United States Court of Appeals For the First Circuit

No. 02-1757

UNITED STATES OF AMERICA,

Appellee,

v.

RODGER BEAUDOIN,

Defendant, Appellant.

No. 02-1850

UNITED STATES OF AMERICA,

Appellee,

v.

ROBERT CHAMPAGNE,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul Barbadoro, Chief U.S. District Judge]

Before

Lynch, Circuit Judge, Siler,* Circuit Judge, and Lipez, Circuit Judge.

* Of the Sixth Circuit, sitting by designation. William E. Christie, with whom Shaheen & Gordon was on brief, for appellant Rodger Beaudoin. Joshua L. Gordon for appellant Robert Champagne. Terry L. Ollila, Assistant United States Attorney, with whom Thomas P. Colantuono, United States Attorney, was on brief for appellee.

March 26, 2004 LYNCH, Circuit Judge. This appeal presents interesting

questions about the application of the Fourth Amendment when an

anonymous tipster informs police that there is a dead body in a

motel room.

A series of events cascaded from that tip, resulting in

the arrests of Rodger Beaudoin and Robert Champagne on various

drug-related charges and a federal prosecution for conspiracy to

distribute cocaine and crack and for possession of crack with

intent to distribute.

(a)(1), 846. Before trial,

the defendants each moved to suppress all of the evidence that the

police had found in a search of them and their motel room,

including knives, drugs, drug paraphernalia, and large amounts of

cash. After an evidentiary hearing, the trial court, in a

thoughtful opinion, denied their motions. The defendants pled

guilty but preserved the right to challenge the suppression ruling

on appeal, which they now exercise. Champagne also appeals from a

sentence enhancement. We affirm both the denial of the suppression

motions and the sentence enhancement.

I. Background Facts

The facts are taken from the suppression hearing, as

found by the district judge, and supplemented from the record.

At 5:15 in the morning on July 24, 2001, the Manchester,

New Hampshire Police Department informed the Hookset Police

Department that a dispatcher had just received a 911 call during

-3- which an unidentified person reported "a drug deal gone bad at the

Kozy 7 Motel, Room 10" in Hooksett. The caller said "I think there

is a dead body in there," and then hung-up before any follow-up

questions could be asked.

Three Hooksett officers, Sergeant Chamberlain and

Officers Pinardi and Sherrill, were immediately dispatched to the

motel, about three miles away. Officer Pinardi understood that the

information was that "a drug deal [had] gone bad, during which a

person was allegedly shot and there was a dead body." The call

transcript itself contains nothing about a shooting, but Pinardi

heard the dispatcher conveying the information to Chamberlain. The

motel was not upscale and was the sort of place that police had

visited before in connection with criminal activity.

The officers arrived several minutes later. They did not

attempt to see the motel manager to ask if there was any unusual

activity in the room, but instead went straight to the room that

the caller had identified. The officers noticed that a light was

on in Room 10, but that all of the other rooms were dark. The

curtain of the window to Room 10 was closed.

The uniformed officers approached the room; Officers

Pinardi and Sherrill took positions on either side of the doorway,

while Sergeant Chamberlain stood farther back on the opposite side

of the motel room's window. Pinardi stood to the left of the door

for "officer safety reasons." Among other things, in that position

-4- he "would be able to see inside the room, see what was going on,

and also . . . be able to get out of the way if . . . the door . .

. swung open." Officer Sherrill instinctively stood in front of

the door, but he moved to the right after Sergeant Chamberlain told

him to step away from the door. Sergeant Chamberlain chose a

position to the right of the door, by the window, to get "a little

concealment or whatever if something did happen in the room,

whether there was going to be a shoot-out or whatever." He was

concerned for his own safety because of the report that there was

a dead body in the room.

Chamberlain, with a view of the window, saw some movement

behind the window, and the officers heard some rustling from the

room. Pinardi knocked on the door. A man (who was later

identified as Beaudoin) drew back the curtains of the window and

peered outside toward Chamberlain. There was sufficient light to

see the uniformed officers. Chamberlain then identified himself

and the others as Hooksett police officers and asked the man to go

to the door so they could speak with him. The man, Beaudoin,

opened the door, but only wide enough so his face could be seen.

Both the interior door and an outer screen door were opened.

Sergeant Chamberlain could not recall if Beaudoin pushed the screen

door entirely open, or if Beaudoin pushed the screen door part way

open and an officer held it open.

-5- Officers Chamberlain and Pinardi presented slightly

varying accounts of what transpired next. These differences prove

to be immaterial. Officer Pinardi testified that once Beaudoin

opened the door, the officers explained to him that they were

investigating a crime and had heard that someone had been shot in

the room. Pinardi said that he then asked Beaudoin if he could

"just come out here" so the police could talk to him and that

Beaudoin did so voluntarily. Sergeant Chamberlain, however,

testified that he asked Beaudoin to step outside so they could talk

to him, which Beaudoin did, and only then explained why the police

were there. Either way, Beaudoin stepped outside, leaving the door

behind him sufficiently open so that Pinardi could see inside the

room. Whether Beaudoin felt free not to step outside is an open

question.

Once Beaudoin was outside, Sergeant Chamberlain asked him

if he was carrying any weapons. Beaudoin said that he had a knife

in his left rear pocket and started to reach for it. Sergeant

Chamberlain said that he would remove the knife, ordered Beaudoin

to put his hands on the wall, and proceeded to pat him down.

During the pat down, Sergeant Chamberlain patted Beaudoin's left

rear pocket and felt three objects: an object that seemed to be a

knife and two long and hard cylindrical objects that he was unable

to identify. Chamberlain reached into the pocket and removed a

knife, two glass tubes, and three plastic balls containing crack

-6- cocaine. The glass tubes and crack cocaine were contained in one

plastic bag. Chamberlain placed Beaudoin under arrest and finished

the pat down. He found $300 in Beaudoin's right front pocket.

While Sergeant Chamberlain was frisking Beaudoin, Officer

Pinardi made eye contact with a second man in the motel room, later

identified as Champagne, through the open door. Once Champagne saw

Pinardi, Champagne hurried across the room toward the far wall and

began to shuffle through some items on top of a dresser and to

reach into his pockets. Pinardi thought it odd that the man, upon

seeing the police, did not come toward them to ask why they were

there. Pinardi feared that Champagne was either searching for a

weapon or trying to hide evidence, so he and Officer Sherrill

entered the motel room and directed Champagne away from the dresser

and toward the middle of the room. Pinardi explained to Champagne

that the officers had received a report that there was a dead

person in the motel room. Champagne denied that there was a dead

body.

Pinardi asked Champagne if he had any weapons.

Champagne, who was nervous, said that he did not, but Officer

Pinardi saw that Champagne had a knife clipped to one of his

pockets. Pinardi removed the knife and conducted a protective

frisk, holding Champagne's arms behind his back. During the frisk,

Champagne became increasingly fidgety and kept attempting to free

his hands to reach into the pockets of his pants. Pinardi patted

-7- Champagne's right front pocket and felt several long, hard

cylinders, which he feared could be small pen guns or knives.

Champagne became even more fidgety when Pinardi patted that pocket.

When Champagne refused to comply with Pinardi's instruction to stop

moving his hands, Pinardi and Sherrill pushed him face down on the

bed and handcuffed him. Pinardi told Champagne that he was not

under arrest but was being restrained so Pinardi could safely

ascertain the nature of the situation in the room. Officer Pinardi

still had not looked in the bathroom and had no idea whether there

was a dead body inside.

Pinardi and Sherrill helped Champagne to his feet and

asked him what was in his front pocket. When Champagne said that

he did not know, Pinardi stretched open Champagne's pocket so he

could see inside it. With the aid of a flashlight held by

Sherrill, Pinardi saw several crack pipes, which were the long

cylindrical objects that he had feared were weapons, as well as a

substance that later proved to be crack-cocaine. Pinardi seized

these items and continued his frisk, finding yet more crack and a

wad of cash.

After completing these searches, the officers searched

the rest of the motel room for a dead body. When they did not find

a body, the officers left behind the contraband they had found and

brought Beaudoin and Champagne to the police station. Once a

search warrant was obtained, the police returned to the motel room

-8- and took the contraband found in the searches, as well as

additional drug paraphernalia, into police custody. They also

found by the door a plugged-in skill saw with its safety cover

duct-taped up.

II. Procedural History

Each defendant was indicted on charges of conspiracy to

distribute cocaine and crack and possession of crack with intent to

distribute.

(a)(1), 846. Champagne was also

indicted on charges of obtaining proceeds from the distribution of

crack.

§ 853. Both defendants moved to suppress all of the

evidence that had been seized at or near the motel room, including

the drugs found on them and the contraband discovered inside the

motel room. The prosecution argued that the request that Beaudoin

step out of the motel room doorway was justified by exigent

circumstances, such as a Terry stop, and that the evidence

subsequently found was admissible under the inevitable discovery

doctrine. The trial judge conducted an evidentiary hearing on

December 5, 2001. After hearing the testimony of Officer Pinardi

and Sergeant Chamberlain and reviewing a transcript of the 911 call

and copies of the police reports, the district court judge denied

both defendants' motions. The judge held that the officers'

initial request that Beaudoin exit his motel room and their later

entry into the room were both justified by the emergency assistance

exception to the warrant requirement because the officers could

-9- reasonably have believed that a person inside of the motel room was

in need of emergency aid.

