U.S. v. Lindsey

Citation877 F.2d 777
Decision Date09 June 1989
Docket NumberNo. 88-5054,88-5054
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Marvin Joseph LINDSEY, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Gerard Engelskirchen for Allan H. Stokke, Santa Ana, Cal., for defendant-appellant.

John F. Walsh III, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

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

Before WRIGHT, NORRIS and WIGGINS, Circuit Judges.

WIGGINS, Circuit Judge:

Marvin Lindsey pleaded guilty conditionally to possession of illegal firearms and destructive devices. He reserved the right to appeal from the district court's denial of his motion to suppress evidence seized from his home. Lindsey contends that the police lacked the requisite probable cause and exigent circumstances to secure his house without a warrant, that the police failed to knock and announce before entry, that the police lacked probable cause to arrest him, and that his consent to search was involuntarily given. He asks this court to set aside his conviction and to direct the district court to grant the motion to suppress evidence and allow him to withdraw his guilty plea. We affirm.

BACKGROUND

On August 17, 1987, a narcotics informant arranged for Detective Cook of the Buena Park Police Department to buy methamphetamine from a local dealer named David Ogata. Cook met Ogata at approximately 3:40 p.m. while six other Buena Park detectives positioned themselves in the vicinity. Ogata requested that Cook pay the $1200 purchase price before delivery. Cook replied that he wanted to see the merchandise first.

Ogata said he would go to a nearby house and pick up the drugs from his source. He drove to Lindsey's residence at 722 Handy Street, trailed by three unmarked police vehicles. After a few minutes inside the house, Ogata got back in his car and returned to the parking area where Cook was waiting. Ogata tossed an envelope containing methamphetamine into Cook's car. He told Cook he had just obtained the drugs from "a bunch of crazy bikers with guns and bombs."

Ogata was quickly arrested. He refused to cooperate in the arrest of his drug source and repeated his comment about "guns and bombs." Cook believed that Ogata's source had "fronted" him the drugs and would be waiting his return with the payment. Cook phoned the Orange Police Department to request uniformed backup officers. The additional officers arrived approximately one hour later. 1 During that hour, the Buena Park detectives did not attempt to obtain a warrant to search the Handy Street house or place the house under surveillance.

When four backup officers arrived, the police proceeded to the house. They approached the door with weapons drawn. The police spotted Lindsey through a window and ordered him to put his hands in Lindsey moved to suppress evidence seized during the search of his house. When the district court denied his motion, he pleaded guilty conditionally to possession of illegal firearms and destructive devices. Lindsey reserved his right to appeal the denial of his suppression motion. The district court sentenced Lindsey on February 1, 1988. Lindsey timely appealed. We have jurisdiction under 28 U.S.C. Sec. 1291 (1982).

the air. The parties dispute whether the officers knocked and announced their purpose before entry. Once inside the house, the police handcuffed Lindsey and placed him under arrest. One other adult and several children were also found in the house. Lindsey gave the officers verbal and written consent to search his house. The search uncovered a sawed-off shotgun, automatic weapons, methamphetamine, thousands of rounds of ammunition, and plastic explosives.

DISCUSSION
I. Probable Cause and Exigency to Secure Defendant's Home

This court reviews de novo a district court's determination of the validity of a warrantless entry into a residence. United States v. Castillo, 866 F.2d 1071, 1079 (9th Cir.1988); United States v. Alfonso, 759 F.2d 728, 741 (9th Cir.1985). The district court's determinations of underlying facts, however, may not be reversed unless clearly erroneous. Castillo, 866 F.2d at 1079; Alfonso, 759 F.2d at 741.

The securing of a residence by police is a seizure subject to fourth amendment protection. United States v. Howard, 828 F.2d 552, 554 (9th Cir.1987); United States v. Perdomo, 800 F.2d 916, 918 (9th Cir.1986). The government in this case has a twofold duty. First, it must demonstrate probable cause to secure Lindsey's residence. Second, it must show the existence of exigent circumstances to excuse the lack of a warrant. Howard, 828 F.2d at 555. As part of the second requirement, the government must also show that a warrant could not have been obtained in time. Id; United States v. Echegoyen, 799 F.2d 1271, 1279 (9th Cir.1986).

