NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 12a0973n.06

                                                 11-3903
                                                                                                 FILED
                             UNITED STATES COURT OF APPEALS                                   Sep 04, 2012
                                  FOR THE SIXTH CIRCUIT                               DEBORAH S. HUNT, Clerk


UNITED STATES OF AMERICA,                             )
                                                      )
        Plaintiff-Appellee.                           )
                                                      )    ON APPEAL FROM THE UNITED
v.                                                    )    STATE DISTRICT COURT FOR THE
                                                      )    SOUTHERN DISTRICT OF OHIO
CHRISTOPHER SADDLER,                                  )
                                                      )
        Defendant-Appellant.                          )




        Before: MARTIN and DAUGHTREY, Circuit Judges; MALONEY*, District Judge.


        MARTHA CRAIG DAUGHTREY, Circuit Judge. Defendant Christopher Saddler

entered a conditional guilty plea to being a felon in possession of a firearm, in violation of

18 U.S.C. § 922(g)(1) and 18 U.S.C. 924(a), while reserving the right to contest the district

court’s denial of his motion to suppress the contents of a safe seized from his front yard

during a police investigation that resulted from a 911 burglary-in-progress call directing

officers to his residence. We are asked to reverse the district court’s decision that the safe

was validly seized and taken to police headquarters, where it was secured for some 22

hours until a search warrant for the safe was obtained. We conclude that under the totality

of the circumstances, the warrantless seizure of the safe was not unconstitutional, given



        *
         The Hon. Paul L. Maloney, United States District Judge for the W estern District of Michigan, sitting
by designtion.
No. 11-3903
United States v. Saddler

the exigent circumstances that existed at the time. We therefore affirm the judgment of the

district court.


                     FACTUAL AND PROCEDURAL BACKGROUND


       Based on testimony at a suppression hearing, the district court made the following

findings of fact:


       On June 6, 2010, Cincinnati Police received an initial radio run for shots fired
       and a second radio call for a burglary at the same location. At approximately
       1:24 a.m., as a result of those radio runs, Sergeant Scott Fritz, a seventeen-
       year Cincinnati [p]olice [o]fficer and first relief supervisor with experience in
       drug trafficking, responded to 1313 Considine Avenue, in the area of West
       Liberty and Considine.
       Arriving on the scene shortly thereafter, Officer Taylor noticed a pair of ladies
       shoes in the middle of the street, but no victim or complainant was present.
       A neighbor reported that he saw a black male and a black female jump into
       a white car and speed away after shots were fired. Officers observed the
       1313 Considine side door open, bullet holes in the house, which was empty,
       and no victims or perpetrators present. They also observed bullet fragments
       and fresh shell casings in the street. Officers Grote and Weyda appeared
       and participated in a protective sweep of the residence securing the scene.
       The location and presence of the bullet fragments and shell casings were
       consistent with shots being fired from the street toward the house. Police
       [o]fficers observed a safe outside the residence and, inside the residence,
       they observed a cubby hole in the wall from which the refrigerator had been
       pulled away. Officer Weyda made the same observations as Sergeant Fritz
       regarding the bullet holes and bullet fragments and participated in the
       clearance sweep of the residence.
       Approximately five to ten minutes after the security sweep of the residence
       was completed the [d]efendant returned home in a white car. After initially
       being confronted by [o]fficers, the [d]efendant informed police that people
       were shooting at him from his house. He further indicated that he was
       unarmed and that he was not permitted to carry firearms as an ex-felon. The
       [d]efendant recounted that he had called 911 and reported that as he
       returned home he saw two men exiting the side door of his home. One man

