U.S. v. Warner

• Citation: 843 F.2d 401
• Decision Date: 16 June 1988
• Docket Number: No. 87-1084,87-1084
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Avery Jay WARNER, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 401

843 F.2d 401

56 USLW 2646

UNITED STATES of America, Plaintiff-Appellant, v. Avery Jay WARNER, Defendant-Appellee.

No. 87-1084.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 10, 1987.

Decided April 5, 1988.

As Amended June 16, 1988.

David F. Levi, U.S. Atty., Sacramento, Cal., for plaintiff-appellant.

Robert M. Holley, Asst. Federal Defender, Sacramento, Cal., for defendant-appellee.

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

Before SCHROEDER, PREGERSON and BRUNETTI, Circuit Judges.

SCHROEDER, Circuit Judge:

The Government appeals from an order granting the defendant's motion to suppress evidence in this prosecution for possessing a controlled substance used to manufacture methamphetamine. The evidence suppressed was obtained through a warrantless search of a garage leased to the defendant. The Government's principal justifications for the search were (1) that the landlord had provided requisite consent, or (2) that there were exigent circumstances. Based upon its careful findings of fact, the district court concluded that the landlord could not have provided requisite consent because he lacked joint access to the garage, and the information available to the officer at the time did not present exigent circumstances. We have jurisdiction pursuant to 18 U.S.C. Sec. 3731, and we affirm.

The underlying facts as found by the district court are not materially disputed. The defendant rented the residence and garage in Sacramento in June, 1986. At that time, it was agreed that the landlord had permission to enter the premises in the defendant's absence to make certain repairs and mow the lawn.

On June 17, the landlord went to the residence to make repairs and entered the garage seeking a power source for his electric drill. In the garage he observed numerous boxes of chemicals. He compiled a list and took them to a chemist friend who told him the chemicals posed no hazard. The list included P2P, ether, formaldehyde, acetic anhydride and methlamine. At the beginning of July, the defendant told the landlord that he planned to move out by the end of the month because he had lost his job, and that in the meantime he was seeking work in Washington State.

The landlord went to the property to mow the lawn on July 12. He noticed a pungent chemical smell and became concerned about a possible hazard because it was a hot day. He returned home to call the police. He asked that someone from the appropriate agency come to check out the condition of the garage and its contents, but told the police that the situation was not an emergency.

A police officer arrived at the landlord's house approximately two hours later, and the two together went to the property rented by the defendant. When there was no answer to their knock on the front door, they started down the driveway and the landlord showed the officer the list of chemicals he had made a few weeks earlier. The officer testified that he recalled that formaldehyde and ether were among the chemicals listed, and that he was aware that such chemicals are used in manufacturing illicit drugs. He also testified that he knew that these chemicals can pose a risk of explosion. However, the officer testified that he could not smell the odors described by the landlord, possibly because he suffered from hay fever.

The officer asked the landlord to use his key to open the garage. When they entered, they observed boxes of chemicals partially covered by tarps. The officer then called the fire department and an investigator from the narcotics section of the police department.

The police seized the suppressed items from both the garage and the house. No warrant was ever obtained. It is not disputed that all of the items suppressed were the product of the original warrantless entry by the officer with the landlord's key. The issue before us is thus whether that entry comes within any of the exceptions to the warrant requirement of the fourth amendment.

"[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). This court will "uphold the district court's findings offact at a suppression hearing unless they are clearly erroneous (citation omitted). The ultimate issue of whether exigent circumstances justify a warrantless entry and/or search is resolved under the de novo standard." United States v. Echegoyen, 799 F.2d 1271, 1277-78 (9th Cir.1986).

The officer stated that he did not obtain a warrant because he believed that no warrant was necessary if the landlord consented to the entry. Landlords, however, do not have authority to waive the fourth amendment's warrant requirement by consenting to a search of premises inhabited by a tenant who is not at home at the time of a police call. The security of tenants' residences is not dependent solely upon the discretion of landlords. See Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961) ("to uphold such an entry, search and seizure 'without a warrant would reduce the [Fourth] Amendment to a nullity ...' ") (citation omitted).

We have permitted the police to rely on a landlord's consent for admission to an abandoned apartment when the abandonment was apparent. United States v. Sledge, 650 F.2d 1075 (9th Cir.1981). Here, however, the defendant had not abandoned the premises. The rent was paid and he had told the landlord he would move out at the end of the month. Nothing at the scene indicated to the officer that the premises were abandoned.

We have looked to three factors in determining when a third party may effectively consent to a search of another's property. The factors are: (1) whether the third party has an equal right of access to the premises searched; (2) whether the suspect is present at the time the third party consent is obtained; and (3) if so, whether the suspect actively opposes the search. United States v. Impink, 728 F.2d 1228, 1232-33 (9th Cir.1984). We drew our factors from United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). Here the latter two factors are not implicated because of the suspect's absence. Thus, the issue of consent turns upon whether the landlord had an equal right of access to the premises.

The landlord in this case did not have any right of access for most purposes. As noted by the district court, "at best, the landlord had permission to enter the property for the limited purpose of making specified repairs and occasionally mowing the lawn." Here, as in Impink, the landlord "had reserved only [a] limited right to enter the garage.... The agreement that permitted the [landlord] to re-enter the garage was oral. Even if ... a right to re-enter existed, we need not interpret an informal oral agreement as conveying an unlimited right of access." Impink, 728 F.2d at 1233. The landlord therefore could not give effective consent for the search of Warner's property.

We therefore must determine whether the warrantless entry was justified upon some basis other than the one on which the police officer relied. The Government urges us to hold that exigent circumstances provided adequate justification for the entry.

We have defined exigent circumstances as "those circumstances that would cause a reasonable person to believe that entry (or other relevant 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.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). Exigent circumstances include the need to protect or preserve life or avoid serious injury. See Echegoyen, 799 F.2d at 1278; see also United States v. Martin, 781 F.2d 671, 674-75 (9th Cir.1985). "Exigent circumstances necessarily imply that there is insufficient time to get a warrant." Echegoyen, 799 F.2d at 1279 n. 5; see also United States v. Good, 780 F.2d 773, 775 (9th Cir.), cert. denied, 475 U.S. 1111, 106 S.Ct. 1523, 89 L.Ed.2d 920 (1986).

Exigencies must be viewed from the totality of the circumstances known to the officer at the time of the warrantless intrusion. United States v. Licata, 761 F.2d 537, 543 (9th Cir.1985). The reason behind assessing exigency from the circumstances known to the officer at the time of the search lies in the purposes underlying the fourth amendment. As the United States Supreme Court articulated in Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979):

a search of private property must be both reasonable and pursuant to a properly issued search warrant. The mere reasonableness of a search, assessed in the light of the surrounding circumstances is not a substitute for the judicial warrant required under the Fourth Amendment.... [B]ecause each exception to the warrant requirement invariably impinges to some extent on the protective purpose of the Fourth Amendment, the few situations in which a search may be conducted in the absence of a warrant have been carefully delineated and "the burden is on those seeking the exemption to show the need for it."

442 U.S. at 758-60, 99 S.Ct. at 2590-91. The Supreme Court then went on to state that exigency "must be assessed at the point immediately before the search." 442 U.S. at 763, 99 S.Ct. at 2593. The fourth amendment does not permit an officer to conduct a search and seek its justification later. As we have previously stated, "[t]he propriety of a search ... is unrelated to the results it later yields. To hold otherwise would legitimize any search as long as it ultimately revealed evidence of illegality." Impink, 728...