USA v. Reilly

Citation224 F.3d 986
Decision Date15 June 2000
Docket NumberNo. 99-10360,99-10360
Parties(9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. FRANCIS JOSEPH REILLY, aka Ian MacCormick, aka Steven James Conner, Defendant-Appellant
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

COUNSEL: Carmen L. Fischer, Phoenix, Arizona; Nancy L. Hinchcliffe, Phoenix Arizona, for the defendant-appellant.

Linda C. Boone, Assistant United States Attorney, Appellate Section, Phoenix, Arizona, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona D.C. No. CR-98-00283-EHC Earl H. Carroll, District Judge, Presiding

Before: Donald P. Lay,1 Dorothy W. Nelson and Sidney R. Thomas, Circuit Judges.

OPINION

LAY, Circuit Judge:

On April 8, 1999, a jury convicted Francis Joseph Reilly of Armed Bank Robbery in violation of 18 U.S.C. SS 2113(a) & (d) and Use of a Firearm During a Bank Robbery in violation of 18 U.S.C. S 924(c)(1). On appeal, Reilly presents three arguments: (1) federal officers failed to comply with the knock and announce requirement under 18 U.S.C. S 3109; (2) the failure to provide Reilly with a Miranda warning was not excused by the public safety/officer safety exception, and his statement along with the weapon seized should have been suppressed; and (3) the inevitable discovery doctrine was incorrectly applied, and the evidence seized as a result of the improperly obtained consent to search should have been suppressed. We affirm in part and reverse in part and remand for a new trial.

I. Background

On May 8, 1998, FBI agents in Flagstaff, Arizona, received a tip from federal agents in Pittsburgh, Pennsylvania, that Reilly was staying with a woman named Doris Lange at the New Earth Lodge in Sedona, Arizona. Reilly and Lange were expected to meet up with another couple at the lodge. Reilly was a suspect in twenty-seven bank robberies in twenty-three cities in ten different states, including the April 9, 1998, robbery of a Norwest Bank in Arizona. Officers also considered him a strong suspect in the armed carjacking of a red Volkswagen Cabriolet in Chattanooga, Tennessee. Numerous photographs, as well as a teletype detailing Reilly's suspected criminal activities, were faxed to the Arizona agents by an agent in Pittsburgh, where Reilly had an outstanding federal arrest warrant for armed bank robbery.

At approximately 5:00 p.m. on May 8, FBI Agents Kim Kelly, Manuel Johnson, and Duncan Edwards set up surveillance at the New Earth Lodge. The officers briefly interrupted their surveillance of the units to speak with the desk clerk. The clerk informed the agents that only three units were occupied at the time. Unit 25 was checked out to one Ian MacCormick, and Unit 23 was occupied by an Argentinian couple. The third guest at the lodge was a long-term resident and was soon eliminated as a suspect. The clerk did not recognize any of the photos of Reilly presented by the agents. Agents also spoke to the Argentinian couple, and they too could not identify Reilly from the pictures, although the officers noted that the couple did not speak fluent English.

When they returned to Unit 25, a red Volkswagen Cabriolet with an identical vehicle identification number to one previously reported stolen was parked outside. The agents resumed surveillance outside an open window of the unit. The agents could not see through every window in Unit 25; through an open window, however, the agents observed a man reading and they heard a female voice. The agents could not positively identify the man in Unit 25 as Reilly, but the height, weight, facial shape and appearance of the man was similar to that of Reilly.

A woman later identified as Doris Lange eventually emerged from Unit 25, and Agent Kelly immediately began questioning her. She claimed ownership of the Cabriolet and was thereafter arrested. While being led to a police car by Agent Edwards, however, Lange broke away and yelled, "Run, Buddy!"2 Lange was apprehended by a Sedona policewoman shortly thereafter. Agent Kelly later testified that, at that time, he had no idea who "Buddy" was. He also testified that anyone in the unit could easily have heard Lange's cries, as "[i]t was very quiet around that residence." Agent Edwards similarly testified.

Upon hearing Lange's cry, Agent Kelly quickly approached the front door of Unit 25 and kicked it in. He observed Reilly sitting on the couch and ordered him to lay face-down on the floor, which Reilly did. Agent Edwards and Agent Manuel Johnson followed inside the unit, along with two United States Marshals. Agent Johnson ordered Reilly to spread his arms out on the ground, and Reilly complied with the instruction. Agent Kelly was armed with a shotgun, Agent Johnson had a handgun, and Agent Edwards held a submachine gun. All three had their weapons pointed at Reilly. The agents still could not account for the couple Reilly and Lange were supposed to meet at the lodge.

As Agent Johnson approached Reilly to handcuff him, Reilly began to bring his arms to his front waistband, and the agents told him to reposition his arms, which he did. Agent Edwards later testified that his experience as a federal agent taught him that the front waistband is a place people keep weapons. Agent Johnson then asked Reilly, "Where is the gun?" to which Reilly responded that it was in a black bag in the bedroom. At this point, Reilly had received no Miranda warning. Agent Kelly and a Sedona police officer immediately entered the bedroom, where the officer located a black leather briefcase in which there was a large amount of money, but no gun. Agent Kelly eventually found the gun in a black bag on the night stand. The search was then temporarily suspended.

