U.S.A v. Cha

• Decision Date: 09 March 2010
• Docket Number: No. 09-10147.,09-10147.
• Citation: 597 F.3d 995
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. SONG JA CHA; In Han Cha, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

597 F.3d 995

UNITED STATES of America, Plaintiff-Appellant, v. SONG JA CHA; In Han Cha, Defendants-Appellees.

No. 09-10147.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 14, 2009.

Filed March 9, 2010.

COPYRIGHT MATERIAL OMITTED

Lisa J. Stark, United States Department of Justice, Washington, DC, for plaintiffappellant.

G. Patrick Civille, Civille & Tang PLLC, Howard Trapp, Howard Trapp Inc., Hagatna, GU, for defendants-appellees.

Appeal from the United States District Court for the District of Guam, Dean D Pregerson, District Judge, Presiding. D.C. No. l:08-cr-00008-DDP (JVEM).

Before: ROBERT R. BEEZER SUSAN P. GRABER and RAYMOND C FISHER, Circuit Judges.

BEEZER, Circuit Judge:

Song Ja Cha ("Ms. Cha") and In Han Cha ("Mr. Cha") were charged with the federal crimes of conspiracy, sex trafficking and coercion, and enticement to travel for the purpose of prostitution in violation of 18 U.S.C. §§ 2, 371, 1591(a), 1594, and 2242. In the pretrial hearing before the magistrate judge, the Chas moved to suppress evidence that had been seized pursuant to a warrant at their house and adjoining business, the Blue House Lounge. The magistrate judge concluded that, although the police had probable cause to seize these premises while they obtained a warrant, the warrantless seizure was unreasonably long in violation of the Fourth Amendment to the U.S. Constitution. The district court agreed with the magistrate judge's conclusions, and the United States brought an interlocutory appeal to this court. We conclude that the seizure of the Cha residence, which lasted a minimum of 26.5 hours, was constitutionally unreasonable and that suppression of the evidence was warranted. We therefore affirm.

I

It was Saturday evening, January 12 2008, in Tamuning, Guam, when Officers Manibusan and Laxamana pulled into the parking lot of the Blue House Lounge karaoke bar to investigate a report they had received earlier that evening. Sonina Suwain ("Ms. Suwain"), who was from Chuuk, had reported that the owner of the Blue House Lounge, Ms. Cha, had Ms. Suwain's passport and was refusing to return it. When the officers arrived at the Blue House Lounge, Ms. Suwain told the officers that two of her cousins from Chuuk, Cindy and Vivian, ¹ were being heldinside the Blue House Lounge against their will.

Officer Manibusan sent Officer Tan, who had just arrived with several other officers, into the Blue House Lounge to find Cindy and Vivian so he could determine whether they were there "on their own free will." When Officer Tan entered the lounge, the karaoke machine was playing and customers were drinking at the bar. He found Cindy waiting tables. Officer Tan asked the bartender where he could find Vivian, and the bartender pointed to several numbered doors in the back of the restaurant. Officer Tan recognized these rooms as "comfort rooms, " which are fairly common in karaoke bars in Guam. In these rooms, customers "can buy drinks and take the waitress into the room and watch TV or sing songs or just chat." Officer Tan heard a woman's voice coming from one of the comfort rooms and knocked on the door. Vivian emerged looking disheveled, and a man stood hiding behind the door with his pants "barely on"—unzipped, unbuttoned, and unbuckled.

Once Officer Tan and the two women were outside, the women, crying, reported that they were being prostituted against their will. They maintained that Ms. Cha kept their passports and that if they refused to have sex with a customer, Ms. Cha would refuse to feed them that night. Hearing this, Officer Manibusan ordered Ms. Cha to close up for the evening even though the bar would normally stay open much later. The officers interviewed each customer before the customer left the bar.

After all the customers left the establishment, Officer Manibusan asked Ms. Cha to give him and a few other officers a "tour." Other officers completed a detailed "scene check." The officers' tour extended into the Chas' residence, which was connected to the Blue House Lounge by a hidden door. There, the officers found Mr. Cha asleep. They woke him and forced him outside.

With the "scene check" complete, Officer Manibusan instructed the Chas to lock up. Mr. Cha did so and kept the keys. All of the officers drove away, while the Chas escorted the women in their car down to the police station. It was 1 a.m. Sunday morning.

The officers interviewed the women throughout the night. Ms. Cha was not allowed to leave the precinct and was ultimately arrested at 6 a.m. Mr. Cha, however, remained free throughout, leaving at least once to get Ms. Cha some food.