The defendants then pled guilty to the crimes charged in

the indictment, but reserved their right to appeal the district

court judge's denial of their suppression motions. Beaudoin was

sentenced to fifty-seven months in prison to be followed by four

years of supervised release, and Champagne, to 151 months in prison

to be followed by five years of supervised release. In sentencing

Champagne, the judge imposed a two-point increase in his offense

level based upon his possession of the electric saw, which the

judge deemed to be a dangerous weapon. U.S.S.G. § 2D1.1(b)(1).

III. Analysis

A. Fourth Amendment Issue

The ultimate conclusion on whether the police violated

the Fourth Amendment is reviewed de novo. Ornelas v. United

States,

(1996). We defer to the district court's

factual findings, which we accept. This case does not turn on any

disputed issue of fact.

The Fourth Amendment protects people from unreasonable

searches and seizures by the government. A warrantless search

involving an intrusion into someone's home is presumptively

unreasonable under the Fourth Amendment. Groh v. Ramirez, No. 02-

811,

, at *15-*16 (2004); Steagald v. United

States,

(1981). The reasonableness of a

-10- search depends entirely on the context in which it takes place;

different Fourth Amendment doctrines as to reasonableness have

evolved to fit different contexts.

One set of variants in these doctrines is the degree of

the privacy expectations involved. For example, expectations of

privacy in a commercial establishment are not strong. See New York

v. Burger,

(1987). Privacy expectations in one's

home, by contrast, are quite strong. See Groh, 2004 US LEXIS 162,

at *15-*16; Kyllo v. United States,

(2001). As

such, searches usually may not be made in a person's home unless

the police have obtained a search warrant based on probable cause.

Payton v. New York,

(1980). By analogy, this

rule is usually extended to searches in a person's hotel or motel

room, which is a sort of temporary home. See Stoner v. California,

(1964); United States v. Bardacchino,

(1st Cir. 1985).

Another set of contextual variants are grouped under the

doctrine of exigent circumstances. The exigent circumstances

usually recognized include: (1) risk to the lives or health of the

investigating officers; (2) risk that the evidence sought will be

destroyed; (3) risk that the person sought will escape from the

premises; and (4) "hot pursuit" of a fleeing felon. See United

States v. Tibolt,

(1st Cir. 1995).

-11- Several courts have recognized another type of exigent

circumstance: an emergency situation in which police must act

quickly to save someone's life or prevent harm. See United States

v. Holloway,

(11th Cir. 2002); United States v.

Richardson,

(7th Cir. 2000); Seymour v. Walker,

(6th Cir. 2000); Tierney v. Davidson,

(2d Cir. 1998); Wayne v. United States,

(D.C. Cir. 1963) (Burger, J.). This court has not had occasion to

address the emergency doctrine. Recognition of some type of

emergency doctrine is entirely consistent, though, with the logic

of the traditional exigency exceptions to the warrant requirement.

This court implicitly said as much in Bilida v. McCleod,

(1st Cir. 2000), holding that "[w]arrantless entries are most

often justified by 'exigent circumstances,' the best examples being

hot pursuit of a felon, imminent destruction or removal of

evidence, the threatened escape by a suspect, or imminent threat to

the life or safety of the public, police officers, or a person in

residence."

(emphasis added). And the Supreme Court,

in dicta, has said that the Fourth Amendment "does not bar police

officers from making warrantless entries and searches when they

reasonably believe that a person within is in need of immediate

aid." Mincey v. Arizona,

(1978).

In the end, this case involves the intersection of

several Fourth Amendment doctrines, most notably, those of exigent

-12- circumstances, emergencies, and Terry-type temporary detentions

during investigations. Generally, under the emergency doctrine,

there must be a reasonable basis, sometimes said to be

approximating probable cause, both to believe in the existence of

the emergency and to associate that emergency with the area or

place to be searched.1 3 W. LaFave, Search & Seizure § 6.6(a) (3d

Ed. 1996); People v. Mitchell,

(1976). The

analysis must be with reference to the circumstances confronting

the officer, including, as one commentator has put it, "the need

for a prompt assessment of sometimes ambiguous information

concerning potentially serious consequences." LaFave, supra, §

6.6(a); see also Wayne,

(Burger, J.).

The facts also raise the classic exigent circumstances

situation, of a risk to the safety of police officers; the officers

were investigating a report of both drug activity and possible

deadly criminal activity in the room. Traditional exigent

circumstances justify a warrantless search when there is reasonable

suspicion that a person poses a threat to the lives or safety of

police officers and there is probable cause to believe that a crime

has been committed. McCabe v. Life-Line Ambulance Serv.,

A few courts have imported an "intent" requirement, demanding that the officers not be primarily motivated by an intent to arrest and seize evidence. Subsequent Supreme Court case law, we think, eliminates any such intent requirement in favor of a purely objective test. Whren v. United States

(1996); Scott v. United States,

(1978); see United States v. Richardson,

(7th Cir. 2000).

-13- 540, 545 (1st Cir. 1996); United States v. Tibolt,

(1st Cir. 1995); Hegarty v. Somerset City,

(1st

Cir. 1995). But whether or not probable cause for a crime exists,

the inquiry determining the existence of an exigency is essentially

one of reasonable suspicion. See United States v. Soto-Beniquez,

(1st Cir. 2003); United States v. Lopez,

(1st Cir. 1993).

Further, the government correctly suggests that the

detention of Beaudoin was analogous to a Terry stop. Terry v.

Ohio,

(1968). Terry stops, designed to protect police

officers in their investigations, may occur when there is

reasonable suspicion to believe that criminal activity is afoot,

even where there is not probable cause to arrest. See United

States v. Lee,

(1st Cir. 2003) (warrantless

investigatory stops are allowable if, and to the extent that,

police officers have reasonable suspicion of wrongdoing that is

based on specific, articulable facts); LaFave, supra, § 9.4;

Florida v. Royer,

(1983). Reasonable suspicion

is a less demanding standard than probable cause. United States v.

Golab,

(1st Cir. 2003). Once the stop has

occurred, an officer may search a suspect's person for weapons

based on reasonable suspicion that the person is armed and

-14- dangerous. Terry,

.2 When the officer suspects a

crime of violence, the same information that will support an

investigatory stop will, without more, support a protective search.

; United States v. Scott,

(1st Cir. 2001).

Defendants argue only that Terry does not justify a command to step

out of the doorway. They do not argue that Terry precluded the

police, standing outside and knocking, to ask the man (who opened

the curtain) to go to the doorway to talk to the police. Nor do

they argue that Beaudoin went involuntarily to the door and opened

it. So this is more like a situation in which a person voluntarily

stops, and then the police take reasonable steps, during that

temporary stop, to protect themselves during the questioning.

These doctrines are not firm-line tests. "The governing

caselaw under the Fourth Amendment does not yield very many bright

line rules. This is not surprising since the ultimate touchstone

is one of reasonableness . . . ." Joyce v. Town of Tewksbury,

(1st Cir. 1997).

When the police were informed of the anonymous call

reporting both drug dealing and a dead body, they were certainly

2 Several courts have found that Terry does not justify intrusions into the home. See LaLonde v. Riverside,

(9th Cir. 2000); United States v. Winsor,

, 1577- 78 (9th Cir. 1988) (en banc). But this issue is not before us -- the issue, as described below, does not arise from an intrusion into the home or motel room.

-15- justified in promptly going to the motel to investigate.3 Not

surprisingly, nothing visible at the motel either disproved the

report nor particularly confirmed it. As such, it was reasonable

for the police, seeing a light on at 5:30 a.m. in the room that the

anonymous caller had identified, to assume that someone was in the

room and to knock on the door. Once the police heard movement in

the room and saw someone open the curtain, it was reasonable for

them to ask that person to go to the door so they could speak with

him. See Illinois v. Lidster,

(2004) (law

enforcement officials can permissibly "seek the voluntary

cooperation of members of the public in the investigation of a

crime").

Beaudoin did not fully open the door in response to the

officers' request; rather, he opened it just enough so that his

face was visible. The officers could not see Beaudoin's hands, nor

could they see any part of the room that was within easy reach of

the doorway. It is at this point that the issue of officer safety

arose. The relevant facts are those that were known to the police

at the time of the exigency. See Banks,

. The

police knew that a 911 call had been made within the half-hour

stating that both a crime (drug dealing) and a death (possible

3 The motel was familiar to the police; they had been called there before in criminal matters. Drug deals in Maine motel rooms have certainly happened before. See, e.g., United States v. Julien,

(1st Cir. 2003).

