100 F.3d 1409 (9th Cir. 1996), 95-50359, United States v. Hudson

Docket Nº:95-50359
Citation:100 F.3d 1409
Party Name:UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. DON MICHAEL HUDSON, DEFENDANT-APPELLANT.
Case Date:November 20, 1996
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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100 F.3d 1409 (9th Cir. 1996)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

v.

DON MICHAEL HUDSON, DEFENDANT-APPELLANT.

No. 95-50359

United States Court of Appeals, NINTH CIRCUIT

November 20, 1996

Submission Withdrawn: May 13, 1996. Argued and Submitted: May 8, 1996.

Submission Withdrawn: May 13, 1996.

Resubmitted: June 21, 1996.

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Dwight B. Moore, Santa Ana, California, for the defendant-appellant.

Stephen G. Wolfe, Assistant United States Attorney, Los Angeles, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California. D.C. No. CR-94-00102-GLT. Gary L. Taylor, District Judge, Presiding.

Before: Reinhardt, Kozinski and Hawkins, Circuit Judges.

MICHAEL DALY HAWKINS, Circuit Judge:

Defendant-appellant Don Michael Hudson entered a conditional guilty plea to charges of possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1) and being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Hudson appeals the district court's denial of his motion to suppress evidence seized from his bedroom during his arrest and a contemporaneous search of the premises. Hudson advances three challenges on appeal. He argues that the warrantless search which produced the drugs and firearms underlying his conviction was undertaken pursuant to a pretextual arrest. He also contends that agents of the Bureau of Alcohol, Tobacco, and Firearms ["ATF"] violated the "knock and announce" requirement set forth in 18 U.S.C. § 3109, and that the ATF agents exceeded the scope of the search incident to arrest and the plain view search that produced the drugs and the firearms.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In February 1994, after receiving a tip from a confidential informant, the ATF commenced an investigation into possible federal narcotics and weapons violations by members of the Hessians Outlaw Motorcycle Gang. The ATF was told by the confidential informant that Hudson was an associate of the Hessian gang, and that he manufactured methamphetamine for the gang. During the course of the investigation, ATF undercover agents and the confidential informant visited the Hessians' alleged "clubhouse" to gather incriminating information. The informant discussed with Hudson the possible purchase of methamphetamine and the possible trade of methamphetamine for ephedrine, an ingredient of methamphetamine. The informant also witnessed Hudson trade methamphetamine for glassware that might be used in the manufacture of methamphetamine. Shortly thereafter, the informant purchased 1/16 of an ounce of methamphetamine from Hudson.

The investigation of the Hessian gang culminated in the procurement of several federal search warrants and arrest warrants for several gang members. The ATF did not, however, obtain a federal arrest warrant or

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search warrant against defendant Hudson. The agent in charge of the investigation, Agent Larry Bettendorf, had contacted the United States Attorney's office and had learned that federal prosecutors would not prosecute Hudson based on the evidence the ATF had collected against him. In addition, Agent Bettendorf believed that he did not have sufficient evidence to obtain a search warrant for Hudson's house, since Hudson's sale of methamphetamine had taken place months earlier and at a different locale: the Hessians' clubhouse.

Aware that federal prosecutors did not plan to prosecute Hudson based on the evidence the ATF had collected, Agent Bettendorf contacted an Assistant District Attorney for Orange County to seek a state arrest warrant against Hudson. Based on the evidence that Hudson had sold 1/16 of an ounce of methamphetamine to the ATF's confidential informant, Agent Bettendorf obtained a state arrest warrant for Hudson from the Orange County Assistant District Attorney. At Hudson's suppression hearing, Agent Bettendorf testified that he did not "normally" apply for state arrest warrants. The Orange County Assistant District Attorney testified at the hearing that it was not "usual" for federal ATF agents to ask him for the issue of state arrest warrants, but that it was "not the first time" it had occurred. He testified that the sale of any illegal narcotic is a felony in California.

