U.S. v. Gust, 04-30208.

• Decision Date: 26 April 2005
• Docket Number: No. 04-30208.,04-30208.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tony Lawrence GUST, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 797

405 F.3d 797

UNITED STATES of America, Plaintiff-Appellee, v. Tony Lawrence GUST, Defendant-Appellant.

No. 04-30208.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 10, 2005.

Filed April 26, 2005.

Gerald R. Smith, Federal Defenders of Eastern Washington and Idaho, Spokane, WA, for the defendant-appellant.

James A. McDevitt, United States Attorney, and George J.C. Jacobs, III, Assistant United States Attorney, Spokane, WA, for the plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Washington; Wm. Fremming Nielsen, Senior District Judge, Presiding. D.C. No. CR-03-00172-WFN.

Before FERNANDEZ, TASHIMA, and GOULD, Circuit Judges.

GOULD, Circuit Judge.

After entering a conditional guilty plea, Tony Lawrence Gust appeals his judgment of conviction for possession of an unregistered firearm in violation of 26 U.S.C. § 5861(d). Pursuant to his plea agreement, Gust challenges the district court's denials of his suppression motion and his renewed suppression motion, arguing that the district court erred in determining that he had no legitimate expectation of privacy in a locked container that the district court found was readily identifiable as a gun case based on its outward appearance. We have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse the district court's denials of Gust's motion to suppress and his renewed motion to suppress and remand for further proceedings consistent with this opinion.

I

On February 1, 2003, Officer Wade Hulsizer of the Liberty Lake Police Department received a nonemergency call from a passerby who had observed individuals firing shotguns on private property located in a designated no-shooting zone. Officer Hulsizer drove to the scene of the reported shooting, and, upon hearing shots as he exited his patrol vehicle, called for law enforcement assistance.

Officer Hulsizer's request was answered by Deputy Richard K. Johnson of the Spokane County Sheriff's Department. After Deputy Johnson arrived on the scene, he and Officer Hulsizer entered the property to investigate the shots. They encountered Gust walking with his girlfriend, Regina Lyons, and his friend, Brian Olsen. Gust and his companions were carrying cases that the officers testified they were readily able to identify as gun cases.¹ The officers detained Gust and his companions, and ran a warrant check that came back positive for Olsen and "unconfirmed" for Gust.

Gust informed the police that the trio had been engaged in target practice and that they had received permission to do so. Gust also told the police that the cases he and his companions were carrying contained guns. Officer Hulsizer searched the gun cases² and found the sawed-off shotgun that formed the basis for Gust's prosecution and conviction for possession of an unregistered firearm in violation of 26 U.S.C. § 5861(d).³

Gust made a pretrial motion to suppress the sawed-off shotgun and the statements he made after Officer Hulsizer discovered the gun, arguing that the police had violated his Fourth Amendment rights by searching his locked gun case without a warrant. The government responded by arguing that the search was justified under both the "single-purpose container" and the exigent circumstances exceptions to the warrant requirement. The government further asserted that Gust had consented to the search.

The district court conducted a suppression hearing and then issued a written order denying Gust's motion. Although the district court rejected the government's contentions that the search of Gust's gun case "was a consensual search or conducted under exigent circumstances," it relied on United States v. Huffhines, 967 F.2d 314 (9th Cir.1992), to uphold the search on the ground that Gust "had no reasonable expectation of privacy in the gun case[ ]" because Officer Hulsizer "was able to infer from the distinctive configuration of the case[ ] that [it] contained [a] gun[ ]" and "[i]t was almostas if the gun [ ] were in plain view."⁴

Gust subsequently renewed his motion to suppress, which was denied after the district court held a second hearing. Gust then entered a conditional guilty plea reserving his right to appeal the district court's denials of his motion to suppress and his renewed motion to suppress. This timely appeal followed.

II

A district court's denial of a motion to suppress is reviewed de novo, while the factual findings underlying the denial of the motion are reviewed for clear error. United States v. Bynum, 362 F.3d 574, 578 (9th Cir.2004). "Whether or not an individual's expectation of privacy was objectively reasonable is also reviewed de novo." United States v. Bautista, 362 F.3d 584, 589 (9th Cir.2004).

