U.S. v. Blake

• Decision Date: 17 November 1980
• Docket Number: No. 79-1078,79-1078
• Citation: 632 F.2d 731
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jerry R. BLAKE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 731

632 F.2d 731

UNITED STATES of America, Plaintiff-Appellee, v. Jerry R. BLAKE, Defendant-Appellant.

No. 79-1078.

United States Court of Appeals, Ninth Circuit.

Submitted Jan. 29, 1980.

Decided Aug. 7, 1980.

Rehearing Denied Nov. 17, 1980.

Donald B. Ayer, Asst. U. S. Atty., San Francisco, Cal., for plaintiff-appellee.

Patricia V. Trumbull, Asst. Federal Public Defender, San Jose, Cal., for defendant-appellant.

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

Before TRASK, SNEED and ALARCON, Circuit Judges.

SNEED, Circuit Judge:

This is the second time this case has been before us. The central issue in both appeals has been the legality of the appellant's arrest in his residence by FBI agents acting without a warrant but with probable cause to arrest. Appellant in his first appeal sought to overturn his conviction on the ground that his arrest contravened the Fourth Amendment. Subsequent to the filing of this appeal this court decided United States v. Prescott, 581 F.2d 1343 (9th Cir. 1978), which held that a warrantless entry into a home for the purpose of making an arrest is improper except when required by exigent circumstances. Recognizing the possibility that Prescott was applicable to this case, we remanded it to the district court to determine the circumstances surrounding arrest. It found that the entry and arrest without a warrant was supported by exigent circumstances. It is from this determination that the appellant now brings his second appeal.

We hold that the district court's finding is clearly erroneous and that either Prescott or identical pre-Prescott law is applicable to this case with the result that appellant's warrantless arrest was invalid.

Therefore, we reverse the appellant's conviction.

I. FACTS

The facts are simple and straightforward. On November 8, 1977, at about 3:15 p. m., appellant robbed the San Francisco Federal Savings and Loan Association at the Valley Fair Shopping Center in San Jose. Mixed with the money taken by the appellant were several bait bills. During the robbery, appellant was photographed by a bank surveillance camera.

The same afternoon, two FBI agents began to investigate the robbery. They learned that one week earlier a man matching the description of the robber had been stopped by a deputy sheriff in Santa Clara County on suspicion of "casing" a bank. The man, whose driver's license indicated that he was Jesse William Blake and was living on Mann Avenue in Union City, had been driving a tan 1976 Monte Carlo belonging to Budget Rent-A-Car in Oakland. The deputy sheriff had searched the car and discovered a pellet pistol under the seat. Also, a computer arrest check had revealed that at the time of a previous arrest Blake had given his address as 2713 Dowe Avenue in Union City.

The next day, November 9, FBI agents compared the bank surveillance photograph with the driver's license photograph of a Jesse William Blake and determined that the bank robber was the same man who had been stopped by the Santa Clara deputy sheriff. They then went to the Budget Rent-A-Car in Oakland and found that the tan 1976 Monte Carlo presently was rented to a Carol Blake, whose address was in Hayward. When interviewed, Carol Blake told the agents that the man in the bank surveillance photograph was her husband, Jerry Blake, who, she said, was living with Without attempting to secure an arrest warrant, the agents then returned to the Dowe Street residence with several Union City police officers. The police personnel positioned themselves around the house, and one of the agents knocked at the door, announcing that he was from the FBI and was looking for Jerry Blake. When knocking brought no response, the agent began to kick the door. A woman then opened the door. The agent pulled her out onto the step, and both agents entered the house. They found appellant emerging from a bedroom and immediately placed him under arrest.

another woman on Dowe Street in Union City. The agents then went to the Dowe Street address, arriving there sometime between 1:30 p. m. and 2:15 p. m., but observed that the Monte Carlo was not there. Leaving an officer from the Union City Police Department to watch the house, the agents went to the Mann Avenue address given on Blake's driver's license and then to the Union City Police Department. At about 2:30 p. m., the officer at the Dowe Street residence reported by radio that Blake and a woman had arrived in the Monte Carlo and had entered the house.