All of the warrants against the Hessian gang, including the state arrest warrant against Hudson, were executed on September 9, 1994. Both federal and state law enforcement agents executed the state arrest warrant at Hudson's parents' house. At around 3:30 a.m., the officers gathered near the house. At the time Hudson's arrest was executed, the Drug Enforcement Administration ("DEA") agent in charge of the arrest operation possessed the following information with respect to Hudson and his alleged associates in the Hessian gang: One of the ATF undercover agents who had participated in the investigation had heard Hessian gang members make statements of "anger and antipathy" about law enforcement officials and had heard them admit their involvement in violent crimes. The ATF undercover agent had also been told by gang members that he would be killed if he were discovered to be a law enforcement officer. At the time of Hudson's arrest, the state and federal officials believed Hudson was an associate of the Hessian gang. They also knew that Hudson had a prior federal drug conviction, and knew that he had sold methamphetamine to the informant. In addition, the informant had told the DEA agent in charge of Hudson's arrest that he had previously seen firearms and glassware associated with methamphetamine manufacture in Hudson's bedroom at his parents' house.

At the time the officers approached the house, a light or television was on in one of the bedrooms. One of the officers knocked loudly on Hudson's front door and announced their presence and purpose. The front door was unlatched, and swung open with the officer's knock. Without waiting for a response, the officers immediately entered the house.

The officers first moved through the house in a security sweep. They entered every room and secured the individuals they found. The officers located Hudson in the southwest bedroom. He was standing in one corner of the room. The officers ordered him out of the room, handcuffed him, removed him from the house, and continued their sweep.

After the officers had completed their sweep, one of them returned to the room to conduct a search incident to arrest. About three minutes passed between the arrest and the agent's return to the room. On the ground where Hudson had been standing lay a rifle case. The agent opened the rifle case and found a rifle. In one corner of the room was a table, on top of which sat glassware that appeared to the agent to contain methamphetamine. Agent Bettendorf was contacted and informed about the rifle and the glassware, and he told the officers on site that he would seek a search warrant based on the discovery of those materials. Before a search warrant was obtained, however, officers moved the glassware to the front lawn, citing concerns about the potential toxicity and flammability of the chemicals contained in the glassware. A state lab technician

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subsequently arrived to obtain samples of the substances.

Although state and federal officials had jointly executed a state arrest warrant, the Orange County Assistant District Attorney never prosecuted Hudson on state charges. At Agent Bettendorf's request, the Assistant District Attorney dismissed the state charges because federal prosecutors had elected to indict Hudson on federal charges. Hudson was charged in a three-count federal indictment with intent to distribute methamphetamine, use of a firearm during a drug-trafficking crime, and being a felon in possession of a firearm.

Hudson initially moved to suppress the evidence found at his house on grounds that the state arrest was merely a pretext for the agents to search for evidence of federal crimes. Thereafter, he supplemented his motion to suppress, alleging that the ATF agents had violated the knock and announce statute, 18 U.S.C. § 3109, and that the search of the rifle case and the glassware was invalid because it was conducted without a search warrant. The district court denied both Hudson's initial and supplemental motions to suppress.

Hudson entered a conditional guilty plea to two of the three counts contained in the indictment: possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1) and being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Hudson timely appealed.

ANALYSIS

1. Whether the arrest was a pretext for the search

Hudson initially argued that his arrest under a state warrant was a mere pretext to search his house for evidence to support federal charges. Following oral argument in this appeal, we withdrew the case from submission pending the Supreme Court's decision in United States v. Whren, 311 U.S. App. D.C. 300, 53 F.3d 371 (D.C. Cir. 1995), cert. granted, 116 S.Ct. 690, aff'd, 116 S.Ct. 1769, 135 L.Ed. 2d 89 (1996). After the Supreme Court issued its opinion in Whren, Hudson moved to present supplemental briefing on the application of Whren to this case. In his supplemental brief, Hudson raises an alternative argument: He contends that we should perform the "balancing" analysis described in Whren as applicable to "searches or seizures conducted in an extraordinary manner." We review de novo the lawfulness of a search and seizure, and we review for clear error the district court's underlying factual findings. United States v. Hernandez, 55 F.3d 443, 446 (9th Cir. 1995) (citing United States v. Becker, 23 F.3d 1537, 1539 (9th Cir. 1994)).

It is a well-settled...

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