Opinion
CRIMINAL ACTION NO. 01-350.
April 4, 2002
ORDER AND REASONS
Before the Court is a Motion to Suppress filed by defendant Armand Martin ("Martin"). An evidentiary hearing was held on Wednesday, April 3, 2002. Special Agent James Sewell ("SA Sewell") was called to testify by the Government, regarding the circumstances of the investigation leading up the arrest of the defendant and search of his hotel room number 114 at the Holiday Inn Express. In addition, the Government submitted: (1) the Search Warrant dated December 7, 2001 and signed at approximately 3:00 P.M. authorizing the search of Rooms 144 and 248 of the Holiday Inn Express located at 10020 I-10 Service Road in New Orleans, Louisiana [Gov't Exh. "1"]; and (2) "DEA Form-6" prepared on December 12, 2001 in connection with the arrest of Armand Martin [Gov't Exh. "2"]. Brandi McAfee ("McAfee") was called as a witness by the defendant. The defendant also submitted two exhibits, to wit: (1) Defendant's Holiday Inn Express Receipt for Room No. 144 covering the dates of 12/01/00 to 12/05/01 only [Defense Exh. "1"]; and Cellular Telephone Records of Brandi McAfee covering the date in question ( i.e., December 7, 2001)[Defense Exh. "2"]. The Court, having heard that testimony, reviewed the memoranda, exhibits and the applicable law, DENIES the motion for the following reasons.
BACKGROUND
On December 6, 2001, special agents of the Drug Enforcement Agency ("DEA"), Edward Coffey and James "Skip" Sewell, received information from a confidential source ("CS"), that codefendants Harold and Darryl Sullivan were active in the drug trafficking trade and had recently offered to sell him several ounces of cocaine. SA Coffey and SA Sewell, together with the CS, then planned for his controlled purchase of four and one half ounces of cocaine for $3,700.00. Pursuant to contact between Harold Sullivan and the CS at 4:29 P.M., they agreed to meet at the Wing Shack ten minutes later. Undercover Jefferson Parish Sheriffs Officer ("JPSO") Kim Blanche drove to the meeting place with the CS, who had been wired to allow DEA surveillance agents to monitor and record the drug transaction.
Special Agent Sewell's testimony regarding the investigation and factual background leading up to the arrest of Martin and seizure of cocaine from Holiday Inn Express Room 144 parallels the Government's statement of the case.
At approximately 5:06 P.M., SA's Coffey and Sewell, who were conducting surveillance operations in the vicinity of the Wing Shack, observed a black Lexus arrive and park on the neutral ground directly across from the Wing Shack. The Sullivan brothers met with the CS and agreed to sell him four and one-half ounces of cocaine for $3,700.00, however, the deal would take place somewhat later that evening at the intersection of Daneel St. and Fourth St. in the area of uptown New Orleans, Louisiana.
At the hearing, SA Sewell inadvertantly referred to the vehicle occupied by the Sullivans as a Black BMW.
Thereafter, Coffey and Sewell followed the Sullivans' Lexus first to the Willowbrook Apartment Complex, and then to Holiday Inn Express located at 10020 I-10 Service Road in eastern New Orleans. Having established surveillance from the interior parking lot of the hotel, the agents observed Harold and Darryl Sullivan enter room 248. Several minutes later they exited, went down the stairs, and met with defendant Armand Martin outside of room 144. Martin was seen handing an object to Harold Sullivan, who then, along with Darryl Sullivan, entered a black BMW and drove away. Defendant Martin, who had only moments earlier arrived in that black BMW, entered room 144.
Harold Sullivan then contacted the CS at 6:48 P.M. to inform him that he was nearing the transaction location. At 6:55 P.M., the CS and undercover JPSO detective Blanche arrived at the pre-arranged meeting place (i.e., the intersection of Fourth and Daneel streets). The CS exited the car, met with the Sullivans, and returned with a white object in his hand, which was later determined to be 192.00 gross grams of cocaine.
