387 F.3d 1060 (9th Cir. 2004), 02-10526, United States v. Washington

Docket Nº:02-10526.
Citation:387 F.3d 1060
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Ronald Berry WASHINGTON, Defendant-Appellant.
Case Date:November 02, 2004
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
FREE EXCERPT

Page 1060

387 F.3d 1060 (9th Cir. 2004)

UNITED STATES of America, Plaintiff-Appellee,

v.

Ronald Berry WASHINGTON, Defendant-Appellant.

No. 02-10526.

United States Court of Appeals, Ninth Circuit

November 2, 2004

Argued and Submitted Oct. 8, 2003

Page 1061

[Copyrighted Material Omitted]

Page 1062

Cynthia S. Hahn (argued and briefed) and Michael K. Powell (briefed), Assistant Federal Public Defenders, Reno, NV, for the defendant-appellant.

Craig Denney, Assistant United States Attorney, Reno, NV, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Nevada; Edward C. Reed, District Judge, Presiding. D.C. No. CR-01-00074-ECR.

Before: PREGERSON, BEAM,[*] and PAEZ, Circuit Judges.

PREGERSON, Circuit Judge:

The district court denied Ronald Berry Washington's motion to suppress evidence that Reno Police Department ("RPD") officers obtained during a search of Washington's

Page 1063

residential hotel room. Washington appeals. Washington contends that the officers repeatedly violated his Fourth Amendment rights; that his written consent to search his room was coerced; and that, even if not coerced, the consent itself and the evidence obtained pursuant to the consent were tainted by the officers' violations of his Fourth Amendment rights. We agree with Washington that the officers repeatedly violated his Fourth Amendment rights and that both Washington's written consent and the evidence obtained pursuant to it were tainted. Accordingly, as explained in greater detail below, we reverse the district court's denial of Washington's motion to suppress.

I. FACTUAL BACKGROUND1

On February 25, 2001, RPD officers received a tip that an individual named "Shane" was operating an active methamphetamine laboratory in Room 319 of the Comstock Hotel (the "Comstock")--a hotel converted into residential apartments--and that occupants of an unidentified room on the fifteenth floor were also involved in manufacturing and/or distributing methamphetamine.

RPD Officer Robert Tygard learned from the Comstock's desk clerk that Room 319 was vacant because its former occupant, Shane Leffingwell, had been evicted. In response to questions about possible methamphetamine sales taking place on the fifteenth floor, the desk clerk told Tygard that Room 1524 received a "large number of telephone calls" and that there was heavy "foot traffic" on the fifteenth floor.

Officer Tygard learned that Defendant Washington was the occupant of Room 1524 and that he had prior convictions for unlawful use of a controlled substance, carrying a concealed weapon, obstructing police officers, and giving false information to a police officer. At approximately 8:30 p.m., Tygard returned to the Comstock in uniform with four other uniformed RPD officers--Officers Sceirine, Soto, Mandagaran, and Sergeant Partyka--and one plain-clothed RPD officer--Detective Brian Chittenden. The six officers went to Room 1524 to conduct a "knock and talk,"2 with a view to questioning Washington about whether he was involved in manufacturing and/or distributing methamphetamine. Upon their arrival on the fifteenth floor, three of the six officers approached Washington's door. According to Officer Sceirine's testimony at the suppression hearing, the remaining three officers hid five to ten feet down the hallway "to eliminate the coercion defense," should Washington later assert that he was coerced into opening his door. Sceirine also admitted at the suppression hearing that before speaking with Washington, "there was no probable cause to get a search warrant for [Washington's] room."

Responding to Officer Sceirine's knock, Washington opened the door, exited his room, entered the hotel hallway, and closed the door behind him. When Washington exited his room, he could see all six

Page 1064

officers, five of whom carried visible firearms. Sceirine testified that when the officers started talking to Washington, all six were "around" him.

Shortly after Washington entered the hallway, Sceirine reminded Washington that previously he had been arrested for carrying a concealed weapon and that he had not registered with the RPD--in Sceirine's words, "a misdemeanor, arrestable charge."3 Sceirine also requested that Washington submit to a pat-down search for weapons. Washington complied, and the search revealed no weapons or evidence of drug-related activity.

The six officers walked Washington twenty to thirty feet down the hallway and away from his door. While in the hallway, Sergeant Partyka realized that someone else was in Washington's room. Officer Sceirine called for that individual to exit and, while waiting for him to do so, again reminded Washington that his failure to register with the RPD was an "arrestable charge."

