Unpublished Disposition, 921 F.2d 282 (9th Cir. 1990)

MEMORANDUM^*

Juan Manuel Villagomez-Castillo ("Villagomez") appeals his conviction following his conditional guilty plea to one count of harboring illegal aliens in violation of 8 U.S.C. § 1324(a) (1) (c). Villagomez contends that the district court erred by denying his motion to suppress evidence obtained in a warrantless search of his residence. We have jurisdiction under 28 U.S.C. § 1291. We affirm.

A warrantless entry into a residence by police without consent is subject to fourth amendment protection. See United States v. Suarez, 902 F.2d 1466, 1467-8 (9th Cir. 1990). The government must demonstrate that the police officers had probable cause to believe a crime was being or had been committed and that exigent circumstances existed to excuse the lack of a warrant. See United States v. Lindsey, 877 F.2d 777, 780 (9th Cir. 1989).

"Probable cause requires 'a reasonable belief, evaluated in light of the officer's experience and the practical considerations of everyday life, that the suspect [] ... committed a crime and [is] to be found in the place to be searched.' " United States v. George, 883 F.2d 1407, 1412 (9th Cir. 1989) (quoting United States v. Robertson, 606 F.2d 853, 858 (9th Cir. 1979)). Mere speculation that unlawful activity exists "in a home is not enough to establish the probable cause necessary to seize that residence." United States v. Howard, 828 F.2d 552, 555 (9th Cir. 1987).

"Exigent circumstances are those in which a substantial risk of harm ... to the law enforcement process would arise if the police were to delay a search until a warrant could be obtained." United States v. Delgadillo-Velasquez, 856 F.2d 1292, 1298 (9th Cir. 1988) (quoting United States v. Robertson, 606 F.2d 853, 859 (9th Cir. 1979)). The government must establish exigent circumstances by producing "particularized evidence in order to justify a departure from the normal procedure of obtaining a warrant." Suarez, 902 F.2d at 1468. The government must also show that a warrant could not be obtained in time. See George, 883 F.2d at 1412; Howard, 828 F.2d 552, 555 (9th Cir. 1987).

We review the district court's finding of probable cause and exigent circumstances de novo. See Delgadillo-Velasquez, 856 F.2d at 1295, 1298. The district court's findings of fact are reviewed for clear error. Id., 856 F.2d at 1295.

Here, the officers received an anonymous tip that a van containing several Latin males had driven up and parked in the residence's driveway, and that one man had entered the residence through a window and permitted the rest of the van occupants to enter. Prior to entering Villagomez's residence, the officers observed that the front door was open and that individuals were moving about. The officers called to the door and questioned Villagomez, who stated that he resided at the site and had climbed through the window because he had left his house keys in his wife's car. The officer's suspicions were not dispelled and they ordered Villagomez to stay outside while they proceeded into the premises to investigate.

Under the circumstances, the officers were not required to believe Villagomez's claim. Therefore, the district court did not clearly err in finding that the officers' belief that a burglary was in progress was reasonable and that they had probable cause to search Villagomez's residence. See United States v. Valles-Valencia, 811 F.2d 1232, 1236 (9th Cir. 1987).

We determine the existence of exigent circumstances by considering the "totality of the circumstances, viewed at the moment the police decided to enter" the residence. George, 883 F.2d at 1407 (emphasis in original). The district court found that the officers reasonably believed that the individuals inside the residence were aware of their imminent capture and that an immediate entry was warranted to prevent suspects from escaping. This finding is supported by the evidence and not clearly erroneous. See George, 883 F.2d at 1414. The government presented sufficient evidence to show that the warrantless entry was justified by exigent circumstances. See Valles-Valencia, 811 F.2d at 1236.

AFFIRMED.