United States v. Dixon

• Decision Date: 31 December 2020
• Docket Number: No. 19-10112,19-10112
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Howard DIXON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

984 F.3d 814

UNITED STATES of America, Plaintiff-Appellee,

v.Howard DIXON, Defendant-Appellant.

No. 19-10112

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 2, 2020 San Francisco, California

Filed December 31, 2020

Jonathan Abel (argued), Juliana C. DeVries, and Elizabeth M. Falk, Assistant Federal Public Defenders; Steven G. Kalar, Federal Public Defender; Office of the Federal Public Defender, San Francisco, California; for Defendant-Appellant.

Sloan Heffron (argued), Assistant United States Attorney; Merry Jean Chan, Chief, Appellate Section, Criminal Division; David L. Anderson, United States Attorney; United States Attorney's Office, San Francisco, California; for Plaintiff-Appellee.

Before: Eugene E. Siler,^* Kim McLane Wardlaw, and Milan D. Smith, Jr., Circuit Judges.

WARDLAW, Circuit Judge:

Howard Dixon appeals the district court's partial denial of his motion to suppress evidence resulting from a search of his vehicle. We must decide whether the insertion of a car key into a lock on the vehicle's door for the sole purpose of aiding the police in ascertaining its ownership or control is a "search" within the meaning of the Fourth Amendment. We have previously held that it was not, applying the "reasonable expectation of privacy" test from Katz v. United States , 389 U.S. 347, 360, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). See United States v. $109,179 in U.S. Currency , 228 F.3d 1080, 1087–88 (9th Cir. 2000). In light of recent Supreme Court authority tying the Fourth Amendment's reach to the law of trespass, however, we must conclude that because "[t]he Government physically occupied private property for the purpose of obtaining information," United States v. Jones , 565 U.S. 400, 404, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), it conducted a search within the meaning of the Fourth Amendment.

I.

A.

In January 2018, San Francisco Police Department ("SFPD") Officer Eduard Ochoa began surveilling Dixon, a felon serving a term of supervised release and subject to a warrantless, suspicionless search condition. Dixon was a suspect in a shooting that occurred earlier that month in the Bayview District of San Francisco. Based on his observations, Officer Ochoa came to believe that Dixon lived at the Oakdale Apartments in Bayview. Officer Ochoa also noticed Dixon driving in the surrounding neighborhood during the daytime—twice in a black BMW and twice in a blue Honda minivan. He saw Dixon park the black BMW in the Oakdale Apartments’ parking lot five times, and park the blue Honda minivan in that lot two times.

On March 9, 2018, Officer Ochoa learned that Dixon was under federal supervision and subject to the suspicionless search condition. Although Dixon had reported the Oakdale Apartments as his residence to his probation officer, Officer Ochoa did not know this and did not ask the probation officer what address he had on file. Rather, Officer Ochoa searched other databases for Dixon's residence, which resulted in several different addresses but none that matched the Oakdale Apartments.

Officer Ochoa nonetheless returned to the apartment building to surveil the area with other SFPD officers. There, they saw Dixon exit the building, re-enter it, and then exit again holding two garbage bags. Officer Ochoa attests that he observed Dixon walk towards a blue Honda minivan in the parking lot, which Officer Ochoa recognized as the one he had previously seen Dixon driving.

Officer Ochoa instructed officers to detain Dixon, prompting Dixon to drop both garbage bags and a set of keys on the ground. Officer Ochoa used those keys to enter the apartment, where he discovered various illegal drugs and drug paraphernalia in a room identified as belonging to Dixon. Following the apartment search, officers transported Dixon to Bayview Station.

Shortly before Dixon was transported, Officer Ochoa began searching the blue Honda minivan, using one of the keys that Dixon had dropped to unlock the vehicle. Inside the trunk area, he discovered a black backpack containing a large bag of marijuana. At Bayview Station, a further search of Dixon recovered twenty-one baggies containing cocaine, heroin, and methamphetamine.

B.

