226 F.3d 1020 (9th Cir. 2000), 99-50067, United States v. Reid

Docket Nº:99-50067, 99-50141,
Citation:226 F.3d 1020
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. LAWRENCE EZEKIEL REID, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. WAYNE BLAKE, Defendant-Appellant.
Case Date:September 14, 2000
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1020

226 F.3d 1020 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

LAWRENCE EZEKIEL REID, Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

WAYNE BLAKE, Defendant-Appellant.

No. 99-50067, 99-50141,

United States Court of Appeals, Ninth Circuit

September 14, 2000

Argued and Submitted February 9, 2000--Pasadena, California

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[Copyrighted Material Omitted]

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Before: Harry Pregerson and Kim McLane Wardlaw, Circuit Judges, and Milton I. Shadur,1 District Judge.

COUNSEL: Martha M. Hall, DiIorio & Hall, San Diego, California; Gerard J. Wasson, Grimes & Warwick, San Diego, California for the defendant-appellants.

Richard C. Cheng, Assistant U.S. Attorney, Appellate Section, Criminal Division, Office of the United States Attorney, San Diego, California, for the plaintiff-appellee.

Appeals from the United States District Court for the Southern District of California William B. Enright, District Judge, Presiding D.C. No. CR-98-02041-WBE

OPINION

PREGERSON, Circuit Judge:

Each of Lawrence Ezekial Reid and Wayne Blake ("Appellants") appeals his conviction for being an illegal alien in possession of a firearm in violation of 18 U.S.C. SS 922(g)(5) and 924(a)(2). Appellants contend, inter alia, that the government's warrantless search of their apartment violated the Fourth Amendment. We have jurisdiction pursuant to 28 U.S.C. S 1291, and we reverse.

BACKGROUND

The events in this case occurred as a result of the U.S. Marshals's efforts to locate Aldrick Lloyd Edwards, an individual who was suspected of committing various narcotics and weapons violations. In September 1997, Deputy Robert Kitts learned that a close associate of Edwards, known as Mikey, resided in apartment 101 at 4424 44th Street in San Diego, California. In November of that year, Deputy Kitts went to the apartment complex to verify that Mikey lived in apartment 101. Kitts showed a photograph of Mikey to the apartment manager, who confirmed that Mikey was the person who had signed the lease. In addition to interviewing the apartment manager, Deputy Kitts and his fellow officers spoke with tenants of the apartment complex. The residents who the officers interviewed verified that Mikey resided in apartment 101 with other individuals. Deputy Kitts testified that he drove by the apartment complex "every time [he] was in the neighborhood" to ensure that Mikey had not moved. Additionally, he contacted the manager of the apartment complex on multiple occasions to verify that Mikey continued to reside there.

During his extensive and ongoing investigation of the apartment complex, Deputy Kitts observed two automobiles parked in the space assigned to apartment 101 -a bronze Lexus and a bronze Acura Legend.

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Deputy Kitts noted the license plate on the Lexus and learned that a woman named Sarah Buie was the registered owner.

On June 15, 1998, agents from the U.S. Marshals, the Drug Enforcement Agency ("DEA"), and the Immigration and Naturalization Service ("INS") went to apartment 101 to speak with Mikey. The officers did not have a search warrant or an arrest warrant when they went to the apartment. Deputy Kitts knocked on the front door of the apartment and a man, later identified as Junior Grant, answered. Because Deputy Kitts was aware of Mikey's appearance, he knew that Grant was not Mikey or Aldrick Edwards, the alleged fugitive who was an associate of Mikey.

After Grant opened the door, Deputy Kitts asked him if he knew who owned the Lexus that was parked in the parking space for apartment 101. Grant stated that he did not know who owned that automobile. Deputy Kitts testified that he smelled the aroma of burning marijuana at that time.2 Shortly thereafter, Deputy Kitts displayed his law enforcement badge and identified himself as a federal agent. Grant immediately slammed and locked the door. A few seconds later, Deputy Kitts received a call over his radio informing him that another deputy marshal covering the rear exit observed a man running from the back of the apartment. The description of the man was consistent with the appearance of Junior Grant.

