728 F.2d 1195 (9th Cir. 1984), 80-1012, United States v. McConney

Docket Nº:80-1012.
Citation:728 F.2d 1195
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Winston Bryant McCONNEY, Defendant-Appellant.
Case Date:February 10, 1984
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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728 F.2d 1195 (9th Cir. 1984)

UNITED STATES of America, Plaintiff-Appellee,


Winston Bryant McCONNEY, Defendant-Appellant.

No. 80-1012.

Argued and Submitted En Banc

United States Court of Appeals, Ninth Circuit

February 10, 1984

June 15, 1982.

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[Copyrighted Material Omitted]

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Sanford Svetcov, Chief, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellee.

Gilbert Eisenberg, Filippelli & Eisenberg, San Francisco, Cal., for defendant-appellant.

Appeal from the United States District Court for the Northern District of California.


NORRIS, Circuit Judge, delivered Parts I, II, and III of the opinion of the court.

GOODWIN, Circuit Judge, delivered Parts IV and V of the opinion of the court.

Winston McConney was convicted on stipulated facts of violating 18 U.S.C. Sec. 922(h)

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which prohibits a convicted felon from receiving firearms shipped in interstate commerce. His appeal challenges the denial of his timely motion to suppress evidence as illegally obtained. We took the case en banc for the specific purpose of resolving the issue of the appropriate standard of appellate review for the mixed question of law and fact of "exigent circumstances."


On June 12, 1979, an indictment was filed in the United States District Court for the Northern District of California accusing McConney, and thirty-one other defendants, of violating title IX of the Organized Crime Control Act of 1970. This title, commonly known as the Racketeer Influenced and Corrupt Organizations Act (RICO), prohibits conducting or participating in the conduct of an enterprise through a pattern of racketeering activity. 18 U.S.C. Sec. 1962. The indictment identified the RICO "enterprise" as the Hell's Angels Motorcycle Club.

On the day after the indictment was filed, federal officers executed an "indicia" warrant authorizing a search of McConney's residence and seizure of any indicia of membership in or association with the Hell's Angels Motorcycle Club. In addition to the indicia warrant, the searching officers possessed an arrest warrant and a Prescott warrant. 1

On the evening of June 13, 1979, federal agents executed the arrest and search warrants at McConney's residence. When the agents approached the home at approximately 8:30 p.m., the solid front door was open but an inner screen door was closed. The lead agent, Olson, knocked on the door and announced his identity and purpose. He saw inside a person he recognized immediately as McConney. Between McConney and the door was a second person, sitting with his back to the door. Without waiting for a response or a refusal of entry, Olson opened the door and led the other agents into the living room. McConney and the other person were ordered to move several feet to a position on the floor next to a sofa in the same room. While the two men were being handcuffed, another agent discovered a loaded pistol beneath one of the sofa cushions. A subsequent search of the house made under the indicia warrant yielded a second weapon.

Following the discovery of the two firearms, a count was added in a superseding indictment charging McConney with violating 18 U.S.C. Sec. 922(h).

After the district court denied McConney's suppression motion, the government moved to drop the RICO charges against him and proceeded on the firearms charge. McConney saved his objection to the denial of his motions, waived his right to a jury trial, and agreed to a court trial on a written stipulation of facts. 2 The court found McConney guilty as charged. The appeal from the resulting judgment of confinement challenges the denial of the suppression motion.

McConney contends that the entry into his home violated the federal "knock-notice" requirement which provides that an officer, before opening a door of a house in order to enter, must give notice of his identity and purpose and be refused admittance by the occupant. 18 U.S.C. Sec. 3109. 3 As this court recently stated, "section 3109 codifies a tradition embedded in Anglo-American law and declares the reverence which the law attaches to an individual's right of privacy in his house." United States v. Whitney, 633 F.2d 902, 908 (9th

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Cir.1980), cert. denied, 450 U.S. 1004, 101 S.Ct. 1717, 68 L.Ed.2d 208 (1981).

In Whitney, this court addressed the problem of officers entering a house upon announcing their identity and purpose without first awaiting a refusal or admittance. The court recognized that compliance with section 3109's requirements may be excused by exigent circumstances. Id. at 908. The government's claim here, as in Whitney, is that exigent circumstances justified the agent's failure to await refusal of admittance.

