U.S. v. Shephard

• Decision Date: 21 April 1994
• Docket Number: No. 92-30204,92-30204
• Citation: 21 F.3d 933
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mark Allen SHEPHARD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 933

21 F.3d 933

UNITED STATES of America, Plaintiff-Appellee, v. Mark Allen SHEPHARD, Defendant-Appellant.

No. 92-30204.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 5, 1993.

Decided April 12, 1994.

As Amended April 21, 1994.

Wendy Holton, Helena, MT, for defendant-appellant.

Robert J. Brooks, Asst. U.S. Atty., Butte, MT, for plaintiff-appellee.

Appeal from the United States District Court for the District of Montana.

Before: CANBY, and REINHARDT, Circuit Judges, and TASHIMA, District Judge. ^*

Opinion by Judge REINHARDT.

REINHARDT, Circuit Judge:

The issue in this case is whether Montana law enforcement officers who arrest probationers for violating the terms of their probation must do so in accordance with Mont.Code Ann. Sec. 46-23-1012. We hold that they must, and reverse Shephard's conviction. ¹

I.

On July 7, 1989, an informant told Missoula County Sheriff Deputy Willis Hintz that Mark Allen Shephard, on probation for a state felony, was not complying with the condition of his probation that required him to attend regular meetings in Helena, Montana. He also told Hintz that Shephard had written some bad checks. Hintz informed Shephard's probation officer, who orally authorized Hintz to arrest Shephard. ²

Hintz and another deputy went to the house where Shephard was staying, knocked at the door, and were told to come in. They opened the door, saw Shephard among a group of people in the living room, and asked him to step outside with them. Outside, they told him that he was under arrest for probation violation. Shephard asked Hintz to go back inside to retrieve his wallet for him. Leaving Shephard outside with the other deputy, Hintz entered the apartment. In Shephard's bedroom, Hintz saw the wallet and a Ruger .22 calibre revolver in plain view on a bedside table. Another man in the apartment told Hintz that the gun belonged to Shephard, and Hintz seized the gun. A later identification by the seller confirmed that Shephard was the owner.

Shephard was charged with being a felon in possession of a firearm in violation of 18 U.S.C. Sec. 922(g)(1). He moved to suppress the revolver and the identification on the ground that he had been arrested illegally, contending that Mont.Code Ann. Sec. 46-23-1012 required that Hintz obtain either a court order or written authorization from a probation or parole officer to arrest him for a probation violation. ³ After a hearing, the district court denied the motion. Shephard then entered a conditional guilty plea, reserving the right to appeal the denial of his motion. He was sentenced to time served (eight-and-a-half months) and three years of supervised release, and was released to a state detainer. This appeal follows.

II.

A.

We look to state law to determine the lawfulness of an arrest by a state officer for a state offense. Ker v. California, 374 U.S. 23, 37-38, 83 S.Ct. 1623, 1632, 10 L.Ed.2d 726 (1963) (plurality opinion); ⁴ United States v. Mota, 982 F.2d 1384, 1387 (9th Cir.1993) (citing Michigan v. DeFillippo, 443 U.S. 31, 36, 99 S.Ct. 2627, 2631, 61 L.Ed.2d 343 (1979)). ⁵ Here, Shephard was arrested by state law enforcement officers for violating the conditions of his probation. ⁶ The propriety of his arrest is therefore a matter of state law.

Under Mont.Code Ann. Sec. 46-23-1012, an arrest for probation violation may be made in one of two ways: 1) any probation or parole officer may make a warrantless arrest; or 2) any police officer ⁷ may make the arrest if a parole or probation officer has given him or her written authority to do so. It is undisputed that Shephard was arrested for violating probation, that he was arrested by a police officer, and that the police officer did not have written authority from Shephard's probation officer. Thus, it seems clear that Shephard's arrest was obtained in violation of Sec. 46-23-1012. ⁸

B.

The government contends that, the unequivocal language of Sec. 46-23-1012 notwithstanding, State v. Burke, 235 Mont. 165, 766 P.2d 254 (1988), establishes that a police officer may make an arrest for a probation violation without written authorization. ⁹ However, Burke concerns a search, not an arrest, of a probationer's person and house. It holds that a police officer may conduct a warrantless search of a probationer's home if a condition of probation requires the probationer to submit to such a search. 766 P.2d at 256-57. See United States v. Wryn, 952 F.2d 1122, 1125 (9th Cir.1991).

Like Shephard, the probationers in Burke were arrested for violating the terms of their probation, and, like Shephard, they were arrested, evidently in violation of Sec. 46-23-1012, after their probation officer orally authorized a police officer to arrest them. However, unlike Shephard, the probationers in Burke did not contend that their arrest was illegal. Still less did they contend that it was illegal because the arresting officer did not comply with Sec. 46-23-1012. In fact, the opinion does not mention the statute. Instead, the Burke probationers argued that the searches of their car and house were illegal. They based their contention on the view that the conditions of their probation were invalid under then-existing Montana case law. 766 P.2d at 255; see State v. Fogarty, 187 Mont. 393, 610 P.2d 140 (1980), overruled by State v. Burke, supra. The Burke court held that warrantless searches of probation violators' homes and vehicles were proper if the violators' conditions of probation permitted such searches. It held nothing with regard to warrantless arrests of probation violators. ¹⁰ Burke is thus inapplicable. ¹¹

III.

In the alternative, the government argues that its warrantless arrest of Shephard was proper under Mont.Code Ann. Sec. 46-6-311, which permits such an arrest if authorities have probable cause to believe that the arrestee has committed an offense and exigencies do not permit the issuance of a warrant. ¹² Assuming that Deputy Hintz had probable cause to arrest Shephard for violating the terms of his probation, ¹³ and assuming that probation violation is an offense, ¹⁴ we find no exigent circumstance.

Exigent circumstances are "those circumstances that would cause a reasonable person to believe that ... prompt action [ ] was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts." United States v. McConney, 728 F.2d 1195, 1199 (9th Cir.1984) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984); see also United States v. George, 883 F.2d 1407, 1412 (9th Cir.1989). The government bears the "heavy burden" of showing the existence of exigent circumstances. Welsh v. Wisconsin, 466 U.S. 740, 749-50, 104 S.Ct. 2091, 2097, 80 L.Ed.2d 732 (1984). It can meet that burden only by "demonstrat[ing] specific and articulable facts to justify the finding of exigent circumstances." United States v. Driver, 776 F.2d 807, 810 (9th Cir.1985) (citing Arkansas v. Sanders, 442 U.S. 753, 759-60, 99 S.Ct. 2586, 2590-91, 61 L.Ed.2d 235 (1979)). In determining whether an exigency exists, "an important factor ... is the gravity of the underlying offense for which the arrest is being made." Welsh v. Wisconsin, 466 U.S. at 753, 104 S.Ct. at 2099.

Here, the government has not met its burden. In fact, there simply were no exigent circumstances, of any kind, under any standard. The government put forward only one specific fact to establish exigency: at oral argument, it contended that Shephard's failure to report to his probation officer constituted a ground for warrantless arrest. However, Shephard was not ordered arrested because of his failure to report to his probation officer, but rather for his failure to attend required meetings and his issuance of bad checks. Moreover, the government did not show, and we cannot discern, how any of those three reasons implied that Shephard was a danger to himself or to others, that he would destroy evidence if not immediately arrested, that he was planning to flee, or that another "consequence improperly frustrating legitimate law enforcement efforts" would occur before a warrant could be issued. Compare State v. Hammer, 233 Mont. 101, 759 P.2d 979, 983-84 (1988) (finding exigent circumstances where officers reasonably believed: that the defendant was assaulting the victim, holding her hostage, or both; that the defendant had assaulted the victim in the recent past; and that the defendant possessed a butcher knife, rifle, and ammunition).

Moreover, Shephard's underlying offense--probation violation--is relatively minor. One of the allegations that gave rise to the violation--failure to attend meetings--is also minor, and the other--passing bad checks--is not, by itself, sufficiently grave to constitute an exigency. ¹⁵ Compare State v. Dow, 256 Mont. 126, 844 P.2d 780, 784 (1992) (rape and robbery); State v. Hammer, supra (kidnapping and two felony assaults).

An exigency is an emergency so pressing that a warrant cannot be obtained. Only where police must react immediately may they disregard the warrant requirement. The government has made no showing of any sort of urgency here. It has therefore, a fortiori, failed to show that the circumstances were such that the warrant requirement could be disregarded. ¹⁶

IV.

A.

Having concluded that Hintz illegally arrested Shephard, we now turn to the question whether the fruit of that illegal arrest--Shephard's gun--must be suppressed. First we note that evidence in a federal prosecution must be suppressed if it was the product of an arrest illegal under state law. United States v. Mota, supra; see also Henry v. United States, 361 U.S. 98, 102-03, 80 S.Ct. 168, 171, 4 L.Ed.2d 134 (1959) (holding that evidence discovered during a search incident to an unlawful arrest is inadmissible).

We next consider the further question whether there is a...