U.S. v. Murphy

• Decision Date: 20 February 2008
• Docket Number: No. 06-30582.,06-30582.
• Citation: 516 F.3d 1117
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Stephen Wayne MURPHY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

516 F.3d 1117

UNITED STATES of America, Plaintiff-Appellee, v. Stephen Wayne MURPHY, Defendant-Appellant.

No. 06-30582.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 12, 2007.

Filed February 20, 2008.

Vance M. Waliser, Medford, OR, for the defendant-appellant.

Karin J. Immergut, United States Attorney, District of Oregon, Judith R. Harper, Special Assistant United States Attorney, Medford, 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-04-30057-ALA.

Before: ALFRED T. GOODWIN, STEPHEN REINHARDT, and MILAN D. SMITH, JR., Circuit Judges.

REINHARDT, Circuit Judge:

Defendant Murphy appeals the district court's denial of his motion to suppress evidence seized as a result of two searches. We conclude that one search was lawful and one was not. The first search, a protective sweep of storage units following Murphy's arrest, was justified by the officer's legitimate concern about the potential presence of confederates in the area. We conclude that the district court's ruling as to this search was correct. The second search occurred two hours later, after Murphy, who was residing in the units temporarily, had refused to consent but the officers subsequently obtained consent from the individual who rented the storage units. In light of the Supreme Court's recent decision in Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006), we reverse the district court's denial of the suppression motion as to this search.

I.

On August 4, 2004, officers from the Jackson County Narcotics Enforcement Team followed two individuals, Cozo and Wyman, who were observed purchasing precursor ingredients used to manufacture methamphetamine, to a storage facility. The officers knew that defendant Murphy was staying in storage units rented by Dennis Roper at this facility. They intercepted Wyman as he was driving away from the facility and he told them that Cozo was still inside unit 17. The officers waited outside until Cozo left the unit. Officer Thompson then knocked on the door and Murphy opened it holding a teninch piece of metal pipe. Thompson recognized Murphy and knew him to be a methamphetamine manufacturer. Thompson asked Murphy to drop the pipe, but he did not initially comply. Thompson then stepped to the right and asked again; this time Murphy dropped the pipe. From his position, Thompson was able to observe in plain view an operating methamphetamine lab inside the storage unit. As a result, he arrested Murphy. Murphy refused to give his consent to a search of the units, so Thompson performed a short protective sweep of units 17 and 18. Murphy was transported to jail and Thompson left the scene to prepare an affidavit for a search warrant

Later that afternoon, Roper arrived at the scene and police arrested him on outstanding warrants. Roper claimed that he had no knowledge of the methamphetamine lab but that he had given Murphy permission to reside at the facility. He then consented in writing to a search of the units. The officers seized the methamphetamine lab as a result of this search.

Murphy challenged the protective sweep and the validity of Roper's consent to the subsequent search of the units. The district court denied his motion to suppress and Murphy entered a conditional plea of guilty, reserving his right to appeal the denial of the motion. In March 2006, the Supreme Court held in Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006), that a warrantless entry and search is invalid when one occupant refuses permission to search even though another occupant with authority consents. Id. at 122-23, 126 S.Ct. 1515. Murphy filed a motion to reconsider in light of Randolph, which the district court denied. Murphy was sentenced to 120 months imprisonment. He now appeals the district court's denial of his motion to suppress the evidence seized in the storage unit.

II.

Both of the searches that .Murphy challenges were conducted without a warrant. Warrantless searches are unconstitutional unless the government demonstrates that they "fall within certain established and well-defined exceptions to the warrant clause." United States v. Delgadillo-Velasguez, 856 F.2d 1292, 1298 (9th Cir.1988) (quoting United States v. Perdomo, 800 F.2d 916, 918 (9th Cir.1986)).

