928 F.

2d 365

UNITED STATES of America, Plaintiff-Appellant,

v.
Daryl FORKER, Richard Frawley, Defendants-Appellees.
Danny Lee Hinman, Defendant.
No. 90-8347.

United States Court of Appeals,

Eleventh Circuit.
April 9, 1991.

F. Gentry Shelnutt, Amy D. Levin, Asst. U.S. Attys., Atlanta, Ga., for
plaintiff-appellant.
Steven H. Sadow, Atlanta, Ga., for Frawley.
C. Michael Abbott, Atlanta, Ga., for Forker.
Appeal from the United States District Court for the Northern District of
Georgia.
Before HATCHETT and DUBINA, Circuit Judges, and HILL, Senior
Circuit Judge.
DUBINA, Circuit Judge:

Appellant, the United States of America, appeals the district court's order
suppressing evidence in the appellees' criminal proceeding. Appellee, Richard
Frawley ("Frawley"), filed a motion to suppress evidence of an excess of
$150,000 in cash found in his Cadillac automobile, and evidence of a key to the
Cadillac found at the time of his warrantless arrest. Appellee, Daryl Forker
("Forker"), sought to suppress evidence of the cash found in the Cadillac he had
been driving. The matter was referred by the district court to a United States
magistrate judge. The magistrate judge conducted an evidentiary hearing and
entered a report and recommendation recommending that the appellees' motions
to suppress be denied. The district court rejected the magistrate judge's
recommendation and granted the appellees' motions to suppress. Upon a review

of the record, we find that the district court erred in granting the motions to
suppress.
I. BACKGROUND
2

In August 1988, undercover Drug Enforcement Administration (DEA) agents

attempted to negotiate a sale of 1,000 pounds of marijuana with Todd Chapman
and Mark Fustine. During these negotiations, agents observed Chapman and
Fustine meeting with Hinman, Hrenko,1 and Forker, and from these
negotiations learned that the money for the purchase of the marijuana was to
come from Chicago, Illinois. The agents were unable to coordinate the details
of the transaction so the deal never materialized. Ultimately, Chapman and
Fustine were arrested for their participation in the conspiracy and they agreed
to cooperate with the DEA. During a debriefing by Agent Barton, Chapman and
Fustine discussed their involvement in three or four prior marijuana transactions
with Hrenko, Forker, Hinman, and other unknown persons from Chicago.
Agent Barton and Fustine, now working together, contacted Hrenko to
negotiate another marijuana sale.

After Agent Barton and Fustine's telephone conversations with Hrenko, they
decided that the marijuana would be viewed in Atlanta, Georgia. On March 3,
1989, Hrenko met with Agent Barton and viewed approximately 500 pounds of
marijuana. At the time, Hrenko stated he was interested in purchasing
approximately 630 pounds of marijuana from Agent Barton. During the
negotiations, Hrenko told Agent Barton that the money would be in a box and
would be shown to Fustine. Thereafter, Fustine, Forker and Hrenko met at the
Embassy Suites Hotel and agreed that Forker would have to go elsewhere to
pick up the money. After this discussion, which was monitored by a wire worn
by Fustine, surveillance agents observed Forker leaving the Embassy Suites
and driving a rental car to the Holiday Inn on Powers Ferry Road and Interstate
285. He was seen entering the Holiday Inn and then leaving a short time later.
This time, however, he entered Frawley's Cadillac, which was parked at the
Holiday Inn and which was the same car, with the same tag, that had been
present during the aborted purchase of marijuana in August of 1988.

Forker initially drove Frawley's Cadillac away from the Holiday Inn toward the
area of the Embassy Suites Hotel, but he then began driving erratically and
ultimately returned to the Holiday Inn. Upon reaching the Holiday Inn, Forker
got out of the Cadillac whereupon he was arrested by DEA agents fifteen yards
from the car. Although the arrest occurred almost immediately after Forker's
exit from the Cadillac, the keys to the Cadillac were not found on his person,
but were located underneath a nearby vehicle. After the keys were found, the

agents searched the car and the trunk. In the trunk, the agents discovered a
cardboard box containing a large amount of cash.
5

While the search of the Cadillac was taking place, agents observed Frawley in
the window of his motel room and discovered, through the motel registration,
the exact room Frawley occupied. Within a short time after Forker's arrest,
DEA agents also arrested Frawley and discovered a second set of keys to the
Cadillac in his pocket.

