US v. Struckman
| Decision Date | 04 May 2010 |
| Docket Number | No. 08-30463.,08-30463. |
| Citation | 603 F.3d 731 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Rian Tyler STRUCKMAN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
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Jacob Wieselman, Lake Oswego, OR, for the defendant-appellant.
Kent S. Robinson, Assistant United States Attorney, Portland, OR, for the plaintiff-appellee.
Before: JEROME FARRIS, D.W. NELSON and MARSHA S. BERZON, Circuit Judges.
Around midday on December 7, 2004, three uniformed police officers entered the fenced-in backyard of a private home in a residential neighborhood of Portland. Guns drawn, but without a warrant, one scaled the fence and another kicked open a padlocked gate leading into the backyard. The only information the officers had at that time was (1) a call from a neighbor reporting that the owners were at work and that a white male wearing a black jacket, age unknown, had thrown a red backpack over the fence and climbed into the backyard; and (2) their visual confirmation that a red backpack was lying against a porch in the backyard and that the person they saw in the yard, who turned out to be the appellant, Rian Struckman, was a white male wearing a black jacket, which he allowed to fall to the ground after being confronted by the officers. The officers' first statements to Struckman were to order him to get down on the ground. Struckman's first statement to the officers was that he lived at the house. As it turned out, he did, but the officers only found that out after Struckman was arrested and after they had searched the backpack, finding an unloaded handgun. By that point, the officers had also learned that Struckman was a former felon, however, and arrested him as a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He was ultimately found guilty in a jury trial of that crime and sentenced to 17 years in prison.
Struckman appeals the district court's denial of his motions to suppress and his sentence. We conclude that the police officers' warrantless actions violated Struckman's Fourth Amendment rights. We therefore reverse the district court's order denying Struckman's motion to suppress the handgun found in the backpack and, because the gun was critical to Struckman's conviction, vacate the resulting conviction.
On December 7, 2004, at approximately 11:45 a.m., Wendy Grimes called 911 and reported that she saw a white male wearing a black leather or vinyl jacket throw a red backpack over her neighbors' fence and then climb over the fence into their backyard. Ms. Grimes also stated that her neighbors were not at home and, although she indicated a suspicion the man was trying to break into her neighbors' house, she also said she could not see what he was doing through her neighbors' fence.
The dispatcher sent three police officers to investigate the report, directing them to the home and telling them only that
Officers Mudrick and Wilson arrived at the house first. Officer Mudrick approached a padlocked gate leading into the backyard on the east side of the house. Officer Wilson approached the west side of the house. The backyard was entirely enclosed by a six foot tall fence. Officer Mudrick climbed atop an object positioned next to the gate to get a better view while Officer Wilson peeked into the yard through a small hole in the fence.
Officer Wilson saw Struckman, who fit the description of the person given by the 911 dispatcher—"white guy, black leather jacket"—walking inside the backyard. He also saw a red backpack lying next to a deck in the yard. At this same time, on the other side of the house, Officer Mudrick saw Struckman walk around the back of the house in his direction. He saw no signs of any forced entry into the house. As Struckman turned the corner, he noticed Officer Mudrick staring at him from over the top of the fence. With a look of surprise, he stopped walking.
The following events took place over a span of roughly 25 seconds: Officer Mudrick testified that once Struckman saw him, he immediately "took off his jacket... and let it fall to the ground." Officer Wilson's testimony was slightly different: Struckman "shook" his "leather jacket off his shoulders"; it "just sort of fell down his arms." Officer Wilson also testified that Struckman's hands remained "down by ... his thighs ... as his jacket dropped down." Both officers testified that Struckman did not attempt to run and had nothing on him at that point other than his shirt and pants. In particular, he had no visible weapons or burglary tools.
