment with their guns drawn.

Upon entering the apartment, the officers did not see anyone, but they did find a revolver on the couch in the living room and a pool of blood on the bathroom floor. While checking the bathroom, Officer Cheever also detected a chemical odor emanating from the kitchen; upon investigation, he found what appeared to be a drug laboratory. Realizing the inherent volatility of the chemical reaction taking place in the kitchen, the officers immediately left the apartment and summoned Narcotics Unit Officer Diede, who entered the apartment and confirmed that the equipment in the kitchen was an operating methamphetamine laboratory. The Salem Fire Department was called to dismantle the laboratory equipment, which was later seized by police.

It was only after the officers had discovered the methamphetamine laboratory that they received confirmation that a dog had indeed been shot. At approximately 8:00 p.m., Officer Hartley of the Salem Police Department went to a nearby veterinary hospital where he found Mickle with a dog suffering from a gunshot wound. In the course of their conversation, Mickle admitted that he lived in the apartment in which the drug laboratory had been discovered.

The district court denied Mickle's motion to suppress evidence seized from the 14th Street apartment, holding that the police officers' warrantless entry was justified by exigent circumstances. Judge Panner found that a shot had been fired during a hostile argument between intoxicated individuals, but that it was uncertain how many persons had been in the apartment during, or remained there after, the altercation. Despite some indications that a dog had been injured by the gunshot, Judge Panner also found that it was uncertain exactly what had happened, and that the neighbors could have been wrong about what or who might be lying injured within the apartment. Finally, the district court ruled that, having tried unsuccessfully to evoke a response and faced with the exigency that someone might be in danger or injured inside, the officers were justified in entering the apartment without taking time to obtain a warrant.

II

We review factual findings made by a district court at a suppression hearing only for clear error. United States v. Echegoyan, 799 F.2d 1271, 1277 (9th Cir. 1986). A district court's legal conclusions as to the existence of probable cause and exigent circumstances are reviewed de novo. Id. at 1278; United States v. Howard; 828 F.2d 552, 554 (9th Cir. 1987).

* Mickle first contends that the officers did not have probable cause to enter and search his apartment. Mickle argues that the single reported gunshot had been accounted for by "uncontradicted evidence" that a dog had been shot, and that all the evidence available to police indicated that no one was present in the apartment. The Government, on the other hand, contends that police officers would always be justified in entering a residence in an urban area upon a report of a single unexplained gunshot within. We reject both of these arguments.

We have held that a warrantless entry into a person's home must always be supported by probable cause. United States v. Winsor, 846 F.2d 1569, 1579 (9th Cir. 1988) (en banc) ("The Fourth Amendment prohibits searches of dwellings without probable cause"); Howard, 828 F.2d at 555 ("Entry into a person's home is so intrusive that such searches always require probable cause regardless of whether some exception would excuse the warrant requirement."). See also Skinner v. Railway Labor Executives' Ass'n, 109 S. Ct. 1402, 1414 (1989) (except in certain well-defined circumstances, a search and seizure in a criminal case is not reasonable unless accomplished pursuant to a judicial warrant issued upon probable cause). Probable cause is, however, a flexible, common sense standard, Texas v. Brown, 460 U.S. 730, 742 (1983), and " [a] 'practical, nontechnical' probability" is all that is required. Id. (quoting Brinegar v. United States, 338 U.S. 160, 176 (1949)); United States v. Licata, 761 F.2d 537, 542 (9th Cir. 1985). The requirement of probable cause is satisfied if facts available to the officers would warrant a person of reasonable caution believing that incriminating evidence will be found in the place to be searched, see United States v. Thornton, 733 F.2d 121, 127 (D.C. Cir. 1984), or that a crime has been or is being committed therein, see United States v. Licavoli, 604 F.2d 613, 620 (9th Cir. 1979), cert. denied, 446 U.S. 935 (1980). See also Licata, 761 F.2d at 542.

In this case, the district court did not explicitly state that the Salem police officers had probable cause to enter Mickle's apartment. The court did find, however, that neighbors heard a gunshot fired in Mickle's apartment during a hostile argument between intoxicated residents, and that the three officers who immediately responded to the scene were unable to evoke any response from within despite some indications that a person or persons remained in the unit. Given these facts, police officers of reasonable caution and experience could have believed with a sufficient degree of probability that a crime had taken place in the apartment and that evidence of such a crime, including seriously injured persons, would be found therein.

Mickle's argument that probable cause did not exist because the single reported gunshot had been accounted for by "uncontradicted evidence" that only a dog had been shot seeks to prove too much. The police in this case had indeed been told by neighbors that a dog had been shot and that residents of the apartment had taken the dog to a veterinary hospital. As Mickle himself acknowledges, however, Jack Bryant also told the officers who responded to his report of gunfire that he did not know whether anyone was still in the apartment. The officers also testified that they heard a stereo playing in Mickle's apartment on one of their passes around the building, and that the stereo had been turned off only moments later. Faced with ambiguous and conflicting information, the officers had to make a prompt assessment of a situation involving potentially grave consequences.²  We conclude that the "probable cause" requirement was satisfied in this case.