-16- crime) had happened in the motel room. If the phone report was

true, the man in the doorway probably was involved in either or

both of the reported activities and might even be a murderer; the

man might well be armed and might have companions in the room. The

association between drug dealing and guns is well known. The

officers could not verify that the man was not armed because of the

way he had opened the door, nor could they tell if he had a weapon

close at hand. The partially opened doorway to the small motel

room was not a safe place for the police to investigate whether the

man was armed, in this situation. Additionally, the officers had

heard noises from inside the room and thus had reason to suspect

that at least one other person besides the man at the door was

inside.

In the end, this case turns on whether it was reasonable

for Sergeant Chamberlain to ask Beaudoin to step out of the

doorway.4 It matters not, in these particular circumstances,

whether the request was in essence a command. We will assume

arguendo that Beaudoin did not feel free to ignore the officers'

4 This is not, then, an issue of a search inside of a person's home or motel room or of the arrest of a person in a doorway. Indeed, even in the situation of arrests pursuant to warrant in the doorways of homes, the law is not clearly defined. In the context of doorway arrests, a more serious intrusion than here, this court has noted "[t]he Supreme Court cases, with Steagald at one pole and Santana at the other, do not definitively resolve [the issue]. Even a quick review of lower court cases reveals that there is no settled answer as to the constitutionality of doorway arrests." Joyce v. Town of Tewksbury,

(1st Cir. 1997).

-17- summons. We also assume arguendo that the statement to Beaudoin to

step outside was a "seizure," though this is not free from doubt.5

The issue is whether the command was justified under the

combination of the three doctrines. The Fourth Amendment question

is not whether Beaudoin acted reasonably that morning; the question

is whether the officers' response to Beaudoin's actions was

reasonable in context. Nor is the issue whether the officers had

probable cause to arrest Beaudoin and enter the room based solely

on the anonymous tip; we need not decide that. See Florida v.

J.L.,

(2000).

There may, of course, be exigent circumstances posing a

threat to officers and justifying reasonable responses even in the

absence of probable cause to arrest. The notion is abhorrent that

police who are investigating a crime and suddenly find themselves

at risk are precluded from acting reasonably in response to that

risk merely because they have not yet established probable cause to

make an arrest for a crime. Finally, the question presented here

is not whether the anonymous tip alone, absent any risk of injury

to the officers, justified the command to step out of the doorway.

Nor is any abstract issue raised about the application of Terry to

persons in doorways absent the emergency and exigent circumstances

present here.

5 Consider, for example, if Beaudoin had already left the doorway and the officer simply instructed Beaudoin to step closer to him.

-18- As the Supreme Court has emphasized, determining whether

the officers' actions were reasonable in the context of exigent

circumstances requires balancing the need for the warrantless

search or seizure against the harm to the individual whose privacy

is being intruded upon in light of all the circumstances. See

United States v. Banks,

(2003) (whether exigent

circumstances justify police action depends on a reasonableness

inquiry based on the totality of the circumstances). Courts

engaging in this balancing must be wary of overlaying a

"categorical scheme on the general reasonableness analysis" and

thus "distort[ing] the 'totality of the circumstances' principle,

by replacing a stress on revealing facts with resort to

pigeonholes."

.

Here, the harm to Beaudoin in being commanded (assuming

he was commanded) to step out of the doorway of his motel room was

relatively small. The police did not order Beaudoin out of the

doorway until he had voluntarily opened the door and spoken with

them. To the extent this was a seizure, it was more akin to the

temporary detention involved in a Terry stop. The police did not

enter the motel room here, but merely told (or perhaps, requested)

Beaudoin to step outside of his doorway. This is entirely in

keeping with the basic rationale of Terry: a brief "seizure" in

these circumstances protected police safety and facilitated the

investigation while minimizing the intrusiveness of the invasion on

-19- Beaudoin's privacy. We do not say that Beaudoin relinquished all

expectations of privacy merely by opening his door; still, it was

less intrusive for the police to tell him to step outside at that

point than it would have been if Beaudoin had not himself come

partially outside by opening the door. Cf. U.S. v. Santana,

(1976) (there is no expectation of privacy in the

doorway to one's home because one is knowingly "exposed to public

view, speech, hearing, and touch as if [one] had been standing

completely outside [one's] house").

A police command to step out of the opened door of one's

motel room is, nonetheless, a non-trivial invasion of privacy. But

balanced against the objective safety concerns of the officers

here, and in light of the call about an emergency, it was

reasonable. See United States v. Sargent,

(1st

Cir. 2003) (officers had reasonable suspicion of danger in

executing a search warrant at an apartment that they knew contained

drugs and numerous knives when there was a five-second delay

between the police announcement of their presence and the opening

of the door); United States v. Bartelho,

(1st Cir.

1995) (noting the importance of the police officers' safety in the

exigent circumstances analysis).

Telling Beaudoin to step outside was an effective way for

the officers to alleviate their significant safety concerns.

First, it assured the officers that Beaudoin was not holding a

-20- loaded gun in his hands and that he was not within easy reach of a

weapon. Second, it allowed the police to ask Beaudoin some

questions while putting some distance between themselves and other

persons potentially in the room. Finally, asking Beaudoin out of

the room allowed the police to perform a pat down unhindered by a

door frame and to subdue Beaudoin if necessary.

An argument may be made that there were alternatives

available to the police. The officers could have attempted first

to contact the motel manager or to telephone to see if there were

people inside of the room. But most of those alternatives were

available several steps earlier in the process and were hardly

required. Realistically, they were no longer available once

Beaudoin opened the door as he did. There is also a suggestion

that the officers should not have asked Beaudoin to step out of the

doorway at all once he opened it; they should have simply retreated

from the area. The officers had reasons to fear being shot if they

retreated. The police would have been foolish either to back away

or to turn their backs on Beaudoin. For the officers to ascertain

whether he had weapons, in light of the information they had, was

eminently sensible. Moreover, delay risked the life of the person

in the room reported to be dead, if there were such a person.

None of the officers' actions after Beaudoin stepped out

of the doorway justifies suppressing the evidence. Once Beaudoin

stepped out of the doorway, it was reasonable for the officers to

-21- ask him if he had a weapon. And when Beaudoin said that he had a

knife and reached for his pocket, it was reasonable for the

officers to do a quick pat down. After finding the knife and two

drug pipes, it was reasonable for them to enter the room, given the

information about the drug deal and the dead body.

The fact that the other two officers had not waited long

before entering the room and frisking Champagne (while Beaudoin was

questioned and frisked outside) need not be addressed in these

circumstances. Under the inevitable discovery doctrine, the

officers would inevitably have entered the room and frisked

Champagne once the results of frisking Beaudoin were known. And,

inevitably, they would have arrested him, once they found what was

in his pockets. See United States v. Scott,

(1st

Cir. 2001). This is what the district court concluded and we

agree. Had Beaudoin not had drugs and a weapon on him, this court

would be faced with a much different question about the police

entry into the room.

One essential purpose of the Fourth Amendment is to

impose a standard of reasonableness on the exercise of discretion

by the police in order to safeguard "the privacy and security of

individuals against arbitrary invasions." Delaware v. Prouse,

(1979) (internal quotation marks omitted). This

is distinctly not a case in which the raw question is presented of

whether police may barge into someone's home or even motel room

-22- merely based on the receipt of a tip that there is a dead body

inside. The concerns raised by such a scenario are very serious.

Anonymous tips, without more, do not justify free-wheeling police

action. J.L.,

. It is easy for someone to make an

anonymous 911 call to the police with a false report of a dead body

in a room in order to set up the people in that room. This case

shows exactly that: Beaudoin and Champagne were set up by the

anonymous tipster. Equally, though, society expects police to

investigate reports of dead bodies, and to do so promptly. The

reportedly "dead" body might yet be alive and prompt action could

save the person. See Wayne,

("Acting in response

to reports of 'dead bodies,' the police may find the 'bodies' to be

common drunks, diabetics in shock, or distressed cardiac patients

. . . . Even the apparently dead often are saved by swift police

response.").

Fourth Amendment analysis is renownedly fact specific; a

step-by-step analysis is inherent in the claim. Defendants, ably

represented by counsel, argue that the court should not do a step-

by-step analysis of the officers' actions, but should back up and

instead take a look at the entire picture. Courts must do both.

There may indeed be rare cases where the entire picture reveals

that the reasonableness of each succeeding step was so marginal

that an overall conclusion of unreasonableness is warranted.

Still, defendants' disavowal of a step-by-step approach relies too

-23- much on doctrinal categories, and not enough on the facts of the

case. The Supreme Court expressly disapproved of such an approach

in Banks,

.

We emphatically do not create an anonymously reported

murder scene exception to the warrant requirement, nor do we adopt

a broad emergency aid doctrine, as defendants fear. There are

valid concerns about the harm to Fourth Amendment interests from a

generous interpretation of the emergency doctrine as an exception

to the warrant requirement. This case does not, in the end, turn

on the emergency doctrine alone but turns also on the exigent

circumstance of risk to the officers, a risk that justified telling

Beaudoin to step out of the doorway and is a justification for the

Terry doctrine. From that, all else followed.

B. Sentencing Issue

Champagne appeals the district court's two-point increase

in his offense level for possession of a dangerous weapon. He

contends that it was clearly implausible that the circular saw

found in the motel room could have been used as a weapon because it

was unwieldy and had to be plugged in to be operational. The

district court judge was required to impose the enhancement if the

defendant possessed a dangerous weapon "unless it [was] clearly

improbable that the weapon was connected with the offense."