Agents Covell and Ferrand observed the Sullivans return to the Holiday Inn Express in the black BMW, exit the vehicle and return to room 144. SA Sewell then instructed the CS to call Harold Sullivan and ask to purchase more cocaine. In that telephone communication, Harold informed the CS that he had additional cocaine, but that he would not transact the deal until the following morning, and instructed the CS to contact him then. At 9:30 P.M. on the evening of December 6, 2001, the agents discontinued surveillance at the Holiday Inn Express.
Special Agents resumed surveillance at the hotel the next morning (December 7, 2001). Agent Covell observed a red Lexus arrive in the hotel parking lot at 11:00 A.M. The Sullivans exited the vehicle and approached room 144. This time Darryl carried a black bag in his right hand. There being no apparent response to their knocking on the door to room 144, the Sullivans repaired upstairs to room 248 and entered. Several minutes later, the two exited room 248 (Darryl still carrying the black bag), and then walked downstairs toward room 144. As they neared room 144, a black female later identified as Brandi McAfee, exited room 144 carrying a duffel bag, and left the hotel parking lot in a red Toyota Solara. Agent Sewell testified credibly that he followed McAfee along with an NOPD unit trailing behind his unmarked vehicle, while other agents maintained surveillance at the Holiday Inn Express. Harold and Darryl entered room 144.
SA Sewell testified that the parking area outside of the hotel rooms was not very large, and thus could only accommodate one undercover surveillance vehicle occupied by two agents. SA Sewell testified that on December 7th, 2001, he was the senior agent on the scene but he remained just outside of the parking area with other law enforcement agents.
When SA Sewell and New Orleans Police Officer LeJon Roberts began to close in on McAfee's red Solara to conduct a traffic stop, SA Sewell observed McAfee on a cellular telephone call the entire time he and Officer Roberts quickly closed in and pulled her vehicle over. Also during this entire time, SA Sewell maintained radio contact with the surveillance unit in the hotel parking lot outside of Holiday Inn Express Room 144.
As SA Sewell testified that as he observed McAfee on the phone while closing in on her vehicle, surveillance agents were contemporaneously reporting that activity had just commenced outside of Room 144. Agents conducting surveillance from the hotel parking lot were apprised by SA Sewell that McAfee had been using a cell phone while being stopped by law enforcement. The doorway to room 144 opened, whereupon Darryl handed Harold Sullivan a white bag, which he carried to the red Lexus, placing it on the rear seat of the vehicle. Harold then walked over to a black Jaguar.
McAfee's telephone records corroborate SA Sewell's testimony that McAfee was on the phone when he, along with an NOPD unit, was closing in on her to execute the traffic stop. Defense Exhibit #2 at Item 104 indicates that McAfee received a nondescript incoming call at 11:07 a.m., which call lasted 7 minutes 8 seconds. Thereafter, as evidenced at Item 105 of Defense Exhibit #2, McAfee placed a call at 11:25 a.m. The Court therefore credits the testimony of SA Sewell that McAfee was using the cell phone at times material to this motion. Also, the telephone records submitted as Defense Exhibit # 2 flatly contradict McAfee's testimony that the only telephone calls she made were from inside room 144. Surveillance of room 144 commenced on the morning of December 7, 2001. The Sullivans arrived at the hotel at approximately 11:00 a.m., and considering that shortly thereafter, McAfee was observed departing room 144 and entering her vehicle, it is reasonable to conclude that her 11:25 a.m. cell phone call (and probably the 11:07 to 11:14 a.m. call) occurred while McAfee was in the vehicle and not in room 144.
Having been informed of the activity in the hotel parking lot, SA Sewell was concerned that the three suspects had been alerted to surveillance in the area via cellular telephone by McAfee. The concern was that Harold Sullivan would exit the parking lot with the contraband. SA Sewell ordered the agents to converge on Sullivan before he drove out of the lot. As the agents converged, Harold backed the Jaguar into the parking space directly in front of room 144, exited the vehicle, and noticing the agents' vehicles, hurriedly retreated into room 144, closing the door behind him.