                                             -2-
No. 11-3903
United States v. Saddler

       was carrying what appeared to be a television. The other man was armed
       with a firearm and proceeded to fire the weapon toward [the] [d]efendant as
       he arrived. The [d]efendant informed the 911 operator that he fled the
       scene, taking his girlfriend back to her home.
       Based on the physical evidence at the scene and its placement, which
       contradicted [the] [d]efendant’s story, the police believed that gun fire had
       come from the street, not the residence as [the] [d]efendant reported . . .
       As stated above, a locked safe had been removed form the premises and left
       in the yard along with a book bag. Both rested on the ground at the side
       entrance of the house. Sergeant Fritz asked the [d]efendant if he owned the
       safe, and [Saddler] stated that he did. Sergeant Fritz then asked the
       [d]efendant to open the safe and confirm that nothing had been stolen. The
       [d]efendant stated that he did not remember the combination. When
       Sergeant Fritz asked the [d]efendant if he would allow him to open the safe,
       the [d]efendant responded by saying that it really was not his safe and that
       he was holding it for his brother.
       The investigating officer suspected that possibly drugs or money, as the
       target of the burglary, were secreted in the safe. A canine unit was not
       available at the time to confirm these suspicions. However, the safe was
       portable so Officer Weyda put gloves on and placed it in the back of his car
       for transport. In recovering the safe, Officer Weyda took measures not to
       contaminate it in order to have it possibly fingerprinted as evidence from the
       crime scene. The safe was stored at an annex to avoid possible
       contamination from articles in the standard police property room. The safe
       was marked with a sign stating, “Do Not Touch, being held for Prints and Dog
       Sniff.” Officers left a voice mail with a canine officer to have the safe
       “sniffed” the following day.
       At 1:45 p.m the following afternoon, police conducted a canine sniff on the
       safe at the police department . . . After the dog alerted on the safe, an
       affidavit for a search warrant was prepared, and at 11:16 p.m. that same
       evening, a judge issued a search warrant. At 11:45 p.m., Sergeant Fritz
       pried open the safe and removed a white purse containing a small amount
       of marijuana, two digital scales, two loaded semi-automatic pistols,
       correspondence letters, and photo identification of Mr. Saddler.


       At the close of the hearing, Saddler moved to suppress all evidence obtained from

the safe, contending that the officers seized it without obtaining a search warrant, without


                                           -3-
No. 11-3903
United States v. Saddler

his consent, and without probable cause. The district court concluded that the warrantless

seizure of the safe was constitutional, based on four alternative legal theories. First, the

district court found that the seizure of the safe was justified under the plain view exception

to the warrant requirement. Second, the district court found that the seizure was also valid

under the inevitable discovery exception to the exclusionary rule. Third, the district court

determined, sua sponte, that because Sadler briefly denied ownership of the safe, he

lacked standing to challenge the seizure.           Finally, the district court found that

circumstances on the night of the attempted burglary gave rise to exigent circumstances,

in light of the officers’ legitimate concern that Saddler or others might remove the safe or

tamper with the contents if it were left at the scene. Based on these findings, the district

court held that the warrantless seizure was reasonable and denied Saddler’s motion to

suppress. He now appeals that determination.


                                       DISCUSSION


       “When reviewing the district court’s decision on a motion to suppress, we use a

mixed standard of review: we review the findings of fact for clear error and conclusions of

law de novo.” United States v. See, 

, 313 (6th Cir. 2009) (citation omitted).

“When a district court has denied a motion to suppress, this [c]ourt reviews the evidence

in the light most likely to support the district court’s decision.” United States v. Adams, 

, 463 (6th Cir. 2009) (citations and internal quotation marks omitted).




                                             -4-
No. 11-3903
United States v. Saddler

       The Fourth Amendment to the United States Constitution protects “against

unreasonable searches and seizures.” U.S. Const. amend. IV. A seizure of personal

property is “per se unreasonable . . . unless it is accomplished pursuant to a judicial

warrant issued upon probable cause and particularly describing the items to be seized.”

United States v. Place, 

, 701 (1983). However, where law enforcement

authorities have both probable cause to believe that a container holds contraband or

evidence of a crime and the “exigencies of the circumstances demand it,” seizure of the

container pending issuance of a warrant to examine the contents has been upheld. 

Nevertheless, “a seizure lawful at its inception can . . . violate the Fourth

Amendment [if] its manner of execution unreasonably infringes possessory interests

protected by the Fourth Amendment’s prohibition on unreasonable seizures.” United

States v. Jacobsen, 

, 124 (1984). The government has the burden of proving

the legality of a warrantless seizure. United States v. Beal, 

, 577 (6th Cir.

1987) (citing United States v. Matlock, 

, 177 (1974)).


Probable Cause


       “In the ordinary case, the Court has viewed a [warrantless] seizure of property as

per se unreasonable within the meaning of the Fourth Amendment.” 

. “Probable cause, however, can support the detention of property without a warrant,

if the exigencies demand it or some other recognized exception to the warrant requirement

is present.” United States v. Avery, 

, 349 (6th Cir. 2009) (citation omitted).


                                            -5-
No. 11-3903
United States v. Saddler

As the Supreme Court has frequently noted, “[P]robable cause is a flexible common-sense

standard. It merely requires that facts available to the officer would warrant a man of

reasonable caution in the belief that certain items may be contraband or stolen property

or useful as evidence of a crime.” Texas v. Brown, 

, 742 (1983) (internal

quotation marks and citations omitted).


       At the suppression hearing, Officer Fritz testified that, in his opinion, “somebody did

know where the safe was at and stole it out of [Saddler’s] house.” As a result, Fritz wanted

an opportunity to dust the safe for fingerprints and to inspect the contents to establish a

possible motive for the attempted theft of the safe and perhaps even the identity of the

burglars. When Saddler refused to open the safe, Fritz decided to seize it, pending a

warrant to examine its contents. The circumstances of this case – a burglary investigation

that turned up evidence that the burglary had been interrupted by shots fired from the

street, with the apparent object of the break-in left lying in the yard, together with evasive

answers about its contents – were sufficient to provide the officers with probable cause to

believe that the safe would produce evidence related to the attempted burglary. Moreover,

given these circumstances, a reasonable officer could conclude that the safe contained

contraband. Indeed, Fritz testified that except for the late hour, he would have called a

canine unit to the scene, in order to run a “dog sniff” of the safe.


       Saddler argues that the officers had no intention of investigating the burglary,

pointing out that they never actually analyzed the safe for fingerprints. In truth, after


                                            -6-
No. 11-3903
United States v. Saddler

officers executed the search warrant and discovered firearms inside the safe, the focus

was trained on Saddler, and the safe and any further investigation of the burglary were

scrapped. Given these developments, Saddler contends that the seizure of the safe never

was related to the burglary investigation, but was simply pretextual and thus not supported

by probable cause. As a legal matter, however, the officers’ actual motives in seizing the

safe are irrelevant, because “the Fourth Amendment’s concern with ‘reasonableness’

allows certain actions to be taken in certain circumstances, whatever the subjective intent.”

Whren v. United States, 

, 814 (1996) (emphasis in original).


Exigent Circumstances


       We review a district court’s legal decision as to exigency de novo and will disturb the

court’s factual findings only if they are clearly erroneous. United States v. Gaitan-Acevedo,

, 585 (6th Cir. 1998). A finding is clearly erroneous if we are left with the

“definite and firm conviction that a mistake has been committed” after viewing the entirety

of the evidence. United States v. Wheaton, 

, 367 (6th Cir. 2008) (citation and

quotation mark omitted). In reviewing the district court’s findings that sufficient exigent

circumstances existed to justify a warrantless seizure, we consider the “totality of the

circumstances and the inherent necessities of the situation.” Brooks v. Rothe, 

, 708 (6th Cir. 2009) (citing United States v. Rohrig, 

, 1511 (6th Cir.

1996)). “The inquiry focuses not on an officer’s subjective intentions, but on whether an

objectively reasonable officer could have believed that exigent circumstances existed.”


                                            -7-
No. 11-3903
United States v. Saddler

(citing O’Brien v. City of Grand Rapids, 

, 999 (6th Cir.

1994)).


        “This court has long recognized, along with many others, that exigent circumstances

will be present when there is an urgent need to prevent evidence from being lost or

destroyed.” United States v. Sangineto-Miranda, 

, 1511 (6th Cir. 1988). To

establish exigent circumstances under this exception, the government must first show “an

objectively reasonable basis for concluding that the loss or destruction of evidence is

imminent.” 

Second, the court must “balance the interests by weighing the

governmental interests being served by the intrusion against the individual interest that

would be protected if a warrant were required.” United States v. Plavcak, 

,

664 (6th Cir. 2005).


        Thus, we first evaluate whether the officers had an objectively reasonable basis for

concluding that evidence would be tampered with or destroyed if the safe were not seized

immediately pending issuance of a search warrant. At the suppression hearing, Officer

Fritz testified:


        It was obvious that the safe had been removed [from the residence]. As I
        said, during my protective sweep I had noticed one of the refrigerators had
        moved away from the wall – or had been moved away from the wall. There
        was a cubby hole about the same size of the safe that was in the kitchen
        area, like the safe would have been secreted back to hide it. So my theory
        was that somebody did know where that safe was at and stole it out of
        [Saddler’s] house . . . .



                                            -8-
No. 11-3903
United States v. Saddler

         This type of offense, my training, experience would tell me that it’s somehow
         drug related or drugs and/or money, being that safe was secreted inside of
         a house like that, and shots were fired . . . .


Based on the evidence educed at the hearing, the district court relied on the fact that the

safe was portable and likely contained something valuable or illegal to establish probable

cause.


         We cannot say that the district court was clearly erroneous in concluding that the

officers reasonably feared that Saddler or someone else would attempt to destroy the

evidentiary value of the safe or its contents. Because the safe was small and easy to

transport, the burglar or burglars had very nearly succeeded in stealing it from inside the

house. The officers hoped to preserve any fingerprints that could be lifted from the safe

and did not want others to compromise the prints. When Saddler initially admitted that he

owned the safe but refused to open it, moreover, it was objectively reasonable for the

officers to believe that Saddler or a third party might remove the evidence from inside the

safe, take the safe from the scene, or otherwise tamper with it. Given Saddler’s evasive

responses to questioning, the size of the safe, its location, and its importance to the

investigation, we conclude that it was not unreasonable for the police to seize the safe.