U.S.S.G § 2D1.1(b)(1), cmt. n.3 (2003). Our review is only for

-24- clear error. United States v. Picanso,

(1st Cir.

2003).

Champagne's arguments do not demonstrate clear error.

The safety cover of the saw was duct-taped so the saw's blade could

be engaged more easily. And the incongruous presence of the saw in

a motel room must be considered in conjunction with the fact that

Champagne, as a convicted felon, knew that he could not lawfully

possess a weapon. Under these circumstances, the district court

did not commit clear error in applying the sentencing enhancement

for possession of a dangerous weapon.

IV. Conclusion

The denials of the defendants' motions to suppress are

affirmed. Champagne's sentence is affirmed.

Dissenting opinion follows.

-25- LIPEZ, Circuit Judge, dissenting. The majority concludes

that the Hooksett police officers did not violate the Fourth

Amendment's protections for a private residence when they directed

Rodger Beaudoin to step outside of his motel room. In reaching

this result, the majority does not rely on the emergency exception

doctrine, which provided the basis for the district court's

decision, nor does it accept the government's alternative argument

that the seizure of Rodger Beaudoin was equivalent to an on-the-

beat, non-residential Terry-stop to which the Fourth Amendment's

warrant requirement does not apply. Rather, the majority adopts a

novel amalgam of Fourth Amendment doctrines that combines the

emergency exception doctrine, the traditional exigent circumstance

of risk to the safety of police officers, and the Terry doctrine to

uphold the officers' actions under the Fourth Amendment. Absent

from this analysis is any consideration of whether the command to

Beaudoin was supported by probable cause to believe that a criminal

offense had been or was being committed, or probable cause to

believe that an individual's life or safety was in danger within

the defendants' motel room. Because I believe that the majority's

approach is irreconcilable with long-established Fourth Amendment

jurisprudence, I respectfully dissent.

As I will explain more fully below, under Payton v. New

York,

(1980), and its progeny, the Fourth Amendment

prohibits searches and seizures inside a private residence unless

-26- they are conducted pursuant to a warrant or are supported by

exigent circumstances and probable cause (or, in the emergency

context, by exigent circumstances amounting to probable cause).

The Terry doctrine, which permits minimally-intrusive, warrantless

stops based on reasonable suspicion of unlawful activity, does not

apply to residential searches and seizures. Moreover, for Fourth

Amendment purposes, an overnight guest temporarily residing in a

hotel or motel room is accorded the same protections as a person

residing in his private residence. In my view, the police

officers' order to Beaudoin constituted a seizure of his person

from his private residence that implicated Payton's heightened

protections for the home. That seizure was not supported by

probable cause of criminal activity or probable cause of a danger

to the life or safety of an individual within the defendants' motel

room. Therefore, I would vacate the district court's order denying

the defendants' motion to suppress.

-27- I. Fourth Amendment Requirements for Residential Searches and Seizures

The Fourth Amendment's protections hold particular importance

for searches and seizures within a private residence.6 In Payton

v. New York, the Supreme Court explained that:

The Fourth Amendment protects the individual's privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual's home – a zone that finds its roots in clear and specific constitutional terms. . . . In terms that apply equally to seizures of property and seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house.

(emphasis added). The Fourth Amendment's

warrant requirement serves as the primary safeguard against

unlawful searches and seizures within the home. Welsh v.

Wisconsin,

(1984) (noting that "the physical

entry of the home is the chief evil against which the wording of

the Fourth Amendment is directed"). These heightened Fourth

Amendment protections for the home unmistakably apply to seizures

of individuals who reside in hotel or motel rooms as overnight

guests. Stoner v. California,

(1964) ("No less

than a tenant of a house, or the occupant of a room in a boarding

6 The Fourth Amendment provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and persons or things to be seized." U.S. Const., amend. 4.

-28- house, a guest in a hotel room is entitled to constitutional

protection against unreasonable searches and seizures.")(internal

citation omitted); United States v. Bardacchino,

, 175-

76 (1st Cir. 1985) (defendant "had the same right of privacy

[against a warrantless forced entry into his motel room] that one

would have against an intrusion into one's private dwelling").

Thus, when Beaudoin partially opened the door to his motel room in

response to a police knock and request, he was entitled to no less

constitutional protection against unreasonable searches and

seizures than if he had opened the door to his private residence.

A warrantless search of a residence violates the Fourth

Amendment's proscription against unreasonable searches and seizures

"unless the search comes within one of a 'few specifically

established and well-delineated exceptions'" to the Fourth

Amendment's warrant requirement. United States v. Luciano,

(1st Cir. 2003) (quoting Schneckloth v. Bustamonte,

(1973) (quoting Katz v. United States,

(1967)). In the context of a residential search or seizure,

these specifically established exceptions consist of either

consent, or exigent circumstances and probable cause. As the

Supreme Court has recently reaffirmed, "police officers need either

a warrant or probable cause plus exigent circumstances in order to

make a lawful entry into the home." Kirk v. Louisiana,

(2002); see also Arizona v. Hicks,

, 328

-29- (1987) ("A dwelling-place search, no less than a dwelling-place

seizure, requires probable cause."); United States v. Khounsavanh,

(1st Cir. 1997) ("While the warrant requirement

[for a residential search or seizure] may be dispensed with in

certain exigent circumstances that are few in number and carefully

delineated, the probable cause requirement is rigorously adhered

to.") (internal citation and quotation marks omitted). Exigent

circumstances exist where law enforcement officers confront "a

compelling necessity for immediate action that would not brook the

delay of obtaining a warrant." United States v. Tibolt,

(1st Cir. 1995). Probable cause requires that "the

officers at the scene collectively possess[] reasonably trustworthy

information sufficient to warrant a prudent policeman in believing

that a criminal offense had been or was being committed."

Under a traditional Fourth Amendment analysis, the lawfulness

of the Hooksett police officers' search and seizure of the motel

room and of the defendants turns on the initial question of whether

Beaudoin exited the motel room voluntarily or whether he did so

only in response to a police order. This question is important

because a police order to exit your private residence is tantamount

to a police seizure of your person within that residence. As the

Supreme Court has explained, a person has been seized for Fourth

Amendment purposes if "in view of all of the circumstances

surrounding the incident, a reasonable person would have believed

-30- that he was not free to leave." United States v. Mendenhall,

(1980). If a reasonable person in Beaudoin's

position would have believed that he was not free to remain inside

the motel room because of the force of the police order and

apparent authority, then the police constructively entered

Beaudoin's room to effect a seizure within the meaning of the

Fourth Amendment. See United States v. Saari,

(6th Cir. 2002) (police officers' conduct constituted a

constructive entry where they "summoned Defendant to exit his home

and acted with such a show of authority that Defendant reasonably

believed he had no choice but to comply"). On the other hand, if

a reasonable person in Beaudoin's position would have believed that

he was free to decline to exit the motel room, the directive was

not a seizure and did not implicate the Fourth Amendment's

proscription against unreasonable searches and seizures.

Although the district court did not explicitly decide whether

Beaudoin voluntarily stepped outside of the room, it described the

evidence on this point as "equivocal" in its written decision and

noted that it was "by no means clear that Beaudoin voluntarily

exited the room." It further noted, at the suppression hearing,

that "Mr. Beaudoin was not free under those circumstances to shut

the door and decline to come out of the hotel. He was coming out

of the hotel whether he wanted to or not." The government always

bears the burden of proving the existence of an exception to the

-31- Fourth Amendment's warrant requirement. United States v. Jeffers,

(1951). Where a warrantless search or seizure is

purportedly justified by the defendant's consent, "the prosecution

[must] show, by a preponderance of the evidence, that the consent

was knowingly, intelligently, and voluntarily given." United

States v. Marshall,

(1st Cir. 2003). Given

the sharp discrepancy between the two officers' testimonies, I

would read the district court's observations as a finding that the

government failed to establish by a preponderance of the evidence

that Beaudoin freely and voluntarily consented to step outside of

the motel room.7 Indeed, the conflicting testimony of the officers

would seem to preclude any finding that the government met its

burden of proof on its claim that Beaudoin exited the motel room

voluntarily. Therefore, I would conclude that the police officers'

order to Beaudoin to step outside constituted a seizure of his

person from his motel room.

Whether Payton's heightened protections for the home apply in

this case depends not only upon whether the order to Beaudoin

7 The majority characterizes the two officers' testimonies as "slightly varying accounts" and suggests that the differences between them "turn out to be immaterial." In my view, the differences between the officers' testimonies are substantial and significant. While Pinardi testified that he requested that Beaudoin step outside, Sergeant Chamberlain, when asked by the court whether he asked Beaudoin to step outside or ordered him out, responded: "I — I told him to come out, so I would say that I ordered him out." He later testified that Beaudoin was not free to refuse this directive, explaining that if Beaudoin had refused to come out, Chamberlain would have gone in after him.

