CA6: Fair probability of destruction of evidence justified entry without SW

The fair probability of destruction of evidence justified entry without a search warrant, assuming defendants had a reasonable expectation of privacy. United States v. Domenech, 430 Fed. Appx. 392 (6th Cir. 2011), reversing United States v. Domenech, 623 F.3d 325 (6th Cir. 2010) (posted here) on rehearing:

Even if we were to assume that defendants had a legitimate expectation of privacy in the motel room, the contested search was lawful because the totality of the circumstances known to the officers when they initiated the search of Room 22 gave them probable cause to believe that there was a “fair probability” that “evidence of a crime” would be found in the room. We recognize, of course, that having searched Room 22 without a valid warrant, the government bears the burden of establishing the legality of the search by a preponderance of the evidence. United States v. Haynes, 301 F.3d 669, 677 (6th Cir. 2002). Officers must show both that there was probable cause to believe a crime was being committed or evidence of a crime would be found, and that exigent circumstances justified warrantless entry. See Kirk v. Louisiana, 536 U.S. 635, 638 (2002) (per curiam) (citing Payton v. New York, 445 U.S. 573, 590 (1980)). Where probable cause exists, officers may enter without a warrant “when evidence of drug crimes is in danger of destruction.” United States v. Elkins, 300 F.3d 638, 655 (6th Cir. 2002). The officers must reasonably believe that the occupants of the structure are likely to destroy evidence. Id. at 656. Probable cause exists when “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983). That determination is a “commonsense, practical question” based upon the totality of the circumstances Id. at 230-31. Those circumstances, in turn, consist of “objective facts known to the officers at the time of the search.” Smith v. Thornburg, 136 F.3d 1070, 1075 (6th Cir. 1998).

What, precisely, did the officers know when they entered Room 22? First, Officer Crawford testified that the Green Acres motel was known for “a lot of drug activity.” Second, the driver of the Ford Explorer parked in front of Room 22 had behaved evasively earlier that evening. Third, a check of the license plates of the Explorer revealed that its owner had an outstanding arrest warrant. Fourth, the registration associated with Room 22 was filled out incompletely by “Rogelio,” who listed an automobile other than the Ford Explorer parked in front of Room 22. Fifth, Officer Burchell was familiar with the construction of the motel and knew where the toilet for Room 22 would be situated. Sixth, shortly after he heard his colleagues make contact with the occupants, he observed a figure enter the bathroom and bend over the toilet. Based upon his prior experience, he concluded that “this person might be attempting to destroy something or flush something down the toilet.” While none of these considerations, when taken individually, would be sufficient to create a “fair probability” that evidence of a crime would be found in Room 22, they strike us as more than sufficient to establish probable cause and exigent circumstances when viewed through the “totality of the circumstances” prism. Officer Burchell observed a figure rush to the bathroom and appear to bend over the toilet in response to the officers’ appearance at the doorway of Room 22. This gave Officer Burchell probable cause to open the bathroom window to prevent what he concluded was an attempt to destroy evidence. For their part, the officers at the door of the motel room had probable cause to enter as soon as they heard the shouts of their colleague from the back of the room.

In reaching this holding today, we do not intend to downplay the importance of requiring a warrant. …