See Illinois v. McArthur, 

, 332 (2001) (finding it reasonable to conclude that

someone suspecting an imminent search “would, if given the chance,” get rid of contraband

quickly).




                                             -9-
No. 11-3903
United States v. Saddler

       Having concluded that the officers’ fear that evidence would be lost or destroyed

was objectively reasonable, we now weigh the government’s interest being served by the

intrusion against the individual interest protected by the warrant requirement. See

. The government’s interest in solving crimes is significant, of

course, and the evidence seized was materially important to the investigation of the

burglary. See Wilson v. Collins, 

, 427 (6th Cir. 2008). Because the officers

seized the safe but did not search it until they had a search warrant, the seizure affected

only Saddler’s possessory interest in the safe and did not implicate a privacy interest. See

Segura v. United States, 

, 810 (1984).             Notably, other circuits have

considered this lesser interference as a factor when upholding warrantless seizures. See

United States v. Mitchell, 

, 1350 (11th Cir. 2009); United States v. Licta, 

, 541 (9th Cir. 1985). Moreover, unlike the seizure of luggage in an airport, no

liberty interest was impinged by the seizure of the safe i.e., it did not lead to the effective

detention of Saddler. See 

. The seizure was also of limited

duration; the officers received a warrant to search the safe 22 hours later.


       In sum, considering the brief nature of the intrusion into Saddler’s possessory

interest, the fragility of the evidence, as well as the government’s significant interest in

solving crime, we conclude that the government’s interest outweighed the individual

interests at issue. Because it was reasonable for the officers to conclude that leaving the

safe risked the imminent destruction of evidence, and the balance of the interests justified

the government’s need to seize without a warrant, we uphold the district court’s

                                            - 10 -
No. 11-3903
United States v. Saddler

determination that exigent circumstances existed. That conclusion, in conjunction with

probable cause to believe that the safe contained evidence related to the investigation of

a crime, justified the warrantless seizure.


Reasonable Execution of the Seizure


       Though the government has met its burden by establishing that exigent

circumstances existed to justify a warrantless seizure, “a seizure lawful at its inception can

nevertheless violate the Fourth Amendment because its manner of execution unreasonably

infringes possessory interests protected by the Fourth Amendment’s prohibition on

unreasonable seizures.” 

(internal quotation marks omitted).

Thus, we look at the totality of the circumstances to determine whether it was reasonable

for the officers to seize the safe immediately, rather than leave officers at the scene and

wait until the next day to apply for a search warrant, depriving Saddler of possession of the

safe overnight. See Ohio v. Robinette, 

, 38 (1996) (“We have long held that

the touchstone of the Fourth Amendment is reasonableness. Reasonableness, in turn, is

measured in objective terms by examining the totality of the circumstances.”) (citation and

internal quotation marks omitted).


       Saddler argues that it was unreasonable to seize the safe because other, less

intrusive investigative methods were available to the officers. He suggests that, instead

of seizing the safe, the officers should have dusted for fingerprints at the scene and

remained there until a canine unit was available. But, Officer Fritz’s testimony detailed his

                                              - 11 -
No. 11-3903
United States v. Saddler

reasons for seizing the evidence rather than leaving an officer at the scene to secure it.

First, he wanted to have a “canine sniff” of the safe before applying for the warrant, but it

was the middle of the night and the canine units were all off duty. Second, securing the

scene would have required having two or three officers remain at the scene, and he did not

want to tie up that many officers overnight. When Officer Fritz reported for his next shift,

at 8:00 p.m. the next day, he prepared an affidavit for a search warrant and did not open

the safe until he obtained the warrant.


        Although it might have been less intrusive to order officers to remain on the scene,

the Fourth Amendment does not require officers to engage in the least intrusive search or

seizure.1 As the Supreme Court observed in United States v. Sharpe, 

(1985):


        A creative judge engaged in post hoc evaluation of police conduct can
        almost always imagine some alternative means by which the objectives of
        the police might have been accomplished. But the fact that the protection of
        the public might, in the abstract, have been accomplished by less intrusive
        means does not, itself, render the search unreasonable. The question is not
        simply whether some other alternative was available, but whether the police
        acted unreasonably in failing to recognize or pursue it.