-32- constituted a seizure but also upon whether it was a residential

seizure. While one can argue in some cases about where the

entrance to a private residence begins, the Fourth Amendment's

warrant requirement and protections for the home are either

implicated by a given search or seizure or they are not. In Kyllo

v. United States,

(2001), the Supreme Court

reaffirmed Payton, explaining that: "We have said that the Fourth

Amendment draws 'a firm line at the entrance to the house.' That

line, we think, must be not only firm but also bright." On the

external, public side of Payton's firm line, a police officer's

conduct is not subject to Payton's protections. On the internal,

residential side of this line, police officers must obtain a

warrant supported by probable cause prior to conducting a non-

consensual search or seizure, or demonstrate that their actions are

justified by exigent circumstances and probable cause.

The important question in this case, therefore, is not whether

the police conduct was intrusive, non-intrusive, or something in

between when weighed against Beaudoin's reasonable expectation of

privacy, but whether the Fourth Amendment's warrant requirement and

heightened protections for the home were implicated by the

challenged police conduct. If the police officers' seizure of

Beaudoin had taken place outside of the motel room, the Fourth

Amendment's warrant requirement would not apply, and the police

officers' directive to Beaudoin might be understood as the

-33- equivalent of a brief, investigative Terry stop, which requires

only a "reasonable suspicion of wrongdoing – a suspicion that finds

expression in specific, articulable reasons for believing that a

person may be connected to the commission of a particular crime" in

order to meet the Fourth Amendment's reasonableness requirement.

United States v. Lee,

(1st Cir. 2003) (citing Terry

v. Ohio,

(1968)). The reasonable suspicion standard

is "an intermediate standard requiring more than unfounded

speculation but less than probable cause." United States v. Cook,

(1st Cir. 2002) (quoting Ornelas v. United States,

(1981)). In evaluating whether a Terry stop was

justified by reasonable suspicion, the reviewing court must examine

"'the totality of the circumstances' of each case to see whether

the detaining officer ha[d] a 'particular and objective basis' for

suspecting legal wrongdoing." United States v. Arvizu,

(2002). In the course of a legitimate Terry stop, a

police officer may conduct a frisk of the suspect, searching his or

her person for weapons, "on reasonable suspicion that the suspect

is armed and dangerous." United States v. Scott,

(1st Cir. 2001), cert. denied

(2002).

In arguing that the seizure of Beaudoin was justified under

the Terry doctrine, the government suggested that under the Supreme

Court's decision in United States v. Santana, Beaudoin had no

reasonable expectation of privacy in his motel room once he opened

-34- the door to the police. See United States v. Santana,

,

40 n.1, 42 (1976) (holding that a suspect "was in a public place"

and could be arrested without a warrant where she was standing

"directly in the doorway . . . not merely visible to the public but

[] exposed to public view, speech, hearing, and touch, as if she

had been standing completely outside of her house"). The

government relied on the Second Circuit's opinion in Gori v. United

States, which found that the Santana doorway exception permitted a

Terry-type investigatory stop based on reasonable suspicion where

defendants voluntarily opened the door of their apartment to public

view in response to the knock of a delivery person they had

invited.

(2d Cir. 2000); c.f. Saari,

(finding that Terry did not apply where the defendant was

forcibly summoned out of the house at the command of the police and

did not voluntarily relinquish Payton's heightened protections for

the home).

In my view, the Santana doorway exception does not obviate the

need in this case for a warrant or exigent circumstances plus

probable cause. Unlike the defendants in Gori, who "opened [their

apartment] to public view . . . in response to the knock of an

invitee" and therefore had "no expectation of privacy as to what

could be seen from the hall," Beaudoin opened the interior door of

his motel room in response to a knock and request by law

-35- enforcement officials.8 Moreover, he opened the door just enough

to reveal his face, exposing nothing inside the room. He did not

relinquish his and Robert Champagne's reasonable expectation of

residential privacy. Thus, when the police ordered Beaudoin to

step outside, he was not in a place where Terry's reasonable

suspicion analysis would apply in lieu of the probable cause basis

required for a search or seizure within a private residence.

Because Beaudoin did not voluntarily step outside of the motel room

or voluntarily expose the room to public view, Payton's heightened

protections for private residences apply in this case.

II. Fourth Amendment Doctrines and the Majority's Exigency/Emergency/Terry Approach

As noted above, the majority does not uphold the warrantless

seizure of Beaudoin based on the presence of exigent circumstances

plus probable cause nor does it affirm the district court's denial

of the motion to suppress under the emergency exception doctrine.

It also does not adopt the alternative argument advanced below by

the government that the order to Beaudoin did not take place within

Beaudoin's private residence and thus constituted a Terry stop that

was justified solely on the ground of reasonable suspicion of

unlawful activity. Instead, the majority's analysis "involves the

8 Pinardi and Chamberlain testified that Beaudoin opened the main, inside door to the motel room, leaving an outer, screen door between Beaudoin and the officers. The record does not resolve the question of when the screen door was opened, or by whom.

-36- intersection of several Fourth Amendment doctrines, most notably,

those of exigent circumstances, emergencies, and Terry-type

temporary detentions during investigation." Under this analysis,

"the issue is whether the command [to Beaudoin] was justified under

the combination of the three doctrines." This combination of

Fourth Amendment doctrines is an innovation. To my knowledge, no

other court has combined the traditional exigent circumstances

doctrine, the emergency exception doctrine, and the Terry doctrine

to justify a residential search or seizure. The outcome of this

unusual mix is an analysis that is, in my view, at odds with each

of the doctrines it purports to adopt.

A. The Terry Doctrine

The majority's emergency/exigency/Terry approach removes the

Terry doctrine from its constitutional moorings and extends the

doctrine to the seizure of a person from his private residence.

First, the majority suggests that the Terry doctrine applies to the

police officers' order to Beaudoin because Beaudoin stopped

voluntarily when he opened the curtain to his motel room and

answered the knock at his door. Thus, the majority claims that the

circumstances that culminated in the order to Beaudoin to exit his

motel room were like "a situation in which a person voluntarily

stops, and then the police take reasonable steps, during that

temporary stop to protect themselves during the questioning."

-37- Although the majority is correct that once a Terry stop has

occurred, "an officer may search a person for weapons based on

reasonable suspicion that a person is armed and dangerous," the

voluntary actions that the majority describes do not constitute the

involuntary, investigative Terry stop (the seizure) that is the

premise of the Terry analysis. Indeed, the so-called voluntary

"stop" of Beaudoin within the motel room seems to be offered as a

substitute for the involuntary Terry seizure, which would require

reasonable suspicion that Beaudoin had committed, was committing,

or was about to commit a crime.

More importantly, the majority's analysis overlooks the

critical fact that Beaduoin was inside his motel room when he

looked out the window and responded to the officers' knock by

opening the door to his motel room just far enough to reveal his

face. This situation differs in constitutionally significant ways

from a situation in which police officers conduct a voluntary stop

of an individual in a public setting. In order to place Beaudoin

in a situation where Terry's reasonable suspicion standard might

apply, the officers had to order him to exit his room. Terry did

not justify that command because Terry does not apply to seizures

of individuals from their private residences. Although the

majority observes that "[w]hen the officer suspects a crime of

violence, the same information that will support an investigatory

-38- stop will without more support a protective search," it is the

stop, not the protective search, that is at issue in this case.

The majority's blend of Fourth Amendment doctrines overlooks

the importance of place in determining whether a minimally

intrusive seizure can be justified under Terry's reasonable

suspicion standard. The majority cautions that this case does not

present "any abstract issue . . . about the application of Terry to

persons in doorways absent the emergency and exigent circumstances

present here."9 Yet Terry's applicability to the order to Beaudoin

does not turn on the presence or absence of exigent circumstances

but on the physical location of Beaudoin and the police officers at

the time of the seizure. Terry itself distinguished police conduct

"predicated upon the on-the-spot observations of an officer on the

beat — which historically has not been and as a practical matter

could not be, subject to the warrant procedure" from "conduct

subject to the Warrant Clause of the Fourth Amendment." Terry, 392

9 While the majority acknowledges that "[s]ome courts have found that Terry does not justify intrusions into the home," it insists that "[t]his issue is not before us — the issue, as described below, does not arise from an intrusion into the home or motel room." However, insofar as Beaudoin was positioned on the residential side of Payton's firm line at the time that he opened the inner door of his motel room, the officers' seizure of his person was subject to the Fourth Amendment's warrant requirement, and the Terry doctrine did not apply. See, e.g., United States v. Winsor,

(9th Cir. 1988) (holding that Terry's reasonable suspicion standard could not justify a constructive search that was conducted as police officers peered through the doorway into the defendant's home); Saari,

(holding that Terry did not apply where police officers ordered the defendant to exit his home).

-39- U.S. at 20. Terry dealt with the former category of conduct and

did not require exigent circumstances or probable cause to justify

the warrantless seizure — because a warrant was not required in the

first place. By contrast, if the situation in Terry involved

conduct subject to the Fourth Amendment's warrant requirement, the

Court "would have [had] to ascertain whether 'probable cause'

existed to justify the search and seizure which took place."

