127 F.3d 1107 (9th Cir. 1997), 96-30277, U.S. v. Davenport

Citation127 F.3d 1107
Party NameUNITED STATES of America, Plaintiff-Appellee, v. Clarence Daniel DAVENPORT; Sherry Lynn Armstrong; and Lee Armstrong, Defendants-Appellants.
Case DateOctober 17, 1997
CourtUnited States Courts of Appeals, United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1107

127 F.3d 1107 (9th Cir. 1997)

UNITED STATES of America, Plaintiff-Appellee,

v.

Clarence Daniel DAVENPORT; Sherry Lynn Armstrong; and Lee Armstrong, Defendants-Appellants.

Nos. 96-30277, 96-30292, 96-30294.

United States Court of Appeals, Ninth Circuit

October 17, 1997

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)

Argued and Submitted Sept. 8, 1997.

Appeal from the United States District Court for the District of Oregon, No. CR-95-60077-MRH; Michael R. Hogan, Chief District Judge, Presiding.

Before: CANBY, T.G. NELSON, and KLEINFELD, Circuit Judges.

MEMORANDUM [*]

Clarence Daniel Davenport ("Mr.Davenport"), Sherry Lynn Armstrong ("Mrs.Armstrong"), and Lee Armstrong ("Mr.Armstrong") appeal their convictions on multiple counts of arson, conspiracy to commit arson, making material false statements to federal agents, mail fraud, and wire fraud. All of the appellants challenge the searches of their leased property and various rulings by the district court. Mrs. Armstrong also appeals her sentence. We have jurisdiction under 28 U.S.C. § 1291. We affirm.

MOTION TO SUPPRESS

Generally, motions to suppress are reviewed de novo. United States v. Noushfar, 78 F.3d 1442, 1447 (9th Cir.1996). We also review the district court's ruling on an individual's apparent authority to consent to a search de novo. United States v. Kim, 105 F.3d 1579, 1581 (9th Cir.1997). Because there were several entries into the appellants' building after the fire and appellants challenge each of these entries, we will address them in turn.

A. The August 31 Entry

This search was unlawful. The district court ruled that this warrantless entry was lawful on two independent bases: (1) that an "emergency" existed due to the risk of a rekindled fire; and (2) that the appellants' landlord, Daniel Dibala, had the apparent authority to consent to the investigators' entry. Neither of these grounds can justify the August 31 entry.

In Michigan v. Clifford, 464 U.S. 287 (1984), the Supreme Court noted that "an immediate threat that the blaze might rekindle presents an exigency that would justify a warrantless and nonconsensual post-fire investigation." Id. at 293 n. 4 (emphasis added). This recognized exigency, however, cannot justify the August 31 entry. The investigators entered the building approximately six hours after the fire had been suppressed and almost four hours after the last firefighter left the scene. This hardly constitutes an "immediate threat" that the fire would rekindle. Oregon State Police Detective Merrill testified at the suppression hearing that, though there was a general risk that a fire could rekindle after the firefighters left the scene, he saw no evidence of that occurring once he entered the building. A general fear of rekindling cannot justify the warrantless entry into the appellants' leased building. "[O]nce the fire has been extinguished and the firemen have left the premises, the emergency is over." Michigan v. Tyler, 436 U.S. 499, 516 (1978) (White, J., concurring and dissenting). There was no emergency here.

Regarding Dibala's authority to consent to the entry, it is true that

a search is valid if the government proves that the officers who conducted it reasonably believed that the person from whom they obtained consent had the actual authority to grant that consent. However, the doctrine is applicable only if the facts believed by the officers to be true would justify the search as a matter of law. A mistaken belief as to the law, no matter how reasonable, is not sufficient.

United States v. Welch, 4 F.3d 761, 764-65 (9th Cir.1993) (citations omitted). However, the appellants are correct that, as a general rule, a landlord cannot consent to a search of a leased building. See, e.g., Stoner v. California, 376 U.S. 483, 490 (1964); United States v. Yarbrough, 852 F.2d 1522, 1533 (9th Cir.1988) ("A landlord generally may not give consent to the search of a dwelling rented to another."); United States v. Impink, 728 F.2d 1228, 1232 (9th Cir.1984) ("Generally, a lessor cannot consent to a search of leased premises."). 1

An exception to this general rule exists where the landlord has "common authority" with the tenants over control of and access to the building:

[W]hen the prosecution seeks to justify a warrantless search by proof of voluntary consent, it ... may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected. "Common authority" rests on mutual use of the property by those generally having joint access or control so that it is reasonable to recognize that any of the parties has the right to permit inspection and others have assumed the risk that the third parties might consent to the search.