There was no response to the agents' knock on the door. The agents heard only footsteps running to the rear of the room, followed by a flushing noise. Believing that their safety had been compromised, and also fearing that valuable evidence was being destroyed, the agents entered room 144. They arrested the two Sullivans and Armand Martin. In plain view in the bathroom, investigators found one empty zip-lock bag, one clear plastic bag containing a wet yellow powder, and two empty clear plastic bags inside of the toilet. Agents also found four clear plastic bags, each tied at the top and containing an off-white powdery substance. After the room was secured, SA Sewell obtained a state search warrant for rooms 144 and 248. The officers then conducted a thorough search for drugs, weapons, and other evidence of criminal activity.
CONTENTIONS OF THE PARTIES
Defendant Martin challenges the search as illegal pursuant to Fourth Amendment of the Constitution. He argues that the Court should suppress fruits of December 7, 2001 search of Room 144 of the Holiday Inn Express, because the law enforcement officers created whatever exigent circumstances might have otherwise justified their unlawful entry of Martin's hotel room. Martin points out that there was no reference to any phone call made by the agents in DEA Form-6 reporting the incident in question, suggesting that there was no such concern at the time the agents converged on room 144. The defendant points to language in the report (at paragraph 6) that all along the agents had planned to converge on room 144. The defendant likens his case to that considered by the Fifth Circuit in United States v. Richard, 994 F.2d 244 (5th Cir. 1993) (a "knock and announce" case involving a government-manufactured exigency). The defendant submits that the agents could have secured a warrant overnight prior to conducting the second controlled sale on December 7, 2001. In any event, the defendant submits that there was no exigency until the officers created one by converging on the parking lot. Essentially, the defendant's argument regarding a government-manufactured exigency hinges on his argument that there was no need to reveal themselves at that time they converged on Harold Sullivan in the parking lot.
The Government submits that the agents had probable cause to believe that the defendant had illegal narcotics stored in the hotel room and that exigent circumstances justified their warrantless entry into room 144 on the day in question. The Government distinguishes the Richard case, a case in which the agents did not attempt to establish surveillance, but rather, based on a tip, went directly to a hotel room, knocked and announced their presence, provoking the suspects, and thus manufactured the exigency. Moreover, the Government submits that the two-part test set forth by the Fifth Circuit in United States v. Rico, 51 F.3d 495, 502 (5th Cir. 1995) is not satisfied in this case, to wit: (1) there is no evidence of bad faith or improper motive on the part of the agents; and (2) the suspects were not provoked by law enforcement, and the agents reasonably believed that the defendants had been alerted to the presence of covert surveillance by McAfee's cellular telephone communication at or about the time activity commenced at the hotel and she was pulled over by the NOPD unit.
In this vein, the Government argues that the evidence demonstrates that only moments after the reported cell phone call, Harold Sullivan exited room 144 with a bag, and suspiciously began playing "musical cars" in the hotel parking lot. Essentially, the Government contends that only after observing the cell phone call and the flurry of suspicious activity ( i.e., Harold departing room 144 and then entering not one but two different vehicles) did SA Sewell direct the agents to converge on the parking lot, reasonably believing that the suspect was attempting to evade questioning and that the others in room 144 had been alerted to the presence of surveillance and intended to destroy the evidence of the crime.
The Court here notes at the outset that paragraph 6 of the DEA agents' Report of Investigation does not state that the agents had planned all along to converge on the parking lot outside of hotel room 144 or to converge on room 144 without securing a warrant. The Report simply states that the agents "planned and subsequently decided" to "approach Harold Sullivan" "to interview him about his actions." The report says nothing about a prior plan to approach Harold Sullivan in the Holiday Inn Express parking lot just outside of room 144. Because of exigent circumstances and the agents' reasonable belief that the suspects had been notified of surveillance by McAfee, SA Sewell ordered the agents to converge on Harold Sullivan before he left the parking lot. However, Sullivan managed to escape the agents by retreating behind the closed door to room 144, where the Sullivans, along with the defendant Martin, apparently commenced to dispose of the contraband.
ANALYSIS
The issue before the Court is whether exigent circumstances existed justifying the agents' warrantless intrusion into defendant's room 144 at the Holiday Inn Express Hotel on December 7, 2001. If so, a determination must be made regarding whether the government created or manufactured the exigency.