Thus, the majority's incorporation of Terry into an

exigency/emergency analysis overlooks the constitutional difference

between police conduct in the home and police conduct outside it.10

This approach represents a significant departure from well-

established Fourth Amendment doctrine, under which residential

seizures must be supported by a warrant or exigent circumstances

and probable cause, whereas seizures short of arrest that are

conducted outside of the home do not require a warrant and may be

justified under Terry's reasonable suspicion standard. The command

to Beaudoin to exit his motel room constituted a seizure of

Beaudoin from his private residence. It was an intrusion of

10 Although the majority assumes, arguendo, that the order to Beaudoin was a seizure of his person, it suggests that the order may not have been a seizure after all, inviting us to "[c]onsider, for example, if Beaudoin had left the doorway, and the officer simply instructed Beaudoin to step closer to him." This example again misapprehends the significance of place. Whether the officers' directive was a seizure for Fourth Amendment purposes turns on the nature of the order, not the location of Beaudoin. On the other hand, Beaudoin's location is relevant in determining whether that order was a residential seizure that implicated the Fourth Amendment's warrant requirement or whether it was a nonresidential seizure equivalent to an on-the-beat Terry stop.

-40- significant import that required a search warrant or exigent

circumstances plus probable cause. Therefore, Payton, not Terry,

applies in this case.

B. The Exigent Circumstances and Emergency Doctrines

Just as the majority's approach is inconsistent with the Terry

doctrine, so too it cannot be reconciled with the traditional

exigent circumstances doctrine or the emergency exception doctrine.

1. The Exigent Circumstances Doctrine

Under a traditional Fourth Amendment analysis, exigent

circumstances present an exception to the Fourth Amendment's

warrant requirement for residential searches and seizures. Exigent

circumstances involve a "compelling necessity for immediate action

as w[ould] not brook the delay of obtaining a warrant." United

States v. Wilson,

(1st Cir. 1994)(quoting United

States v. Adams,

(1980)). The exigent

circumstances analysis is necessarily fact-intensive and is

"limited to the objective facts reasonably known to, or

discoverable by, the officers at the time of the search." Tibolt,

. As the majority notes, this circuit has recognized

that exigent circumstances may exist where a suspect poses a threat

"to the lives or safety of the public, the police officers, or to

herself." Hegarty v. Somerset Cty.,

(1st Cir.

1995).

-41- Yet exigent circumstances alone cannot excuse the Fourth

Amendment's warrant requirement for residential searches and

seizures. While the majority is correct that a risk to the safety

of the public or the police may rise to the level of an exigent

circumstance, our case law is clear that this exigency justifies a

warrantless residential search or seizure only where it is also

supported by probable cause. See, e.g., United States v. Bartelho,

F.3d 442 (1st Cir. 1995); United States v. Lopez,

(1st Cir. 1993). Thus, the traditional exigent

circumstances doctrine requires two separate elements. The exigent

circumstance element focuses on circumstances that are incident to

the criminal investigation, such as a risk of flight, the

destruction of evidence, or a risk to police officer safety. The

probable cause element focuses on the suspicion of criminal

activity, which must amount to probable cause to believe that a

crime has been or is being committed. In the absence of a valid

search warrant or consent, both elements must be present in order

to justify a search or seizure within a private residence.

2. The Emergency Exception Doctrine

The Supreme Court has recognized that some emergencies may

obviate the need to obtain a warrant prior to entering a private

residence, Mincey v. Arizona,

(1978), and

numerous state and federal courts have upheld emergency entries and

searches of private residences based on the need to render

-42- emergency aid. See United States v. Holloway,

, 1336-

37 (11th Cir. 2002) (collecting cases). In contrast to the

traditional exigent circumstance case, in which the exigency

presents itself in the course of a criminal investigation and

requires probable cause of criminal activity, a search or seizure

that falls under the emergency exception doctrine may be only

incidentally connected to unlawful acts. Police officers

responding to emergency situations are responding to the need to

locate and provide assistance to a person whose life may hang in

the balance rather than the search for evidence of criminal

activity.

As the Fourth Circuit has explained, "[t]his particular

exigency is expressed as one of [a] reasonably perceived

'emergency' requiring immediate entry as an incident to the service

and protective functions of the police as opposed to, or as a

complement to, their law enforcement functions." United States v.

Moss,

(4th Cir. 1992). A Fourth Amendment issue

arises in these emergency exception cases only when someone becomes

the subject of a search or seizure within the protected area,

usually because the police discover evidence of criminal activity

while searching for the individual believed to be in need of aid.11

11 The emergency exception doctrine must be distinguished from the "special needs" exception to the Fourth Amendment's warrant and probable cause requirements. The latter exception provides that "a residential search pursuant to an established warrantless search procedure, may be reasonable if conducted in furtherance of an

-43- In such cases, the reasonableness of the search or seizure does not

depend on the existence of probable cause to believe that criminal

activity had been or was being committed. Indeed, the law

enforcement officers initially may not be aware of any connection

between the emergency and a crime. Instead, the reasonableness of

the intrusive action under the emergency doctrine depends on the

objective probability that someone's life or safety is in danger

within a setting protected by the Fourth Amendment.

Thus, the emergency exception suggested by Mincey, and adopted

in various forms by state and federal courts, does not dispense

with the Fourth Amendment's probable cause requirement. In

applying the emergency doctrine, other circuits have found that the

Fourth Amendment requires a standard of suspicion approximating

probable cause to justify a warrantless search or seizure in a

private residence under the emergency exception doctrine. While

the phrasing of the applicable standard varies, I agree with the

Second Circuit that probable cause exists in the emergency context

where there exists a probability that an individual's life or

safety is in danger within an area protected by the Fourth

important administrative or regulatory purpose, or 'special need,' which would be undermined systematically by an impracticable warrant or probable-cause requirement." McCabe v. Life-Line Ambulance Serv., Inc.,

(1st Cir. 1996)(emphasis in the original)(applying the exception to a municipal policy allowing warrantless entries into private residences for the purpose of executing involuntary commitment papers).

-44- Amendment. See Koch v. Town of Brattleboro,

(2d

Cir. 2002) (probable cause under the emergency doctrine requires "a

probability that a person is in danger"). Courts that have found

that the emergency doctrine requires a "reasonable belief" or a

"reasonable basis for believing" that someone is in danger have

also essentially applied a probable cause test. See, e.g.,

Holloway,

("[I]n an emergency, the probable cause

element may be satisfied where officers reasonably believe a person

is in danger."); 3 LaFave, Search and Seizure § 6.6(a), at 393

("There must be some reasonable basis, approximating probable

cause, to associate the emergency with the area or place to be

searched.")(quoting People v. Mitchell,

(1976)).

Whether articulated as a reasonable belief or a probability,

the probable cause element of the emergency doctrine requires the

same heightened standard that applies to other warrantless searches

and seizures in a private residence where the object of the search

and seizure is criminal activity. However, under the emergency

doctrine, the separate elements of exigent circumstances and

probable cause come together. In other words, probable cause in

the emergency context focuses on the threat to an individual's life

or safety – that is, on the exigency itself. Unless the objective

basis for suspicion of an emergency rises to the level of probable

-45- cause, a warrantless residential search or seizure violates the

Fourth Amendment.

3. The Majority's Approach

The majority never claims that the anonymous call reporting a

failed drug deal and possible dead body, and the light inside of

the defendants' motel room, provided an adequate basis for a

warrantless entry into the room under the traditional exigent

circumstances doctrine or the emergency exception doctrine. At

most, the majority's analysis suggests that the facts known to the

officers relating to the possible emergency and crime justified

their decision to approach the defendants' motel room and knock on

the door. I agree with that proposition.

However, Beaudoin had no obligation to open that door, even in

response to a knock and request of the police. Because the

officers did not have a warrant, Beaudoin could have simply told

them to go away. In that case, the officers would have been

required to explore other investigative options until they could

develop sufficient probable cause to support a search warrant.

Yet Beaudoin responded to the officers' knock by opening the

inner door to his motel room, revealing only his face. At that

critical moment, the majority introduces the exigent circumstance

of the risk to the officers' safety. According to the majority,

the police officers had a reasonable basis to believe that their

safety was at risk based on the information provided by the

-46- anonymous call,12 the sounds that they heard inside of the room, and

the way that Beaudoin opened the door. As the majority explains:

"[t]he partially opened doorway to the small motel room was not a

safe place for the police to investigate whether [Beaudoin] was

armed, in this situation."13 Therefore, it concludes that "balanced

against the objective safety concerns of the officers here, and in

light of the call about an emergency, it was reasonable" to order

Beaudoin to step outside of his motel room.

I do not doubt that an officer investigating reports of drug

activity and a possible dead body in a motel room has valid

grounds for concern about his or her personal safety in standing

outside of that room under the circumstances presented here.

However, the officers could have addressed their concerns for

personal safety by withdrawing from the area around the motel room

door in any one of several directions. The door was adjacent to a

12 The majority points out that Officer Pinardi testified that he believed the call had reported a shooting, as well as a drug deal gone bad and a possible dead body. However, the source of that belief is unclear, and it conflicts with the transcript of the call, which said nothing about a shooting, as well as the testimony of Sergeant Chamberlain, who said nothing about a shooting.

