United States of America v. JERRY POLLARD (98-5908) and EDDIE RODRIGUEZ (98-6118)

12 United States v. Pollard, et al. Nos. 98-5908/6118
996 n.5 (6th Cir. 1994). While we generally limit “exigent
circumstances” to these three situations, we may recognize
new exigencies when necessary. See United States v. Rohrig,
98 F.3d 1506, 1519 (6th Cir. 1996). In determining whether
to fashion a new exigency, we assess the nature of the
government interest involved; the interplay of that interest and
the citizen’s privacy interests; and whether immediate action
is needed. See id. at 1518.
In this case, none of our traditionally recognized exigent
circumstances justify the officers’ search of the home, and the
facts of this case do not support creating a new exigency.
There is no evidence of any threat to Officer Askew; no
evidence that either Pollard or Rodriguez was armed; and no
evidence that either Pollard or Rodriguez intended to destroy
any evidence. Under the analysis we articulated in Rohrig,
the government has not demonstrated that it was necessary
that the officers raid the home when they received the signal
from the informant, nor has it shown, on the facts of this case,
that any legitimate government interests purportedly
vindicated by the “consent once remove doctrine” override
Pollard’s privacy expectations. In short, without any specific
reason to believe that evidence would be destroyed or that
officer safety was in danger, there is no justification for a
warrantless intrusion into the sanctity of a private home.
Without an exigent circumstance to support the government’s
entry, all evidence recovered after the illegal search should be
suppressed. See, e.g., United States v. Dice, 200 F.3d 978,
982-83 (6th Cir. 2000).
While I agree that Rodriguez does not have standing to
challenge the government’s search, I respectfully dissent from
the majority’s adoption of the “consent once removed”
doctrine and its decision to affirm the denial of Pollard’s
suppression motion.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0201P (6th Cir.)
File Name: 00a0201p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED S TATES OF AMERICA ,
Plaintiff-Appellee,
v.
J ERRY P OLLARD (98-5908)
and EDDIE R ODRIGUEZ
(98-6118),
Defendants-Appellants.
;>

1
Nos. 98-5908/6118
Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 97-20159—Julia S. Gibbons, Chief District Judge.
Argued: January 28, 2000
Decided and Filed: June 15, 2000
Before: JONES, NORRIS, and SILER, Circuit Judges.
_________________
COUNSEL
ARGUED: Doris A. Randle-Holt, OFFICE OF THE
FEDERAL PUBLIC DEFENDER FOR THE WESTERN
DISTRICT OF TENNESSEE, Memphis, Tennessee, Jeffrey
M. Brandt, BRANDT LAW OFFICES, Cincinnati, Ohio, for
Appellants. Thomas A. Colthurst, ASSISTANT UNITED

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2 United States v. Pollard, et al. Nos. 98-5908/6118
STATES ATTORNEY, Memphis, Tennessee, for Appellee.
ON BRIEF: Doris A. Randle-Holt, OFFICE OF THE
FEDERAL PUBLIC DEFENDER FOR THE WESTERN
DISTRICT OF TENNESSEE, Memphis, Tennessee, Jeffrey
M. Brandt, BRANDT LAW OFFICES, Cincinnati, Ohio, for
Appellants. Thomas A. Colthurst, ASSISTANT UNITED
STATES ATTORNEY, Memphis, Tennessee, for Appellee.
SILER, J., delivered the opinion of the court, in which
NORRIS, J., joined. JONES, J. (pp. 11-12), delivered a
separate dissenting opinion.
_________________
OPINION
_________________
SILER, Circuit Judge. Defendants Jerry Pollard and Eddie
Rodriguez appeal their convictions after entering conditional
guilty pleas of conspiracy to possess with intent to distribute
cocaine in violation of 21 U.S.C. § 846. On appeal, the
defendants argue the district court erred in denying their
motions to suppress evidence because they claim the arresting
officers illegally searched a residence in effecting their arrest.
The government contends that the defendants lack standing to
challenge the search of the residence and that exigent
circumstances justified the entry of the residence without a
warrant. We AFFIRM.
I. BACKGROUND
On August 4, 1997, Pollard and Rodriguez were arrested
while selling cocaine to a confidential informant and
undercover police officer. The arrests occurred in Memphis,
Tennessee, at a residence rented to Irma Howard, who lived
there with her cousin, her son and two grandchildren. She
had known Pollard about six or seven years, and he
occasionally spent the night there, sleeping on the couch in
the living room. Pollard kept personal belongings in a closet
in the living room but did not know how to open the door
Nos. 98-5908/6118 United States v. Pollard, et al. 11
________________
DISSENT
________________
NATHANIEL R. JONES, Circuit Judge, dissenting. In
affirming the district court’s denial of Pollard’s motion to
suppress, the majority adopts the Seventh Circuit’s “consent
once removed” doctrine. This rule provides essentially that
when an individual grants an undercover officer consent to
enter a residence, the citizen has sufficiently compromised his
Fourth Amendment privacy expectations to justify a
warrantless search. See United States v. Akinsaya, 53 F.3d
852, 856 (7th Cir. 1995). Because I believe this doctrine
represents an unjustified extension of our traditional exigent
circumstances jurisprudence, I respectfully dissent.
While the Fourth Amendment is implicated whenever
government attempts to search its citizens, its protections
apply with particular force to the home. See Payton v. New
York, 445 U.S. 573, 590 (1980) (holding that the Framers
drew “a firm line at the entrance to the house”). It is well
settled that warrantless searches of a home are unreasonable
unless supported by probable cause and exigent
circumstances. See Pray v. City of Sandusky, 49 F.3d 1154,
1158 (6th Cir. 1995); Wilson v. Strong, 156 F.3d 1131, 1134
(11th Cir. 1998); see also Welsh v. Wisconsin, 466 U.S. 740,
750 (1984) (“Before agents of the government may invade the
sanctity of the home, the burden is on the government to
demonstrate exigent circumstances that overcome the
presumption of unreasonableness that attaches to all
warrantless home entries.”).
We have recognized the existence of the following three
exigent circumstances: 1) when officers are in hot pursuit of
a fleeing suspect; 2) when the suspect represents an
immediate threat to the arresting officers or the public; or 3)
when immediate police action is necessary to prevent the
destruction of vital evidence or to thwart the escape of known
criminals. See O’Brien v. City of Grand Rapids, 23 F.3d 990,

