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Police may not “manufacture” an emergency situation to justify the warrantless search of a hotel room, a divided panel of the 3d U.S. Circuit Court of Appeals has ruled. U.S. v. Coles, No. 04-2134. The decision overturns a crack cocaine possession conviction, and sharpens a split among the federal circuits in cases where police claim that a warrantless search was justified by “exigent circumstances.” According to court papers, Coles checked into the Hawthorne Suites Hotel in Philadelphia in June 2002. A week later, a hotel manager sought out Coles to discuss payment and let himself into his room to determine if it was still occupied. The manager called the FBI because he saw evidence of drug dealing, including plastic bags, vials and a white substance. Writing on behalf of the panel, Senior U.S. Circuit Judge Leonard I. Garth said that initially the police used “subterfuge” to gain entrance into the hotel room. An officer knocked and announced that he was “room service”; Coles said he had not ordered anything and refused to open the door. The officer later knocked again and said he was from maintenance, sent to fix a reported leak. Coles again refused to open the door, saying there was no leak. Finally, the police announced their presence and ordered Coles to open the door. At that point, officers testified that they heard the sounds of rustling and running footsteps. One officer attempted to open the door using an electronic passkey, but was unable to gain access because there was a bar latch over the door. After partially opening the door, officers said they heard the sound of a toilet flushing. Coles eventually opened the door, and the police discovered several containers of crack cocaine and $2,000 in cash. A federal district court refused to suppress the search, ruling that police had exigent circumstances-the imminent destruction of the evidence-that justified the warrantless search. The 3d Circuit reversed. According to Garth, it was only after the officers’ attempts at subterfuge had failed that they identified themselves as police and heard the toilet flushing. The record indicates that “the officers decided to enter [the] room . . . without a warrant. It was that decision to conduct a warrantless entry and search of the room, without any urgent need to do so, that impermissibly created the very exigency relied upon by the government in this case.” Garth found that since the police already had probable cause-based on the hotel manager’s statements-they could have obtained a search warrant. The evidence, Garth said, showed that there was “no urgency or need for the officers to take immediate action.” It was only when the officers knocked on the door the third time and announced their presence that they heard sounds indicating that evidence was being flushed down the toilet. “But that exigency did not arise . . . from reasonable police investigative tactics,” Garth said. “Quite to the contrary, the officers, after their pretextual announcements had failed to gain entry to [the] room . . . deliberately created the exigency by knocking on the door . . . and demanding entry.” In dissent, 3d Circuit Judge Jane R. Roth said that she would have taken a different approach, focusing on the legality of each instance in which the police interacted with Coles. “Since none of the three interactions violated the Fourth Amendment, and since entry was made only on hearing the toilet flushing,” the search should not have been suppressed.

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