13 In fact, as noted in footnote 3, supra, Beaudoin initially opened the interior door of the room. The record leaves unclear whether he had pushed open the outer, screen door at the time that the police commanded him from the room.

-47- lit walkway that flanked a circular driveway where the police

officers had parked their car in view of the defendants' room. The

police did not have to turn their backs to Beaudoin or end their

vigilance as they retreated from the area in front of the door.

While courts are appropriately reluctant to tell police officers

how to carry out their investigatory responsibilities, officers

must make investigative choices within the limits of the

Constitution. A decision by the Hooksett police officers to

withdraw from the area around Beaudoin's door would not mean an

abandonment of their investigation of the anonymous call. They

could have pursued a number of alternative options, including

staking out the scene,14 questioning other motel residents, or

calling Beaudoin's room in an effort to win his consent to a

voluntary departure from that room. What the police could not do,

however, was use their continued presence outside the motel room

door as a basis for disregarding the well-established

constitutional prohibition against entering a private residence

without a combination of probable cause to believe that criminal

activity was occurring within and exigent circumstances or, in a

14 Sergeant Chamberlain recognized the availability of other alternatives, testifying that if the call had reported a drug deal gone bad but not a dead body, the officers would not have ordered Beaudoin to step outside when he guardedly opened the door but would have "put a perimeter up outside the place and tried to develop enough probable cause to at least get a search warrant, and [] would also have at that point called for more help."

-48- pure emergency situation, probable cause to believe that somebody's

life or safety is in danger within the private residence.

Implicit in the majority's analysis is the notion that the

officers' belief that someone was injured or dying inside of the

room justified their continued presence outside of the doorway and,

after concerns arose for their own safety, their seizure of

Beaudoin. In other words, the police could not have been required

to abandon their position in front of the motel room door because

they were in the process of investigating a reported emergency.

However, the only basis for the officers' belief that someone might

be in danger inside the room was an anonymous, uncorroborated 911

call devoid of any details (other than the room number) that did

not provide sufficiently reasonable grounds to believe that an

emergency existed. Nor was the officers' belief in a possible

emergency rendered any more reasonable by their concerns for their

own safety or by the fact that they ordered Beaudoin to step

outside of his motel room rather than physically entering the room

themselves. In essence, when the majority's amalgam of doctrines

and its language of reasonableness are probed, it concludes that an

anonymous, uncorroborated call trumps the strong Fourth Amendment

rule that the police may not enter a private residence without

probable cause to do so. This proposition represents a new

exception to the Fourth Amendment's warrant and probable cause

requirements that cannot be squared with traditional exigent

-49- circumstances analysis or the emergency exception doctrine.

Because the officers in this case had no probable cause basis for

believing that there was criminal activity or an emergency inside

the defendants' room, I would hold that their decision to order

Beaudoin from his motel room violated his Fourth Amendment rights.

III. Fourth Amendment Analysis of the Seizure of Beaudoin

A. Traditional Fourth Amendment Analysis

Although the district court did not decide this case on

traditional Fourth Amendment grounds, it stated at the suppression

hearing that "the ordinary exigent circumstances exception, when

you're trying to seek evidence of a crime rather than trying to

determine if somebody in need of assistance can get that

assistance, requires probable cause. And I agree [with the

defendants] that in these circumstances, there is not probable

cause present." Because the majority affirms the decision of the

district court under its exigency/emergency/Terry analysis, it does

not consider whether the seizure of Beaudoin was justified by

probable cause of criminal activity. I suspect, however, that the

majority would agree with the district court, as do I, that the

seizure of Beaudoin was not justified by probable cause of criminal

activity, notwithstanding the presence of any exigent

circumstances.

As noted in Part I, for Fourth Amendment purposes, probable

cause exists where "the officers at the scene collectively

-50- possessed reasonably trustworthy information sufficient to warrant

a prudent policeman in believing that a criminal offense had been

or was being committed." Tibolt,

. The probable

cause standard is a fact-specific concept that "deals with

probabilities and depends on the totality of the circumstances."

Maryland v. Pringle,

(2003); see Valente v.

Wallace,

(1st Cir. 2003) (noting that whether the

requisite probability must be "'more likely than not' [is] . . .

arguably unsettled; but, centrally, the mercurial phrase 'probable

cause' means a reasonable likelihood"). Like the less demanding

standard of reasonable suspicion, probable cause is "dependant upon

both the content of information possessed by the police and its

degree of reliability. Both factors – quantity and quality – are

considered in the 'totality of the circumstances' – the whole

picture – that must be taken into account" when evaluating whether

a search or seizure was supported by reasonable suspicion or by

probable cause. Alabama v. White,

(1990). Of

course, probable cause is a more demanding standard than reasonable

suspicion, both in terms of the detail of information and the

degree of reliability required. See

An anonymous tip "seldom demonstrates the informant's basis of

knowledge or veracity" and typically fails to give rise to

reasonable suspicion, let alone probable cause.

(finding

that a detailed anonymous tip that a woman was carrying cocaine and

-51- predicting that she would leave an apartment building at a

specified time, enter a car of a specified description, and drive

to a specified motel would not, without further corroboration, have

justified a Terry stop based on reasonable suspicion); see Florida

v. J.L.,

(2000) (holding that an anonymous 911

call lacked sufficient indicia of reliability for a showing of

reasonable suspicion where the caller reported that a young man

standing at a particular bus stop wearing a plaid shirt was

carrying a gun). The anonymous 911 call to the Manchester police

reporting a dead body and failed drug deal in a particular room at

a particular motel did not provide anything approaching the degree

of detail and specificity that might have supported the veracity of

the information. See Khounsavanh,

(noting that

"there may be cases where an informant provides such a wealth of

detail, with such a high degree of specificity that it is unlikely

that the informant is inventing these assertions, and his veracity

is supported through the very specificity and detail of his

statement"). The caller did not describe who was involved in the

alleged events, when these events took place, how the alleged death

occurred, how many people could be found inside the motel room, or

how he knew about the information he proffered. In essence, the

call consisted of a "bare report of an unknown, unaccountable

informant" who provided little detail or predictive information and

did not "suppl[y] any basis for believing he had inside

-52- information" about the defendants or the alleged events at the Kozy

7 motel. See J.L.,

.

It is true that an anonymous tip with predictive detail that

is then supported by corroborating facts may demonstrate sufficient

reliability to give rise to a reasonable suspicion or, potentially,

probable cause, of criminal activity. See J.L.,

;

Wood v. Clemons,

(1st Cir. 1996). However, there was

precious little detail or corroboration at the time that the

Hooksett police officers knocked on the defendants' motel room door

and ordered Beaudoin to step outside. Arriving at the motel at

about 5:30 a.m., the officers observed that a light was on inside

Room 10, in contrast to the other darkened rooms of the motel.

Sergeant Chamberlain noticed movement inside the room and

subsequently observed Beaudoin pull back the curtain and look

outside in response to the officers' knock on the door. When

Beaudoin opened the door at the request or instruction of the

officers, he did so only far enough to reveal his face.

I do not find it out of the ordinary that two individuals

would be awake at 5:30 a.m. on a July morning when the sun had

already begun to rise. As Officer Pinardi acknowledged at the

suppression hearing, it was "not very dark in July" at that time of

morning. Nor do I think that Beaudoin's decision to look outside

the window before answering an early morning knock on his motel

room door provides any corroboration of the anonymous and

-53- unidentified tip alleging a homicide or drug deal. As noted, he

had no obligation to open the door at all. His hesitancy to

voluntarily expose himself and the room to full public view when

opening the door in response to a request from police officers

visible in their uniforms could provide some indication of a guilty

conscience. On the other hand, it could suggest a reasonable

concern for safety, or for modesty, when strangers, even uniformed

ones, unexpectedly knock on one's motel room door in the early

hours of the morning. In any event, considered together, these

facts were insufficient to corroborate an anonymous call devoid of

details and to provide sufficient indicia of reliability to

"warrant a prudent policeman in believing" that Beaudoin and

Champagne had committed or were committing an offense inside the

motel room. Tibolt,

; see J.L.,

(holding that anonymous call alleging unlawful carriage of gun was

not sufficiently corroborated by police observation of suspect

matching the description and standing at the location reported by

the caller to establish reasonable suspicion justifying a Terry

investigative stop of that individual). Hence, under a traditional

Fourth Amendment analysis relating to the investigation of criminal

activity, there was no probable cause basis for ordering Beaudoin

to leave his room.

B. Emergency Exception Doctrine

The question here is whether the Hooksett police officers

-54- lawfully ordered Beaudoin to step outside of his motel room under

an emergency doctrine that incorporates the Fourth Amendment's

requirements for warrantless residential searches and seizures. In

addressing this question, I consider whether there existed an

objective probability that an individual's life or safety was in

danger inside the motel room at the time that the officers ordered

Beaudoin to step outside — in other words, whether the risk of an

emergency rose to the level of probable cause.

