U.S. v. Mayer

• Decision Date: 30 June 2008
• Docket Number: No. 07-30274.,07-30274.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Casey Dale MAYER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

530 F.3d 1099

UNITED STATES of America, Plaintiff-Appellee, v. Casey Dale MAYER, Defendant-Appellant.

No. 07-30274.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 5, 2008.

Filed June 30, 2008.

Craig E. Weinerman, Assistant Federal Public Defender, Eugene, OR, for the defendant-appellant.

Frank R. Papagni, Jr., Assistant United States Attorney, Eugene, OR, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon; Ann L. Aiken, District Judge, Presiding. D.C. No. CR-05-60072-ALA.

Before: RICHARD C. TALLMAN, RICHARD R. CLIFTON, and N. RANDY SMITH, Circuit Judges.

N.R. SMITH, Circuit Judge:

The district court properly denied Casey Dale Mayer's motion to suppress, because (1) officers had probable cause to believe that Mayer lived at the residence they searched and (2) the conditions of his probation authorized the search. We also hold that the district court properly found that Mayer's prior conviction for first-degree burglary in Oregon was a predicate "violent felony" under the residual clause of the Armed Career Criminal Act ("ACCA"). In the ordinary case, conduct falling within Oregon's first degree burglary statute presents a serious possibility of risk of physical injury to others. Lastly, the district court properly concluded that Mayer's two prior drug convictions were "serious drug offenses" under the ACCA because Mayer's offenses involved manufacturing and delivering marijuana and Oregon law prescribes a maximum term of imprisonment of ten years or more for such offenses. We have jurisdiction under 28 U.S.C. § 1291. We affirm.

BACKGROUND

I. Factual Background

In February 2004, Mayer was on both post-prison supervision and probation as a result of two convictions for drug-related offenses.¹ Mayer's probation record indicated that he had lived at 103 Hansen Lane since September 2000. On August 26, 2003, Mayer informed his Parole and Probation Officer, Melinda Rauch, that he had moved temporarily to a new residence located at 605 Davis Street. Between August 2003 and February 2004, Rauch met with Mayer twice at 605 Davis Street.

On February 24, 2004, one of Mayer's former neighbors from Hansen Lane called Rauch. He informed her that Mayer was again living at 103 Hansen Lane and was likely selling drugs out of the house. Rauch drove by 103 Hansen Lane on several occasions; however, she was not able to personally verify the caller's information.² In April 2004, Mayer absconded from probation and post-prison supervision, and two warrants were issued for his arrest.

On December 28, 2004, Parole and Probation supervisor Susan McFarland received an anonymous phone call from a man who refused to identify himself. The man stated (a) that "absconded parolee Casey Mayer" was at 103 Hansen Lane, (b) that he was certain that Mayer had a firearm, and (c) that Mayer was probably growing marijuana. The man expressed fear that Mayer would kill him if Mayer found out that he had called the probation department. He also indicated that Mayer would try to escape out of the back of the house if probation officers knocked on the front door.

McFarland's practice was to use the probation department's database to verify the information from an anonymous caller. McFarland used the database to check Mayer's listed address, prior contacts and convictions, outstanding warrants, and to assess his dangerousness. McFarland also called Rauch, who advised her that there was a high likelihood that Mayer would have weapons in the house and that he would resist arrest.

McFarland and four other Parole and Probation officers then went to 103 Hansen Lane to execute the two outstanding arrest warrants. When they arrived, McFarland positioned two officers at the front door and sent two other officers to the rear of the house (where the officers entered Mayer's backyard through an open gate) to block the suspected escape route and to cover for the other officers. McFarland then noticed a man and a woman standing directly across the street. When McFarland approached the couple, the man told McFarland that Mayer lived at 103 Hansen Lane, that Mayer lived by himself, and that he had noticed a lot of people going in and out of the house.

McFarland returned to join the officers at the front of the house, who were pounding on the front door and identifying themselves loudly and repeatedly. Although the officers heard someone moving around in the house and the sounds of a television coming from inside the house, no one answered the door.

McFarland then went to the back of the house to check on the other two officers. While in the backyard, she observed an 18-inch gap in the backyard fence, which she believed to be the escape route described by the anonymous caller. McFarland also observed a bright light emanating from a plastic vent in the house's foundation, and she heard a loud electrical buzzing noise coming from behind the vent. McFarland peeked through a slit in the vent, saw a marijuana plant, and smelled marijuana.

