224 F.3d 986 (9th Cir. 2000), 99-10360, United States v. Reilly

Docket Nº:99-10360
Citation:224 F.3d 986
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. FRANCIS JOSEPH REILLY, aka Ian MacCormick, aka Steven James Conner, Defendant-Appellant.
Case Date:September 11, 2000
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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224 F.3d 986 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

FRANCIS JOSEPH REILLY, aka Ian MacCormick, aka Steven James Conner, Defendant-Appellant.

No. 99-10360

United States Court of Appeals, Ninth Circuit

September 11, 2000

Argued and Submitted June 15, 2000--San Francisco, California

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[Copyrighted Material Omitted]

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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.

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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

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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...

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