A federal grand jury returned a three-count indictment against Forker and

Frawley, charging them with conspiracy to possess in excess of 100 kilograms
of marijuana, with attempting to possess in excess of 100 kilograms of
marijuana in August 1988 and with attempting to possess in excess of 100
kilograms of marijuana from January 10 to March 3, 1989.

II. DISCUSSION
7

Rulings on motions to suppress evidence involve mixed questions of law and

fact. See United States v. Garcia, 890 F.2d 355 (11th Cir.1989). While we must
defer to the district court's findings of fact unless clearly erroneous, we are to
review the district court's application of law to the facts de novo. United States
v. Campbell, 920 F.2d 793 (11th Cir.1991).
A. Vehicle Search

An officer can conduct a warrantless search or seizure of a vehicle if there

exists probable cause to believe that the vehicle contains contraband or other
evidence which is subject to seizure under the law and there exist exigent
circumstances which necessitate a search or seizure. United States v.
Alexander, 835 F.2d 1406, 1409 (11th Cir.1988). Probable cause to search
exists "when the facts and circumstances would lead a reasonably prudent
[person] to believe that the vehicle contains contraband." Id., quoting United
States v. Clark, 559 F.2d 420, 424 (5th Cir.), cert. denied, 434 U.S. 969, 98
S.Ct. 516, 54 L.Ed.2d 457 (1977). Exigent circumstances arise when the
inevitable delay incident to obtaining a warrant must give way to a need for
immediate action. United States v. Satterfield, 743 F.2d 827, 844 (11th
Cir.1984), cert. denied, 471 U.S. 1117, 105 S.Ct. 2362, 86 L.Ed.2d 262 (1985).
If there is a possibility that the contraband will be destroyed or removed, then a
warrantless search is justified due to these exigent circumstances. The officers
or agents must determine if exigency exists at the time of the seizure of the
automobile, not at the time of the search of the vehicle. United States v. Hall,

716 F.2d 826, 829 (11th Cir.1983), cert. denied, 467 U.S. 1251, 104 S.Ct. 3534,
82 L.Ed.2d 840 (1984).
9

In reviewing the totality of the circumstances, as required by Clark, the district

court found that probable cause existed for the warrantless search of the
vehicle, but found that no exigent circumstances existed. Accordingly, the
district court determined that the search of the vehicle was violative of Forker
and Frawley's fourth amendment rights and the evidence seized from the trunk
of the car should be suppressed.

10

As this court held in Alexander, overwhelming exigency is not necessary. 835

F.2d at 1410. The ability of the vehicle to become mobile is sufficient to satisfy
the exigency requirement. Id. at 1409. "Put differently, the mobility of an
automobile is exigency enough." United States v. Nixon, 918 F.2d 895, 903
(11th Cir.1990). "[T]he requirement of exigent circumstances is satisfied by the
'ready mobility' inherent in all automobiles that reasonably appear to be capable
of functioning." Id.

11

The facts in this case are supportive of a finding of exigency. The officers were
not certain how many sets of keys to the Cadillac existed; they were not certain
if the car would remain in the parking lot if they left to obtain a warrant. At the
time Forker was stopped and arrested at the Holiday Inn parking lot, there were
suspects in another hotel ten minutes away and Frawley, the suspected source
of the cash as well as the known owner of the Cadillac driven by Forker, was
inside the Holiday Inn. The agents had not apprehended all suspects and were
not even aware of how many people were involved in the conspiracy. Further,
the Cadillac was in the middle of a public parking lot, vulnerable to the efforts
of cohorts of Forker's to seize the cash or destroy evidence. The agents were in
the middle of a fast-moving series of events which prompted the search of the
vehicle. The circumstances that prompted the search of the Cadillac were
certainly exigent and as such, we find that the search of the vehicle was not
violative of Forker and Frawley's fourth amendment rights.
B. Motel Arrest

12

The district court found there was no probable cause to arrest Frawley in his
motel room. Accordingly, the district court granted the motion to suppress the
key found on Frawley's person. We disagree with the district court and find that
both probable cause and exigent circumstances existed to arrest Frawley in the
motel room.