"A warrantless intrusion into an individual's home is presumptively unreasonable unless the person consents or probable cause and exigent circumstances justify the encroachment." United States v. Jones, 239 F.3d 716, 718 n. 2 (5th Cir. 2001) (citing United States v. Vega, 221 F.3d 789, 798 (5th Cir. 2000) for the proposition that in order to vindicate a warrantless search by proving exigent circumstances, the government must show probable cause). In this case, where there is no question but that probable cause was extant, the issues presented involve whether exigent circumstances justified the encroachment.
Exigent circumstances that may excuse warrantless entry into a residence or hotel room may include the possibility that evidence will be removed or destroyed, the pursuit of a suspect, and immediate safety risks to officers and others. See Jones, 239 F.3d at 719 (citing United States v. Richard, 994 F.2d 244, 248 (5th Cir. 1993). There is no set formula for determining when exigent circumstances may justify a warrantless entry and the list is non-exhaustive, "because it is essentially a factual determination." Jones, 239 F.3d at 719 (citing United States v. Blount, 123 F.3d 831, 837 (5th Cir. 1997), cert. denied, 522 U.S. 1138, 118 S.Ct. 1101 (1998)).
In Rico, the Fifth Circuit examined five factors in determining whether exigent circumstances justified a warrantless entry, to wit: (1) the degree of urgency involved and the amount of time necessary to obtain a warrant; (2) the reasonable belief that contraband is about to be removed; (3) the possibility of danger to the police officers guarding the site of contraband while a search warrant is sought; (4) information indicating that the possessors of the contraband are aware that the police are on their trail; and (5) the ready destructibility of the contraband and the knowledge that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in the narcotics trafficking. United States v. Rico, 51 F.3d 495, 501 (5th Cir. 1995); see also Jones, 239 F.3d at 719 (citing Blount, 123 F.3d at 837); United States v. Howard, 106 F.3d 70, 73 (5th Cir. 1997); and Richard, 994 F.2d at 248). The court looks to the totality of the circumstances surrounding the officers' action, and considers the entirety of the of the agents' investigative tactics, particularly those leading up to the exigency alleged to have necessitated the protective sweep. Howard, 106 F.3d at 73. The Government bears the burden of demonstrating that exigent circumstances exist. See id.; and Rico, 51 F.3d at 501.
Regarding safety risks, in drug deals it is not uncommon for traffickers to carry weapons. The legitimacy of that concern is underscored by Fifth Circuit's frequent acknowledgment of this more and more obvious fact: "firearms are tools of the trade of those engaged in illegal drug activities." United States v. Rodea, 102 F.3d 1401, 1408 (5th Cir. 1997) (citing United States v. Ramos, 71 F.3d 1150, 1158 n. 26 (5th Cir. 1995), cert. denied, 517 U.S. 1227, 116 S.Ct. 1864 (1996)); see also Jones, 239 F.3d at 719 (citing United States v. Howard, 106 F.3d 70, 75 (5th Cir. 1997) for the proposition that narcotics trafficking alone may present safety risks to law enforcement officials because firearms are considered tools of the trade). However, the presence of illegal drugs alone does not give rise to exigent circumstances. See Howard, 106 F.3d at 73 (citing United States v. Munoz-Guerra, 788 F.2d 295, 298 (5th Cir. 1986) and United States v. Thompson, 700 F.2d 944, 947 (5th Cir. 1983)).
The government may not create or manufacture the exigency. See United States v. Scheffer, 463 F.2d 567, 574 (5th Cir.), cert. denied, 409 U.S. 984, 93 S.Ct. 324 (1972) ("Where agents create the exigency themselves, warrantless activity is per se unreasonable and we require suppression of any evidence obtained thereby."). Whereas exigent circumstances are the exception to the warrant requirement, a manufactured exigency is the exception to the exception. See Howard, 106 F.3d at 78 (citing Rico, 51 F.3d at 502); Vega, 221 F.3d at 798 (government's own action or inaction cannot be the likely cause of an exigent circumstance).
