728 F.2d 1228 (9th Cir. 1984), 83-5077, United States v. Impink

Docket Nº:83-5077, 83-5079.
Citation:728 F.2d 1228
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Harriet Ann IMPINK, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Richard D. BOLANOS, Defendant-Appellant.
Case Date:March 19, 1984
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1228

728 F.2d 1228 (9th Cir. 1984)

UNITED STATES of America, Plaintiff-Appellee,

v.

Harriet Ann IMPINK, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Richard D. BOLANOS, Defendant-Appellant.

Nos. 83-5077, 83-5079.

United States Court of Appeals, Ninth Circuit

March 19, 1984

Argued and Submitted Oct. 6, 1983.

Page 1229

Hector E. Salitrero, Asst. U.S. Atty., argued, Peter K. Nunez, U.S. Atty., Hector E. Salitrero, Asst. U.S. Atty., on the brief., San Diego, Cal., for plaintiff-appellee.

Phillip A. DeMassa, John Y. Tremblatt, San Diego, Cal., for defendants-appellants.

On appeal from the United States District Court for the Southern District of California.

Before FLETCHER and NELSON, Circuit Judges, and HARDY, [*] District Judge.

NELSON, Circuit Judge:

Defendants appeal from a conviction to manufacture and possess with intent to distribute a controlled substance. They argue that they were subjected to an improper warrantless search, justified by neither consent nor exigent circumstances. Additionally, they contend that the evidence was insufficient to support the convictions. Persuaded that the initial police entry was improper, we reverse on that ground and do not reach the sufficiency of the evidence issue.

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FACTUAL AND PROCEDURAL BACKGROUND

In July 1982 Monique Guilbault leased a house in Jamul, California, to Richard Bolanos. At the time of the lease, the parties orally agreed that Guilbault would be permitted to store a space heater in the garage adjacent to the house. 1 At 4:00 p.m. on October 18, 1982, Guilbault and a friend, Edward Blinks, went to the property to retrieve the heater from the garage. While approaching the house, they looked through the partially opened garage door and noticed a variety of glasses, flasks, and burners. Guilbault and Blinks then sought permission to enter the house. Harriet Impink answered the door and invited them to enter. When Guilbault and Blinks hesitated momentarily, Impink told them that they were on private property and asked them to leave. They left, drove to the nearby residence of a police officer, Richard Davis, and telephoned the Narcotics Task Force to relay what they had seen.

Two narcotics agents, Kim Nelson and Dale Kitts, immediately set out to interview Guilbault and Blinks personally. While at Davis' house, the officers discussed whether they needed a search warrant. Before a search warrant had been procured, the officers saw Bolanos drive by in a pick-up truck, heading toward his leased house. The officers decided to investigate further. At 6:05 p.m., they arrived at Bolanos' house.

Bolanos' driveway was protected by a locked wooden fence with a "Beware of Dog" sign posted on it. A deputy walked around the fence and unlocked it from the inside. On their way to the front door, the officers saw two large fans in the west window of the garage and a corrosive liquid running down the windowsill. These observations suggested to Agent Kitts that a clandestine laboratory was in operation. He walked to the garage window, looked in, and saw a number of flasks, a black airmask, and another fan.

The officers then went to the front door. When Bolanos answered the door, the officers identified themselves and told him what they had seen. Impink then entered from an adjoining room and spontaneously declared that she knew nothing about the garage. Bolanos allowed the officers to enter the house, but insisted that Guilbault had had no right to look into the garage. When asked, Impink consented to a search of the house, but specifically denied consent to enter the garage.

The agents searched the house, finding it bare except for scattered articles of clothing. Shortly thereafter, Bolanos' lawyer called the house and told the agents that if consent to search had been granted, it was now being revoked. Additionally, he instructed the agents not to interrogate Bolanos or Impink. The agents discontinued their search and questioning, but held the defendants in the living room for over two hours while awaiting issuance of a search warrant. 2

After obtaining a search warrant by telephone, the agents searched the garage. They discovered a laboratory containing 50 pounds of methamphetamine in various stages of production.

Bolanos and Impink were indicted on November 5, 1982, for conspiracy to manufacture and possess with intent to distribute a controlled substance, manufacturing a controlled substance, and possession of a controlled substance with intent to distribute. Defendants' motions to suppress were denied on December 22, 1982. All of the facts were stipulated before the trial court, and appellants were convicted of one count on February 16, 1983. Notices of appeal were filed on April 4 and 14, 1983.

DISCUSSION

These cases raise a number of difficult fourth amendment issues. A threshold question, however, is whether the narcotics agents were justified when they went on to Bolanos' property without first procuring a

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warrant. Since we find that this initial entry was improper, we need not reach the remaining issues.

Generally, police should secure a warrant before searching someone's property. E.g., Camara v. Municipal Court, 387 U.S. 523, 528-29, 87 S.Ct. 1727, 1730-31, 18 L.Ed.2d 930 (1967). If the police had obtained a warrant in this case, these convictions would easily stand: A landlady goes to her leased property to retrieve a heater she has stored there. She sees flasks and beakers set up in the garage, and suspects that her...

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