13

Probable cause was evident due to the knowledge by the DEA agents of several
facts about Frawley which would have provided a reasonably prudent person
with probable cause to believe that Frawley was involved in criminal activity.
These facts included: (1) Frawley had been present in August when Hrenko and
Forker had attempted to purchase 1,000 pounds of marijuana; (2) Frawley's
Cadillac was present at the August attempted drug transaction and was present
again at the March transaction; (3) Frawley was from Chicago, and the money
for the drugs was to come from Chicago; (4) When Forker obtained the money
for the deal he went to Frawley's motel room; (5) As Forker left Frawley's
motel room, he drove Frawley's Cadillac; (6) Frawley had been observed
watching Forker drive the Cadillac out of the motel parking lot; (7) The arrest
of Forker and seizure of Frawley's Cadillac occurred at the motel where
Frawley was staying; and (8) The number of people coming from Chicago was
unknown to the DEA agents. All of these factors indicated that probable cause
existed for the warrantless arrest of Frawley.

14

Since we find that probable cause existed to arrest Frawley, we must now turn
to the existence of exigent circumstances in order to determine if the arrest of
Frawley was violative of his fourth amendment rights. Exigent circumstances
must exist for the warrantless arrest of a suspect. See United States v. Roper,
681 F.2d 1354 (11th Cir.1982), cert. denied, 459 U.S. 1207, 103 S.Ct. 1197, 75
L.Ed.2d 440 (1983). "An exigent situation may arise when there is a danger
that the evidence will be destroyed or removed." United States v. Burgos, 720
F.2d 1520, 1526 (11th Cir.1983). This court has held that the need to invoke
the exigent circumstances exception to the warrant requirement is "particularly
compelling in narcotics cases" because narcotics can be so easily and quickly
destroyed. United States v. Young, 909 F.2d 442, 446 (11th Cir.1990).

15

Frawley contends that his arrest in the motel room was violative of his fourth
amendment rights because he had a reasonable expectation of privacy in his
room. "A mere recitation of the difference between the places in which an
arrest occurred does not, of course, pronounce relevant Fourth Amendment
distinctions." United States v. Bulman, 667 F.2d 1374, 1383 (11th Cir.), cert.
denied, 456 U.S. 1010, 102 S.Ct. 2305, 73 L.Ed.2d 1307 (1982). This court has
held, consistent with teaching from the Supreme Court, that a person does not
forfeit fourth amendment protections merely because he is residing in a motel
room. United States v. Newbern, 731 F.2d 744, 748 (11th Cir.1984). Thus, a
motel room, however temporary, is equivalent to one's home. Bulman, 667
F.2d at 1384. The warrantless search of a home is "presumptively
unreasonable," Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 1380,
63 L.Ed.2d 639 (1980), but is allowed where both probable cause and exigent
circumstances exist. Burgos, 720 F.2d at 1525.2 Since law enforcement officers

may enter a home to make a warrantless arrest if exigent circumstances exist,

then they may enter a motel room under the same conditions.
16

In Satterfield, 743 F.2d 827, this court set forth the conditions under which
exigent circumstances would be found to exist. These conditions include hot
pursuit of a suspect, danger to an arresting officer or to the public, and the risk
of removal or destruction of evidence. Id. at 843-44. These circumstances must
be such that they present a real danger to the police or the public or a real
danger that evidence or a suspect may be lost. Bulman, 667 F.2d at 1384. In the
present case, the record indicated that Frawley was part of a drug conspiracy
that involved a half ton of marijuana. Frawley appeared to be responsible for
the enormous amount of cash which was going to be used to purchase the
marijuana. Frawley was from Chicago and his car had just been seized. A
confederate with whom Frawley had discussions was arrested in the parking lot
of the motel where Frawley was staying. While they were arresting Forker,
DEA agents observed Frawley peering out of his motel window. It is highly
probable that Frawley saw the arrest of Forker and saw all of the agents around
his Cadillac. It is reasonably prudent to assume that not only would Frawley be
planning his flight from the scene, but also, that he would conceal any
incriminating evidence in his possession, and pose a danger to law enforcement
agents in particular and the public in general.

17

We find that the circumstances are exigent where a suspect is implicated in a

drug conspiracy, is thought to be armed, discovers that his confederate is
arrested, and discovers that he has been cornered by the police and faces
imminent arrest. In that setting, a delay in arresting the suspect creates risk to
the police, to other persons in the motel where the suspect is staying, and to
innocent passers-by. The police should be entitled to act without delay in order
to defuse an inherently volatile situation before the danger materializes in the
form of injury to persons or loss of evidence. To require the agents to wait to
arrest Frawley until they could obtain a warrant would be unreasonable because
valuable evidence could have been destroyed or removed.