The focus is on the "reasonableness of the officers' investigative tactics leading up to the warrantless entry" and not whether the officers acted in good or bad faith. See Jones, 239 F.3d at 219 (citing Blount 123 F.3d at 838)); Howard, 106 F.3d at 78; Rodea, 102 F.3d at 1408 (noting that we must not only consider the motivation of the police in creating the exigency, but also the reasonableness and propriety of the investigative tactics that generated the exigency); and Rico, 51 F.3d at 502 n. 18, and 505 n. 26. The Fifth Circuit has limited the exigent circumstance exception to situations when a suspect detects law enforcement surveillance rather than when officers' make their presence known. Jones, 239 F.3d at 720; see also Howard, 106 F.3d at 79 (articulating the difference between a Government manufactured exigency and exigent circumstances arising due to the unprovoked conduct of the suspects).
In Howard, where the defendant expected Hillis to return home with the cocaine, and a crowd had gathered outside the suspect's home, the safety of the officers and the community was arguably in danger. Also, alerted to police presence, the suspect in Howard might have been in the process of destroying the evidence, and occupants leaving the suspect's residence had cocaine. 103 F.3d at 78. The Fifth Circuit did not find fault with the officers' failure to follow their surveillance procedures, and rather observed that in fast moving investigations, circumstances may warrant that law enforcement act to prevent a potentially volatile situation from becoming worse. Id. at 79. The Howard court determined that it was the suspect's activity, unprovoked by law enforcement officers, that prompted the agents to abandon their covert surveillance and confront the suspects.
In Howard, the Fifth Circuit distinguished the Richard case and United States v. Webster, 750 F.2d 307, 327 (5th Cir. 1984), noting the absence of both direct and circumstantial evidence, and suggesting that the suspects were aware of the surveillance. The court observed:
In Webster, the defendant Weinrich claimed that the agents created exigent circumstances for the search of hotel room 22 by (1) placing the room under surveillance rather than immediately attempting to obtain a warrant and (2) by allowing him to enter the room instead of stopping him as he approached. The court rejected the claim of manufactured exigency, finding no deliberate conduct which amounted to creation of, rather than reliance on, exigent circumstances. As to the second, the court held that it was simply not a case where the agents deliberately arranged to arrest the defendant while he was within certain premises so as to take advantage of their presence within to seize evidence in plain view. 750 F.2d at 328.
We find Richard and Webster distinguishable. In Richard, the record contained no direct or circumstantial evidence suggesting that the occupants were aware of a police presence. We do not read Richard to mean that absent any direct evidence that persons within the surveilled residence are aware of police, the Government cannot claim exigent circumstances. Nor do we read Webster as holding that only when law enforcement officers actually see someone peering through a window can the Government claim exigent circumstances. If we were to read Richard and Webster in this way, we would foist upon law enforcement officials a certainty requirement that in many cases would be impossible to satisfy.Howard 106 F.3d at 77.
It is axiomatic that agents are not required to obtain a search warrant as soon as it is practical to do so. "[A]n officer's failure to avail himself of an early opportunity to obtain a warrant will not automatically preclude him from relying on the exigent circumstances that may arise thereafter." United States v. Webster 750 F.2d 307, 327 (5th Cir. 1984) (citing Cardwell v. Lewis, 417 U.S. 583, 595, 94 S.Ct. 2464, 2471 (1974) for the proposition that "the exigency may arise at any time, and the fact that the police might not have obtained a warrant earlier does not negate the possibility of a current situation's necessitating prompt police action."). Additionally, the fact that an "exigency was foreseeable at the time the decision was made to forego or postpone obtaining a warrant does not, by itself, control the legality of a subsequent warrantless search triggered by that exigency." Webster 750 F.2d at 327 (citing United States v. Hultgren, 713 F.2d 87 n. 11 (5th Cir. 1983) for the proposition that "the delay in obtaining a warrant is more likely to be reasonable when part of an immediate ongoing investigation rather than a "planned" or "routine" search or arrest.").
