United States v. Barnes, 16-30203

• Decision Date: 19 July 2018
• Docket Number: No. 16-30203,16-30203
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Travis Shane BARNES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

895 F.3d 1194

UNITED STATES of America, Plaintiff-Appellee,

v.Travis Shane BARNES, Defendant-Appellant.

No. 16-30203

United States Court of Appeals, Ninth Circuit.

Submitted February 9, 2018^* Seattle, Washington

Filed July 19, 2018

Nicolas V. Vieth, Vieth Law Offices Chtd., Coeur d’Alene, Idaho, for Defendant-Appellant.

Thomas J. Hanlon, Assistant United States Attorney; Joseph H. Harrington, United States Attorney; United States Attorney’s Office, Yakima, Washington; for Plaintiff-Appellee.

Before: Ronald M. Gould, Richard A. Paez, and Morgan Christen, Circuit Judges.

PAEZ, Circuit Judge:

Travis Barnes appeals his conviction under 18 U.S.C. § 922 for being a felon in possession of a firearm. He argues that the district court erred in two respects: first, by denying his motion to suppress evidence based on an allegedly invalid arrest warrant; and second, by precluding him from presenting a necessity defense at trial. We have jurisdiction under 28 U.S.C § 1291, and we affirm.

Although the underlying warrant for Barnes’s arrest was the product of judicial abandonment, we apply the good faith exception to the exclusionary rule and affirm the district court’s denial of his motion to suppress evidence. We also conclude that the district court properly barred Barnes’s necessity defense because he failed to adequately demonstrate that he took possession of the gun in response to an imminent threat of death or bodily injury.

I.

On August 17, 2015, a Yakima Police Department ("YPD") officer told fellow Officers Thomas Tovar and J. Cordova to keep an eye out during patrol for two wanted men in the area, Travis Barnes and his son Raymond Barnes ("Raymond"). Officers Tovar and Cordova consulted their mobile data terminal, confirmed that there were outstanding warrants for both men, and viewed several photographs of Barnes and his son to get a sense of their general appearance. A little over half an hour later, the officers saw Barnes walking along a street, having recognized him by his distinctive neck tattoo. Officer Tovar exited his vehicle and informed Barnes that there was a warrant for his arrest. Although Barnes was initially cooperative and complied with Officer Tovar’s request to put his hands behind his back, he took off running after he was mistakenly informed by Officer Cordova that he was wanted on a "DOC felony warrant." In truth, the felony warrant was for his son, Raymond. There was, however, a misdemeanor bench warrant for Barnes that was based on his failure to appear for arraignment for an alleged trip permit violation¹ some six months earlier.

The officers ordered Barnes to stop, to no effect, and gave chase. Deputy Marshal C. Smith, who was in the area investigating a robbery and had observed Barnes’s interaction with Officers Tovar and Cordova, quickly realized that Barnes was running in his direction. Deputy Smith exited his vehicle and instructed Barnes to stop. When Barnes failed to comply, Deputy Smith tased him in the back, knocking Barnes down. Officers Tovar and Cordova caught up seconds later. Together, the officers handcuffed Barnes’s hands behind his back and searched his person, eventually recovering a small .22 caliber, silver pistol from his front right pocket.

Having previously been convicted of a felony, Barnes was arrested and taken into custody. He was subsequently charged in federal court with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Barnes filed a motion to suppress evidence before trial, arguing that his arrest was unlawful for a variety of reasons, only one of which he reasserts on appeal: that the arrest warrant for his failure to appear on the trip permit violation was not supported by probable cause.² The government responded to Barnes’s motion to suppress evidence by including in its opposition a copy of the criminal complaint prepared by a city prosecutor for Barnes’s alleged trip violation. The complaint, dated February 9, 2015, included a stamp where the reviewing judge had circled "Yes" to "Probable Cause" and signed with her initials on February 13, 2015. The government argued that the signed complaint evidenced that the misdemeanor arrest warrant was based on a valid judicial determination of probable cause.

