959 F.2d 242 (9th Cir. 1992), 91-30053, U.S. v. Johnson

• Citation: 959 F.2d 242
• Party Name: UNITED STATES of America, Plaintiff-Appellee, v. John Paul JOHNSON, Defendant-Appellant.
• Case Date: April 06, 1992
• Court: United States Courts of Appeals, U.S. Court of Appeals — Ninth Circuit

Page 242

959 F.2d 242 (9th Cir. 1992)

UNITED STATES of America, Plaintiff-Appellee,

v.

John Paul JOHNSON, Defendant-Appellant.

No. 91-30053.

United States Court of Appeals, Ninth Circuit

April 6, 1992

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)

Decided April 9, 1992.

Appeal from the United States District Court for the District of Oregon; No. CR-90-213-PA, Owen M. Panner, District Judge, Presiding.

D.Or.

VACATED AND REMANDED.

Before JAMES R. BROWNING, EUGENE A. WRIGHT and FERNANDEZ, Circuit Judges.

MEMORANDUM ^[**]

John Paul Johnson appeals his conviction for possessing a firearm in violation of 18 U.S.C. § 922(g)(1) (ex-felon in possession of a firearm). Johnson argues the district court erred in denying his motion to suppress evidence obtained in searches on September 13, 1989 and August 9, 1990.

I

We need not decide whether the September 13, 1989 search of the duplex was conducted in violation of the Fourth Amendment. The evidence seized in the 1989 search was relevant only to Counts II and III of the indictment, gun-possession charges on which the jury acquitted Johnson. ¹ Count IV of the indictment, the one count on which Johnson was convicted, was based solely on possession of a handgun seized during the 1990 search of Johnson's residence.

Johnson does not argue on appeal that admission of the evidence seized in the 1989 search was prejudicial to his defense on Count IV. Johnson moved for a new trial on the ground that joinder of Counts II and III had prejudiced his defense on Count IV. The district court denied the motion, stating there was no such prejudice, and Johnson has not appealed the denial.

We reject Johnson's argument that the legality of the 1989 search is relevant to the legality of the 1990 search of Johnson's residence incident to his arrest. An indictment is not invalid because the grand jury that issued the indictment considered evidence obtained in violation of the Fourth Amendment. See United States v. Calandra, 414 U.S. 338 (1974) (exclusionary rule does not apply to grand jury proceedings). Since the indictment was valid, and the arrest warrant was based on the indictment, the arrest warrant was valid.

II

Johnson argues that even if the arrest warrant was valid, the officers were not justified in conducting a "protective sweep" of his residence incident to the arrest. He also argues that even if a sweep was justified, the August 9, 1990 search exceeded the permissible scope of such a sweep. Because the district court did not make factual findings on the record, we are unable to review its decision.

Rule 12(e) of the Federal Rules of Criminal Procedure, which applies to motions to suppress, requires that "[w]here factual issues are involved in determining a motion, the court shall state its essential findings on the record." It is inappropriate for an appellate court reviewing an order denying a motion to suppress to attempt to resolve disputed factual questions or to search the record for support for the government's position as a prevailing party. United States v. Prieto-Villa, 910 F.2d 601, 606-10 (9th Cir.1990) (remanding for factual findings); United States v. Carbajal, No. 89-50507, slip op. 1547, 1562-63 (9th Cir. Feb. 14, 1992) (same).

The record contains no findings by the district court on the legality of the 1990 search. The...