U.S. v. Gorman

• Decision Date: 31 December 2002
• Docket Number: No. 02-50053.,02-50053.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Clarence Kenneth GORMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

314 F.3d 1105

UNITED STATES of America, Plaintiff-Appellee, v. Clarence Kenneth GORMAN, Defendant-Appellant.

No. 02-50053.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 5, 2002.

Filed December 31, 2002.

Stephen D. Lemish, El Cajon, CA, for the defendant-appellant.

Steven F. Miller, Assistant United States Attorney, San Diego, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; Judith N. Keep, District Judge, Presiding. D.C. No. CR-00-03663-K.

Before: PREGERSON, THOMPSON, and WARDLAW, Circuit Judges.

PREGERSON, Circuit Judge.

On October 19, 2001, Clarence Kenneth Gorman ("Gorman") entered a conditional guilty plea, pursuant to FED. R. CRIM. P. 11(a)(2), to possession of a counterfeit postal key, in violation of 18 U.S.C. § 1704. Gorman now appeals the two issues he reserved for review: the District Court's denial of his motion to suppress certain evidence and the denial of his motion to dismiss based on the Speedy Trial Act, 18 U.S.C. § 3161. Gorman argues that the District Court erred by not suppressing evidence police officers seized upon entering a third-party residence pursuant to an arrest warrant for Gorman. In addition, Gorman argues that his Speedy Trial Act rights were violated as over 90 days ran on the Speedy Trial clock and, therefore, the district court erred by not dismissing the indictment.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

Before dawn, on November 6, 2000, while it was still dark outside, Helen Anzelmo Vestle heard loud banging noises outside her home on Rancho Hills Drive in San Diego, California.

Helen testified at an evidentiary hearing that after hearing the loud banging noises, Gorman, her boyfriend, woke up and told her, "I think it's the police." Helen got out of bed. Wearing only her nightshirt, she walked to the door. When she saw the police outside, Helen asked, "Can I help you?" According to Helen, the police told her they needed her to open the door. Helen explained that she wasn't dressed and asked why she needed to open the door. The officers told Helen that they had a warrant for Vestle Anzelmo. Helen again asked why she needed to open the door and the officers again stated that they had a warrant; she opened the door.

Three officers were standing at the door. The officers asked if Ken Gorman was there and told Helen she could be arrested for harboring a federal fugitive. "I was kind of bewildered ... [a]nd I was really nervous because my mom and the baby, they were in the house," Helen testified. She told the officers, "Look, no one's in the house except for my mom and the baby." The officers asked what room Gorman was in; again, Helen stated that no one was in the house but her mom and her baby. The officers told Helen to sit down outside and entered her home.

At the same evidentiary hearing, San Diego Police Officer Lawrence Hal testified that he first learned about Gorman in September or October 2000, when a citizen informed him that a man named "Kenny" was stealing mail using mail box keys. The citizen also told the police that Kenny had several cars parked by a housing complex where he supposedly lived, and that a male and female were staying in Kenny's white van. Officer Hal and his partner Officer Steve Schnick went to the white van and there met David Ordway. Ordway informed the officers that Kenny's full name was Clarence Kenneth Gorman, and that Kenny was staying with his girlfriend Helen because he knew that he was wanted by the police. After learning this information, Officer Hal ran a records check and learned that there was an active federal felony arrest warrant for Gorman, who was in violation of the conditions of his supervised release.¹ Officer Hal also conducted an ARJIS² check on Gorman's companions looking for the name "Helen." They located a Helen, a known associate of Gorman, who lived on Rancho Hills Drive.

Armed with the above-stated information but without a search warrant, four to five San Diego police officers arrived at the Rancho Hills Drive address around 4:30 a.m. on November 6, 2000. The officers identified a Volkswagen parked in front of the residence as belonging to Gorman. For approximately an hour the officers kept the home under surveillance, but did not see Gorman go in or out. Around 5:30 a.m., the officers knocked on the front door — "pound[ed] on the front door pretty good" according to Officer Hal — but no one answered. Officer Hal thought he heard someone yell from inside, "Who is it?" The officers moved from the front door to the back door where they thought the sound originated and knocked again. When Helen opened the door, Officer Hal introduced himself as an officer with the San Diego Police Department and told Helen they had an arrest warrant for Kenny Gorman.

