920 F.2d 1423 (9th Cir. 1990), 88-5367, United States v. Shaibu

Docket Nº:88-5367.
Citation:920 F.2d 1423
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Shafii SHAIBU, Defendant-Appellant.
Case Date:February 14, 1990
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1423

920 F.2d 1423 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,


Shafii SHAIBU, Defendant-Appellant.

No. 88-5367.

United States Court of Appeals, Ninth Circuit

February 14, 1990

        Submitted Dec. 5, 1989. *

        As Amended Dec. 7, 1990.

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        Dennis J. Landin, Sr. Deputy Federal Public Defender, Los Angeles, Cal., for defendant-appellant.

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

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

        Before BROWNING, FERGUSON and REINHARDT, Circuit Judges.

        FERGUSON, Circuit Judge:

        The defendant appeals from the District Court's denial of his Motion to Suppress Evidence. California police officers searched his apartment after entering without a warrant. The police obtained evidence and statements from him which were used to support charges of bank fraud. Shafii Shaibu asserts all evidence and statements obtained during the search should be suppressed on two grounds: (1) the warrantless entry into his apartment and ensuing search violated the Fourth Amendment; and (2) the police conducted a custodial interrogation without the warnings required under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We agree that the warrantless entry into Shaibu's apartment violated the Fourth Amendment, and do not reach the issue of custodial interrogation.


        On December 11, 1987, four California police officers went to the apartment complex where Shaibu lived. They had neither a search warrant nor an arrest warrant. The officers were looking for another man, Idahosa Bazuaye, who was a suspect in an ongoing scheme of fraudulent withdrawals from Security Pacific National Bank's Automatic Teller Machines. The officers believed that Bazuaye lived in Apartment 115 at 14019 Cerise, in Hawthorne, California. In fact, that was not Bazuaye's address, but Shaibu's. Both Shaibu and Bazuaye are black Africans, Nigerian nationals.

        The apartment complex had a front gate and buzzer system. The police pressed the buzzer for apartment 115 and heard an accented voice ask who was there. The officers did not respond. The gate release sounded, and they entered the complex. They walked down the hallway onto which apartment 115 opened. Shaibu had stepped out of his apartment, leaving the door open, and initially began walking toward the officers in the hallway. One of the officers, Officer McClure, identified himself as a policeman, and asked Shaibu if Basuaye was inside the apartment. Officer McClure described the exchange in the hallway as follows:

[I]t was rather ... quick occurrences. I think I asked him if Idahosa Basuaye was inside, and he [Shaibu] had turned around and started walking to the apartment, and we followed him into the apartment.

        According to the District Court's findings of fact, soon after Officer McClure identified himself, Shaibu walked back "into the apartment, leaving the door open as the detectives followed him inside. Shaibu did not ask them to wait outside, to leave, or to produce a search warrant." The officers did not ask permission to enter Shaibu's apartment nor state their intention to do so, but simply followed Shaibu through the open door. The District Court found that Shaibu's failure to object created an "implicit invitation" to enter and search the apartment.

        Once inside, the officers asked Shaibu for identification. As Shaibu opened his wallet, Officer McClure seized the wallet and removed a Security Pacific ATM card. After asking Shaibu questions about the ATM card, a second officer asked Shaibu if

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he could "look around the apartment to see whether Bazuaye was there." Shaibu answered, "Sure, go ahead." Neither the government nor the District Court relied on this statement to establish Shaibu's consent to search; rather this explicit statement was found to show that the scope of consent established by the initial "implicit invitation" was never limited by any objection.

        The officers did not find Bazuaye, but did find evidence of bank fraud. Shaibu subsequently was indicted and entered a conditional guilty plea, preserving his right to appeal the District Court's denial of his Motion to Suppress, to one count of bank fraud under 18 U.S.C. Sec. 1344. He was sentenced to three years probation and restitution of $300, and now timely appeals denial of the Motion to Suppress.

        In its ruling, the District Court determined that the evidence and statements obtained after the warrantless entry were admissible because the entry did not violate the Fourth Amendment. Our review focuses on the District Court's belief that Shaibu consented to the detectives' entrance to his apartment "by implicit invitation." The District Court states, "[u]nder all the circumstances of this case, the court infers consent from the cooperative attitude and conduct of the defendant ... Shaibu cooperated by responding to McClure's questions and leaving his apartment door open as they walked inside. He did not ask the detectives to wait outside, leave or produce a warrant; nor did he otherwise object in any way to the officers' presence inside the apartment."

       II. Standard of Review

        A district court's finding that a person consented to a search is generally treated as a factual determination, reversible only if clearly erroneous. See United States v. Hunt, 893 F.2d 1028, 1032 (9th Cir.1990); United States v. Gilbert, 774 F.2d 962, 964 (9th Cir.1985).

        There is at least one exception to this principle, however. When we are determining whether as a general rule certain types of actions give rise to an inference of consent, de novo review is appropriate. See United States v. Pulido-Baquerizo, 800 F.2d 899, 901 (9th Cir.1986) (reviewing de novo the district court's determination that airline...

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