c29:No. 76-1116

McCREE, Circuit Judge
(dissenting in part and concurring in part).
I respectfully dissent from that part of the opinion that reverses the order suppressing the evidence with reference to Maimone.
At the government’s request for reconsideration of the district court’s initial grant of the motion to suppress, the court held a full evidentiary hearing and reaffirmed its earlier determination. In his Memorandum and Order, Judge Green stated, “Based upon the entire record, the Court finds that the prosecution has failed to sustain its burden of proof of exigent circumstances.”
The district court issued a memorandum opinion and did not make detailed findings of fact and conclusions of law. Accordingly, on review we should apply our circuit standard recently stated in United States v. Upthegrove, 504 F.2d 682, 686 n. 8 (6th Cir. 1974): when the trial judge has made only limited findings, the reviewing court will “take that view of the evidence which is reasonable and which supports his ruling.” This approach is similar to the one to be followed by a reviewing court in considering a contention that a case was improperly submitted to a jury. See Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 696, 82 S.Ct. 1404, 8 L.Ed.2d 777 (1962).
I disagree with the majority opinion because it adopts a course contrary to our circuit rule. The critical finding that the trial judge failed to make was whether or not he credited the testimony of the agents that they heard the toilet flushing and something rustling just before they broke into Maimone’s apartment. On this record, neither a finding crediting this testimony nor one discrediting it would have been clearly erroneous. A finding crediting the agents would have undermined his conclusion that the government did not prove exigent circumstances, and a finding discrediting their testimony would support his ruling. Nevertheless, the majority opinion implicitly assumes that the trial judge credited their testimony, and then holds that he erred in determining that there were no exigent circumstances.
The agents admittedly lacked probable cause when they arrived, armed with a sledge hammer, at the closed exterior door of Maimone’s apartment. Under the Upthegrove standard, the majority opinion should have presumed that Judge Green did not believe that the agents had heard “rustling noises” and “what sounded to me like a toilet flushing” before they broke down the door and entered the apartment. Judge Green had the full benefit of demeanor evidence in assessing the testimony. And he characterized his ruling as a finding, which implies a determination of fact rather than one of law.
Without the sound of something rustling and a toilet flushing, there is an absence, not only of probable cause, but also of exigent circumstances for the search of Maim-one’s apartment.
I agree with the holding of the majority opinion that Delguyd lacked standing to challenge the search of Maimone’s apartment.
. The majority opinion states that because the testimony that the sound of a toilet flushing was heard through the locked door was undisputed, it would have been clearly erroneous to have found to the contrary. This might be true were there no evidence at all to discredit this testimony. However, a trial judge, unlike a reviewing court, has the benefit of demeanor evidence in assessing the credibility of witnesses. Furthermore, in this case, it is admitted in the record that the agents carried the sledge hammer to Maimone’s door on first entering the building. The trial court could have inferred that they were then prepared to break down the door, although at that time they did not yet have cause to believe that a warrantless forced entry was justified. The court could further have believed that the testimony about hearing the toilet flushing before entry was an unintentionally inaccurate reconstruction of the sequence of events, made after the agents had seen the papers in the toilet.

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