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10 United States v. Pollard, et al. Nos. 98-5908/6118
Although the court found Howard consented to the search,
we need not decide that question in light of finding there was
a “consent once removed.”
AFFIRMED.
Nos. 98-5908/6118 United States v. Pollard, et al. 3
1Since the original key had been lost, Howard would lock the house
from the inside and return by means of a “little trick lock on the wrought
iron door” or she would have one of the grandchildren go through the
wrought iron bars and take out a window screen.
without a key.1 Howard did not know Rodriguez before the
night in question, when Pollard brought him to the house.
Before the arrests, on July 31, officers learned that a
shipment of drugs was en route to Memphis. On August 4,
the informant told Officer Anthony Berryhill that Pollard had
contacted him, told him that his source of cocaine had arrived
in Memphis from Texas, and arranged to meet him.
At approximately 8:00 p.m., on August 4, the informant
met Pollard and Rodriguez at Howard’s residence. Rodriguez
wrote down the price ($76,500) and the amount (4 kilograms)
and told the informant he needed to be back by 10:00 p.m.
because Rodriguez was leaving Memphis.
The informant returned to Officer Berryhill’s office and
gave him the piece of paper. Berryhill wired the informant,
assembled a team of officers, and gathered $50,000 in
purchase money for the drugs. A “takedown” signal was
established. During these preparations, the informant was
paged at least twice and returned the calls to tell the sellers he
was coming.
Between 11:00 p.m. and 11:30 p.m., approximately six
officers and the informant returned to the residence. The
back-up officers were monitoring the transmitter on the
informant.
The informant and Detective Rodney Askew, who was
acting undercover, approached the house and knocked on the
door. Pollard admitted them. Rodriguez immediately left by
the front door and returned a few seconds later with a duffle
bag. Howard then told Pollard to lock the door; Pollard led
them to a back bedroom and Howard switched on the light
and left. Rodriguez placed the duffle bag on top of the bed,

