846 F.2d 1569 (9th Cir. 1988), 86-5179, United States v. Winsor

Docket Nº:86-5179.
Citation:846 F.2d 1569
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Steven Dale WINSOR, Defendant-Appellant.
Case Date:May 24, 1988
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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846 F.2d 1569 (9th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,


Steven Dale WINSOR, Defendant-Appellant.

No. 86-5179.

Argued En Banc and Submitted

United States Court of Appeals, Ninth Circuit

May 24, 1988

Nov. 9, 1987.

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Carlton F. Gunn, Deputy Federal Public Defender, Los Angeles, Cal., for defendant-appellant.

George B. Newhouse, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee.

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


NORRIS, Circuit Judge:

Appellant Steven Winsor was found guilty by a jury of possessing forty dollars taken in a bank robbery. 1 See 18 U.S.C. Sec. 2113(c). On appeal he argues that his conviction rests on evidence obtained as a result of an unconstitutional search of the hotel room where he lived. A panel of this court affirmed the conviction, holding that although the police searched the room with only reasonable suspicion rather than probable cause, the search did not violate the Fourth Amendment because it was a minimal intrusion justified by important law enforcement interests. United States v. Winsor, 816 F.2d 1394 (9th Cir.1987). A

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limited en banc panel was convened to review the case following a vote of the majority of our active judges. See United States v. Winsor, 822 F.2d 1466 (9th Cir.1987).

We now hold that Winsor's motion to suppress must be granted because the search of Winsor's room without probable cause violated the Fourth Amendment. The panel opinion and the judgment of conviction are, accordingly, vacated and the case is remanded to the district court for further proceedings.


In January 1986, Dennis Winsor (appellant's brother, who is not a party to this appeal) robbed a bank in Hollywood and fled on foot. Los Angeles Police Department (LAPD) Officer Bowser saw him run out of the bank and pursued him to the nearby Chesterfield Hotel, a two-story low-rent residential hotel. In response to Bowser's call for assistance, LAPD and FBI officers surrounded the hotel and a police helicopter circled above. Before entering the hotel, the officers were informed that no weapon had been seen during the robbery, although the robber had suggested he had a gun by holding his hand in his pocket.

The police decided to enter the hotel and to go from room to room looking for the suspect. At each room, two LAPD officers and an FBI agent, with their guns drawn, knocked on the door and announced: "Police. Open the door." Three residents of the Chesterfield who somewhat fit the description of the bank robber were ordered to leave their rooms to go to the hotel manager's office for identification. After checking all the rooms on the first floor and some of the rooms on the second floor (approximately fifteen to twenty-five rooms) the officers arrived at the room where Steven and Dennis Winsor were living. When the police knocked on the door and demanded that it be opened, Dennis Winsor obeyed. The police recognized him as the robber, pointed their guns at him, and told him to put his hands up, which he did. At this point, the police of course had probable cause to enter and to search the room, which they did. Inside, they found appellant Steven Winsor and evidence of the bank robbery. Both Winsors were arrested. While in custody, Steven made incriminating statements which he later moved to suppress along with the evidence found during the search of the room.


The district court denied Winsor's motion to suppress on the basis of the government's argument that "hot pursuit" of the bank robber into the hotel provided sufficient cause to search each room in the hotel, including Winsor's. We agree with the original panel that this was error. As the panel stated, "[h]ot 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." 816 F.2d at 1396; 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).

The district court also ruled that the police conduct was immune from constitutional attack because the police operated with the consent of the hotel manager. Again, we agree with the original panel that this was error because a "hotel proprietor cannot waive his guests' Fourth Amendment rights." 816 F.2d at 1397 n. 3; see Stoner v. California, 376 U.S. 483, 489-90, 84 S.Ct. 889, 893, 11 L.Ed.2d 856 (1964).

The original panel nonetheless affirmed the district court's denial of Winsor's suppression motion. The panel decided that the search passed constitutional muster even though the police had only reasonable suspicion rather than probable cause to believe that the suspect would be in any one of the rooms that had not yet been searched, because the minimal intrusion on Winsor's privacy rights was outweighed by important law enforcement interests. 816 F.2d at 1398-99.

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We now turn to the issues as defined by the parties during en banc briefing and argument. Before doing so, however, we find it helpful to clarify two points that are not in dispute. First, at the time the police knocked on Winsor's door, they had reasonable suspicion to believe that the suspected bank robber was inside, but did not have probable cause to believe so. Second, each room of the hotel, including Winsor's, enjoyed its own zone of Fourth Amendment protection, and Winsor's expectation of privacy was not reduced simply because he lived in a single room in a low-rent hotel rather than in a single-family house or apartment. 2

Winsor argues that the police effected a nonconsensual search of the room when they knocked on the door and commanded that it be opened under claim of lawful authority. He argues further that under Arizona v. Hicks, --- U.S. ----, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987), the search of his one-room residence could not be based on a level of suspicion less than probable cause.

The government argues that the police did not effect a search when they first viewed the interior of the room because they had not yet physically entered it. The government further argues that even if a search without probable cause was effected when the police looked through the open door into the interior of the room, that search was not unconstitutional because it "was not a full blown search for evidence" requiring probable cause, but was at most a "limited intrusion" requiring only reasonable suspicion. Appellee's Supplemental Brief at 5. Such limited intrusions, the government contends, may be conducted on less than probable cause if the governmental interest in conducting the search outweighs the intrusion on the privacy interests of the subject of the search. Finally, the government appears to argue that even if the search of Winsor's room constituted more than a limited intrusion, the overriding governmental interest in apprehending a suspected bank robber outweighed the intrusion on Winsor's privacy interests and thus, under the circumstances, the search was constitutional.


The threshold question we must decide is whether the police conducted a search within the purview of the Fourth Amendment when they looked into Winsor's room through the open door while standing in the hotel corridor.

In essence, the government maintains that police do not effect a search of a home when they force open the front door and look inside without crossing the threshold. According to the government, "the cases are clear that without some form of 'entry' into the room, either physical or with the aid of electronic or sophisticated visual enhancement, a mere command to open the door does not transform a legitimate police procedure into a search." Appellee's Supplemental Brief at 2.

We agree with Winsor that this assertion "flies in the face of both precedent and common sense." Appellant's Supplemental Brief at 1. As the Supreme Court made clear in Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 512, 19 L.Ed.2d 576 (1967), "the reach of [the Fourth] Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure." To draw a distinction based upon whether there had been a physical entry into the premises would enable police officers to evade the reach of the Fourth Amendment simply by forcing a door open and visually examining the interior without crossing the threshold. That the officers gained visual access to the interior of a dwelling without physically entering it is irrelevant to the question whether a search was effected. We find support for our position not only in Katz but also in United States v. Johnson, 626 F.2d 753 (9th Cir.1980), aff'd on other grounds, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982). In Johnson, police

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standing outside the front door of a home arrested a person standing inside the door. We rejected the government's argument that the arrest was not inside the home because the police had not crossed the threshold, reasoning that "it is the location of the arrested person, and not the arresting agents, that determines whether an arrest occurs within a home. Otherwise, arresting officers could avoid illegal 'entry' into a home simply by remaining outside the doorway and controlling the movements of suspects within...." 626 F.2d at 757. See also United States v. Karo, 468 U.S. 705, 714-15, 104 S.Ct. 3296, 3303, 82 L.Ed.2d 530 (1984) (holding that a warrantless "search" of a home conducted by monitoring a radio transmitter violated the Fourth Amendment, noting, "[a]t the risk of belaboring the obvious, private residences...

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