U.S. v. Black, No. 05-10640.
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
| Writing for the Court | Betty B. Fletcher |
| Citation | 466 F.3d 1143 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jasper BLACK, Defendant-Appellant. |
| Docket Number | No. 05-10640. |
| Decision Date | 26 October 2006 |
v.
Jasper BLACK, Defendant-Appellant.
[466 F.3d 1144]
Anne Traum, Esq., AFPD, Las Vegas, NV, for the defendant-appellant.
J. Gregory Damm, Esq., AUSA, Las Vegas, NV, for the plaintiff-appellee.
Appeal from the United States District Court for the District of Nevada; Lloyd D. George, District Judge, Presiding. D.C. No. CR-04-00093-LDG.
Before B. FLETCHER and MARSHA S. BERZON, Circuit Judges, and DAVID G. TRAGER,* District Judge.
BETTY B. FLETCHER.
On appeal, Jasper Black challenges his conviction as a felon in possession, arguing that the district court erred when it denied his motion to suppress the gun. We affirm.
The police justify their entry into Black's apartment, not as one looking for evidence of a crime but as a welfare search occasioned by a 911 domestic violence call. Police were dispatched to the apartment after Black's ex-girlfriend, Tyroshia Walker, called 911 and reported that Black had beaten her up that morning in the apartment and that he had a gun. Toward the end of her 911 call, Walker told the dispatcher that she intended to return to the apartment with her mother in order to retrieve her clothing and that the two women would wait outside the apartment, in a white Ford pickup truck, for police to arrive. Officer Rodriguez was dispatched to the scene to meet the women. When he arrived at the apartment a few minutes later there were no signs of Walker, her mother, or the truck. Rodriguez contacted Officer Kikkert, who was already on his way to the apartment, and directed him to stop by the grocery store from which Walker had made her phone call. Kikkert checked the store for signs of Walker but, finding none, he continued to the apartment.
After Kikkert arrived at Black's apartment, the two officers knocked on the
front door but received no response. They then contacted the apartment manager in an attempt to gain access to the building. In the meantime, Kikkert circled the building to inspect the backyard area. There, he discovered an individual who matched Black's physical description. The individual identified himself as Jasper Black and admitted that he knew the police were investigating a domestic violence call. He denied knowing the whereabouts of Walker and also denied that he lived in the apartment. When the defendant became agitated, one of the police officers patted him down for weapons and searched his pockets with the defendant's consent, which yielded the key to the apartment. Using the key, Rodriguez entered and made a quick sweep of the apartment to see if anyone was there. No one was present, but Rodriguez noticed a gun on the bed. Without touching the gun, he exited, arrested Black, and sought a warrant for the gun.
The police were justified in their entry because they feared that Walker could have been inside the apartment, badly injured and in need of medical attention, and that their warrantless search of the apartment was, therefore, justified by exigent circumstances. As the government argued both during the suppression hearing and on appeal, Walker could have returned to the apartment after her 911 call, but before police arrived at the scene. At that point, Black could have managed to pull her back into the apartment. Once inside the apartment, Black—in a repeat performance of his behavior earlier that morning—could have beaten Walker again and left her in the apartment severely injured. Even worse, he could have shot Walker using the gun that police knew was inside the apartment.
The dissent would hold that the circumstances of this case do not support an objectively reasonable belief that Walker could be inside the apartment. It emphasizes the short time span between Walker's phone call and Rodriguez's arrival on the scene. Because Walker was a two-minute drive from the apartment building when she called the police, and Officer Rodriguez arrived approximately three minutes after the call, the dissent argues that there was not sufficient time after Walker's arrival for the defendant to force her into the apartment. The dissent parses the time too finely.
First, if Black had seen Walker arrive outside the building, it would take little time for him to threaten Walker with a gun and force her inside. Second, the times cited by the dissent are all approximate times. Rodriguez was dispatched at approximately 8:40 and arrived at approximately 8:43. If each approximation is off by a single minute, then Walker could have arrived at the apartment three minutes before Rodriguez—ample time for Black to have taken her inside the building. We conclude that the circumstances do support an objectively reasonable belief that Walker could be in the apartment.