In the case at bar, Special Agents were amidst an ongoing investigation of the Sullivan brothers' narcotics trafficking business, as opposed to a "routine" felony arrest. As the investigation unfolded on the second day of covert surveillance, new suspects and more evidence of crime became known. Unlike the case of the "routine" felony arrest, where a given individual and a distinct crime is involved, the "fluidity of an ongoing investigation of the distribution of narcotics" may make obtaining an adequate search warrant difficult to time in the flow of events. See Howard, 106 F.3d at 78. The possibility of discovering additional participants or evidence of crimes does not negate the warrant requirement, but is rather merely one factor to weigh in determining the reasonableness of search and seizure. Id.
With these principles in mind, this Court turns to the exigencies that justified the warrantless entry into room 144 of the Holiday Inn Express. In this case the Government established all five Rico factors necessary to support an exigency, including: 1) the urgency of the situation, leaving inadequate time to secure a warrant; 2) the reasonable belief that the contraband was about to be removed; 3) the possibility of danger to the police and possibly to other unsuspecting occupants in the close quarters of the hotel environment; 4) information that the suspects were quite possibly made aware of police surveillance by Brandi McAfee via cellular phone as she was pulled over for a traffic stop after departing the hotel parking lot; and 5) highly suspicious activity regarding multiple vehicles combined with characteristic behavior by suspects indicative of their intent to dispose of the contraband and/or to flee the scene.
The Court here notes that defendant has not shown that room 144 was registered in either his name or the name of either one of the Sullivan brothers on the date in question ( i.e., December 7, 2001). On its face, the hotel room receipt submitted as Defense Exhibit "1" covers only the dates from December 1, 2001 through December 5, 2001. The Government has yet to object on the basis of the "standing" of the defendant to object to the warrantless entry into room 144. In any event, this Court's decision turns on the fact exigent circumstances not manufactured by law enforcement justified their warrantless entry into room 144, in order to secure the room, their own safety and to prevent the destruction of valuable evidence, and then went to secure a warrant.
SA Sewell was notified by the surveillance officer of the beginning of activity by the suspects simultaneous with his observing McAfee's continuous cell phone usage, while he along with an NOPD unit closed in on her and pulled her vehicle over. The agents conducting surveillance operations at the hotel parking lot relayed to SA Sewell via radio that a flurry of activity then commenced with the opening of the doorway to room 144, and then Darryl handing Harold Sullivan a white bag. Harold then dropped off the white bag in the rear seat of the red Lexus, and then walked over to and occupied yet a different vehicle (the black Jaguar). It reasonably appeared that he was would likely exit the hotel parking lot. Only when the surveillance agents began to converge, pursuant to SA Sewell's direction, did Sullivan back up to room 144 and hurriedly reenter the premises, apparently in an effort to avoid notice by the law enforcement officers in the surveillance vehicles. In the momentary period between the time that McAfee utilized her cellular telephone and the time that bustling activity of the suspects commenced in earnest in and about room 144, indicating to surveillance officers that their presence had been detected, there clearly was not enough time to secure a warrant.
Turning to the defendant's suggestion that the DEA agents could have obtained an adequate warrant to search prior to when the exigent circumstances arose, the Court notes that the officers had no reason to believe that the suspect's activity on December 7, 2001 would necessarily center around the same rooms in the hotel ( i.e., rooms 144 and 248), or at the hotel at all, until surveillance was resumed the next day and the agents observed the Sullivans return to room 144. Moreover, DEA agents did not expect any narcotics transaction at the hotel room, but instead expected that the transaction would take place at some remote intersection, like the drug transaction conducted on evening of December 6th, 2001. Until the agents observed Brandy McAfee depart room 144 with bag in hand, they had no reason to suspect that Martin was utilizing room 144 to store and/or distribute large amounts of drugs.
It was not feasible for the agents to maintain covert surveillance of room 144 after being alerted to McAfee's cell phone communication and observing the flurry of activity outside of room 144 that followed only moments after. The agents reasonably could have believed that, if they waited to obtain a warrant, it would jeopardize their ability to apprehend the suspects and to recover all of the evidence in the hotel room. They also reasonably feared for their safety and the safety of other occupants of the hotel, once the activity in the parking lot confirmed their suspicions that the three suspects had been alerted to the presence of law enforcement in the area.
