U.S. v. Lemus

Decision Date18 February 2010
Docket NumberNo. 08-50403.,08-50403.
Citation596 F.3d 512
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Juan Herman LEMUS, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Randy K. Jones, Esquire, Kyle W. Hoffman, Assistants U.S., Office of the U.S. Attorney, San Diego, CA, for Plaintiff-Appellee.

Jeremy Warren, Law Offices of Jeremy D. Warren, San Diego, CA, for Defendant-Appellant.

D.C. No. 3:07-cr-03238-VQH-1, Southern District of California, San Diego.

Before: RONALD M. GOULD, JOHNNIE B. RAWLINSON and JAY S. BYBEE, Circuit Judges.

ORDER

A judge of this court sua sponte called for this case to be reheard en banc. A vote was taken, and a majority of the active judges of the court did not vote for a rehearing en banc. Fed. R.App. P. 35(f). The call for this case to be reheard en banc is DENIED.

Chief Judge KOZINSKI, with whom Judge PAEZ joins, dissenting from the denial of rehearing en banc:

This is an extraordinary case: Our court approves, without blinking, a police sweep of a person's home without a warrant, without probable cause, without reasonable suspicion and without exigency—in other words, with nothing at all to support the entry except the curiosity police always have about what they might find if they go rummaging around a suspect's home. Once inside, the police managed to turn up a gun "in plain view"—stuck between two cushions of the living room couch—and we reward them by upholding the search.

Did I mention that this was an entry into somebody's home, the place where the protections of the Fourth Amendment are supposedly at their zenith? The place where the "government bears a heavy burden of demonstrating that exceptional circumstances justif[y] departure from the warrant requirement." United States v. Licata, 761 F.2d 537, 543 (9th Cir.1985). The place where warrantless searches are deemed "presumptively unreasonable." Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).

Government encroachment into the home, which I lamented three years ago in United States v. Black, 482 F.3d 1044, 1045-46 (9th Cir.2007) (Kozinski, J., dissenting from the denial of rehearing en banc), has continued, abetted by the creative collaborators of the courts. This is another example: The panel goes to considerable lengths to approve a fishing expedition by four police officers inside Lemus's home after he was arrested just outside it. The opinion misapplies Supreme Court precedent, conflicts with our own case law and is contrary to the great weight of authority in the other circuits. It is also the only case I know of, in any jurisdiction covered by the Fourth Amendment, where invasion of the home has been approved based on no showing whatsoever. Nada. Gar nichts. Rien du tout. Bupkes.

Whatever may have been left of the Fourth Amendment after Black is now gone. The evisceration of this crucial constitutional protector of the sanctity and privacy of what Americans consider their castles is pretty much complete. Welcome to the fish bowl.

1. The panel approves the entry of a team of police into Lemus's home by relying on Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990), but Buie is nowhere on point. Buie was a case where the police were already legitimately inside the home when they arrested the suspect. Id. at 328, 110 S.Ct. 1093. The question was whether they could look in the area immediately adjoining the arrest where someone who could ambush them might be hiding. Id. at 328, 330, 333, 110 S.Ct. 1093. The Court recognized that police inside an arrestee's home are peculiarly vulnerable because they are on the suspect's turf—a place where someone dangerous might be hiding. Id. at 333-36, 110 S.Ct. 1093. The risk is present in every case because a suspect's home is inherently dangerous for police who must enter to make an arrest. Id. But Buie says nothing at all about police who conduct an arrest outside of the home. It does not authorize police to enter a home for the very purpose of conducting a search. That is the situation we have here.

Lemus was in his side yard when Detectives Longoria and Diaz called out that they were there to arrest him. Two patrol officers arrived at the scene just as Lemus started to back slowly towards his living room door. After he opened it, "[t]he officers were there in an instant, taking hold of Lemus and handcuffing him before he could fully enter the doorway and retreat into his living room." United States v. Lemus, 582 F.3d 958, 960 (9th Cir.2009). Note: They grabbed him and had him handcuffed "before he could fully enter the doorway" and before he could "retreat into his living room." Instead of walking away with the handcuffed Lemus in tow, the officers entered the apartment and had a good look around. "Checked the bedroom and bathroom too." Id. The detectives then went into the living room, where Longoria found a gun. Id. at 960-61.