Clear error review is "significantly deferential, and we must accept the district court's factual findings absent a definite and firm conviction that a mistake has been committed." Leavitt v. Arave, 383 F.3d 809, 815 (9th Cir.2004) (per curiam) (internal quotation marks omitted). "So long as the district court's view of the evidence is plausible in light of the record viewed in its entirety, it cannot be clearly erroneous, even if the reviewing court would have weighed the evidence differently had it sat as the trier of fact." SEC v. Rubera, 350 F.3d 1084, 1093-94 (9th Cir.2003).

III

Gust contends that the district court erred in applying the "single-purpose container" exception to uphold the warrantless search of his gun case because his case was "of such a nature that [it] could have contained any number of things," not just a gun. We agree.⁵

A

The "single-purpose container" exception to the warrant requirement originated in the United States Supreme Court's decision in Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), overruled on other grounds by California v Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991). The central question in Sanders was "whether, in the absence of exigent circumstances, police are required to obtain a warrant before searching luggage taken from an automobile properly stopped and searched for contraband." Id. at 754, 99 S.Ct. 2586. The Court answered this question in the affirmative, but declared:

Not all containers and packages found by police during the course of a search will deserve the full protection of the Fourth Amendment. Thus, some containers (for example a kit of burglar tools or a gun case) by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance.

Id. at 764 n. 13, 99 S.Ct. 2586.⁶

In Robbins v. California, a plurality of four justices elaborated on the "single-purpose container" exception, explaining that the exception is:

little more than another variation of the "plain view" exception,⁷ since, if the distinctive configuration of a container proclaims its contents, the contents cannot fairly be said to have been removed from a searching officer's view. The same would be true, of course, if the container were transparent, or otherwise clearly revealed its contents. In short, the negative implication of footnote 13 of the Sanders opinion is that, unless the container is such that its contents may be said to be in plain view, those contents are fully protected by the Fourth Amendment.

453 U.S. 420, 427, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981) (plurality opinion), overruled on other grounds by United States v. Ross, 456 U.S. 798, 102 S.Ct 2157, 72 L.Ed.2d 572 (1982).⁸

Applying these principles to the facts before them, the Robbins plurality held that the police could not rely on the footnote 13 exception to justify the warrantless search of packages described as "plastic wrapped green blocks" that were found in the defendant's trunk. Id. at 428, 101 S.Ct. 2841. Notwithstanding that the officers had smelled marijuana smoke when the defendant opened his car door, that marijuana and drug paraphernalia was found in the passenger compartment of the car, and that the defendant had stated, "[w]hat you are looking for is in the back," the plurality invalidated the search because the record "did not establish that marihuana is ordinarily `packaged this way.'" Id. at 422, 428, 101 S.Ct. 2841; see also id. at 442, 101 S.Ct. 2841 (Rehnquist, J., dissenting). According to the plurality:

Expectations of privacy are established by general social norms, and to fall within the [single-purpose container] exception of [Sanders] footnote [13] a container must so clearly announce its contents, whether by its distinctive configuration, its transparency, or otherwise, that its contents are obvious to an observer. If indeed a green plastic wrapping reliably indicates that a package could only contain marihuana, that fact was not shown by the evidence of record in this case.

Id. at 428, 101 S.Ct. 2841.⁹

In Miller, we interpreted the Robbins plurality opinion to mean that courts should make judgments about the applicability of the "single-purpose container" exception by evaluating the nature of containers from the objective viewpoint of a layperson, rather than from the subjective viewpoint of a trained law enforcement officer, and without sole reliance on the specific circumstances in which the containers were discovered. 769 F.2d at 560. In other words, because the rationale behind the exception, "focuses upon the individual's reasonable expectation of privacy, which is established by `general social norms,' the extent to which a container's exterior reveals its contents should not be solely determined either by the circumstances of its discovery, or by the experience and expertise of law enforcement officers."¹⁰ Id. (internal citation omitted). We declined in Miller to apply the "single-purpose container" exception to uphold the warrantless search of a plastic bag leaking a white powder that tested negative for cocaine and that was lacking any distinctive shape or odor because the bag "did not, by its outward...