U.S. v. Winsor

• Citation: 816 F.2d 1394
• Decision Date: 27 July 1987
• Docket Number: No. 86-5179,86-5179
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Steven Dale WINSOR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1394

816 F.2d 1394

55 USLW 2678

UNITED STATES of America, Plaintiff-Appellee, v. Steven Dale WINSOR, Defendant-Appellant.

No. 86-5179.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 2, 1987.

Decided May 11, 1987.

Rehearing En Banc Granted July 27, 1987.

George B. Newhouse, Jr., Los Angeles, Cal., for plaintiff-appellee.

Carlton F. Gunn, Los Angeles, Cal., for defendant-appellant.

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

Before SNEED, FARRIS and NOONAN, Circuit Judges.

SNEED, Circuit Judge:

Steven Winsor was convicted of possessing proceeds taken in a bank robbery, in violation of 18 U.S.C. Sec. 2113(c). Alleging Fourth Amendment violations, he moved at trial to suppress certain evidence. The trial judge denied the motion. We affirm.

I. FACTS

On January 14, 1986, Dennis Winsor--the appellant's brother--robbed the Mitsui Manufacturer's Bank in Hollywood, threatening to shoot a teller if she did not cooperate. A Los Angeles Police Department traffic officer followed the thief and saw The search progressed through the lobby and hallways of the hotel. At each room along the way, the officers knocked, identified themselves, and ordered the occupants to open their door. Eventually, the police knocked at the door to room 213, and Dennis Winsor answered. Sgt. Moroney instantly recognized him as the robber in the surveillance photo. Upon sight of the officers, Dennis Winsor stepped back into his room and away from the door. The police officers followed him in, guns drawn, and placed him under arrest. ¹

him disappear into a small two-story "residential hotel" near the bank. Additional police quickly arrived and received permission from the hotel manager to search for the suspect. Police Sergeant Moroney accompanied the search party. He had investigated five previous bank robberies in the neighborhood apparently perpetrated by the same individual and possessed a surveillance photograph taken during one of them. The photo showed a thief and a "lookout" man. The police obtained no search warrant.

Also in the room was the appellant, Steven Winsor. As the police officers searched the Winsors' room, Officer Tuttle briefly questioned appellant, who refused to give the officer his name, claimed that he was carrying no identification, and denied knowing the other occupant of the room. Officer Tuttle told him that he would be taken down to the station for further questioning unless he began giving straight answers.

A few moments later, Sgt. Moroney approached appellant. He recognized him as the "lookout" in the surveillance photograph and ordered his arrest. Meanwhile, police continued to search the room, turning up several pieces of evidence, including stolen money. Once in custody, appellant made self-incriminating statements. ²

Appellant contends that these facts make out both an unlawful search of his room and an unlawful seizure of his person. Therefore, he argues, the physical evidence as well as his statements should have been suppressed. Although the circumstances of this case present difficult and unusual issues, we hold that the police did not violate the Fourth Amendment.

II. ISSUES

Our discussion will focus on those aspects of police behavior that to us appear to be crucial in ascertaining whether there was an unlawful search or seizure. Because there is no basis upon which the appellant can challenge the presence of the police in the hallways of the hotel, our focus must be upon (1) the knock on the door of room 213, (2) the opening of the door of room 213, (3) the entry into room 213, (4) the search of room 213, and (5) the arrest of the appellant. However, before our discussion of these aspects of police behavior begins, it is necessary to address the government's contention that the "hot pursuit" doctrine justifies all relevant police conduct and that a more discerning analysis is not necessary.

III. HOT PURSUIT

The government insists that "hot pursuit" by police of appellant's brother justified immediate entry into the hotel and any search thereof to find the felon. The district court accepted this position. We disagree. Hot pursuit may excuse police from the Fourth Amendment's warrant requirement, but never does it excuse the absence of the requisite degree of suspicion before effecting a search. See United States v. Scott, 520 F.2d 697, 700 (9th Cir.1975), cert. denied, 423 U.S. 1056, 96 S.Ct. 788, 46 L.Ed.2d 645 (1976). In this case the district judge treated the ample cause to believe that the robber was in the hotel as ample cause to search each room in the hotel, including that of the Winsors.