Officer Steve Schnick testified that Helen told the officers that it was her mom's house and her son was in the home. The officers repeatedly asked "Where's Kenny?" Helen kept looking over her shoulder and finally told the officers that Kenny was in bed.

According to Officer Hal, however, Helen immediately told them that Kenny was in bed sleeping. Officer Hal removed his firearm from his holster. He ordered Helen to step outside by the front door with the other officers. Officer Hal recalled that Helen was told there was a traffic warrant for her, but was unable to "recall whether I mentioned it or whether someone else did" or "at what point we told her about her traffic warrant."

With their flashlights shining, Officers Hal and Schnick entered Helen's home and saw Gorman in bed. The officers, with their guns drawn, shined their flashlights on Gorman and told him "San Diego Police Department, we have a warrant for your arrest." During the arrest, the officers found three mailbox keys and Gorman's wallet which contained several checks that were issued to other people. In Gorman's car the officers found a plastic bag of checks also issued to other people. The officers arrested Gorman for violation of his supervised release.

On November 29, 2000, an indictment was filed in the United States District Court for the Southern District of California, charging Gorman with possession of a postal key, in violation of 18 U.S.C. § 1704, and possession of stolen mail, in violation of 18 U.S.C. § 1708. The court appointed counsel for Gorman.

On December 29, 2000, Gorman brought two motions: the first to suppress evidence seized subsequent to the arresting officers' entry into the home of a third-party without a search warrant; the second to exclude evidence of other crimes, wrongs, or acts under FED. R. EVID. 404(b), including his 1999 conviction for possessing a counterfeit postal key.

On February 5, 2001, the District Court conducted a hearing on the suppression motion. The District Court found that "at the most, [the officers] had reasonable suspicion to believe that they could locate Kenny Gorman at [Helen's] residence." The District Court stated:

It's not at all clear to me that they had even a reasonable suspicion to believe that Kenny Gorman was in that residence at that time .... [T]hey knew that he was connected with a woman named Helen, and that one of his cars was out front. But since at least he's got two [cars], because he's letting another guy sleep in one, I'm not sure that the presence of the car out there indicates that Kenneth Gorman, to any reasonable person, is likely to be in the house at that moment. It's an indication he could be — I mean, reasonable suspicion, I guess I would say. But probable cause, no.

Finding there was no probable cause, "no consent, no exigency, and no search warrant, and it was nighttime," the District Court granted Gorman's motion to suppress the evidence. Gorman's motion to exclude evidence of other crimes, wrongs, or acts under FED. R. EVID. 404(b) was not heard.

On February 26, 2001, the government filed a motion for reconsideration of the District Court's order suppressing evidence. The government correctly argued that United States v. Underwood, 717 F.2d 482 (9th Cir.1983) (en banc), controlled.

On March 5, 2001, the District Court held a hearing on the government's motion to reconsider its February 5, 2001 ruling that the police officers' entry into Helen's residence was illegal. Although troubled by the nighttime entry of a third-party home, the District Court reversed itself. In detail, the court explained:

This wasn't some situation that would justify a nighttime entry. And yet we've got a nighttime entry in this case because there was an arrest warrant. And except for Underwood, they have the right — or because of Underwood, they have a right to invade really any house where they have reason to believe... Mr. Gorman may be present, and that's all they would have in this case. They clearly didn't have probable cause.

The other thing that was the anomaly to me is if the officers had tried to go get a search warrant, I do not believe a neutral magistrate would have executed a neutral search warrant and found that the tip from the guy who was sleeping in his car and the presence of Gorman's car indicated probable cause to believe that Mr. Gorman was located in this residence.

So again ... you couldn't do nighttime, there wasn't probable cause but, because it's a human being, you can — you can forcibly enter the house and seize him....

At the end of the reconsideration hearing, the District Court scheduled April 9, 2001, to hear Gorman's motion in limine to suppress evidence of other crimes, wrongs, or acts under FED. R. EVID. 404(b). Gorman's trial was scheduled to begin the next day, April 10, 2001. On March 19, 2001, Gorman moved for a competency evaluation. The District Court vacated the dates for the hearing on Gorman's 404(b) motion and Gorman's trial. A...