At an evidentiary hearing, the government called Melissa Blackledge, a Department Assistant for the Yakima Municipal Court Clerk’s Office, to testify. Blackledge testified that although she was not normally involved in processing criminal complaints, she was familiar with the process. She explained that once the Yakima Municipal Court received a ticket or citation, a prosecutor would "send[ ] down a complaint" for a clerk to stamp with "probable cause" and "yes" and "no" responses. The reviewing judge would then circle either "yes" or "no" to probable cause, sign or initial her name, and send the complaint back to the clerk to print out a summons. Blackledge testified on cross-examination that although the prosecutor would forward the complaint for the judge’s review, she never saw the prosecutors include a police report with the complaint. When asked whether the prosecutors would submit an affidavit with the complaint, Blackledge—who had been with the court for six and a half years—answered that she wasn’t sure what an affidavit was and that she would "have to say no." On re-direct, Blackledge testified that the municipal court judges did not issue separate orders finding probable cause, but rather denoted their findings of probable cause on the criminal complaint itself.

After hearing from the government’s witnesses and Barnes, the district court denied Barnes’s motion to suppress. The court did so in part because it assumed, without evidence, that the municipal court judge "in the ordinary course of business would have reviewed [the arresting officer’s] citation containing his certification under oath." The court explained that because it had been the law "[f]or forty years ... that a judicial determination of probable cause may not be based on a prosecutor’s assessment of probable cause standing alone," it was "extremely difficult to fathom that a Yakima Municipal Court Judge would make a determination of probable cause based solely on a complaint presented by the prosecutor and without reviewing the citation giving rise to the complaint."

The court added that because Officers Cordova and Tovar had acted in good faith reliance on the outstanding bench warrant, the good faith exception to the exclusionary rule was applicable unless one of the four United States v. Leon , 468 U.S. 897, 922–23, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) exceptions to the good faith exception applied. Unpersuaded that the facts of the case implicated any of the four Leon exceptions, including judicial abandonment, the court applied the good faith exception to the exclusionary rule and denied Barnes’s motion to suppress. In so doing, the court noted that "suppression of the evidence in this instance would not deter future police misconduct."

Following the district court’s ruling, the parties submitted jointly proposed jury instructions and a verdict form for the court’s review. The proposed jury instructions did not include instructions on a necessity defense. Five days before the jury trial, however, counsel for Barnes sent the government a copy of a news article describing close to two dozen instances of small children accidentally shooting themselves or others with unattended firearms. Counsel explained in a letter that it was possible he would introduce the article during trial. Based on the letter and news article, the government surmised that Barnes would attempt to raise a necessity defense and filed a motion in limine to preclude any such defense. The government’s assessment proved correct: Barnes submitted a proposed jury instruction for a necessity defense on the first day of trial.

During a hearing on the proposed defense, the court requested that counsel for Barnes make an offer of proof. Counsel for Barnes explained that Barnes had been arrested by Officers Cordova and Tovar while en route to a nearby dumpster to dispose of the gun for safety reasons.

According to trial counsel, Barnes woke up in the afternoon after caring for Raymond, who was addicted to methamphetamine. When he went to do his son’s laundry, Barnes realized that there were multiple strangers in the house, including two children around the ages of two to three years old and two adults, the latter of whom were "passed out." In the laundry area of Raymond’s residence, there was a special "cubbyhole" behind a refrigerator used to conceal people from law enforcement. Barnes noticed that the refrigerator had been moved and that the hiding spot was exposed. As he went to push the refrigerator back into place, Barnes allegedly heard something fall to the ground. Shortly thereafter, he saw a gun on the floor. Concerned that the children, who were awake, would somehow gain possession of the gun and injure themselves or someone else, Barnes made a split-second decision to take the gun and dispose of it. Barnes was arrested in the middle of his walk to a nearby dumpster.

The district court concluded that Barnes’s offer of proof did not meet the requirements for a necessity or justification defense. In particular, the district court determined that the proffered evidence fell short of showing that Barnes was responding to an "immediate threat of death or threat of bodily injury" or that Barnes had no reasonable legal alternative available. Relying on the same reasoning, the court later denied Barnes’s renewed request to present a necessity defense following the government’s presentation of its case as well as his motion for reconsideration.

The jury convicted Barnes of being a felon in possession of a firearm. Barnes was sentenced to 41 months’ imprisonment followed by three years of supervised release. He timely appealed.

II.

We review a "district court’s rulings on motions to suppress," including...