                This was improper.  For the purposes of the Fourth Amendment, each room enjoys its own zone of protection from unreasonable searches and seizures.   See Scott, 520 F.2d at 700.  The police, upon going into the hotel, had probable cause to believe that the fleeing felon was in a room in the hotel;  they lacked probable cause to believe that he was in any particular room. 3
                

IV. THE KNOCK ON THE DOOR

Appellant insists that the knock on the door of room 213 was itself a search unsupported by probable cause and thus violative of the Fourth Amendment. This is not the law. The Constitution permits one to "walk up the steps and knock on the front door of any man's 'castle' with the honest intent of asking questions of the occupant thereof--whether the questioner be a pollster, a salesman, or an officer of the law." Davis v. United States, 327 F.2d 301, 303 (9th Cir.1964), quoted in United States v. Roberts, 747 F.2d 537, 543 (9th Cir.1984). Merely by knocking, the police "neither searched nor seized anything or anyone." Cuevas-Ortega v. INS, 588 F.2d 1274, 1276 (9th Cir.1979).

A policeman knocking at one's door is analogous to investigatory encounters on the street or in airports. We recognize that the police may approach and question an individual without triggering Fourth Amendment scrutiny, so long as the person stops and answers voluntarily. See United States v. Erwin, 803 F.2d 1505, 1508 (9th Cir.1986). The individual's consent is a factual matter primarily to be determined in the district courts. See id.; United States v. Patino, 649 F.2d 724, 727 (9th Cir.1981). Continuing the analogy, the knock by the police on a person's door is like their approach and questioning; the opening of the door is like the stop and answering of the person accosted. The test, like that in public area encounters, is whether the individual acted voluntarily.

V. THE OPENING OF THE DOOR

1. Was the Door Opened Voluntarily?

We conclude that here this test was not met. The door was not opened voluntarily. At the suppression hearing, policeman Tuttle testified that when knocking on the Winsors' door, the officers said: "Police. Open the door." It was also established that the police intended to enter the room even if no one answered. ⁴ We mention this fact because it may have contributed to the peremptoriness with which the officers spoke. In any event, the district judge found that the police had made a "demand that the occupants open the door," and that appellant's brother "opened the door on command." Excerpt of Record (emphasis added). These factual findings are not clearly erroneous, and we must abide by them. Moreover, we believe that these findings prevent us from concluding that appellant's brother opened the door freely.

Compliance with a police "demand" is not consent. See Bumper v. North Carolina, 391 U.S. 543, 548-49, 88 S.Ct. 1788, 1791-92, 20 L.Ed.2d 797 (1968); United States v. Shepherd, 714 F.2d 316, 318 n. 2 (4th Cir.1983), cert. denied, 466 U.S. 938, 104 S.Ct. 1914, 80 L.Ed.2d 462 (1984); United States v. Berry, 670 F.2d 583, 596 (5th Cir. Unit B

1982) (en banc). When lawful authority "commands," the implication is that one has no lawful freedom to refuse. It follows that the appellant's brother did not open the door voluntarily. The next conclusion is inescapable. By commanding appellant's brother to open the door, the police successfully effected a type of involuntary "search" of appellant's room within the meaning of the Fourth Amendment.

2. Did the Police Have Probable Cause or Reasonable Suspicion?

To pass constitutional muster an involuntary warrantless search must be based on either probable cause or reasonable suspicion without regard to whether exigent circumstances might have excused the obtaining of a warrant. We already indicated by analogizing the facts in this case to a Terry stop that the police lacked probable cause to command the opening of the door to room 213. That is, while the police had probable cause to conclude that the robber was in a room of the hotel, they lacked probable cause to believe that he was in any particular room. However, we hold that the police in this case did have reasonable suspicion that the suspect would be in any room other than one that already had yielded no robbery suspect. The hotel was small, having only two floors, and the number of rooms was limited. The odds on discovering the suspect in the first room upon whose door the police knocked were high enough to amount to founded suspicion. The odds favoring discovery increase as rooms are searched. At some point, perhaps at the last two or three unsearched rooms, probable cause may be said to exist. This is not to be construed as condoning the room by room search of a large hotel or apartment building. The odds favoring discovery of the suspect in the first room on the door of which there is the commanding knock must be more than negligible or minuscule.

We know of no direct authority supporting our position; however, sound reason does provide the required support. To illustrate, assume the police find a small number of persons in a locked room with a murdered man. It would be quite proper to say that each may be reasonably suspected of being a murderer. The suspicion of the police in such a case is reasonable and articulable. S...