U.S. v. Reed

• Decision Date: 05 November 1993
• Docket Number: No. 92-30508,92-30508
• Citation: 15 F.3d 928
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thurman REED, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 928

15 F.3d 928

UNITED STATES of America, Plaintiff-Appellee, v. Thurman REED, Jr., Defendant-Appellant.

No. 92-30508.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 5, 1993 ^*.

Decided Feb. 7, 1994.

John C. McCarron, Ashburn & Mason, Anchorage, Alaska for the defendant-appellant.

Robert J. Erickson, United States Department of Justice, Washington, D.C., for the plaintiff-appellee.

Appeal from the United States District Court for the District of Alaska.

Before GOODWIN and HUG, Circuit Judges, and McKIBBEN, ^** District Judge.

OPINION

GOODWIN, Circuit Judge:

Thurman Reed, Jr. appeals his guilty plea conviction, arguing that the district court erred in denying his motions to suppress. United States v. Reed, 810 F.Supp. 1078 (D.Alaska 1992). We agree that the district court erred in suggesting that the Fourth Amendment permits police officers, without a warrant or consent of the occupant, to stand guard while private citizens conduct illegal searches for the purpose of discovering incriminating evidence. This decision conflicts with Ninth Circuit precedent and invites law enforcement officers to circumvent the Fourth Amendment by delegating illegal searches to nongovernment agents.

However, Reed's guilty plea conviction is valid despite this error. Even excising the tainted evidence from the affidavit filed in support of the search warrant, the affidavit establishes probable cause to issue a warrant. The evidence obtained in the later warranted search is, therefore, admissible, and was more than sufficient to sustain Reed's conviction. The district court did not clearly err in rejecting Reed's knock-notice claim.

We affirm Reed's conviction and sentence, but expressly disapprove the district court's published order as inconsistent with circuit law.

I. FACTS

On January 24, 1992, Lewis S. Watson, assistant general manager of the Best Western Barratt Inn ("Barratt Inn") in Anchorage, Alaska, told Anchorage Police he suspected that one of his guests was using his hotel room for drug activities. Reed, the room's occupant, had checked into the hotel several days earlier and had paid for the room in cash each day. ¹ According to hotel employees, Reed had refused maid service and received an unusual number of visitors and telephone calls. In addition, an anonymous caller reported that Reed was using the room to sell narcotics. Watson requested that officers be dispatched to the hotel to protect him while he checked the room.

Accompanied by two police officers, Watson knocked on Reed's door, received no answer, and used his master key to enter. Officer Sponholz accompanied him "ten feet" into the room to assure his safety. On entering, Sponholz noticed a bowl of white powder (which he suspected was crack cocaine), a safe, a cellular phone, and two crack pipes in plain view. (Affidavit in Support of Search Warrant). He also saw that the room was clean and in good condition, and that no one was present. Satisfied that Watson was in no danger, he rejoined his partner in the doorway.

Watson also immediately recognized that the room was clean and in good condition. Nonetheless, he proceeded to go through dresser drawers and to open Reed's latched briefcase. Although the officers did not ask him to conduct this search, they stood guard in the doorway and listened as Watson described his finds.

Reed arrived shortly thereafter and refused to consent to a search of his room. Police then obtained and executed a search warrant, uncovering a pistol and drugs in Reed's room. Based on this evidence, they obtained a warrant for Reed's arrest.

In May, 1992, they learned Reed was staying at the Anchor Arms Motel. Dressed in plain clothes, Detective Koch, who had interviewed Reed several months earlier during the Barratt Inn investigation, went to the Anchor Arms Motel to serve the warrant. In response to Koch's knock, Reed opened the door, looked at Koch, and then closed the door. Assuming that Reed had recognized him from their previous meeting, Koch forcibly opened the door and arrested Reed, discovering additional incriminating evidence in Reed's pocket. A subsequent warranted search of the room uncovered additional weapons and contraband.

Before trial, Reed timely moved to suppress the evidence seized at his Barratt Inn and Anchor Arms Motel rooms, arguing (1) that the initial entry into his Barratt Inn room was unlawful and (2) that Detective Koch's forced entry into his Anchor Arms room violated the knock-notice rule. After an evidentiary hearing before a magistrate judge, the district court denied both motions. Reed, 810 F.Supp. 1078. Reserving his right to appeal this decision, Reed then pled guilty to two counts of being a felon in possession of a firearm, one count of possession of an unregistered sawed-off shotgun, two counts of using or carrying a firearm in relation to a drug trafficking crime, and two counts of possession of cocaine with intent to distribute. 18 U.S.C. Sec. 922(g), 26 U.S.C. Sec. 5861(d), 18 U.S.C. Sec. 924(c), & 21 U.S.C. Sec. 841(a)(1). On December 2, 1992, the district court sentenced him to a term of 153 months' imprisonment followed by a four-year supervised release. This appeal followed.

