502 F.3d 1130 (9th Cir. 2007), 06-30414, United States v. Crews

Docket Nº:06-30414, 06-30589.
Citation:502 F.3d 1130
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Uhuru Navanda CREWS, Defendant-Appellee. United States of America, Plaintiff-Appellant, v. Ebonique Manus, Defendant-Appellee.
Case Date:September 10, 2007
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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502 F.3d 1130 (9th Cir. 2007)

UNITED STATES of America, Plaintiff-Appellant,


Uhuru Navanda CREWS, Defendant-Appellee.

United States of America, Plaintiff-Appellant,


Ebonique Manus, Defendant-Appellee.

Nos. 06-30414, 06-30589.

United States Court of Appeals, Ninth Circuit.

Sept. 10, 2007

Argued and Submitted July 13, 2007

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[Copyrighted Material Omitted]

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Stephen F. Peifer, Assistant United States Attorney, for appellant the United States of America.

Lisa Hay, Assistant Federal Public Defender, for defendant Uhuru Navanda Crews.

Francesca Freccero, Assistant Federal Public Defender, for defendant Uhuru Navanda Crews.

Raivio, Kohlmetz & Steen, P.C., by Andrew Kohlmetz, Esq., for defendant Ebonique Manus.

Appeal from the United States District Court for the District of Oregon; Ancer L. Haggerty, Chief Judge, Presiding and Garr M. King, District Judge, Presiding. D.C. Nos. CR-05-00355-ALH, CR-05-00400-GMK.

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Before: CYNTHIA HOLCOMB HALL and MILAN D. SMITH, JR., Circuit Judges, and KEVIN THOMAS DUFFY, [*] Senior District Judge.

DUFFY, Senior District Judge:

Most of the arguments raised in these two cases arise from the execution of one search warrant at 6731 SE 82nd Avenue, Apartment 3 ("Apartment 3") in Portland, Oregon. As residents of Apartment 3, Uhuru Navanda Crews and Ebonique Manus ("Crews" and "Manus," or collectively "Defendants") continue to attack the validity of the underlying affidavit upon which the search warrant was based. Defendants argued below, and continue to argue, that the affidavit is so lacking in indicia of probable cause that no police officer could have reasonably relied upon it in good faith. The search warrant resulted in two indictments--one for each defendant--separately charging each with being a felon in possession of a firearm. The case against Crews (05-355-ALH) was assigned to Chief Judge Haggerty, and that against Manus (05-400-GMK) was assigned to Judge King. In each case, the defendant moved to suppress all evidence flowing from the warrant. Chief Judge Haggerty held a hearing on the motion. At the behest of the parties, Judge King relied upon the hearing before Chief Judge Haggerty. The district courts agreed with the Defendants' arguments and in each case ordered suppression of the evidence seized during the search and inculpatory statements made by Defendants as tainted fruits of an unlawful search. The Government appeals these orders, contending that there was probable cause supporting the search, and even if there was not, the good faith exception applies pursuant to United States v. Leon, 468 U.S. 897, 925, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).


At about 2:00 a.m. on July 2, 2005, a police officer attempted to pull Crews over for failing to properly signal a turn while driving. Rather than comply, Crews, a convicted felon, increased his speed and then jumped from the vehicle in an attempt to elude the police. After a brief chase on foot, officers arrested Crews for attempting to elude the police pursuant to Section 811.540 of the Oregon Revised Statutes and for other state and city violations. After the officers advised Crews of his Miranda rights, Crews verbally waived them and admitted that he fled because of an outstanding arrest warrant in the state of Washington, a warrant that, unbeknownst to Crews, was non-extraditable. The officers impounded the car Crews had been driving, a 1985 Oldsmobile Cutlass registered to Manus, also a convicted felon, and registered to Manus's address at Apartment 3, 6731 SE 82nd Avenue, Portland, Oregon. Crews' arrest had taken place only a few blocks from that location. Neither the Portland Police Data System nor Crews's invalid drivers license listed the address of Manus's apartment as Crews's residence.

After conducting a sweep of the area where Crews was arrested, officers found a .22 caliber revolver under some shrubbery. As convicted felons, both Crews and Manus were forbidden from possessing a firearm. See 18 U.S.C. § 922(g)(1). 1 Because the car Crews had been driving was registered to Manus at Apartment 3, police

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officers focused their surveillance at that address for two days. On the first day, officers observed Crews walking within the complex where Apartment 3 is located and then leave with an unknown person in an unknown car that had been parked in the space reserved for Apartment 3. The next day, officers observed Manus walk from the area of Apartment 3 and leave in a Pontiac that had been parked in the space reserved for Apartment 3. Meanwhile, officers observed Crews walking from the complex and then return. After Manus returned, officers watched as Manus and Crews emerged together from the area where the doorway to Apartment 3 was located. They then proceeded to walk back and forth from Apartment 3 to the Pontiac multiple times before eventually leaving together in the Pontiac, with Crews driving.