The panel says the police could enter the home—with no suspicion whatsoever—because Lemus's living room "immediately adjoined" the place surrounding the arrest, Lemus, 582 F.3d at 964, but Buie only authorizes a suspicionless search when the police make an "in-home arrest" (and then only for a small area near the arrest, not a grand tour of the entire apartment). 494 U.S. at 333-36, 110 S.Ct. 1093. Here there was no in-home arrest. How do we know this? Because the opinion says so: After making the arrest, Longoria "sent" the patrol officers "in" to Lemus's apartment. Lemus, 582 F.3d at 960. Officers who are already inside an apartment don't need to be sent in.

The entire justification Buie gives for a warrantless search is that officers must be able to protect themselves when they perform an "in-home arrest." Buie, 494 U.S. at 333-34 & n. 1, 110 S.Ct. 1093 When an arrest doesn't take the police into a suspect's home, they aren't forced into the "confined setting of unknown configuration" that Buie worries about. Id. at 333, 110 S.Ct. 1093. They're outside, just the same as in an "on-the-street or roadside investigatory encounter." Id. Yet "[e]ven in high crime areas, where the possibility that any given individual is armed is significant," the Court still requires "reasonable, individualized suspicion" before police can perform a search. Id. at 334 n. 2., 110 S.Ct. 1093

The panel's fig leaf for this clearly illegal search is that "at most Lemus was only partially outside" of his living room door when the officers seized him. Lemus, 582 F.3d at 963. So what? Under Buie, Lemus's location at the time of arrest is irrelevant; it's the location of the police that matters. Buie authorizes a search incident to an in-home arrest because being inside a suspect's home "puts the officer at the disadvantage of being on his adversary's `turf,'" 494 U.S. at 333, 110 S.Ct. 1093 (emphasis added), where the officer has more to fear than in an "on-the-street-encounter[]." Id. at 334 n. 2, 110 S.Ct. 1093. If the police surround a suspect's home, guns drawn, and order him out—and he complies—may the police go rummaging through his home without suspicion because the suspect was arrested when he was inside? Surely not.

Whatever portion of Lemus's body may have gotten into his living room, the officers seized and handcuffed him without themselves entering. Lemus, 582 F.3d at 960. Here is how Longoria testified about the arrest:

Q: Okay. Now when you arrested Mr. Lemus, he was standing in front of the sliding glass door?

A: No, he had—he had stepped back into the sliding glass door. He had just broken the threshold pretty much.

Q: So he wasn't in the apartment, he was just inside the door?

A: No, he was inside the apartment. He had stepped back into the apartment breaking the threshold into the apartment, and that is where we immediately grabbed up [sic] him before he could make it into one of the rooms there.

(emphasis added). [ER 42] Note the emphasis on "breaking the threshold;" this was a well-coached witness. But what his testimony makes clear is that the officers were not required to go inside Lemus's home to arrest him; they chose to go inside, unnecessarily exposing themselves to the very danger the Supreme Court sought to ameliorate in Buie. The district court's findings and Longoria's affidavit confirm this. [ER 10-11, 14, 60]

Warrantless searches have "always been considered to be a strictly limited right ... grow[ing] out of the inherent necessities of [certain] situation[s]." Chimel v. California, 395 U.S. 752, 759, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) (internal quotation marks omitted). The "scope" of a warrantless search "must therefore be strictly defined in terms of the justifying `exigent circumstances.'" Coolidge v. New Hampshire, 403 U.S. 443, 478, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The Buie exception is particularly toxic to Fourth Amendment values because it permits a search with zero individualized suspicion—with nothing at all but the presumption that the home is a dangerous place for the police. This is a fair presumption if the police are already inside the home and exposed to danger. But to use the exception as a wedge for entering the home turns Buie inside out.

2. We've dealt with an arrest made just outside the home before. In United States v. Paopao, 469 F.3d 760 (9th Cir.2006), we upheld a search of an apartment after officers arrested a man in the hallway right outside, but only because the officers had "a reasonable suspicion of danger." Id. at 766 (citing Buie, 494 U.S. at 335-36, 110 S.Ct. 1093). The opinion nowhere cites Paopao. It's not because the panel wasn't aware of the case—both parties cited it in their briefs.

The panel quotes instead from an older case, United States v. Hoyos: "A bullet fired at an arresting officer standing out-side a window is as deadly as one that is projected from one room to another." 892 F.2d 1387, 1397 (9th Cir.1989), overruled on other grounds by United States v. Ruiz, 257 F.3d 1030, 1032 (9th Cir.2001) (en banc). Yet...

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