Deputy Kitts ran to the back of the apartment where he found another deputy detaining Grant. Grant was standing in a spread eagle position facing the sliding glass door at the rear of the apartment with another officer standing behind him. Deputy Kitts handcuffed Grant. Deputy Kitts testified that he told Grant that he was handcuffed for his safety and the safety of the officers, but that he was not under arrest. Deputy Kitts testified that there was no probable cause to arrest Grant at that time. Additionally, Deputy Kitts testified that he did not hear any sounds which suggested that other individuals were inside the apartment.

The officers asked Grant for his identification, and Grant told them that it was inside the apartment. Grant told the officers that his name was "Alvin David Bryant." The officers then asked him if there was anyone else inside the apartment. Grant told them that there was not. Deputy Kitts testified that Grant then gave the officers permission, at their request, to enter the apartment to retrieve his identification and to make sure that no one else was inside.

Grant's testimony about the events differed from the officers' testimony. Grant testified that when the officers detained him at the back of the apartment, they told him that he was going to go to prison. Grant also testified that he refused to sign a consent to search form and that he told the officers that he could not give them permission to search the apartment because it was not his residence. Grant's testimony, however, was somewhat confused.

After Grant allegedly gave the officers permission to search, the officers went inside the apartment. They observed a firearm, currency, packing boxes, clear plastic bags, and other items that they believed to be associated with marijuana trafficking. After observing these items, at approximately 9:00 a.m., Deputy Kitts left the apartment to obtain a search warrant. The other officers remained at the scene.

Deputy Kitts prepared an affidavit in support of his request for a search warrant. In that affidavit Kitts did not state that he and the other officers went inside the apartment to retrieve Grant's identification. Rather, the affidavit indicated that Grant "said no one else was in the residence and consented to a search for other

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persons." Agent William Mickle, who was at apartment 101 on June 15, 1998, also prepared a report. Like Deputy Kitts's affidavit, Mickle's report did not mention that the officers went inside the apartment to retrieve Grant's identification. Additionally, Mickle's report did not mention that Grant had consented to the search of apartment 101.

While the search warrant was being prepared, at approximately 10:00 a.m., Appellant Wayne Blake arrived and attempted to enter the apartment. When the officers asked him who he was, he handed Agent Mickle his wallet and refused to answer any questions. In the wallet Agent Mickle found an identification card that was purportedly issued by the police department in the U.S. Virgin Islands. Agent Mickle testified that he knew that the police in the U.S. Virgin Islands do not issue such cards and thus ascertained that the identification card was false. Subsequently, Agent Mickle arrested Blake.

About one hour later, at 11:15 a.m., Appellant Lawrence Ezekiel Reid entered the front door of the apartment and encountered the officers inside. After hearing Agent Mickle announce that he was the "police," Reid ran through the front door. Agent Mickle chased Reid and apprehended him in an area outside the apartment. As did Appellant Blake, Reid gave the officers identification purportedly issued by the police in the U.S. Virgin Islands. Agent Mickle then arrested Reid for possession of false documents.

The officers executed the search warrant at approximately 1:30 p.m. The officers found a silver Ruger GP-100 .367 magnum revolver and a silver Raven .25 semi-automatic handgun in the south bedroom of the apartment. The officers also discovered a document appearing to be a birth certificate from the U.S. Virgin Islands for Wayne Blake.

In the north bedroom, the officers located a silver Smith & Wesson .357 magnum revolver and a silver .22 caliber revolver in a dresser. The officers also found another false identification card with Reid's picture on it in the north bedroom. Five other pictures of Reid were found in the dresser as well. Additionally, the officers found 39 boxes, nine rolls of tape, nine bags of packing material, Federal Express service bills, and Western Union money transfer receipts in the north bedroom.

The officers also found packaging and shipping materials, miscellaneous papers, an electronic scale with a 220 pound capacity, marijuana residue, and $30,000 in cash in the apartment. Based on this evidence, DEA agent Jack Kozey began an administrative forfeiture of the currency found at the residence as well as the vehicles parked in the stalls associated with apartment 101. Specifically, the DEA seized Reid's 1994 Lexus and the 1994 Acura used by Blake.

A federal grand jury in the...

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