One exception to the warrant clause is a protective sweep. A valid protective sweep must be supported by "`specific and articulable facts supporting: [the] belief that other dangerous persons may be in the building or elsewhere on the premises.'" Id. (quoting United States v. Whitten, 706 F.2d 1000, 1014 (9th Cir. 1983)). The district court held that the protective sweep was valid because "defendant was holding a metal pipe." Murphy argues that this is not enough to justify a protective sweep, and we agree. The purpose of a protective sweep is to protect law enforcement officers from attack by dangerous confederates. See Maryland v. Buie, 494 U.S. 325, 333-34, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). Thus, the government must articulate facts that could have led the officer to the conclusion that there might be another person hiding inside the storage unit. The fact that Murphy opened the door holding a metal pipe is irrelevant to that question. Thus, the district court erred in upholding the protective sweep for the reason that it did. We may, however, affirm the district court's decision on any ground supported by the record. See Atel Fin. Corp. v. Quaker Coal Co., 321 F.3d 924, 926 (9th Cir.2003) (citing Cigna Prop. & Cas. Ins. Co. v. Polaris Pictures Corp., 159 F.3d 412, 418 (9th Cir.1998)).

Although we do not believe that the district court's rationale for upholding the protective sweep was valid, we conclude that there is evidence in the record to support the search. Officer Thompson testified that he conducted the protective sweep because Roper, who he knew rented the storage unit, and for whom there was an outstanding arrest warrant, was not accounted for at the time. He testified that he was "looking for a body to make sure there was [sic] no other people in there." Because Thompson was aware of the possibility that Roper might be inside the storage unit and limited his protective sweep to the immediate area, we conclude that the government has met its burden of demonstrating that the sweep was valid.¹

III.

The second search was conducted after Murphy had refused to consent to a search, and had been arrested and removed from the scene. Officers then obtained consent from Roper two hours after Murphy had expressly refused to grant his.

The district court incorrectly held that because the officer had already viewed the methamphetamine lab in plain view during the protective sweep, the subsequent search was lawful. First, the plain view doctrine is not an exception to the warrant requirement. We have recognized that "even [when] contraband plainly can be seen and identified from outside the premises, a warrantless entry into those premises to seize the contraband would not be justified absent exigent circumstances." G & G Jewelry, Inc. v. City of Oakland, 989 F.2d 1093, 1101 (9th Cir.1993); see also Horton v. California, 496 U.S. 128, 137 & n. 7, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). Second, a warrantless search of the premises, such as a protective sweep, must be "`strictly circumscribed by the exigencies which justify its initiation.'" Mincey v. Arizona, 437 U.S. 385, 393, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) (quoting Terry v. Ohio, 392 U.S. 1, 25-26, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Under Mincey, once the exigencies of the initial entry have dissipated, the police must obtain a warrant for any further search of the premises... Id. at 392-93, 98 S.Ct. 2408. Thus, as soon as Thompson completed his protective sweep of the storage unit and departed, the exigency that justified that warrantless search ended. Neither the government nor the district court cites any further exigency that would have justified the second search two hours after the protective sweep was completed. Presumably, even the officer understood that he could not conduct further searches or seizures in the storage unit because he left the scene to obtain a warrant. The district court erred in relying on the plain view doctrine to justify a warrantless search when exigent circumstances did not exist.

The government contends further that the second search was independently justified by Roper's grant of his voluntary consent.² Murphy argues, however, that under Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006), Roper's consent to the second search did not overcome his earlier objection to it. In Randolph, police were called to a residence after a domestic dispute. Id. at 107, 126 S.Ct. 1515. There, Mrs. Randolph told the officer that her husband was a drug user and that there was evidence to support her accusation in the house. Id. The officer asked Mr. Randolph for permission to' search the house and he refused. Id. However, Mrs. Randolph consented to a search of the residence and the officer entered and seized evidence of Mr. Randolph's drug use. Id. The Supreme Court held that "a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident." Id. at 120, 126 S.Ct. 1515.

The government attempts to distinguish the present case from Randolph in two ways., First, Randolph involved co-tenants of a residence who both clearly had the authority to consent or refuse to consent to a search. This case involves a storage unit, which Murphy did not own or pay rent for and thus, the government contends, he did not have the authority to agree or object to a search. Second, in Randolph both the consenting tenant and the refusing...