        1
          The cases defendant cites as requiring officers to use the least intrusive m eans address the
detention of luggage in a traveler’s im m ediate possession. See 

(finding that seizing
a person’s luggage was equivalent to detention of the person and holding that a 90-m inute detention was
unreasonable); United States v. Sanders, 

, 887 (6th Cir. 1983) (concluding that “detaining the
suitcase and the suspect for over three hours” was excessive in duration and not the least intrusive m eans
for accom plishing the investigation). Unlike the luggage in those cases, the seizure of the safe did not
am ount to an effective detention of Saddler. Moreover, seizure of the luggage in Place and Sanders was
based on reasonable suspicion, as contrasted to the probable cause that supported the seizure in this case.
See 

; 

.

                                                    - 12 -
No. 11-3903
United States v. Saddler

(internal quotations and citations omitted). Although, as Saddler suggests,

an alternate path might have been to seek a warrant immediately or leave officers behind

to maintain the status quo, we cannot say Fritz was unreasonable in choosing to seize the

safe. Other circuits considering this issue have agreed that, in circumstances such as this,

“the Fourth Amendment does not require the least intrusive alternative; it only requires a

reasonable alternative.” United States v. Prevo, 

, 1348 (11th Cir. 2006).

See also United States v. Brooks, 

, 1135-36 (9th Cir. 2004) (rejecting

defendant’s suggestion that the officer was required to adopt a less intrusive alternative);

United States v. LaFrance, 

, 4 (1st Cir. 1989) (refusing to create a standard

“tantamount to requiring government agents to adopt the least intrusive means possible.”).


        Next we consider the length of time the safe was detained. See 

(“[T]hough the duration of a detention is an important consideration in evaluating the

intrusiveness of a package’s determent, it is neither the mirror image of unreasonableness

nor the yardstick against which the suitability of police procedures must inevitably be

measured.”). Here, the warrantless seizure lasted approximately 22 hours.2 Because

seizure of containers affects only possessory interests and not the privacy interests vested

in their contents, lengthy seizures of containers have been upheld by other courts. See,

e.g., United States v. Martin, 

, 54 (2d Cir. 1998) (upholding 11-day seizure



        2
          Fritz testified that he seized the safe around 1:30 a.m . He filled out the application when he cam e
on duty at 8:00 p.m . and obtained the search warrant at 11:16 p.m . that evening. Thus, the warrantless
portion of the seizure lasted approxim ately 22 hours.

                                                    - 13 -
No. 11-3903
United States v. Saddler

because of delays in ability to acquire a warrant); United States v, Mayomi, 

,

1054 (7th Cir. 1989) (upholding a 48-hour detention of mailed packages and noting that

privacy interest was not disturbed); United States v. Van Leeuwen, 

, 253

(1970) (upholding a 29-hour warrantless seizure of a mailed package, based upon an

unavoidable delay in obtaining a warrant and the minimal nature of the intrusion on the

defendant’s possessory interest).


       Considering the evidence in the record, we cannot say that Fritz lacked diligence in

applying for the search warrant within a reasonable time. See 

(“Respondents presented no evidence that the officers were dilatory in their investigation.”).

Fritz did not prepare a search warrant before going to Saddler’s house because he was

responding to an emergency call. He could not have known what he would find at the

scene or have anticipated that Saddler, the victim of the burglary and attempted theft,

would refuse to assist in the investigation. When he realized that the safe, in addition to

being evidence of the burglary, might also contain contraband, he responded reasonably.

Given the totality of the circumstances, we can not say that the seizure was unreasonable.


       Our decision in United States v. Respress, 

(6th Cir. 1993), supports this

conclusion. There, we noted that “[t]he practice of seizing an item based on probable

cause in order to secure a search warrant” has long been approved. 

(citing

cases). We then considered whether the duration of the seizure pending the issuance of

a search warrant was reasonable. 

We concluded that “the time between the


                                            - 14 -
No. 11-3903
United States v. Saddler

seizure of the suitcase and the issuance of the warrant was approximately ten hours, and,

given the time of day, this was not an unreasonable length of time for preparing an

affidavit, submitting it to a magistrate, having it reviewed, and getting the warrant issued.”

Although the seizure here was longer, there was adequate justification for the

delay.


         Because we conclude that the district court did not err in determining that probable

cause, coupled with exigent circumstances, justified the seizure of the safe as evidence

in connection with the burglary of Saddler’s residence, we find it unnecessary to review the

court’s other analyses.


                                       CONCLUSION


         For the reasons set out above, we decline to reverse the denial of Saddler’s motion

to suppress and, therefore, AFFIRM the judgment of the district court.




                                            - 15 -