The agents searched appellant and found in his pocket a bait bill which had been taken from the bank. They then took appellant to the Union City police station and, after advising him of his Miranda rights, commenced to question him. Appellant at first denied knowledge of the robbery, but confessed after being confronted with the surveillance photograph and the bait bill. He also consented to a further search of the house, which turned up three more bait bills.

Before trial, appellant moved to suppress his confession and the bait bills on the ground that the agents had violated his Fourth Amendment rights by arresting him in his home without a warrant. The motion was denied, and the evidence was admitted at trial. Over his objection, three bank employees also identified appellant as the robber. The jury found appellant guilty and he appealed.

After considering appellant's contentions, this court, as already indicated, remanded the case to the district court to determine whether exigent circumstances, such as would cause a warrant to be unnecessary, were present. The district court found that exigent circumstances did exist. Appellant challenges that finding on this appeal.

II. THE ARREST

In United States v. Prescott, 581 F.2d 1343 (9th Cir. 1978), we held that officers may not, absent exigent circumstances, enter a private dwelling to effect an arrest without obtaining a warrant. The Supreme Court pronounced the same rule in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Appellant contends that the government agents violated the Payton-Prescott rule and that evidence obtained as a result of the illegal entry and arrest should not have been admitted at trial. In response, the government asserts that the arrest was justified by exigent circumstances; alternatively, the government urges that the Payton-Prescott rule should not be applied retroactively to arrests that occurred before those cases were decided.

A. Exigent Circumstances

In United States v. Flickinger, 573 F.2d 1349, 1355 (9th Cir.), cert. denied, 439 U.S. 836, 99 S.Ct. 119, 58 L.Ed.2d 132 (1978), this court explained that "(t)he term 'exigent circumstances,' in conjunction with an arrest in a residence, refers to a situation where the inevitable delay incident to obtaining a warrant must give way to an urgent need for immediate action." In this case, the district court's finding was based upon the court's assessment of criteria enunciated in Dorman v. United States, 435 F.2d 385, 392-93 (D.C.Cir.1970), viz., the gravity of the crime which the suspect is believed to have committed, the reasonable belief that the suspect is armed, the degree of probable cause for the arrest, the likelihood that the suspect is in the premises, the risk of escape, the manner of entrance by the police.

We believe that assessment to be clearly erroneous. The crime committed by the appellant was serious but did not result in bodily injury to another. No weapon was used in its commission and the earlier discovery of a pellet gun in the car driven by the appellant provided only a weak inference that the suspect might be armed. It is true, of course, that the officer had a high degree of probable cause to arrest the appellant, but it is not clear that the officers had any substantial reason to believe that appellant would realize his apprehension was imminent and flee. As the facts indicate, the officers pursued their investigation in a measured and deliberate manner suggesting strongly that arrest was not thought to be required immediately upon the ripening of probable cause. There was no "hot pursuit." The entry of the officers required force.

More important than these considerations, however, is the fact that under the circumstances of this case the acquisition of a warrant would not have presented any great difficulty nor would have entailed the loss of any substantial amount of time. Indeed, the FBI agent who made the arrest testified that he knew that a warrant could have been obtained by telephone but, without discussing the decision with anyone and perhaps on the good faith belief that a warrant was not necessary, decided to make the arrest without a warrant. The arrest, it should be remembered, was made at about three o'clock on a weekday afternoon and was preceded by approximately an hour of surveillance. Although the fact that adequate time to obtain a warrant exists will not in every case foreclose resort to exigent circumstances to justify a warrantless arrest in a residence, it is true that the availability of such time requires a stronger showing with respect to the Dorman criteria than otherwise is necessary.

The facts of Dorman give weight to our conclusion that the district court was clearly erroneous in its finding of exigent circumstances. In the first place, the police in Dorman attempted to get a warrant but found that the magistrate was unavailable, and at 9:00 p. m. on a Friday night it probably would have been quite time consuming to find a judge authorized to issue the warrant. Moreover, Dorman's robbery of a clothing store involved the use of a gun and the firing of one shot during the course of the robbery. The possibility of flight by Dorman was strong because he had left at the scene of the robbery documents bearing his name and address. It was likely that Dorman would soon realize his blunder and flee from his home. Finally, Dorman was arrested only four...