While McFarland was at the back of the house, one of the officers (positioned at the front of the house) heard sounds coming from the attic and called the sheriff's department to request back-up assistance. When the sheriff's deputies arrived, McFarland told Deputy Sheriff Eric Franklin about her observations at the rear of the house. Franklin positioned himself at the back of the house, outside of the fence. Franklin had a photograph of Mayer that he handed through the slats in the fence to Deputy Sheriff David Thomas, who was stationed in the backyard. Thomas told Franklin that he had seen Mayer inside of the house. Franklin then crossed the fence and went into the backyard, where he observed a marijuana plant, smelled the odor of growing marijuana, and saw a PVC pipe consistent with a hydroponic marijuana growing operation.

Approximately 1.5 hours after the probation officers arrived, Mayer and his brother came out of the house. Mayer admitted that there was marijuana growing inside the house, but denied the presence of firearms. He also refused to consent to a search of the residence.

Deputy Marvin Combs then applied for, and obtained, a search warrant based on information that Franklin provided over the telephone. The subsequent search revealed marijuana, items associated with growing marijuana, a .45 caliber pistol in the attic, and a box of .45 caliber ammunition in the bedroom.

II. Procedural History

On July 21, 2005, Mayer was indicted for being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1), as enhanced under the ACCA. On November 18, 2005, Mayer filed a motion to suppress the firearm. On March 8, 2006, following a suppression hearing, the district court denied the motion. On June 30, 2006, Mayer entered a conditional guilty plea pursuant to Federal Rule of Criminal Procedure 11(a)(2), expressly reserving in writing the right to appeal the denial of his suppression motion.

The government argued that the district court should enhance Mayer's sentence under the ACCA, because Mayer had one prior conviction for a violent felony and two prior convictions for serious drug offenses. The ACCA imposes a special mandatory 15-year prison term upon felons who unlawfully possess a firearm and who also have three or more previous convictions for "`a violent felony or a serious drug offense.'" United States v. Jennings, 515 F.3d 980, 987 (9th Cir.2008) (quoting 18 U.S.C. § 924(e)(1)). On July 13, 2007, following a sentencing hearing, the district court determined that Mayer's prior convictions were qualifying offenses under the ACCA, and sentenced Mayer to 180 months imprisonment, followed by five years of supervised release.

STANDARDS OF REVIEW

We review de novo a district court's denial of a motion to suppress. United States v. Lopez, 474 F.3d 1208, 1212 (9th Cir.2007). We review a district court's underlying factual findings for clear error. Id. We may affirm the denial of a motion to suppress "on any basis fairly supported by the record." United States v. Todhunter, 297 F.3d 886, 889 (9th Cir.2002) (internal quotation marks omitted). We also review de novo whether a prior conviction is a predicate felony under the ACCA. United States v. Grisel, 488 F.3d 844, 846 (9th Cir.2007) (en banc).

DISCUSSION

I. Motion to Suppress

Mayer first argues that the officers illegally entered his backyard and that, consequently, their observations of criminal activity were tainted. Mayer therefore contends that the officers' observations while in his backyard were improperly included in the affidavit supporting the search warrant. We disagree.

In determining whether a search is reasonable, we examine the "totality of the circumstances" in a "common-sense" manner. United States v. Diaz, 491 F.3d 1074, 1078 (9th Cir.2007). Because probationers enjoy only a "conditional liberty properly dependent on observance of special [probation] restrictions," states may constitutionally permit probation officers to conduct searches without a warrant and with less than probable cause. Griffin v. Wisconsin, 483 U.S. 868, 873-880, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987) (alteration in original) (quoting Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)). Thus, warrantless searches of probationers' residences are permissible under the Fourth Amendment when they are authorized by a condition of probation and supported by reasonable suspicion of criminal activity. United States v. Knights, 534 U.S. 112, 121-22, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001).

Even though officers only entered Mayer's backyard during the probation search, the conditions of Mayer's probation authorized a warrantless search of his entire residence. One condition of Mayer's probation was that he "[p]ermit the probation officer to visit [him] or [his] work site or residence and to conduct a walk-through of the common areas and of the rooms in...