A. Probable Cause

"Entry into a person's home is so intrusive that such searches always require probable cause regardless of whether some exception would excuse the warrant requirement." Howard, 828 F.2d at 555. This court must make a "practical, common-sense decision" whether under the "totality of the circumstances" known to the police officers at the time they entered Lindsey's home, there was a "fair probability" that contraband or evidence of a crime would be found inside. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983).

The police undoubtedly had probable cause to believe that evidence of narcotics trafficking would be found at Lindsey's home. Ogata told Cook that he was going to get the drugs from a nearby source. He then drove directly to 722 Handy Street and parked in front of the house. He entered the house, returning to his car several minutes later. He returned directly to the parking lot where Cook was waiting and gave the detective a small package of methamphetamine. It was reasonable to infer from Ogata's statements and actions that the Handy Street residence housed his source of drugs. See Perdomo, 800 F.2d at 917-18 (drug courier drove to the defendant's house and entered, emerging several minutes later carrying a bag later found to contain drugs); United States v. Kunkler, 679 F.2d 187, 191 (9th Cir.1982) ("dealer's statements implicating another person as his 'source' and his repeated trips to [defendant's] home followed by the production of cocaine" sufficiently established probable cause).

B. Exigent Circumstances

Exigent circumstances are defined as "those circumstances that would cause a reasonable person to believe that entry ... 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 We conclude that the facts known to the officers in this case gave rise to exigent circumstances justifying the warrantless entry into Lindsey's house. Exigent circumstances are frequently found when dangerous explosives are involved. See, e.g., United States v. Sarkissian, 841 F.2d 959, 962 (9th Cir.1988) (exigent circumstances justified FBI's warrantless search of luggage believed to contain explosive device); Echegoyen, 799 F.2d at 1278-79 (warrantless entry into home justified when officers smelled an explosive chemical emanating from the defendant's house); United States v. Al-Azzawy, 784 F.2d 890, 894 (9th Cir.1985), cert. denied, 476 U.S. 1144, 106 S.Ct. 2255, 90 L.Ed.2d 700 (1986) (warrantless home arrest justified when police reasonably believed the defendant possessed explosives and was in an agitated state); United States v. Brock, 667 F.2d 1311, 1318 (9th Cir.1982), cert. denied, 460 U.S. 1022, 103 S.Ct. 1271, 75 L.Ed.2d 493 (1983) (warrantless search of motor home justified when DEA agents knew explosive chemicals used in methamphetamine production were being used).

                improperly frustrating legitimate law enforcement efforts."    United States v. McConney, 728 F.2d 1195, 1199 (9th Cir.)  (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).  "The exigencies must be viewed from the totality of circumstances known to the officers at the time of the warrantless intrusion."    United States v. Licata, 761 F.2d 537, 543 (9th Cir.1985).  Moreover, because exigent circumstances necessarily imply insufficient time to obtain a warrant, the government must also show that a warrant could not have been obtained in time.  Howard, 828 F.2d at 555;  United States v. Echegoyen, 799 F.2d 1271, 1279 (9th Cir.1986)
                

The police reasonably believed that Ogata's source at the Handy Street house possessed guns and bombs. The police were justifiably concerned about the presence of bombs in a densely populated residential neighborhood. Moreover, this concern was heightened by a reasonable belief that Ogata's source would learn of police intervention and use the guns and bombs to resist arrest. This court has repeatedly recognized that the apprehension of a drug courier can itself create an exigency if the drug supplier is likely to become suspicious when the courier fails to return. See, e.g., Perdomo, 800 F.2d at 919; Kunkler, 679 F.2d at 192. The police believed that Ogata's source had "fronted" him the drugs and would be waiting for Ogata to return with the payment. Cook formed this belief based on his two years of experience as a narcotics officer and his participation in 50 to 75 methamphetamine transactions. His belief was reasonable in light of Ogata's initial failure to bring the drugs and his request that Cook pay for them before delivery. The police believed that Ogata's failure to return within a reasonable time would alert the source to police intervention.

Lindsey makes two arguments against a finding of exigent circumstances based on possession of guns and bombs. First, he contends that the police could not reasonably believe Ogata's statements since they knew neither the basis for Ogata's information nor his reliability. Second,...

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