The government claims that emergency circumstances were

created by the anonymous 911 call that reported a possible dead

body inside a motel room. As several circuit courts have

recognized, 911 calls are among the most frequent and widely

recognized means of reporting emergencies. See, e.g., Holloway,

("Not surprisingly, 911 calls are the predominant

means of communicating emergency situations."); United States v.

Richardson,

(7th Cir. 2000) ("A 911 call is one

of the most common — and universally recognized — means through

which police and other emergency personnel learn that there is

someone in a dangerous situation who urgently needs help."). When

confronted with an emergency situation, police officers generally

must act swiftly to investigate and respond to information that

someone may be in need of urgent assistance.

Although a homicide scene does not automatically present an

exigent circumstance that justifies a warrantless search, see

-55- Mincey,

,15 a 911 report of a dead body may in

some circumstances create a reasonable assumption that the reported

victim might be alive and in need of immediate aid. See

Richardson,

(concluding that "it was objectively

reasonable for the officers to conclude that the situation

presented exigent circumstances" based on a 911 report that a woman

had been raped and murdered in an apartment). As then-Judge Burger

explained in Wayne v. United States:

[A] warrant is not required to break down a door to enter a burning home to rescue occupants or extinguish a fire, to prevent a shooting or to bring emergency aid to an injured person. The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency. . . . [T]he business of policemen and firemen is to act, not to speculate or meditate on whether the report is correct. People could well die in emergencies if the police tried to act with the calm deliberation associated with the judicial process. Even the apparently dead often are saved by swift police response.

(D.C. Cir. 1963)(dicta). In this case, the 911

call suggested that someone may have been killed as the result of

a drug deal. I agree with the district court that a 911 call

reporting a potential victim of a drug-related homicide may present

an exigency that compels immediate action and justifies forgoing

the delay of obtaining a warrant.

15 In Mincey, the Supreme Court found that a four-day search of an apartment after the victims of a shooting had been found violated the Fourth Amendment, explaining that "the warrantless search of [the defendant's] apartment was not constitutionally permissible simply because a homicide had occurred there." Id. at 395.

-56- The analysis does not end there, however. Again, the

government must establish that the suspicion of emergency

circumstances rises to the level of probable cause in order to

validate a warrantless search or seizure within a private

residence. The district court concluded that the anonymous 911

call that reported a dead body inside Room 10 of the Kozy 7 Motel

"provided both reasonable grounds for effectuating a warrantless

attempted rescue of the putative victim and a reasonable basis for

doing so within the room specified." The majority apparently does

not agree with that conclusion, nor do I.

The relevant facts on this issue are not in dispute. The

government agrees that the anonymous 911 call alleging a "drug deal

gone bad" and possible dead body provided the basis for the police

officers' seizure of Beaudoin. The officers acknowledge that they

did not know the identity of the caller or the origin of the call.

There is no evidence in the record suggesting that the officers

tried to trace the call or conducted any other investigation to

corroborate the information that they received or the identity of

the caller prior to appearing at the defendants' door.

The concerns with anonymous and uncorroborated tips expressed

by the Supreme Court in J.L. under a traditional Fourth Amendment

analysis are also relevant in the emergency context. It is true

that the J.L. Court recognized that certain emergency situations

might justify a reduced showing of reliability regarding anonymous

-57- tips, explaining that "[w]e do not say, for example, that a report

of a person carrying a bomb need bear the indicia of reliability we

demand for a person carrying a firearm before the police can

constitutionally conduct a frisk."

. I

recognize that unusually severe and time-sensitive emergencies,

such as the report of a bomb, may validate a protective, on-the-

street, stop and frisk, even without a showing of reliability.

Such an emergency might also justify a search or seizure within a

private residence without a showing of probable cause,

notwithstanding the heightened privacy interest at stake in such

cases. However, an anonymous call alleging a possible dead body

inside a motel room does not present the same kind of clear and

immediate threat of harm as a report alleging that a person is

carrying a bomb. J.L. does not stand for the proposition that an

anonymous report of a dead body inside a private residence obviates

the need to verify the reliability of the caller or the call.

As in J.L., the caller in this case "provided no predictive

information and therefore left the police without means to test the

informant's knowledge or credibility." See J.L.,

.

Such a call presents a troubling possibility that someone may have

placed the call in order to "harass another [by] set[ting] in

motion an intrusive, embarrassing police search of the targeted

person."

. Indeed, Beaudoin and Champagne were set up

-58- by somebody who concocted a phony story about an emergency.16 There

was no dead body inside Room 10 of the Kozy 7 Motel. Instead, an

unknown person placed an anonymous and unreliable call reporting an

emergency that did not exist.

While several circuit courts have applied the emergency

doctrine to uphold a warrantless search or seizure in a private

residence based on a 911 emergency call, in each case the call at

issue was more reliable than the call in this case. In some cases,

the caller was not anonymous. See Richardson,

(caller identified himself by name and explained that he lived at

the same address as the alleged murder); United States v.

Cunningham,

(8th Cir. 1998) (caller identified

herself). In another case, the address from which the call was

placed was verified by caller identification, and the caller

described an immediate and deadly threat of harm to which she

herself was being exposed. Anthony v. City of New York,

(2d Cir. 2003). In still other cases, the police found

corroborating evidence of an emergency when they arrived at the

reported location. See United States v. Jenkins,

(7th Cir. 2003) (caller identified herself and called from

16 This observation does not suggest any sympathy for the plight of the defendants. They were obviously up to no good. However, their culpable conduct is not at issue here. The fact that they were set up simply illustrates the reliability problems that are presented by anonymous and uncorroborated tips that become the basis for intrusive police actions.

-59- the location of the alleged assault, and when police officer

arrived at that location, he observed that the front door was open

and heard sounds of someone standing up and falling down);

Holloway,

(when investigating anonymous report

of a violent domestic dispute and gun shots inside a home, police

officers discovered individuals on the porch, a shotgun against the

house, and several expended and one live shotgun shells on the

picnic table and lawn). In none of these cases did the police rely

upon an anonymous and uncorroborated emergency call to justify a

warrantless search or seizure in a private residence. See Kerman,

261 F.3d at 238 (finding that search violated the Fourth Amendment

where it was based on an anonymous and unverified 911 call).

The government did not present the district court with

evidence that the Manchester or Hooksett police had any additional,

objective reason to believe in the reliability of the caller. See

J.L.,

(Kennedy, J., concurring) (noting that

instant caller identification and voice recordings of telephone

calls may lend reliability to an otherwise unreliable anonymous

tip). When the police arrived at the motel, they discovered no

commotion, no sign of a disturbance, nothing to indicate that a

person had been shot or killed or was in need of emergency

assistance. They did not look for a manager or others on the

premises to ask if they had heard any disturbance in or around Room

10. Instead, the police seized Beaudoin on the basis of an

-60- anonymous call and evidence of someone awake inside the reported

location at 5:30 a.m. and movement inside the room. These meager

observations did not provide sufficient corroboration of an

anonymous and unidentified call from an unknown location reporting

a possible dead body at that address to establish probable cause of

a danger to the life or safety of someone inside the motel room.

Therefore, when the Hooksett police ordered Beaudoin to step

outside of his motel room, they violated his Fourth Amendment right

to be free from unreasonable seizures and triggered subsequent

searches and seizures of Beaudoin, Champagne, and the room that

cannot escape the taint of this original violation.17

IV. Conclusion

The seizure of Beaudoin was not supported by probable cause of

criminal activity or probable cause of a danger to human life or

safety. Indeed, it is questionable whether the police officers had

even a reasonable suspicion that there was criminal activity in the

17 Because the initial seizure of Beaudoin was unlawful, the government's theory of inevitable discovery as a justification for the ensuing searches and seizures unravels. See Nix v. Williams,

(1984) (holding that if the government "can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means . . . the evidence should be received" even if it was obtained by an unlawful search or seizure). Evidence seized under the subsequently executed search warrant is also inadmissible as fruit of the poisonous tree. See generally, Wong Sun v. United States,

(1963). It would have been impossible to secure the warrant without the prior unlawful seizure of Beaudoin and the subsequent entry into the motel room and the seizure of Champagne.

-61- room, or an emergency involving someone's life or safety. Yet one

of the officers testified that if Beaudoin had not come out of his

motel room the police were going to go in. That determination

reflects a failure on the part of the officers to understand the

constitutional principles that circumscribe their investigative

choices.

These constitutional principles do not make the difficult and

important job of police officers any easier. However, they cannot

be removed from the calculus of reasonableness. In this case, the

well-established proposition that the police cannot enter a private

residence without probable cause to do so means that the officers

made a constitutionally inappropriate choice when their concern for

their own safety induced them, with their order to Beaudoin to

leave his motel room, to cross the threshold into the protected

area instead of withdrawing from the scene to continue their

investigation in a manner that would comport with constitutional

requirements. Under both traditional Fourth Amendment analysis and

the emergency exception doctrine, the officers' conduct in this

case violated the Fourth Amendment's proscription against

unreasonable searches and seizures. The district court's order

denying the defendants' motion to suppress should be vacated, and

the motion to suppress granted.

-62-