JOHN MCCONNELL, PETITIONER V. UNITED STATES OF AMERICA No. 90-6712 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eighth Circuit Brief For The United States In Opposition OPINIONS BELOW The opinion of the court of appeals, Pet. App. A1-A8, is reported at 903 F.2d 573. The district court's order denying petitioner's motion to suppress evidence, Pet. App. A32-A33, is unreported. JURISDICTION The judgment of the court of appeals was entered on May 14, 1990. A petition for rehearing was denied on July 31, 1990. On October 17, 1990, Justice Blackmun extended the time for filing a petition for a writ of certiorari to November 28, 1990. On November 17, 1990, Justice Blackmun further extended the time for filing a petition for a writ of certiorari to December 28, 1990, and the petition was filed on that date. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether exigent circumstances justified the warrantless entry by a police officer into petitioner's hotel room. STATEMENT Following a jury trial in the United States District Court for the Eastern District of Missouri, petitioner was convicted of conspiracy to distribute and to possess with intent to distribute cocaine and marijuana, in violation of 21 U.S.C. 841(a)(1) and 846. He was sentenced to 15 years' imprisonment. 1. On September 29, 1986, petitioner was a guest at the Marriott Hotel in Fort Lauderdale, Florida. Petitioner, who was registered at the hotel under the name "Don Millman," had moved from a room on the fifth floor of the hotel to one on the fifteenth floor the day before. On the evening of September 29, a hotel manager called the police to report that a loaded revolver had been found in the room that petitioner had previously occupied. Pet. App. A3-A4; Gov't C.A. Br. 40. Fort Lauderdale Police Officer Phillip Seguin responded to the call. At the direction of the hotel manager, Seguin went to the room registered to "Don Millman." Petitioner answered the officer's knock by opening the door slightly. Seguin identified himself and asked if he could enter the room to talk to petitioner about the weapon that had been found in the room he had recently vacated. Petitioner stepped out into the hall, stating that his girlfriend was asleep in the hotel room. In response to Seguin's inquiries, petitioner told the officer that he might have left a loaded gun in his previous room. Seguin then asked petitioner for identification, and petitioner handed him a Michigan driver's license bearing the name "John Millman." Seguin, who had previously been a deputy sheriff in Michigan, recognized the license as counterfeit. After he told petitioner that he believed that the Michigan license was not authentic, petitioner produced a Florida driver's license bearing his real name. When Seguin asked why a local resident was staying at the hotel, petitioner responded that he was there with his girlfriend. Petitioner asked the officer to return his gun, and Seguin replied that he could recover the gun from the police station if he could prove that he was the owner. Seguin then returned to the hotel office. Pet. App. A4; Gov't C.A. Br. 40-42. Fifteen minutes later, Seguin returned to petitioner's room. The officer knocked on the door, reidentified himself, and told petitioner that he was being evicted from the hotel for registering under a false name. /1/ Petitioner said that he needed a few minutes to pack his belongings and asked Seguin to wait in the hallway while his girlfriend got dressed. Seguin agreed but propped the hotel room door open with his foot to keep it from closing completely. Several minutes passed, during which the officer heard no voices. Seguin then asked petitioner whether the girlfriend was dressed. Petitioner admitted that he had lied and that his girlfriend was not in the room. After several more minutes passed, Seguin announced his intention to enter the room and did so. Once inside the room, he discovered cocaine and marijuana in an open desk drawer, whereupon he placed petitioner under arrest. Pet. App. A4; Gov't C.A. Br. 42-44. 2. Before trial, petitioner moved to suppress the evidence seized as a result of Seguin's entry into his hotel room, claiming that the entry without a warrant violated his rights under the Fourth Amendment. The government contended that exigent circumstances excused the absence of a warrant. The district court agreed with the government and denied the suppression motion. Pet. App. A32-A33. 3. The court of appeals affirmed petitioner's conviction. /2/ Pet. App. A1-A8. The court concluded that Officer Seguin's entry into petitioner's hotel room was supported both by probable cause to arrest petitioner for possession of a false driver's license and by exigent circumstances stemming from the risk of harm to the officer and to hotel employees and guests. Pet. App. A4-A5. The court cited a number of factors that supported its conclusion that the circumstances were exigent, including petitioner's apparent failure to realize that he had misplaced a loaded gun, petitioner's "series of lies" to hotel staff and Officer Seguin about his identity and about the presence of other persons in his hotel room, the risk to the officer's safety if he remained outside the room, and the danger to other persons in the hotel if the officer left to obtain a search warrant. Ibid. Judge McMillian dissented. Pet. App. A8. He disagreed with the majority's