The district court found that the agents had knocked and announced their identity, and that their simultaneous entry (without waiting for refusal of admittance) was justified by exigent circumstances. The district court also found that seizure of the first pistol was an incident of a lawful arrest.

We define exigent circumstances as those circumstances that would cause a reasonable person to believe that entry (or other relevant prompt action) was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.


We turn first to the question of what standard of review is applicable to the district court's determination that the federal agents' failure to comply with the requirements of section 3109 was excused by exigent circumstances. In United States v. Flickinger, 573 F.2d 1349, 1356-57 & n. 2 (9th Cir.), cert. denied, 439 U.S. 836, 99 S.Ct. 119, 58 L.Ed.2d 132 (1978), this court held that the "mixed fact-law question" of exigent circumstances is factual in nature and therefore reviewable on appeal under the deferential, clearly erroneous standard. We took this case en banc to decide whether Flickinger should be overruled.


In Flickinger, the panel founded its determination that the question of exigent circumstances is subject to deferential review on two precedents it considered to be "analogous": United States v. Hart, 546 F.2d 798 (9th Cir.1976) (en banc), cert. denied sub nom. Robles v. United States, 429 U.S. 1120, 97 S.Ct. 1155, 51 L.Ed.2d 571 (1977), and United States v. Page, 302 F.2d 81 (9th Cir.1962) (en banc). In Hart, we held that the determination that government agents had done everything "reasonably necessary and proper" to make a witness available is factual in nature and consequently subject to the clearly erroneous test. 546 F.2d at 801-02. Similarly, in Page, we held that whether consent to a search was "freely and intelligently given" is a factual issue properly subject to clearly erroneous review. 302 F.2d at 85. On the basis of these cases, the Flickinger panel concluded:

Our experience dictates that the question of exigent circumstances is fundamentally the same type of issue as the questions of voluntariness of a consent and whether officers had done everything reasonably necessary to produce a witness. Certainly, a finding of exigent circumstances is no less based on the "fact-finding tribunal's experience with the mainsprings of human conduct." Commissioner of Internal Revenue v. Duberstein, 363 U.S. 278, 289, 80 S.Ct. 1190, 1198, 4 L.Ed.2d 1218 (1960).

Flickinger, 573 F.2d at 1356.

In relying on Hart and Page, the Flickinger panel rejected as governing precedent another related line of cases--the Ninth Circuit decisions concerning the proper standard of review for the question of probable cause. While noting that these decisions appeared to conflict with one another, compare United States v. Thompson, 558 F.2d 522, 524 (9th Cir.1977) (probable cause reviewable under the clearly erroneous test), with United States v. One Twin Engine Beech Airplane, 533 F.2d 1106, 1108 (9th Cir.1976) (probable cause reviewable de novo), the Flickinger panel found it unnecessary to resolve this conflict because it concluded that the question of exigent circumstances is "more closely related to the

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mixed fact-law question involved in United States v. Hart ... than the ultimate constitutional standard of probable cause." 573 F.2d at 1356 n. 2. 4

In Flickinger 's discussion of the appropriate standard of review for the question of exigent circumstances, we find a number of indications that our jurisprudence concerning appellate review of mixed questions lacks clarity and coherence. First, we are struck by the difficulty the Flickinger panel had in determining which of our standard of review precedents controlled the case before it. This difficulty doubtless reflects the absence of clear legal guideposts in this area of the law. Second, an even clearer indication of disarray is the conflict in our precedents concerning the appropriate standard of review for the question of probable cause which the Flickinger panel noted.

This disarray in standard of review jurisprudence appears to be pervasive. The Supreme Court recently stated that "there is substantial authority in the circuits on both sides of [the question of the applicability of the rule 52(a) clearly erroneous standard to mixed questions of law and fact]." Pullman-Standard v. Swint, 456 U.S. 273, 289-90 n. 19, 102 S.Ct. 1781, 1790-91 n. 19, 72 L.Ed.2d 66 (1982). The Court also acknowledged that, while it has usually reviewed mixed questions independently, its precedents are not entirely consistent and there is support in its decisions for clearly erroneous review of some mixed questions. Id. (contrasting Bogardus v. Commissioner, 302 U.S. 34, 58 S.Ct. 61, 82 L.Ed. 32 (1937), and Helvering v. Tex-Penn Oil Co., 300 U.S. 481, 57 S.Ct. 569, 81 L.Ed. 755 (1937), with Commissioner v....

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