Pursuant to Officer Sceirine's request, Leo "Libo" Nolan exited Washington's room, leaving the door open. Washington asked Nolan to "please close the door," but Officers Soto and Sceirine responded that they "d[id not] like leaving this door closed" and refused to let Nolan close it. Officer Sceirine testified that, with the door open, the officers "had a fairly ample view of the room," which was studio--or hotel-style with one main room and an adjacent bathroom.

For a third time, Officer Sceirine reminded Washington that he had failed to register with RPD and that his failure to do so was "an arrestable charge." Sceirine then questioned Washington about whether Washington had a methamphetamine lab in his room and whether he was selling drugs. Washington emphatically and unequivocally denied that he was running a methamphetamine lab in his room and/or involved in methamphetamine distribution.

Still in the hallway, Officer Sceirine asked Washington to cooperate and explained that the officers wanted his consent to search:

Well, here's what we want to do. We wanna ... usually with us, we want to avoid this being a long drawn out investigation. Do you hear what I'm saying? And that's why we're contacting you and we're doing this in such a manner, for your cooperation, to make sure there's no lab in there, for your permission to search for anything that would have any relationship to a lab. OK?

Washington responded, "Uh, sure." Sceirine claimed at the suppression hearing that Washington's response communicated his first consent to search his room.4

After further conversation, Officer Sceirine again suggested that Washington let

Page 1065

the officers just "go inside and talk." Washington did not respond with a "yes" or a "no" answer, but instead asked, "can my wife get here first?" Almost immediately thereafter, Sceirine--still outside but able to see into the room--asked, "Is that a gun on the bed?" Washington responded, "No sir.... That's a pager." Sceirine then suggested, "OK, well let[']s go." Washington responded, "OK." Sceirine and Detective Chittenden claimed that this response communicated Washington's second consent to a search of his room.5

According to Officer Sceirine, he and Detective Chittenden entered Washington's room and directed Washington to sit on the bed while Sergeant Partyka stood in the doorway.6 Sceirine also admitted that, by the time he and Chittenden were inside Washington's room, Washington was not free to leave or to otherwise terminate the encounter.

The officers resumed questioning Washington about his involvement in drug trafficking and his connection to Leffingwell, the former occupant of Room 319. In particular, Detective Chittenden asked Washington whether he had anything unlawful in his room. Washington admitted that he possessed a line of methamphetamine and indicated its general location.7 Detective Chittenden further questioned Washington about being involved in methamphetamine production and/or distribution. Washington again unequivocally denied any involvement. Sometime during this exchange, an officer moved Washington's coat and discovered Washington's line of methamphetamine.

Officer Sceirine then placed a permission to search form in front of Washington and asked him to sign the bottom section of the form:

This is a permission to search, OK? And like I said, I explained to you why we're here and what we're looking for. You already got ... some evidence of some dope here. What we want to do is avoid taking the time to apply for a search warrant and go along with your cooperativeness and this permission to search and bang it out real quick. That's what we're looking for here. Permission to search....

Washington refused to sign the form and protested, "I don't have anything here, you can see that." Officer Sceirine admitted at the suppression hearing that, at that point, he had observed no methamphetamine lab instrumentalities--e.g., glassware, tubing, venting mechanisms, jars of red phosphorous, or hot plates--in Washington's room. Sceirine again requested that Washington sign the form: "So can we get your permission to search here? Just sign right here, this is your name right here. All this is, is a permission to search nothing else." At that point, Washington signed the form. The permission to

Page 1066

search form was signed at 8:45 p.m., approximately fifteen minutes after the officers returned to the Comstock.

During the ensuing search, Detective Chittenden discovered a handgun. The officers questioned Washington about the gun and continued to probe him about whether he had been operating a methamphetamine lab in his room. Washington again denied any involvement in manufacturing and/or distributing methamphetamine but confessed to owning the gun.

II. PROCEDURAL HISTORY

On April 25, 2001, Washington was charged in a one-count indictment with being a felon in possession of a firearm, 18 U.S.C. §§ 922(g) (1), 924(a) (2). Washington moved to suppress the handgun recovered by the officers and his confession that he owned it. On May 21, 2002, the district court held an evidentiary hearing on Washington's motion to...

To continue reading

FREE SIGN UP