372 F.3d 1048 (9th Cir. 2004), 01-50633, United States v. Crawford

Docket Nº:01-50633.
Citation:372 F.3d 1048
Party Name:UNITED STATES of America, Plaintiff-Appellee, State of California, Intervenor, v. Raphyal CRAWFORD, aka Aarmyl Crawford, Defendant-Appellant.
Case Date:June 21, 2004
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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372 F.3d 1048 (9th Cir. 2004)

UNITED STATES of America, Plaintiff-Appellee,

State of California, Intervenor,

v.

Raphyal CRAWFORD, aka Aarmyl Crawford, Defendant-Appellant.

No. 01-50633.

United States Court of Appeals, Ninth Circuit

June 21, 2004

Argued and Submitted En Banc Dec. 8, 2003.

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[Copyrighted Material Omitted]

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Michael J. McCabe, San Diego, CA, for the defendant-appellant.

Carol C. Lam, U.S. Atty., Sherri Walker Hobson, Asst. U.S. Atty. (on brief), David P. Curnow, Asst. U.S. Atty. (oral argument and petition for rehearing), United States Attorney's Office, San Diego, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; Irma E. Gonzalez, District Judge, Presiding, D.C. No. CR-01-00141-IEG.

Before SCHROEDER, Chief Judge, and PREGERSON, KOZINSKI, O'SCANNLAIN, TROTT, KLEINFELD, TASHIMA, GRABER, W. FLETCHER, TALLMAN, and CLIFTON, Circuit Judges.

Opinion by Judge GRABER; Concurrence by Judge O'SCANNLAIN; Concurrence by Judge TROTT; Concurrence by Judge KLEINFELD; Dissent by Judge W. FLETCHER

GRABER, Circuit Judge:

Defendant Raphyal Crawford appeals the district court's denial of his motion to suppress a statement that he made to law enforcement officers, arguing that the statement was taken in violation of his Fourth Amendment protection against unreasonable searches and seizures and in violation of his entitlement to Miranda warnings under the Fifth Amendment. Defendant also appeals the district court's imposition of a two-level sentence enhancement for physical restraint of a victim during the commission of the offense. We affirm Defendant's convictions, but vacate his sentence and remand for resentencing.

FACTUAL AND PROCEDURAL HISTORY

Sometime in 1998, FBI Special Agent David Bowdich received information from an unnamed source that a person known as "Ralphy Rabbit" had participated in the February 10, 1998, armed robbery of a Bank of America branch on Ulrich Street in San Diego. Bowdich's subsequent investigation led him to believe that "Ralphy

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Rabbit" was an alias used by Defendant. Bowdich also learned that Defendant was currently on state parole in California. As a condition of his parole, Defendant had signed a "Fourth Waiver," a document that purportedly signifies a parolee's consent to a search by any law enforcement officer, with or without cause. The "Fourth Waiver" states:

You and your residence and any property under your control may be searched without a warrant by an agent of the Department of Corrections or any law enforcement officer.

You agree to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant, and with or without cause.

Bowdich testified that it is common practice for law enforcement officers to use "Fourth Waivers" as a "tool to talk" to suspects about crimes.

Bowdich sought out Defendant's parole agent, Carl Berner, hoping to accompany Berner on a parole search of Defendant's residence. After Berner was obliged to cancel a previously scheduled parole search, Bowdich, after consulting with Berner, conducted the parole search himself, accompanied by four state law enforcement officers. Because the robbery had occurred more than two years earlier and because Defendant had changed residences, Bowdich did not hope to find evidence of the Ulrich Street robbery during the parole search. Rather, Bowdich intended to use the parole search as a pretext to speak to Defendant about the Ulrich Street robbery. As Bowdich explained, however, he would have approached Defendant to discuss the robbery even if the parole search had not occurred.

At 8:20 a.m. on July 27, 2000, Bowdich and the state officers arrived at Defendant's home to conduct the parole search. Defendant's sister met them at the door and informed them that Defendant was in the bedroom, asleep, with his 18-month-old daughter. Bowdich and two officers entered the bedroom, with weapons drawn, and told Defendant that they were conducting a parole search.1 Bowdich escorted Defendant to the living room, hoping to defuse the "me-versus-you" atmosphere, while the state officers conducted the parole search. Defendant remained seated on the couch, under detention, for the duration of the parole search (between 30 and 50 minutes).