Officers escorted Reilly to a waiting squad car, where Agent Edwards asked him his name. Reilly gave his first name as "Buddy," but before giving his last name, he asked either "Well, aren't I allowed to see a lawyer? " or "You will have to ask my lawyer." Later, Agent Edwards approached the patrol car with an FBI flyer that described tattoos on the suspect's arms. When Agent Edwards requested Reilly roll up his sleeve, Reilly admitted, "It's me. It's me. " He then stated his true name as being Francis Joseph Reilly. Agent Edwards thereafter asked for and Reilly gave verbal consent to search Unit 25; however, the search did not commence until Reilly signed a written consent form at the station. During the search, officers collected numerous pieces of evidence.3 Reilly was never Mirandized.

Prior to trial, Reilly moved to suppress the physical evidence seized during the search, as well as statements made by him during the course of the arrest. The district court denied the motion. The court excused the officers' noncompliance with the knock and announce requirement, explaining that it was reasonable for the police to suspect that compliance was dangerous under the circumstances. As for the failure to give a Miranda warning before inquiring into the location of the gun, the district court found that nothing in the record suggests that the agents were attempting to gain evidence or elicit an admission. Rather, the court felt the agents were simply concerned with their own safety, and the failure to provide Reilly with a Miranda warning was, therefore, excusable under the public safety doctrine. Finally, the district court admitted that the officers' questioning probably should have terminated after Reilly asked for an attorney. The court nonetheless admitted the evidence under the inevitable discovery doctrine, reasoning that the agents would have secured a search warrant had Reilly refused consent. Reilly was tried and convicted one and a half months later.

II. Discussion
A. Knock and Announce

18 U.S.C. S 3109 provides that an officer may forcibly enter a premises to execute a search warrant only after knocking and announcing his or her authority and purpose. Section 3109 codifies the knock and announce requirement necessitated by the Fourth Amendment. See Wilson v. Arkansas, 514 U.S. 927, 929 (1995). An officer's noncompliance with the knock and announce rule is excused, however, if exigent circumstances exist. See United States v. Hudson , 100 F.3d 1409, 1417 (9th Cir. 1996). The determination of exigent circumstances is a mixed question of law and fact that we review de novo. See id.

Exigent circumstances are "circumstances that would cause a reasonable person to believe that entry was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts." Id. (quotation omitted). Thus, a "noknock" entry is constitutionally permissible when officers "have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime . . . ." Richards v. Wisconsin, 520 U.S. 385, 394 (1997). See also United States v. Ramirez, 523 U.S. 65, 71 (1998). The requisite exigency must consist of more than a generalized and nonspecific fear. See United States v. Perez, 67 F.3d 1371, 1383 (9th Cir. 1995), rev'd in part on other grounds, 116 F.3d 840 (1997) (en banc).

Reilly argues that exigent circumstances were not present because the agents acted on nothing more than a generalized fear. We disagree. In Perez, this court upheld officers' failure to knock and announce before entering the residence of a suspected drug dealer, stating that it was reasonable for the officers to believe themselves in a dangerous situation given the suspect's violent criminal history and the likelihood that he was armed. See id. at 1384. This court further explained that it was likely the suspect heard a noisy scuffle occurring outside the...

To continue reading

Request your trial
97 cases
  • United States v. Smith
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • December 15, 2021
    ...discovery doctrine any more than probable cause, in and of itself, renders a warrantless search valid."); United States v. Reilly , 224 F.3d 986, 995 (9th Cir. 2000) (holding that the exception did not apply to evidence seized during a search conducted pursuant to the defendant's "consent,"......
  • People v. Superior Court of Los Angeles Cnty., B233816.
    • United States
    • California Court of Appeals
    • March 29, 2012
    ...of the Ninth Circuit, but they are of guidance and should be considered seriously by this court.” The trial court cited U.S. v. Reilly (9th Cir.2000) 224 F.3d 986 and United States v. Echegoyen (9th Cir.1986) 799 F.2d 1271 ( Echegoyen ). We conclude the court erred. Courts have indicated a ......
  • Sinclair v. City of Grandview, CV–12–3041–RMP.
    • United States
    • United States District Courts. 9th Circuit. Eastern District of Washington
    • September 26, 2013
    ...An officer's noncompliance with the knock and announce rules is excused where exigent circumstances exist. United States v. Reilly, 224 F.3d 986, 991 (9th Cir.2000) (citing United States v. Hudson, 100 F.3d 1409, 1417 (9th Cir.1996)). Exigent circumstances are “circumstances that would caus......
  • Hatcher v. State, 1055 September Term, 2006.
    • United States
    • Court of Special Appeals of Maryland
    • November 7, 2007
    ...A.2d 552 (1980) (emphasizing that speculation will not satisfy the demands of the inevitable discovery doctrine); United States v. Reilly, 224 F.3d 986, 994-95 (9th Cir.2000) (refusing to apply inevitable discovery because the government failed to meet its burden of proof); U.S. v. Vasquez ......
  • Request a trial to view additional results
1 books & journal articles
  • Search and seizure
    • United States
    • James Publishing Practical Law Books California Drunk Driving Law - Volume 1-2 Volume 1
    • March 30, 2022
    ...v. Robles [23 Cal.4th 789, 801]. People v. Superior Court ( Walker ) 143 Cal.App.4th 1183, 1215. See also, U.S. v. Reilly (9th Cir. 2000) 224 F.3d 986, 995 (“to excuse the failure to obtain a warrant merely because the officers had probable cause and could have inevitably obtained a warrant......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT