U.S. v. Shaibu

• Citation: 895 F.2d 1291
• Decision Date: 05 December 1989
• Docket Number: No. 88-5367,88-5367
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Shafii SHAIBU, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1291

895 F.2d 1291

58 USLW 2539

UNITED STATES of America, Plaintiff-Appellee, v. Shafii SHAIBU, Defendant-Appellant.

No. 88-5367.

United States Court of Appeals Ninth Circuit.

Submitted Dec. 5, 1989. ^*

Decided Feb. 14, 1990.

Dennis J. Landin, Senior Deputy Federal Public Defender, Los Angeles, Cal., for defendant-appellant.

John F. Walsh, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before BROWNING, FERGUSON and REINHARDT, Circuit Judges.

FERGUSON, Circuit Judge:

The defendant appeals from the District Court's denial of his Motion to Suppress Evidence. California police officers searched his apartment after entering without a warrant. The police obtained evidence and statements from him which were used to support charges of bank fraud. Shafii Shaibu asserts all evidence and statements obtained during the search should be suppressed on two grounds: (1) the warrantless entry into his apartment and ensuing search violated the Fourth Amendment; and (2) the police conducted a custodial interrogation without the warnings required under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We agree that the warrantless entry into Shaibu's apartment violated the Fourth Amendment, and do not reach the issue of custodial interrogation.

I.

On December 11, 1987, four California police officers went to the apartment complex where Shaibu lived. They had neither a search warrant nor an arrest warrant. The officers were looking for another man, Idahosa Bazuaye, who was a suspect in an ongoing scheme of fraudulent withdrawals from Security Pacific National Bank's Automatic Teller Machines. The officers believed that Bazuaye lived in Apartment 115 at 14019 Cerise, in Hawthorne, California. In fact, that was not Bazuaye's address, but Shaibu's. Both Shaibu and Bazuaye are black Africans, Nigerian nationals.

The apartment complex had a front gate and buzzer system. The police pressed the buzzer for apartment 115 and heard an accented voice ask who was there. The officers did not respond. The gate release sounded, and they entered the complex. They walked down the hallway onto which apartment 115 opened. Shaibu had stepped out of his apartment, leaving the door open, and initially began walking toward the officers in the hallway. One of the officers, Officer McClure, identified himself as a policeman, and asked Shaibu if Bazuaye was inside the apartment. Officer McClure described the exchange in the hallway as follows:

[I]t was rather ... quick occurrences. I think I asked him if Idahosa Basuaye was inside, and he [Shaibu] had turned around and started walking to the apartment, and we followed him into the apartment.

According to the District Court's findings of fact, soon after Officer McClure identified himself, Shaibu walked back "into the apartment, leaving the door open as the detectives followed him inside. Shaibu did not ask them to wait outside, to leave, or to produce a search warrant." The officers did not ask permission to enter Shaibu's apartment nor state their intention to do so, but simply followed Shaibu through the open door. The District Court found that Shaibu's failure to object created an "implicit invitation" to enter and search the apartment.

Once inside, the officers asked Shaibu for identification. As Shaibu opened his wallet, Officer McClure seized the wallet and removed a Security Pacific ATM card. After asking Shaibu questions about the ATM card, a second officer asked Shaibu if he could "look around the apartment to see whether Bazuaye was there." Shaibu answered, "Sure, go ahead." Neither the government nor the District Court relied on this statement to establish Shaibu's consent to search; rather this explicit statement was found to show that the scope of consent established by the initial "implicit invitation" was never limited by any objection.

The officers did not find Bazuaye, but did find evidence of bank fraud. Shaibu subsequently was indicted and entered a conditional guilty plea, preserving his right to appeal the District Court's denial of his Motion to Suppress, to one count of bank fraud under 18 U.S.C. Sec. 1344. He was sentenced to three years probation and restitution of $300, and now timely appeals denial of the Motion to Suppress.

In its ruling, the District Court determined that the evidence and statements obtained after the warrantless entry were admissible because the entry did not violate the Fourth Amendment. Our review focuses on the District Court's belief that Shaibu consented to the detectives' entrance to his apartment "by implicit invitation." The District Court states, "[u]nder all the circumstances of this case, the court infers consent from the cooperative attitude and conduct of the defendant ... Shaibu cooperated by responding to McClure's questions and leaving his apartment door open as they walked inside. He did not ask the detectives to wait outside, leave or produce a warrant; nor did he otherwise object in any way to the officers' presence inside the apartment."

II. Standard of Review

The facts of the police entry into Shaibu's home are undisputed: there is no assertion that the police expressly or impliedly asked consent to enter nor that Shaibu expressly granted or refused entry. We review here whether the police had implied consent to enter Shaibu's home. The issue of implied consent presents a question of mixed law and fact which this Circuit reviews de novo. United States v. Pulido-Baquerizo, 800 F.2d 899, 901 (9th Cir.1986).

III.

A warrantless search of a house is per se unreasonable, Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980), and absent exigency or consent, warrantless entry into the home is impermissible under the Fourth Amendment. Steagald v. United States, 451 U.S. 204, 211, 101 S.Ct. 1642, 1647, 68 L.Ed.2d 38 (1981); United States v. Alfonso, 759 F.2d 728, 742 (9th Cir.1985). Evidence recovered following an illegal entry of the home is inadmissible and must be suppressed. Wong Sun v. United States, 371 U.S. 471, 484-87, 83 S.Ct. 407, 415-17, 9 L.Ed.2d 441 (1963).

In the present case, the government admits the lack of a warrant or exceptional circumstances, and relies entirely on consent for the legality of the entry and search. "The existence of consent to a search is not lightly to be inferred," United States v. Patacchia, 602 F.2d 218, 219 (9th Cir.1979), and the government "always bears the burden of proof to establish the existence of effective consent." United States v. Impink, 728 F.2d 1228, 1232 (9th Cir.1984); Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1323, 75 L.Ed.2d 229 (1983); Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854 (1973); Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1791, 20 L.Ed.2d 797 (1968). That burden is heaviest when consent would be inferred to enter and search a home, for protection of the privacy of the home

finds its roots in clear and specific constitutional terms: "The right of the people to be secure in their ... houses ... shall not be violated." That language unequivocally establishes the proposition that "[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." Silverman v. United States, 365 U.S. 505, 511 [81 S.Ct. 679, 682, 5 L.Ed.2d 734]. In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house.

Payton v. New York, 445 U.S. at 589-90, 100 S.Ct. at 1382.

Judicial concern to protect the sanctity of the home is so elevated that free and voluntary consent cannot be found by a showing of mere acquiescence to a claim of lawful authority. Bumper v. North Carolina, 391 U.S. at 548-49, 88 S.Ct. at 1791-92. In examining whether a person's invitation to the police "to go right ahead and search the whole place," could, in context, be considered effective consent, this court established the following burden for the government:

The government must prove that consent was given. It must show that there was no duress or coercion, express or implied. The consent must be "unequivocal and specific" and "freely and intelligently given". There must be convincing evidence that defendant has waived his rights. There must be clear and positive testimony. " 'Courts indulge every reasonable presumption against waiver' of fundamental constitutional rights." Coercion is implicit in situations where consent is obtained under color of the badge, and the government must show that there was no coercion in fact.

United States v. Page, 302 F.2d 81, 83-84 (9th Cir.1962) (footnotes omitted).

Although this court has acknowledged that "[u]nder some very limited circumstances ... courts will infer consent from the cooperative attitude of a defendant," United States v. Impink, 728 F.2d at 1232, in fact this court has never sanctioned entry to the home based on inferred consent. Id. at 1233-34; United States v. Patacchia, 602 F.2d at 219; cf. United States v. Gilbert, 774 F.2d 962, 964 (9th Cir.1985) (court uses term "implied consent" in different sense, holding that detained defendant's affirmative request to police to go to her bedroom to get her clothes "necessarily implied consent to enter the bedroom in which ... the clothing was located.").

The District Court relied on United States v. Griffin, 530 F.2d 739 (7th Cir.1976), to conclude that it could infer consent to enter the home from the conduct of the defendant. In Griffin, the police knocked on the door of an apartment where the defendant Griffin, and a co-defendant, Russell, lived. The police requested admission twice. The first time the police knocked, Russell came to the door and opened it. The police made a "request to be admitted into the...