B

Mickle next contends that the district court erred in finding that the warrantless search of the apartment was justified by exigent circumstances. We have defined exigent circumstances as "those circumstances that would cause a reasonable person to believe that entry (or other relevant prompt action) was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts." United States v. McConney, 728 F.2d 1195, 1199 (9th Cir.) (en banc) (emphasis added), cert. denied, 469 U.S. 824 (1984). More recently, we have specifically held that " [e]xigent circumstances include the need to protect or preserve life or avoid serious injury." United States v. Warner, 843 F.2d 401, 403 (9th Cir. 1988); see also Echegoyan, 799 F.2d at 1278. It is also well established that exigencies must be viewed from the totality of the circumstances known to the officers at the time of the warrantless intrusion, Warner, 843 F.2d at 403, and that the government bears the burden of demonstrating that exigent circumstances justified departure from the warrant requirement. Licata, 761 F.2d at 543.

We believe that the government has met its burden of proving the existence of exigent circumstances. The record amply supports the district court's conclusion that the officers needed to enter the apartment immediately to determine whether anyone was in danger or in need of emergency medical assistance. Although the officers' information was not perfect at the moment the decision to enter the apartment was made, they reasonably could have remained uncertain whether a dog had been the only victim of the violent altercation and shooting reported by Mickle's neighbors.

Mickle argues, however, that the officers could have confirmed whether a dog had been shot without entering the apartment, and that they could have done so quickly by calling the veterinary hospital in less time than it took for them to question the neighbors and confer among themselves. Mickle's argument misses the point. Although Officer Hartley eventually went to the veterinary hospital and confirmed that a dog had been shot, the officers at the apartment complex could not have predicted how long it would take to verify that story. The officers reasonably believed that it was imperative that they enter the apartment immediately to ascertain if anyone was in need of their assistance. Had a person been lying seriously injured inside the apartment, any delay might have placed that person's life at risk. The officers acted reasonably in assessing the exigency of the situation and in entering the apartment without first calling the veterinary hospital. The district court did not err in concluding that the officers' failure to obtain a warrant before entering Mickle's apartment was excused because of exigent circumstances.³ 

C

Mickle finally contends that the government failed to meet its burden of demonstrating that it would have been impractical for the officers to obtain a telephone warrant. This court has stated that exigent circumstances necessarily imply that there is insufficient time to obtain a warrant. Echegoyan, 799 F.2d at 1279 n. 5; Warner, 843 F.2d at 403. Nevertheless, to justify a warrantless search, in addition to showing probable cause and exigent circumstances, the government must demonstrate that a warrant could not have been obtained in time, even by telephone. United States v. Manfredi, 722 F.2d 519, 522 (9th Cir. 1983). The government must present evidence explaining why a telephone warrant was unavailable or impractical. United States v. Alvarez, 810 F.2d 879, 883 (9th Cir. 1987).

As this court recently observed, "Obtaining a telephone warrant is not a simple procedure." United States v. Good, 780 F.2d 773, 775 (9th Cir.), cert. denied, 475 U.S. 1111 (1986). Pursuant to Fed. R. Crim. P. 41(c) (2) (A), a federal magistrate may issue a warrant based upon sworn oral testimony communicated by telephone. The officer applying for the warrant must prepare a duplicate original warrant and read it verbatim to the magistrate over the telephone. Fed.R.Crim P. 41(c) (2) (B). If the magistrate is satisfied that the circumstances justify dispensing with a written affidavit and that there is probable cause, the magistrate may order the issuance of the warrant by directing the applicant to sign the magistrate's name to the duplicate original warrant. Fed. R. Crim. P. 41(c) (2) (C). Oregon statutes provide for substantially similar procedures for obtaining telephone warrants. Or.Rev.Stat. Secs. 133.545(5) and 133.555(3) (1987).

The officers in this case did not attempt to obtain a telephone warrant; however, the government demonstrated the impracticality of obtaining such a warrant in time. In response to the report of a gunshot, the police officers proceeded immediately to the scene. After knocking on the door, circling the apartment, and talking to neighbors, the officers could not be certain whether anyone was inside the unit who was in danger or injured. Any delay attending the process of obtaining even a telephone warrant would have prevented the officers from rendering or procuring timely emergency assistance. Thus the district court did not err in denying Mickle's motion to suppress upon finding that exigent circumstances justified the officers' entry and search of Mickle's apartment without a warrant.

Accordingly, the judgment of the district court is AFFIRMED.