conclusion that the risk of danger to Officer Seguin and other persons in the hotel was sufficient to justify the officer's warrantless entry into petitioner's hotel room. Ibid. ARGUMENT Petitioner renews his contention, Pet. 12-21, that there were no exigent circumstances that justified the warrantless entry into his hotel room. /3/ The factbound decision of both courts below rejecting that contention is correct, and does not conflict with any decision of this Court or of any other court of appeals. Further review is not warranted. In determining that the arresting officer's entry into petitioner's hotel room was justified by the risk of harm to the officer and to hotel employees and guests, the courts below applied the correct legal standard to the facts of this case. See Minnesota v. Olson, 110 S. Ct. 1684, 1690 (1990) ("'a warrantless intrusion may be justified by . . . the risk of danger to the police or to other persons inside or outside the dwelling'") (quoting Minnesota v. Olson, 436 N.W.2d 92, 97 (Minn. 1989)); Warden v. Hayden, 387 U.S. 294, 298-299 (1967) ("The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others."). Here, the court of appeals correctly concluded that Officer Seguin's warrantless entry into petitioner's hotel room was based on a reasonable fear for his own safety and the safety of other persons in the hotel. Before entering the room, the officer was aware that petitioner had brought a loaded gun into the hotel and had apparently failed to realize that he had left the gun behind when he moved from one hotel room to another. Moreover, petitioner had registered at the hotel under a false name, had used false identification, and had lied about his reason for staying at the hotel and about the presence of a girlfriend in his room, in an obvious attempt to forestall the officer from entering the room. Finally, as the officer waited outside petitioner's room, petitioner admitted that he had lied about the presence of his girlfriend, but still did not emerge from the room. Taken together, these circumstances were sufficiently exigent to justify the officer's immediate, warrantless entry into the hotel room. /4/ Petitioner also contends, Pet. 15-16, that the court of appeals erred in failing to consider the "minor nature of petitioner's offense" in determining whether the warrantless entry was lawful. He relies on this Court's decision in Welsh v. Wisconsin, 466 U.S. 740 (1984), in which the Court held that a defendant's Fourth Amendment rights were violated by the warrantless entry into his home to arrest him for a noncriminal traffic offense for which the maximum penalty under the applicable state law was a civil fine of $200. Id. at 754. In contrast to the civil traffic violation involved in Welsh, however, the offense here -- possession of a counterfeit driver's license -- is classified under Florida law as a third degree felony punishable by up to five years' imprisonment. See Fla. Stat. 322.212(1), 775.082(3)(d). As the Court explained in Welsh, the penalty a State chooses to attach to a particular offense "provide(s) the clearest and most consistent indication of the State's interest in arresting individuals suspected of committing that offense." 466 U.S. at 754 n.14. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General NINA GOODMAN Attorney FEBRUARY 1991 /1/ Seguin testified that he intended to arrest petitioner for possession of a counterfeit driver's license after evicting him from the hotel room. Pet. App. A4; Gov't C.A. Br. 42. /2/ The court of appeals vacated petitioner's sentence and remanded the case to the district court for resentencing. The district court had originally sentenced petitioner to 25 years' imprisonment, with the provision that he would become eligible for parole after serving one third of his prison term. The court of appeals noted that 21 U.S.C. 841(b)(1)(B), under which petitioner was sentenced, specifically requires that sentences be served without parole, and concluded that resentencing was required. Pet. App. A7. On remand, the district court sentenced petitioner to 15 years' imprisonment. /3/ Petitioner concedes that Officer Seguin did have probable cause to arrest him for possession of a counterfeit driver's license. Pet. 6. /4/ Petitioner's contention, Pet. 20, that the decision below conflicts with other decisions of the Eighth Circuit and with decisions of the Ninth Circuit is incorrect. None of the cases on which petitioner relies involved facts similar to those presented here. See United States v. Morales, 737 F.2d 761, 765 (8th Cir. 1984) (warrantless search of motel room after defendant had been arrested in another motel room not justified by exigent circumstances); United States v. Spetz, 721 F.2d 1457, 1467 (9th Cir. 1983) (warrantless "protective sweep" of house after defendants were arrested outside not justified by exigent circumstances where arresting agents "knew of no weapons connected with any of the individuals arrested"); United States v. Houle, 603 F.2d 1297, 1300 (8th Cir. 1979) (no exigent circumstances where police deliberately delayed for four hours before entering defendant's house to arrest him and made no attempt to obtain a warrant during that time); United States v. Basurto, 497 F.2d 781, 789-790 (9th Cir. 1974) (warrantless search of defendant's home after he had been arrested outside not justified by exigent circumstances).