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4 United States v. Pollard, et al. Nos. 98-5908/6118
opened it, removed some clothes and pulled out three bundles
wrapped in plastic. He began to unwrap one of the bundles.
The takedown signal was given before Rodriguez finished
unwrapping the bundles.
The back-up officers, without knocking or announcing
themselves, broke down the front door, entered and said
“police, get down.” They entered without a prior
announcement to avoid the risk that the undercover officer
(the “new” face in the transaction) would be taken hostage or
injured by gunfire. Howard and her cousin were in the front
of the house. Some officers stayed in the front of the house
while others went toward the back. One officer forced his
way into the locked bedroom where Pollard, Rodriguez, the
informant and Askew were gathered. Rodriguez jumped into
a closet and Pollard ran into a nearby bathroom. The officers
arrested everyone in the room and took them into the living
room for questioning.
No threats were made to Askew or the informant. Before
the officers entered the house, there were no indications that
Pollard or Rodriguez was planning to destroy the drugs.
Howard signed a consent to search form. Although she
testified that the drugs had already been removed from the
bedroom by the time she signed the form, Askew testified that
no evidence had been retrieved from the bedroom prior to the
consent to search. After Howard had signed the form, Askew
observed one bundle in the closet and one bundle halfway
under the bed.
In 1997, Magistrate Judge James H. Allen filed his
Recommendation. He found that while Rodriguez had no
standing to contest the entry and search, Pollard had a
reasonable expectation of privacy in the Howard home and
thus had standing to contest the search. But the magistrate
reasoned that the question of “exigent circumstances” was
controlling.
The district court adopted the magistrate’s findings of fact
and conclusions of law in part. But the court determined that
Nos. 98-5908/6118 United States v. Pollard, et al. 9
been, is being or will be committed,” Sangineto-Miranda, 859
F.2d at 1507, Askew could have arrested both Pollard and
Rodriguez had he chosen to do so.
Instead, Askew relied upon the back-up officers to effect
the arrest. The government argues that this court should
adopt the doctrine of “consent once removed,” which requires
the following:
The undercover agent or informant: 1) entered at the
express invitation of someone with authority to consent;
2) at that point established the existence of probable
cause to effectuate an arrest or search; and 3)
immediately summoned help from other officers.
United States v. Akinsanya, 53 F.3d 852, 856 (7th Cir. 1995);
accord United States v. Bramble, 103 F.3d 1475, 1478 (9th
Cir. 1996). In United States v. Ogbuh, 982 F.2d 1000 (6th
Cir. 1993), this court considered this argument based on the
decision in United States v. Paul, 808 F.2d 645 (7th Cir.
1986). We held that “assuming without deciding that Paul is
correctly decided,” the case before us was distinguishable
because the contraband had been brought by the informant
and the agents entered without receiving a signal from the
informant. Ogbuh, 982 F.2d at 1005.
We adopt the doctrine of “consent once removed” because
this entry was lawful under those circumstances. Pollard
admitted the undercover officer and informant in Howard’s
presence; the officer obtained probable cause for an arrest
when Rodriguez displayed the cocaine on the bed; and the
informant accompanying the officer immediately summoned
the other officers for assistance. Moreover, the back-up
officers were acting within constitutional limits when they
entered to assist him since no further invasion of privacy was
involved once the undercover officer made the initial entry.

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8 United States v. Pollard, et al. Nos. 98-5908/6118
4Citing the First Circuit’s decision in United States v. Santiago, 828
F. 2d 866 (1st Cir. 1987), the government contends that probable cause
did not exist before the cocaine was displayed and hence the officers
could not have obtained a warrant prior to the undercover transaction.
III. LEGALITY OF ENTRY
We review the district court’s factual determination that
there were exigent circumstances for clear error, while the
lower court’s legal conclusions with respect to exigency are
reviewed de novo. See United States v. Gaitan-Acevedo, 148
F.3d 577, 585 (6th Cir. 1998). In addition, this court must
review the evidence in the light most likely to support the
district court’s conclusion. See United States v. Bates, 84
F.3d 790, 794 (6th Cir. 1996). The government bears the
burden of proving exigent circumstances exist. See Roark, 36
F.3d at 17.
It is undisputed that the officers did not identify themselves
prior to entry. The defendants argue there was no exigency
justifying the forced entry because they did not suspect that
their guests were working with the police. The district court
found that “once the undercover officer had probable cause
for the arrest, the raid team was clearly acting within
Constitutional limits when they entered to assist him.”
Under normal circumstances, the police are required to
knock on the door, announce their presence and await
admittance for a reasonable time before forcibly entering a
residence. See Wilson v. Arkansas, 514 U.S. 927, 929 (1995).
However, it is well established that an undercover officer may
gain entrance by misrepresenting his identity and may gather
evidence while there. See Lewis v. United States, 385 U.S.
206 (1966); United States v. Baldwin, 621 F.2d 251, 252-53
(6th Cir. 1980). Askew, the undercover officer, entered the
apartment at the invitation of Pollard and established the
existence of probable cause to arrest when he saw Rodriguez
pull out the three drug containers.4 As a warrantless arrest “is
justified if, at the time of the defendant’s arrest, police
officers have probable cause to believe that an offense has
Nos. 98-5908/6118 United States v. Pollard, et al. 5
2In Rakas, 439 U.S. at 143 n.12, the Supreme Court stated that not
all expectations of privacy will be considered “legitimate” for purposes
of Fourth Amendment protection: “[l]egitimation of expectations of
privacy by law must have a source outside of the Fourth Amendment,
either by reference to concepts of real or personal property law or to
understandings that are recognized and permitted by society.” Id.
neither defendant had standing to contest the search, because
Pollard “was, at most, a casual visitor.” It further concluded
that there were exigent circumstances to justify the entry
without a warrant, because the drug sale was being transacted
at the time the officers entered, an undercover detective and
an informant were possibly in danger and the drugs may have
been destroyed by a further delay. Therefore, it denied the
motions to suppress.
Later, Pollard and Rodriguez entered guilty pleas to the
conspiracy charge. Each was sentenced to seventy months
imprisonment.
II. STANDING OF POLLARD AND RODRIGUEZ
When ruling on a motion to suppress evidence, this court
reviews the district court’s factual findings for clear error and
its legal conclusions de novo. See United States v. Roark, 36
F.3d 14, 16 (6th Cir. 1994). Similarly, the trial judge’s
findings of fact regarding the defendants’ standing to
challenge alleged Fourth Amendment violations are examined
for clear error, while the legal determination of standing is
reviewed de novo. See United States v. Rohrig, 98 F.3d 1506,
1511 (6th Cir. 1996).
“[I]n determining whether a defendant is able to show the
violation of his (and not someone else’s) Fourth Amendment
rights, the ‘definition of those rights is more properly placed
within the purview of substantive Fourth Amendment law
than within that of standing.’” Minnesota v. Carter, 119 S.
Ct. 469, 472 (1998) (quoting Rakas v. Illinois, 439 U.S. 128,
140 (1978)).2 Thus, to determine whether the defendants can
claim that their Fourth Amendment rights were violated when