At about 8 a.m., Mr. Cha returned home to find a police officer outside, guarding the house. He called his lawyer, Mr. Van de veld, anxiously recounted the night's events and told Mr. Van de veld that "the police were still there and would not allow him access to the premises." Mr. Van de veld told Mr. Cha that he would stop by as soon as he finished his golf game.

Around 12:45 p.m., Mr. Van de veld, with his golf buddies in tow, arrived at the Cha residence. The officers informed him that the Blue House Lounge and the Cha residence had been "detained" since around midnight and that no one was allowed to enter the premises. Mr. Van de veld left to drive his friends home.

When Mr. Van de veld returned to the Blue House Lounge at 2:30 p.m., Mr. Cha was still waiting outside. Mr. Van de veld was concerned about Mr. Cha's health because, earlier that afternoon, Mr. Cha looked "pale and was perspiring heavily." Knowing that Mr. Cha had diabetes, Mr. Van de veld asked if the police would allow Mr. Cha to find his insulin and glucose monitor inside the house. The police refused.

It was four hours later, at 7 p.m., when an officer finally accompanied Mr. Cha intothe house to get his medicine. Afterward, Mr. Cha and Mr. Van de veld waited outside Mr. Cha's house until 1 a.m. Monday morning when Mr. Van de veld went home to get some sleep. The record does not reveal where Mr. Cha slept while his house was "detained" through the night.

While Mr. Cha had been waiting outside his house all Sunday, the police had been back at the precinct preparing the warrant application. At about 9:20 Sunday morning, Officer Perez, who had not previously been involved in the case, received a call from his supervisor and was told to come into the office at noon for a briefing. At the briefing, Officer Perez was tasked with preparing the warrant application. But it was not until six-and-a-half hours later that he actually began work on the application; he wanted to wait to receive and review all the police reports first.

So, while more interviews were conducted and the investigation continued, Officer Perez changed the caption on the warrant application and updated his background information. He "urgently" worked from 6:30 to 9:15 p.m. Sunday to finish the application because, under a Guam ordinance, there was a presumption against searches conducted after 10 p.m. But when he found that he could not meet the 10 p.m. deadline, he worked until 4 a.m. to finish the warrant application. And, after he returned to work at 7:50 a.m. on Monday morning, Officer Perez brought the application to the Chief Prosecutor, who had made an unusual request to review the warrant application. Officer Perez then unsuccessfully searched for a magistrate judge throughout the morning. He finally found a magistrate judge to issue the warrant at 10:25 a.m. Monday.

Even with the warrant in hand, the police did nothing with the warrant for almost three hours. It was 1:15 p.m. when Officer Perez finally called Mr. Cha's law yer and told him that the search would be conducted at 2 p.m.—which happened to coincide with Ms. Cha's 2 p.m. arraignment. Mr. Van de veld requested that the police wait until after the arraignment to begin the search, but the police refused. By the time that Mr. Cha and Mr. Van de veld returned from the courthouse, the police had already began the search at the Blue House Lounge and Cha residence. The search concluded at 1 a.m. Tuesday, when Mr. Cha was finally allowed back into his house. An arrest warrant issued for Mr. Cha a few weeks later, on February 7, 2008.

In a pretrial hearing, the Chas moved to suppress the evidence seized at their house and the Blue House Lounge. The magistrate judge recommended and the district court concluded that the warrantless seizure of the Cha residence was unconstitutionally long. The district court ordered the evidence suppressed.

II

The United States appeals the suppression of the evidence pursuant to 18 U.S.C. § 3731, certifying that the evidence suppressed constituted substantial proof of material fact in the proceeding. We thus have interlocutory appellate jurisdiction pursuant to that statute. We review de novo the district court's decision to suppress the evidence, and we review its factual findings supporting that decision for clear error. See United States v. Jones, 286 F.3d 1146, 1150 (9th Cir.2002).

III

It is undisputed that the police officers had probable cause and that the officers were allowed to seize the Blue House Lounge and Cha residence for a reasonable time while they obtained a warrant. "Of course, a seizure reasonable atits inception... may become unreasonable as a result of its duration or for other reasons." Segura v. United States, 468 U.S. 796, 812, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984) (plurality opinion). Neither the Supreme Court nor this Circuit has identified when a warrantless seizure of a residence becomes unconstitutionally long. Here, the police seized the Cha house for at least 26.5 hours—from 8 a.m. on Sunday, January 13, 2008 to 10:25 a.m. on Monday, January 14, 2008.² Under the circumstances of this case, the duration of this seizure was too long under the Fourth Amendment.

The Supreme Court in Illinois v McArthur set forth the relevant test for determining the reasonableness of a seizure of a residence. 531 U.S. 326, 121...