II. THE INITIAL SEARCH OF REED'S BARRATT INN ROOM

The district court found that the initial search of Reed's Barratt Inn room did not violate the Fourth Amendment because it was a private search. We review this legal conclusion de novo, United States v. Attson, 900 F.2d 1427, 1429 (9th Cir.), cert. denied, 498 U.S. 961, 111 S.Ct. 393, 112 L.Ed.2d 403 (1990), accepting the district court's factual findings unless clearly erroneous, Id., and reject the court's conclusion.

As the district court noted, the Fourth Amendment generally does not protect against unreasonable intrusions by private individuals. Walter v. United States, 447 U.S. 649, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980), United States v. Sherwin, 539 F.2d 1, 5 (9th Cir.1976). The defendant has the burden of showing government action. United States v. Gumerlock, 590 F.2d 794 (9th Cir.) (en banc), cert. denied, 441 U.S. 948, 99 S.Ct. 2173, 60 L.Ed.2d 1052 (1979).

However, the Fourth Amendment does prohibit unreasonable intrusions by private individuals who are acting as government instruments or agents. See Coolidge v. New Hampshire, 403 U.S. 443, 487, 91 S.Ct. 2022, 2048, 29 L.Ed.2d 564 (1971); United States v. Walther, 652 F.2d 788, 792-93 (9th Cir.1981). This court has recognized that there exists a "gray area" between the extremes of overt governmental participation in a search and the complete absence of such participation. Walther, 652 F.2d at 791. This case falls within the gray area.

Cases which fall within the gray are best resolved on a case by case basis relying on the consistent application of certain general principles. Id. The general principles for determining whether a private individual is acting as a governmental instrument or agent for Fourth Amendment purposes have been synthesized into a two part test. United States v. Miller, 688 F.2d 652, 657 (9th Cir.1982). According to this test, we must inquire:

(1) whether the government knew of and acquiesced in the intrusive conduct; and (2) whether the party performing the search intended to assist law enforcement efforts or further his own ends.

Id.

The Barratt Inn search obviously meets the first of these requirements. Officers Rose and Sponholz definitely "knew of and acquiesced" in Watson's search. They were personally present during the search, knew exactly what Watson was doing as he was doing it, and made no attempt to discourage him from examining Reed's personal belongings beyond what was required to protect hotel property. Watson reported his findings to them as he searched.

Thus, the only question is whether Reed has met the second part of the test--did Watson intend to further his own ends, as the government argues, or assist law enforcement efforts? We find, based on Watson's testimony and the circumstances surrounding the search, that Watson intended to help police gather proof that Reed was using his room to deal narcotics. The district court's factual findings to the contrary are clearly erroneous.

Watson testified that he called the police in order to let them know that he felt he had a room and a guest that was "involved in activity they would want to be aware of," and because he suspected Reed was involved in drug activity. He stated that his suspicions about drug dealing played heavily into his reasons for entering the room. Watson had attended a number of Drug Metro unit classes on how to determine when a hotel guest was dealing drugs. These facts suggest that Watson intended to assist the police. See Walther, 652 F.2d at 792.

The government contends that Watson entered the room to ensure that hotel property was not damaged and emphasizes that there is no state action if the private individual has a "legitimate independent motivation" for conducting the search. Id. at 791-92; See United States v. Andrini, 685 F.2d 1094, 1097-98 (9th Cir.1982). Watson testified that it was his idea to go into the room, and that he knew from his previous dealings with the police that he was not an agent of the police department and thus could conduct the search. He said he "wanted to give [the police] enough information so that they knew that there may be things happening in the room that they wanted to take action on."

Moreover, Watson did not stop searching after he had learned the room was in good condition. While the police officers stood in the doorway, he opened closed drawers and a latched briefcase which he knew belonged to Reed. These additional intrusions cannot be justified by any need to protect hotel property and Watson himself admitted he had no such motivation. ² The district court's opinion suggests that Watson's interest in preventing criminal activity at the hotel is itself a "legitimate independent motivation" within the Walther ...