18

Since the facts of this case satisfied the requirements of probable cause and
exigent circumstances in a warrantless arrest situation, the evidence of the key
found in Frawley's room should not have been suppressed.

19

In conclusion, we REVERSE the district court's grant of Forker and Frawley's

motion to suppress the evidence of the cash found in the vehicle and Frawley's
motion to suppress the evidence of the key found on his person.

20

REVERSED and REMANDED.

20

REVERSED and REMANDED.

HATCHETT, Circuit Judge, concurring specially:

21

I concur specially in the majority's opinion. Although I agree with the

disposition in the case, I do not join in the language which states, "[t]he ability
of the vehicle to become mobile is sufficient to satisfy the exigency
requirement." This statement is contrary to existing Supreme Court and
Eleventh Circuit precedent.

22

Inherent mobility served as the original basis for an automobile exception to the
warrant requirement. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69
L.Ed. 543 (1925). The Supreme Court continues to recognize mobility as the
basis for this exception. See California v. Carney, 471 U.S. 386, 105 S.Ct.
2066, 85 L.Ed.2d 406 (1985); United States v. Ross, 456 U.S. 798, 102 S.Ct.
2157, 72 L.Ed.2d 572 (1982); South Dakota v. Opperman, 428 U.S. 364, 96
S.Ct. 3092, 49 L.Ed.2d 1000 (1976); Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct.
2464, 41 L.Ed.2d 325 (1974); Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct.
2523, 37 L.Ed.2d 706 (1973); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct.
1975, 26 L.Ed.2d 419 (1970); Cooper v. California, 386 U.S. 58, 87 S.Ct. 788,
17 L.Ed.2d 730 (1967). Mobility does not equal exigency, but is the rationale
for the vehicle exception. In other words, law enforcement officers may not
search a vehicle simply because it is mobile.

23

Also, I agree that probable cause and exigent circumstances existed to support
the warrantless search of Frawley's hotel room. But, I doubt whether exigent
circumstances exist for the search of a dwelling because the suspect feels
"cornered." We should continue the case-by-case approach in resolution of
search issues, rather than seek to set forth broad rules. Likewise, I doubt
whether exigent circumstances analysis should focus so heavily on the
defendant's state of mind. See United States v. Santana, 427 U.S. 38, 96 S.Ct.
2406, 49 L.Ed.2d 300 (1976); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct.
1975, 26 L.Ed.2d 419 (1970); Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26
L.Ed.2d 409 (1970); Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18
L.Ed.2d 782 (1967); United States v. Satterfield, 743 F.2d 827 (11th Cir.1984);
United States v. Torres, 705 F.2d 1287 (11th Cir.1983), vacated on other
grounds, 720 F.2d 1506 (11th Cir.1983); United States v. Bulman, 667 F.2d
1374 (11th Cir.1982).

24

HILL, Senior Circuit Judge, specially concurring:

25

Contrary to my Brother Hatchett, I concur specifically approving of the

language in the opinion, "the ability of the vehicle to become mobile is

sufficient to satisfy the exigency requirement." This panel is bound by
controlling precedent. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th
Cir.1981) (en banc); Brown v. A.J. Gerrard Mfg. Co., 695 F.2d 1290, 1293
(11th Cir.) (opinion for the panel by Hatchett, J., recognizing that although the
panel believed a former Fifth Circuit panel decision to be incorrectly decided,
Bonner bound the panel to follow that decision), on reconsideration, 715 F.2d
1549 (11th Cir.1983) (en banc). As Judge Dubina observes, Nixon holds, "Put
differently, the mobility of an automobile is exigency enough." United States v.
Nixon, 918 F.2d 895, 903 (11th Cir.1990). "[T]he requirement of exigent
circumstances is satisfied by the 'ready mobility' inherent in all automobiles that
reasonably appear to be capable of functioning." Id.
26

It is important that law enforcement officers have some guidance more than the
apprehension that we shall review their actions on a "case-by-case basis." The
automobile exception is clearly stated by this panel's opinion and by Nixon.

Danny Hinman and Peter Hrenko were also indicted. The district court
included Danny Hinman in the case style used in the order suppressing the
evidence; accordingly, his name was included on the style of the case in the
notice of appeal. In reality, Hinman was not subject to the suppression order

"It is now clear that warrantless arrests in a suspect's home may be effected
only under exigent circumstances." Roper, 681 F.2d at 1357