Based on these observations and his experiences and general knowledge of firearm possession, Officer Peter McConnell prepared an eight-page affidavit in support of a search warrant for Apartment 3, Crews's person, the Oldsmobile, and the Pontiac for evidence of the crimes of "attempting to elude police" and "felon in possession of a firearm." The warrant was issued on July 14, 2005, and permitted police officers to search Apartment 3 for .22 caliber ammunition, firearm cleaning kits, magazines, receipts and other evidence of firearm possession, as well as items of identification that would show dominion over the places searched.2 Within fifteen minutes of receiving the warrant, police officers found and picked up Crews off the street near Apartment 3 and advised him of his Miranda rights, which Crews said he understood. Crews denied living at Apartment 3 and stated that he did not believe there to be any firearms there. Eventually, Crews was taken into custody.

The police officers then executed the search at Apartment 3. There, Manus stated that she and Crews had been living together at Apartment 3 for a month and a half, but that there were no firearms inside. Manus was then taken into custody. During the search of Apartment 3, officers discovered a .38 caliber derringer and ammunition inside of a bedroom dresser drawer containing women's undergarments. The officers also found Crews's wallet on top of that dresser. No evidence was found on Crews's person or in the automobiles.

The officers returned to the precinct and separately interviewed Crews and Manus. Officer McConnell removed Crews's handcuffs and reminded him that his Miranda rights still applied, which Crews acknowledged. Crews proceeded to admit having previously handled the .38 derringer, but said it belonged to Manus and that he did not know she still kept it at Apartment 3. Crews then stated that he did not live at Apartment 3, but did admit that he stayed there about 70 percent of the time, including the previous night.3 Finally, Crews confessed that he had possessed the .22 revolver that was previously found in the bushes. He said he kept it for protection and that it was the primary reason that he attempted to elude the police the previous night. As for Manus, after being advised

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of her Miranda rights, she confessed to Officer McConnell that the .38 derringer was hers and that she kept it for protection.

Defendants were each indicted and charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Through counsel, Defendants both pled not guilty. Crews moved to suppress his inculpatory admission of possession of the .22 revolver and Manus moved to suppress the .38 derringer seized as well as her admission of ownership of the firearm. Defendants both argued that there was no probable cause to search Apartment 3 and that the good faith reliance exception did not apply. The district courts below agreed and suppressed the .38 derringer and Defendants' admissions as tainted fruit of an unlawful search. Additionally, the district court in Crews's case found that the waiver of his Miranda rights was not knowing and voluntary because he was detained and interrogated in conjunction with an invalid warrant. The Government now appeals these suppression orders, contending that there was probable cause to search Apartment 3, and that even if there was not, the "good faith reliance" exception applies, and that Crews's waiver was knowing and voluntary.


We review the district courts' rulings on the motions to suppress and the validity of a search warrant de novo. United States v. Adjani, 452 F.3d 1140, 1143 (9th Cir.2006), cert. denied, Reinhold v. United States, --- U.S. ----, 127 S.Ct. 568, 166 L.Ed.2d 420 (2006). "A magistrate judge's finding of probable cause is entitled to great deference and this court will not find a search warrant invalid if the magistrate judge had a 'substantial basis' for concluding that the supporting affidavit established probable cause." United States v. Clark, 31 F.3d 831, 834 (9th Cir.1994), cert. denied, 513 U.S. 1119, 115 S.Ct. 920, 130 L.Ed.2d 800 (1995). Furthermore, "[i]n borderline cases, preference will be accorded to warrants and to the decision of the magistrate issuing it." United States v. Terry, 911 F.2d 272, 275 (9th Cir.1990) (citation omitted). We also review de novo the district courts' application of the good faith reliance exception. United States v. Kurt, 986 F.2d 309, 311 (9th Cir.1993). Finally, we review for clear error a district court's finding of whether a defendant has made a knowing and intelligent waiver of his Miranda rights. United States v. Garibay, 143 F.3d 534, 536 (9th Cir.1998).


I. The Affidavit Was Not So Lacking in Indicia of Probable Cause as to Render Reliance Objectively Unreasonable

It is well settled that evidence seized during an unlawful search cannot constitute proof against the...

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