After Defendant was seated on the couch, Bowdich attempted to engage him in "chit-chat." Eventually, Bowdich asked Defendant about "an old bank robbery case." Defendant was not forthcoming; Bowdich attributed this reticence to the presence of the four state officers. As the state officers were completing their search, Bowdich asked Defendant whether he would prefer to speak in "a private place" with just Bowdich and San Diego Police Department Detective Michael Gutierrez. Defendant agreed to accompany Bowdich and Gutierrez, in Bowdich's vehicle, to the local FBI office. The trip from Defendant's home to the FBI office took about 20 minutes. Defendant was not interrogated in the car.

At the FBI office, Defendant was placed in an interview room with Bowdich and Gutierrez. Bowdich told Defendant that he was not in custody and could leave at any time. However, "to make it as clean as possible," Bowdich attempted to give Defendant the Miranda2 warnings. Defendant stopped Bowdich, protesting that

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the warnings were making him nervous and that he thought he was present merely to discuss an old case. Both Bowdich and Gutierrez reassured Defendant that he was not under arrest and that he was free to leave. They made no further attempt to read the Miranda warnings to Defendant.

Bowdich and Gutierrez questioned Defendant for more than an hour. According to Defendant, every time he tried to terminate the interview, Gutierrez or Bowdich would ask him one or two more questions. The government's witnesses disputed this assertion, and the district court credited those witnesses' version of events. Eventually, Defendant said that he had participated in the Ulrich Street bank robbery, and he admitted having used a gun during the crime. The officers ended the interview without arresting Defendant, drove him back to his home, and left.

Thereafter, a grand jury indicted Defendant for armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d), and using and carrying a firearm during the commission of a crime of violence, in violation of 18 U.S.C. § 924(c)(1) and (2). Defendant moved to suppress the statement that he had made to law enforcement officers on July 27, 2000. After several evidentiary hearings, the district court denied Defendant's motion to suppress. Relying on our decision in United States v. Knights, 219 F.3d 1138 (9th Cir. 2000), later rev'd and remanded, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001), the district court held that the search of Defendant's home was a violation of Defendant's constitutional rights under the Fourth Amendment. However, the district court concluded that Defendant's confession was sufficiently attenuated from the illegal search to purge the taint of the constitutional violation, rendering Defendant's statement to the law enforcement officers admissible. The district court also held that Defendant was not in custody when questioned at the FBI office and that Miranda warnings therefore were not required. The district court rejected Defendant's claim that his confession was involuntary as the result of alleged promises from Bowdich and Gutierrez that Defendant would not face imprisonment for his involvement in the Ulrich Street robbery if he cooperated with the investigation.

After the district court ruled, Defendant entered a conditional guilty plea pursuant to Federal Rule of Criminal Procedure 11(a)(2). Defendant reserved for appeal the denial of his motion to suppress, the district court's holding that his statement was voluntary and not taken in violation of Miranda, and the district court's application of the sentencing guidelines.

At the sentencing hearing, the government offered the testimony of Louis Lopez, a security guard who was on duty during the Ulrich Street robbery. Based on Lopez' testimony, the district court imposed a two-level sentence enhancement for physical restraint of a victim, pursuant to United States Sentencing Guideline ("U.S.S.G.") § 2B3.1(b)(4)(B).

Defendant timely appealed. A majority of the three-judge panel of this court held that the parole search of Defendant's residence was illegal under the Fourth Amendment and that there was insufficient attenuation to avoid the exclusion of Defendant's statement. United States v. Crawford, 323 F.3d 700 (9th Cir. 2003). The panel thus reversed Defendant's convictions on his first theory, without reaching any of his other assertions of error. We ordered this case to be reheard en banc, United States v. Crawford, 343 F.3d 961(9th Cir. 2003), and we now affirm Defendant's convictions on a different ground, but vacate and remand with respect to his sentence.

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STANDARDS OF REVIEW

We review de novo the denial of a motion to suppress. United States v. Fernandez-Castillo, 324 F.3d 1114, 1117(9th Cir.), cert. denied, --- U.S. ----, 124 S.Ct. 418, 157 L.Ed.2d 299 (2003). Whether the exclusionary rule applies to a given case is reviewed de novo, while the underlying factual findings are reviewed for clear error. United States v. Hammett, 236 F.3d 1054, 1057-58(9th Cir. 2001).

We review de novo whether a defendant is constitutionally entitled to Miranda warnings. United States v. Butler, 249 F.3d 1094, 1098 (9th Cir. 2001). We also review de novo whether a confession is voluntary or coerced. Pollard v. Galaza, 290 F.3d 1030, 1032 (9th Cir.), cert. denied, 537 U.S. 981, 123...

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