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6 United States v. Pollard, et al. Nos. 98-5908/6118
officers entered the residence, this court must decide whether
Pollard and Rodriguez had “an expectation of privacy in the
place searched, and whether [their] expectation[s were]
reasonable.” Carter, 119 S. Ct. at 469. A defendant must
satisfy a two-pronged test to show a legitimate expectation of
privacy: 1) he must manifest an actual, subjective expectation
of privacy; and 2) that expectation is one that society is
prepared to recognize as legitimate. See Sangineto-Miranda,
859 F.2d at 1510.
A. Standing of Pollard
On appeal, Pollard argues he had a legitimate expectation
of privacy in Howard’s home under Minnesota v. Olson, 495
U.S. 91 (1990). The government argues that Pollard fails to
meet the “heightened” burden under Carter, 119 S. Ct. at 469,
for a defendant claiming a reasonable expectation of privacy
in a dwelling other than his own home, where the defendant’s
presence is for an illegal commercial or business purpose.
See United States v. Gordon, 168 F.3d 1222, 1226 (10th Cir.
1999). The government contends that Pollard lacks standing
because he used the Howard home as a convenient site for
himself and Rodriguez to meet the customer to complete an
illegal sale of cocaine.
In Olson, 495 U.S. at 98, the Supreme Court held that an
overnight guest had a legitimate expectation of privacy in his
host’s home and thus could challenge officers’ warrantless
entry into the home to arrest him. The Olson court recognized
that “[s]taying overnight in another’s home is a longstanding
social custom that serves functions recognized as valuable by
society.” Id. But more recently, in Carter, 119 S. Ct. at 473-
74, the Court held that defendants who were in another’s
apartment solely for the purpose of packaging cocaine had no
legitimate expectation of privacy because they failed to
demonstrate they were guests on the premises for a personal
occasion, rather than for strictly business purposes. The
Court determined that the overnight guest in Olson and
someone legitimately on the premises represented different
ends of the privacy spectrum, and that “the present case is
Nos. 98-5908/6118 United States v. Pollard, et al. 7
3The Court explained that an individual’s expectation of privacy in
commercial premises is “‘different from, and indeed less than, a similar
expectation in an individual’s home.’” Id. at 474 (quoting New York v.
Burger, 482 U.S. 691, 700 (1987)). The Court found that, although the
apartment was a dwelling place, for the defendants it was “simply a place
to do business.” Id.
obviously somewhere in between.” Id. at 474. The Carter
Court concluded that defendants were not overnight guests,
were only in the home a few hours, had no previous
relationship with the lessee, and the purpose of their visit was
purely commercial.3 Id. at 493. Thus, the defendants had no
legitimate expectation of privacy for their activities and could
not contest the search.
Pollard has standing to contest the search. He had been
friends for approximately seven years with the lessee,
Howard, and had been staying at the home earlier in the week.
Furthermore, Pollard occasionally spent the night at the
residence and kept some personal belongings in a closet in the
living room. In addition, he sometimes ate meals with the
family during his visits. Finally, although Pollard did not
know the makeshift method to open the door, he was allowed
to stay in the home even if the residents were not present.
B. Standing of Rodriguez
Rodriguez argues the district court erred in failing to
recognize his legitimate privacy expectation in the Howard
residence, manifested by his presence in the locked bedroom.
The district court found that Rodriguez was a “mere visitor”
and had no standing to challenge the search.
We agree that Rodriguez has no standing to contest the
search, because he had never been to the premises before and
did not know the renter of the premises. Further, when
Rodriguez came to the house he did not bring any personal
possessions or luggage. Finally, he stated he planned to leave
immediately after the cocaine sale and catch a plane back to
his home state of Texas. See Carter, 119 S. Ct. at 469.

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