Officer Mudrick drew his firearm and pointed it at Struckman straightaway, ordering him to get down on his knees. Struckman complied without hesitation. Officer Mudrick then reholstered his firearm and climbed over the fence into the backyard. During this time, Officer Wilson, who had also drawn his firearm, moved to the east side of the house. Officer Mudrick, who was now inside the yard, drew his firearm again, approached Struckman, and began to handcuff him. At this time, Officer Singh arrived at the house and immediately kicked open the padlocked gate leading into the backyard. Both he and Officer Wilson then entered the backyard to help Officer Mudrick finish handcuffing Struckman and search the area.1
According to Officers Mudrick's and Wilson's testimony,2 after Officer Mudrick climbed into the backyard, Struckman began cursing sporadically and repeatedly stated that he lived at the house.3 Struckman also requested that Officer Mudrick use his cell phone to call his mother to confirm that he lived at the house. Officer Mudrick ignored Struckman's request, however, and proceeded to conduct a pat down search. During this time, Struckman's behavior alternated between cooperative and aggressive; on one or two occasions Struckman tried to pull away from Officer Mudrick's grip.4 As a result, Officer Mudrick forced Struckman to the ground to complete the pat down search, at which time he felt a long, hard object in Struckman's front right pants pocket. He opened the pocket and discovered an unloaded handgun magazine. Officer Mudrick then completed the search and asked Struckman whether there was a gun inside the red backpack, which was lying approximately 20 to 25 feet away at this time. Officer Mudrick testified, and the district court found, that Struckman replied, "I don't know, it's not mine." Struckman, on the other hand, testified at trial that he also stated, "It's my sister's bag."
After Officer Mudrick discovered the unloaded magazine, Officer Wilson went to the red backpack and lifted a flap that was on the top of it. He saw the butt of a handgun and retrieved the gun from the backpack. There was no magazine in the gun.
Officer Mudrick eventually asked Struckman his name. Struckman gave his true name and stated that he was currently on probation. Officer Mudrick then ran a criminal history check, revealing that Struckman was on probation and did in fact live at the house.
After he was indicted on one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), Struckman moved to suppress the handgun found in the backpack, arguing that the officers' warrantless arrest and entry, and their subsequent search of the backpack, violated his Fourth Amendment rights.5 The district court held an evidentiary hearing on the suppression motion and denied it.
The government filed a Notice of Sentence Enhancement under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1).6 Following a jury trial, Struckman was found guilty of being a felon in possession of a firearm, and sentenced to 17 years in prison.
The Fourth Amendment protects "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures...." U.S. Const. amend. IV. "At its very core stands the right of a person to retreat into his own home and there be free from unreasonable governmental intrusion." Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961). For that reason, "searches and seizures inside a home without a warrant are presumptively unreasonable." Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). The presumptive protection accorded people at home extends to outdoor areas traditionally known as "curtilage"—areas that, like the inside of a house, "harbor the intimate activity associated with the sanctity of a person's home and the privacies of life." United States v. Dunn, 480 U.S. 294, 300, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987) (quotations omitted).
This presumptive Fourth Amendment protection "is not irrebuttable." Hopkins v. Bonvicino, 573 F.3d 752, 763 (9th Cir.2009), cert. denied, Bonvicino v. Hopkins, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___, No. 09-681, 2010 WL 1265866, at *1 (U.S. April 5, 2010). In particular, "there are two general exceptions to the warrant requirement for home searches: exigency and emergency." United States v. Martinez, 406 F.3d 1160, 1164 (9th Cir.2005). We have described these exceptions as follows:
The "emergency" exception stems from the police officers' "community caretaking function" and allows them "to respond to emergency situations" that threaten life or limb; this exception does "not derive from police officers' function as criminal investigators." United States v. Cervantes, 219 F.3d 882, 889 (9th Cir.2000) (emphasis added). By contrast, the "exigency" exception does derive from the police officers' investigatory function; it allows them to enter a home without a warrant if they have both probable cause to believe that a crime has been or is being committed and a reasonable belief that...
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