Having determined that there was insufficient time within which to obtain a warrant prior to the occurrence of the cell phone call that gave rise to the exigency, the Court now considers whether law enforcement nevertheless created the urgent situation by the use of unreasonable police tactics." Rico, 51 F.3d at 503. The Court is not convinced that law enforcement engaged in unreasonable tactics in conducting a traffic stop of McAfee after she left the hotel parking lot in her red Toyota Solara. NOPD Officer Roberts and SA Sewell had no reason to suspect that McAfee had a cell phone and/or that she would manage to utilize it to alert the three suspects before the officer executing the stop managed to reach her vehicle. Moreover, Agent Sewell testified that they waited for McAfee to travel some distance from the hotel premises for precisely that reason, i.e., to avoid detection by persons located in and about the hotel.
This is simply not a case involving the "law enforcement officers' decision to abandon covert surveillance and to confront the suspects without any justification whatsoever," ( i.e., police conduct which made a warrantless entry to conduct a protective sweep necessary. See Rico, 51 F.3d at 505. Here, the agents did not decide to abandon covert surveillance, without any justification whatsoever; far from it. Their decision was justified — indeed, mandated — by their perception ( i.e., reasonable belief) that the suspects had been informed of and had detected surveillance operations in the area. See Rodea, 102 F.3d at 1409 (The Agents' "decision was justified — indeed, mandated — by the unplanned, unforeseeable detection of surveillance by Lopez-Gonzales.").
In Rodea, closely analogous to the instant case both on its facts and sub judice, the Fifth Circuit held that the district court erred by finding that the Agents created exigent circumstances, and by suppressing evidence seized and Rodea's statements. Id. at 1410. The court held that Lopez-Gonzalez's detection of Investigator Rivas' surveillance on the roadside was an exigent circumstance that set in motion the chain of events that followed. Law enforcement officers were aware that the mobile home occupants were expecting Lopez-Gonzalez to return or to contact them in a very short period of time. Considering exigencies similar to the case at bar, the Rodea court held that: 1) Agent Silva did not act unreasonably in deciding to have the agents converge on the mobile home, as the agents had no realistic alternative; and 2) the fact that the mobile home occupants were actually unaware of the surveillance prior to the agents' approach carried little weight, because they could have reasonably believed that the occupants would soon become suspicious when Lopez-Gonzalez did not return and failed to contact them. Id. at 1406-07. Here as in the Rodea case, even if the facts demonstrate that the occupants of room 144 had not actually been contacted by McAfee and alerted to surveillance in the area of the hotel parking lot, such fact would carry little weight, because SA Sewell and agents conducting surveillance in the parking lot could have reasonably believed that the occupants had been alerted based upon shared knowledge of the McAfee phone communication and the simultaneous and sudden suspicious activity of the suspects back at the hotel.
In Rodea, Fifth Circuit reversed the district court and held that law enforcement did not manufacture exigent circumstances arising when a codefendant observed a police officer conducting surveillance of a mobile home. The officer had just passed the car containing the informant and the codefendant when he pulled over to the side of the road and strapped on his gun and holster. He had no reason to anticipate that the codefendant would make a u-turn and return to the location where he pulled off the road. The agents did not just decide to abandon the coven operation, without any justification whatsoever. There decision was mandated by the unplanned, unforeseeable detection of surveillance by codefendant Lopez-Gonzalez. 102 F.3d at 1409.
CONCLUSION
In light of the applicable law and considering the evidence and testimony at the hearing, the Court finds that: (1) exigent circumstances arose, unprovoked by the conduct of law enforcement officers conducting surveillance operations in the hotel parking lot; (2) the agents did not act unreasonably in converging on Harold Sullivan, when the exigency arose; (3) the entry and protective sweep of room 144 was justified; and (4) the subsequent search was made pursuant to a valid search warrant. The agents lacked sufficient time to secure the warrant when Brandi McAfee picked up her cell phone during their pursuit of her. The agents had reason to believe that McAfee notified the three suspects at the Holiday Inn Express of the surveillance in the area. The activity in the room and the actions of Harold Sullivan in the hotel parking lot confirmed their suspicions, and only then did the agents converge.
Accordingly,
IT IS ORDERED that the defendant's Motion to Suppress is DENIED.