U.S. v. Al-Azzawy, AL-AZZAW

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Citation: 784 F.2d 890
• Docket Number: D,No. 85-5004,AL-AZZAW,85-5004
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Riad Abedefendant-Appellee.
• Decision Date: 11 March 1986

Page 890

784 F.2d 890 UNITED STATES of America, Plaintiff-Appellant,
v.
Riad Abed AL-AZZAWY, Defendant-Appellee. No. 85-5004. United States Court of Appeals,
Ninth Circuit. Argued and Submitted Aug. 6, 1985.
Decided Dec. 26, 1985.
Designated for Publication March 11, 1986.

Page 891

Mark H. Bonner, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellant.

John Gyorgy, Los Angeles, Cal., for defendant-appellee.

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

Before ANDERSON, BEEZER and BRUNETTI, Circuit Judges.

BEEZER, CIRCUIT JUDGE:

The government appeals a district court ruling excluding certain evidence on the ground that it resulted from an unlawful warrantless arrest of appellee in his residence and an unlawful warrantless search. We reverse.

At approximately 9 a.m. on November 19, 1984, Los Angeles police were summoned to investigate a disturbance at a trailer park. Steven Williams told the officers that Riad Abed Al-Azzawy, a neighbor, had threatened to shoot Williams, to blow up the trailer park and to burn Williams' trailer. Williams also told the officers that Al-Azzawy had threatened him with a pistol the day before, and that a third party had told Williams that he had seen Al-Azzawy in possession of hand grenades and automatic weapons some days earlier.

Police officers then surrounded appellee's trailer with their guns drawn, and ordered appellee to come outside. When Al-Azzawy appeared, he was ordered to get on his knees and place his hands on or above his head, which he did. He was then frisked and questioned about the disturbance. Appellee admitted having firearms in his trailer.

According to the police, appellee and his wife were asked if their trailer could be searched, and both consented. Both denied ever being asked for their consent.

During the search the police seized sawed-off weapons, an automatic pistol, three hand grenades, gunpowder, a gallon jug full of gasoline with matches glued to it, and other items. Appellee was charged with possession of unregistered firearms and being an illegal alien in possession of a firearm.

The district court granted appellee's motion to exclude the unregistered firearms from evidence, holding that appellee was arrested in his home without a warrant or an exception to the warrant requirement. The court also held that appellee verbally consented to the search of his trailer, but that the consent was invalid, both because of the coercive circumstances and because it was tainted by appellee's prior illegal arrest. The court also ruled that the search was not justified by exigent circumstances. The government appeals.

On appeal, the government argues that appellee was initially only subjected to a Terry stop when he was ordered out of his trailer, and that the later warrantless arrest occurred outside the trailer. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20

Page 892

L.Ed.2d 889 (1968). The district court's decisions to the contrary are questions of law subject to de novo review. See United States v. McConney, 728 F.2d 1195 (9th Cir.) (en banc), cert. denied, --- U.S. ----, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

In United States v. Morgan, 743 F.2d 1158 (6th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 2126, 85 L.Ed.2d 490 (1985), the Sixth Circuit decided a case almost identical to the one at bar. While investigating a complaint of target shooting in a public park, a Sheriff was told by an unidentified observer that the suspects had numerous machine guns and other weapons, and that they had threatened to "kill any law that tries to arrest them." 743 F.2d at 1160. The Sheriff broadcast an alert describing the suspects' car, which was found at the home of defendant Morgan's mother. Id. Nine officers converged on the home, surrounded it, flooded it with spotlights, and summoned Morgan from the house with a bullhorn. 743 F.2d at 1161. After the suspects left the house, they were arrested, handcuffed and frisked, and the house was searched. Id.

The court held that the suspects had been arrested, saying:

"These circumstances surely amount to a show of official authority such that 'a reasonable person would have believed he was not free to leave.' " Florida v. Royer, 460 U.S. [491, 501-03, 103 S.Ct. 1319, 1326-27, 75 L.Ed.2d 229 (1983) ].... Viewed objectively, Morgan was placed under arrest, without the issuance of a warrant, at the moment the police encircled the Morgan residence.

743 F.2d at 1164.

Similarly, the court rejected the argument that the actual arrest occurred outside the home because the agents did not cross the threshold:

We agree with the Ninth Circuit that the important consideration in this type of case "is the location of the arrested person, and not the arresting agent, that determines whether an arrest occurs within a home."

Applying this rule here, it is undisputed that Morgan was peacefully residing in his mother's home until he was aroused by the police activities occurring outside. Morgan was then compelled to leave the house. Thus, as in Johnson, supra, "it cannot be said that [Morgan] voluntarily exposed himself to a warrantless arrest" by appearing at the door. On the contrary, Morgan appeared at the door only because of the coercive police behavior taking place outside of the house.... Viewed in these terms, the arrest of Morgan occurred while he was present inside a private home. Although there was no direct police entry into the Morgan home prior to Morgan's arrest, the constructive entry accomplished the same thing, namely, the arrest of Morgan. Thus, the warrantless arrest of Morgan, as he stood within the door of a private home, after emerging in response to coercive police conduct, violated Morgan's fourth amendment rights.

743 F.2d at 1166 (citations omitted).

The principles set forth in Morgan are consistent with the law of this circuit. 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), for example, two Secret Service agents approached the door of a suspect's home, drew their weapons, pointed them downward and knocked, at first identifying themselves by fictitious names. When the suspect opened the door, the agents identified themselves as special agents and asked to talk with the suspect. He told them to come in. This court began its analysis by stating that

whether an arrest has occurred depends upon an objective, not subjective, evaluation of what a person innocent of a crime would have thought of the situation, given all of the factors involved. When an arrest has occurred depends in each case upon an evaluation of all the surrounding circumstances. Primary among these is a determination of whether or not the defendant was free to choose between terminating or...