On Appeal from the United States District Court for the Eastern District of Pennsylvania District Court No. 03-cr-00281-2. District Judge: Honorable Harvey Bartle, III.
The opinion of the court was delivered by: Garth, Circuit Judge.
Before: ROTH, FUENTES, and GARTH, Circuit Judges.
Terrance Coles ("Coles") appeals his conviction and sentence for drug-related crimes, challenging, inter alia, the District Court's denial of his motion to suppress physical evidence. In that motion, Coles argued that the physical evidence must be suppressed under the Fourth Amendment because police officers had removed it from his hotel room without a search warrant. The District Court concluded that exigent circumstances -- to wit, the imminent destruction of the evidence -- justified the warrantless search. We cannot agree.
Concluding that the police impermissibly created the very exigency which they claim permitted the warrantless search, we hold that the exigent circumstances exception to the warrant requirement is not applicable here. Accordingly, we will reverse the District Court's denial of Coles's suppression motion, and we will vacate Coles's conviction and sentence and remand for further proceedings.
On June 7, 2002, Terrance Coles checked into room 511 at the Hawthorne Suites Hotel, 1100 Vine Street in Philadelphia. Coles initially checked into the hotel for the weekend, but subsequently arranged to stay for an additional 10 nights. After Coles had been there for about a week, the hotel manager, David Bradley ("Bradley"), sought unsuccessfully to locate Coles to discuss payment arrangements. On June 14, 2002, Bradley let himself into Coles's room to see if the room was still occupied. Once inside the room, he observed a plastic bag and small vials containing a white substance. Suspecting that he had seen illegal drugs in the room, Bradley called Federal Bureau of Investigation ("FBI") Special Agent John Warrington, and described what he had seen.
Later that afternoon, when Agent Warrington and local narcotics officers met with Bradley at the hotel, Bradley repeated the information that he had provided earlier to the FBI on the telephone.*fn1 Bradley then unlocked room 511 for the officers. The officers entered the room and observed a plastic bag and small vials containing a white substance, as well as an empty holster. After a few minutes, the officers left the room, without touching anything. The government concedes that this entry was illegal and does not rely on anything seen on this visit in establishing probable cause for the subsequent warrantless entry and search.
Bradley next provided the officers with access to room 514, located directly across the hall from room 511, where the officers established surveillance by using the peephole in the door. At some point, Sgt. Jonathan Josey, the supervising officer, sent Officer Barry Wilson to check additional records on Terrance Coles and perhaps to secure a search and seizure warrant.*fn2 As Officer Wilson approached the elevator to leave the fifth floor, he noticed two men exiting the elevator, at least one of whom carried a black nylon backpack. After Officer Wilson watched the two men enter room 511, he returned to room 514 to inform the officers positioned there that two men had just entered room 511. There is no indication that either of the two men, later identified as Coles and co-defendant Jonathan Jackson, were aware of the police surveillance, either then or at any time thereafter.
Despite having the room under covert surveillance, the officers decided to enter room 511. Sgt. Josey, Officer Wilson and two other officers, all dressed in plain clothes with identification badges hanging around their necks, positioned themselves in two parallel columns outside the entrance to room 511. Sgt. Josey knocked on the door, attempting to gain access by a subterfuge. He first announced "room service" in an attempt to get the two men to open the door. A man replied that he had not ordered anything and refused to open the door. (Co-defendant Jackson later testified that the man answering was Coles). Sgt. Josey knocked a second time, this time announcing that he was from maintenance to fix a reported leak. A voice again responded, saying there was no leak and again refused to open the door. Sgt. Josey knocked a third time, more forcefully, identifying himself as a police officer and telling the occupants to "open the door, this is the police."
At this critical juncture, the officers heard the sounds of rustling and running footsteps.*fn3 Sgt. Josey attempted to open the door using an electronic passkey provided by Bradley, but the officers could not enter because there was a bar latch over the door. After partially opening the door with the passkey, the officers heard the sound of a toilet flushing and the sounds of more running.*fn4
Coles eventually opened the door for the officers. Upon entering the room, the police discovered, among other things, several containers of cocaine base "crack," multiple bags containing cocaine, 25 vials of "crack" cocaine, approximately $2,000 in cash, and a firearm inside of Coles's open carrying bag. The street value of the confiscated drugs was $31,000. Coles and Jackson were then arrested.
After securing the room, the police obtained and executed search warrants in order to search the room further and to search Coles's rental car. The application for the search warrants made no mention of the first illegal entry into room 511. No additional evidence or contraband was discovered after the warrants had been secured.
Coles was indicted on April 29, 2003 by a grand jury sitting in the Eastern District of Pennsylvania. The indictment charged Coles with possession of a firearm in furtherance of drug trafficking, in violation of 18 U.S.C. § 924(c) (Count 1), and possession with intent to distribute cocaine base (crack) and cocaine, in violation of 21 U.S.C. § 841(a)(1) (Counts 2 and 3).*fn5
On August 6, 2003, Coles filed a pre-trial motion to suppress the evidence seized from his hotel room, claiming violations of his Fourth Amendment rights. The District Court conducted an evidentiary hearing on Coles's suppression motion on or around October 15, 2003, at which Agent Warrington and Officer Wilson testified for the government. Coles argued that based on the information provided by the hotel manager, the police lacked probable cause to enter the room. He argued, in the alternative, that probable cause or not, the warrantless entry into the hotel room could not be justified under the exigent circumstances exception because the officers had created those circumstances in attempting to gain access to the room.
The District Court denied the suppression motion the next day. The District Court found that the police had probable cause based on their initial conversation with Bradley at the hotel, and that, in any event, the police gained additional information to support probable cause after they had knocked on the door to room 511 and announced their presence -- to wit, the rustling, running footsteps and flushing toilet. The District Court also found that the likelihood of imminent destruction of evidence created exigent circumstances, thus justifying the warrantless entry and search. However, the District Court made no explicit finding as to whether the police created those exigent circumstances.
The case proceeded to trial, and Coles was subsequently convicted by a jury of all three counts of the indictment.*fn6 The District Court sentenced Coles to 138 months of incarceration on or around April 14, 2004. Coles thereupon filed the instant appeal, seeking, inter alia, ...