Yarbrough, 852 F.2d at 1533-34 (emphasis added) (citations omitted). See also Kim 105 F.3d at 1582 (noting that "a consent-giver with limited access to the searched property lacks actual authority to consent to a search" and that "a consent-giver whose right of access is 'narrowly prescribed' would lack sufficient authority to consent to a search."). This exception cannot validate the August 31 search in this case.

This case is not like Yarbrough where the consenting party regularly resided in the leased premises, had access to a key, stored personal property in the room occupied by the tenant, and "had complete access throughout the property in general, and to the room lived in by [the defendant] in particular." 852 F.2d at 1534. This case is also unlike Kim, where the consenting party "retain[ed] the keys on occasion" and had access to the leased premises "[a]t any time" without the renter's knowledge or permission. 105 F.3d at 1582. Before Merrill and Deputy State Fire Marshall Pratte entered the building, Dibala told Pratte that he was the appellants' landlord, had leased the entire building to the appellants, stored some personal belongings in an upstairs room, but did not possess a key and routinely asked the appellants for permission before entering the building and gaining access to his possessions. This is not sufficient evidence of mutual use or joint access to give the investigators a reasonable basis for believing that Dibala had the apparent authority to consent to the warrantless entry.

At best, this case demonstrates a mistaken belief as to the law of landlord consent and cannot, under Welch, justify the warrantless search. At the suppression hearing, the following exchange with Pratte occurred during cross-examination:

Q: All right. Have you been taught or trained that a landlord has the authority to consent to a search of a residence inhabited by a tenant who is not at home?

A: During an emergency, yes.

....

In this instance, with the permission to enter by the building's owner, I felt that he could give us permission to do so.

Pratte apparently believed that because Dibala owned the building, he could consent to a search, at least to the portions of the building that did not constitute the Armstrongs' living area. This is plainly a mistake as to the law, not as to the facts, and cannot validate the search. The August 31 entry was unlawful.

B. The September 1 Entry

Because the first entry was unlawful, the second entry was also unlawful. The Government cannot rely on Dibala's consent to support the second search because his consent was invalid for the first search. The Government's characterization of the second entry as a continuation of the first entry is not supported by the facts. Regardless of this theory, though, the second entry was based on the justifications for the first entry and therefore was just as unlawful.

Because the first two entries were unlawful, we must determine whether the decision to obtain the search warrant was irreparably tainted by the observations made during the entries. "To be untainted by this prior search, the officers' decision to seek the warrant must not have been 'prompted by what they had seen during [the earlier unlawful search].' " United States v. Hill, 55 F.3d 479, 481 (9th Cir.1995) (quoting Murray v. United States, 487 U.S. 533, 542 (1988)). Further, "the district court must 'explicitly find that the agents would have sought a warrant if they had not earlier entered [defendant's house].' " Id. (quoting Murray, 487 U.S. at 543).

In this case, the district court correctly found that Pratte and Merrill had ample evidence from independentsources to justify seeking a search warrant. Among other things, Merrill had obtained evidence that the appellants had recently moved personal belongings to a storage unit, Mr. Davenport had obtained renter's insurance less than ten days before the fire, Dibala was in the process of evicting the appellants, the firefighters described the fire as originating at the floor level near the Armstrongs' bed, and witnesses saw the appellants in the building shortly before the fire and leave the scene less than a minute before the fire was reported. None of this evidence was obtained as a result of the unlawful entries. Therefore, the decision to seek the search warrant was lawful.

C. The September 1 and September 2 Search Warrant Entries

Judge John D. Cable qualified as a neutral and detached magistrate. The Supreme Court has held that "an issuing magistrate must meet two tests. He must be neutral and detached, and he must be capable of determining whether probable cause exists for the requested arrest or search." Shadwick v. City of Tampa, 407 U.S. 345, 350 (1972). Judge Cable satisfied both of these requirements.

Both parties rely heavily on our opinion in United States v. Heffington, 952 F.2d 275 (9th Cir.1991). In Heffington, we stated that "[t]he Supreme Court has found an impermissible...

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