This is a case where the police would be harshly criticized had they not investigated and Walker was in fact in the apartment. Erring on the side of caution is exactly what we expect of conscientious police officers. This is a "welfare search" where rescue is the objective, rather than a search for crime. We should not second-guess the officers objectively reasonable decision in such a case.
Our circuit has recognized that "the exigencies of domestic abuse cases present dangers that, in an appropriate case, may override considerations of privacy." United States v. Brooks, 367 F.3d 1128, 1136 (2004). While we have stopped short of holding that "domestic abuse cases create a per se exigent need for warrantless entry," we continue to evaluate, on a case-by-case
basis, whether the "total circumstances, presented to the law officer before a search ... relieved the officer of the customary need for a prior warrant." Id. Our own individualized assessment of the circumstances presented in this case leads us to the same conclusion that the district court reached: the officer's initial warrantless entry into the apartment was justified by exigent circumstance and, as a result, the subsequent seizure of Black's handgun—this time, accomplished with warrant in hand—was not unconstitutional under the Fourth Amendment.1
We affirm the district court's decision to deny Black's motion to suppress and, in turn, uphold his conviction.
On appeal, Black also argues that the government failed at the sentencing hearing to prove that he had a prior qualifying controlled substances offense under U.S.S.G. § 2K2.1(a)(2), because it never supplied the sentencing judge with the actual statute of conviction. See United States v. Pimentel-Flores, 339 F.3d 959, 967 (9th Cir.2003) ("[T]he actual statute of prior...
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Anderson v. City of West Bend Police Dep't, Case No. 09–CV–840.
...with “clear evidence that the victim was both still in the vicinity of the abuser and still in danger.” See United States v. Black, 466 F.3d 1143, 1147–48 (9th Cir.2006) (Berzon, J., dissenting) (collecting cases for this proposition). In this case, shortly before the officers entered the a......
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Fernandez-Ruiz v. Gonzales, No. 03-74533.
...It is unlikely Congress intended such an outcome. C After mistakenly concluding that Fernandez-Ruiz's conviction was not categorically 466 F.3d 1143 a crime of violence, the majority compounds its error by refusing the government's request that we remand to the BIA to allow the government t......
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U.S. v. Sikut, No. 06-CR-184A (F).
...542, 166 L.Ed.2d 401 (2006), and that "there is no domestic abuse exception to the Fourth Amendment, generally." United States v. Black, 466 F.3d 1143, 1147 (9th Cir.2006). The Second Circuit has upheld an officer's determination that exigent circumstances, based on asserted domestic violen......
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U.S. v. Reyes-Bosque, No. 05CR2239 BEN.
...Unit 3, a reasonable agent would come to the conclusion that it was likely people were being held in Unit 3 as well. See U.S. v. Black, 466 F.3d 1143, 2006 WL 3026026 at *1 (9th Cir.2006) (finding that exigent circumstances justified warrantless entry and search when police might have reaso......
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Anderson v. City of West Bend Police Dep't, Case No. 09–CV–840.
...with “clear evidence that the victim was both still in the vicinity of the abuser and still in danger.” See United States v. Black, 466 F.3d 1143, 1147–48 (9th Cir.2006) (Berzon, J., dissenting) (collecting cases for this proposition). In this case, shortly before the officers entered the a......
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Fernandez-Ruiz v. Gonzales, No. 03-74533.
...It is unlikely Congress intended such an outcome. C After mistakenly concluding that Fernandez-Ruiz's conviction was not categorically 466 F.3d 1143 a crime of violence, the majority compounds its error by refusing the government's request that we remand to the BIA to allow the government t......
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U.S. v. Sikut, No. 06-CR-184A (F).
...542, 166 L.Ed.2d 401 (2006), and that "there is no domestic abuse exception to the Fourth Amendment, generally." United States v. Black, 466 F.3d 1143, 1147 (9th Cir.2006). The Second Circuit has upheld an officer's determination that exigent circumstances, based on asserted domestic violen......
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U.S. v. Reyes-Bosque, No. 05CR2239 BEN.
...Unit 3, a reasonable agent would come to the conclusion that it was likely people were being held in Unit 3 as well. See U.S. v. Black, 466 F.3d 1143, 2006 WL 3026026 at *1 (9th Cir.2006) (finding that exigent circumstances justified warrantless entry and search when police might have reaso......