Dixon was indicted for possession with intent to distribute heroin, cocaine, and methamphetamine. Dixon moved to suppress the evidence obtained from the apartment and vehicle searches as unconstitutional, and from the later stationhouse search as tainted by these previous searches. In support, Dixon submitted a declaration explaining his relationship to the apartment and the van. In response, the government submitted Officer Ochoa's declaration, which detailed his investigation of Dixon. In turn, Dixon submitted an additional declaration that disputed several of Officer Ochoa's statements, including that he had never sat in or owned a black BMW during the relevant time period and that he did not approach the blue Honda minivan while carrying the trash bags, but had continued walking past it before being stopped. Dixon also attested that there were two "sky blue" minivans parked side-by-side in front of the apartment complex on that day, a fact confirmed by an officer's body camera footage. Dixon claimed that, initially, the officers attempted to enter the other minivan before its owner "came running out" of the complex to stop them. Dixon also alleged that while detained, an officer repeatedly requested Dixon provide the keys for a black Audi that was also parked in the lot.

The district court ruled on the suppression motion without conducting an evidentiary hearing. The district court granted the motion as to the search of the apartment, concluding that the officers did not have probable cause to believe Dixon was a resident of the apartment because Officer Ochoa's observations amounted to information suggesting only Dixon's presence, but not his residence, there. As a result, the district court suppressed the evidence from the apartment search.

The district court upheld the search of the minivan, however, reasoning that under United States v. $109,179 in U.S. Currency , 228 F.3d 1080 (9th Cir. 2000), the insertion of the key into the minivan's lock was not itself a search, and that possession of a key that fit the minivan's lock amounted to probable cause to believe that Dixon exercised control of the minivan. Because the minivan search was constitutional, the court held that this intervening lawful search, which produced a large bag of marijuana, attenuated any taint from the apartment search, and therefore declined to suppress the evidence found when police searched Dixon at the jail.

At trial, the district court excluded the marijuana found in the minivan because it was improperly mixed with the suppressed marijuana found in the apartment, leaving the drugs recovered at the jail as the only admissible evidence against Dixon. The jury hung on the charge of possession with intent to distribute controlled substances, but convicted Dixon of the lesser-included offense of simple possession. At sentencing, the district court denied Dixon a two-step guideline reduction for acceptance of responsibility, rejected an enhancement for obstruction of justice, and sentenced Dixon to 21-months’ imprisonment. This timely appeal followed.¹

II.

We have jurisdiction under 28 U.S.C. § 1291. We review a ruling on a motion to suppress de novo, United States v. Korte , 918 F.3d 750, 753 (9th Cir. 2019), and findings of fact associated with that motion for clear error, United States v. Grandberry , 730 F.3d 968, 971 (9th Cir. 2013). "[W]e ‘review de novo whether the district court misapprehended the law with respect to the acceptance of responsibility reduction.’ " United States v. Green , 940 F.3d 1038, 1041 (9th Cir. 2019) (quoting United States v. Cortes , 299 F.3d 1030, 1037 (9th Cir. 2002) ).

III.

The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. But individuals "subject to a warrantless, suspicionless search condition have ‘severely diminished expectations of privacy by virtue of their status alone.’ " United States v. Cervantes , 859 F.3d 1175, 1182 (9th Cir. 2017) (quoting Samson v. California , 547 U.S. 843, 852, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006) ). Here, a condition of Dixon's supervised release mandated that he "submit to a search of his person, residence, office, vehicle, or any property under his control ... at any time with or without suspicion."

But this authority is not limitless, and we have explained that to conduct a search of property pursuant to this condition, the individual subject to it must "exhibit[ ] a sufficiently strong connection to [the property in question] to demonstrate ‘control’ over it." Korte , 918 F.3d at 754 (quoting Grandberry , 730 F.3d at 980 ). In other words, before the police could search Dixon's blue Honda minivan without a warrant or probable cause, they had to have a sufficient basis to believe he owned or controlled that vehicle. In this case, the police crossed that knowledge threshold only when they inserted the key that Dixon had dropped into the car lock, thereby confirming that he exercised control over the minivan.

Therefore, we must determine whether inserting that key into the minivan's lock was itself permissible under the Fourth Amendment. This matters because if inserting the key into the car lock violated Dixon's Fourth Amendment rights, the officers’ resulting knowledge and authority to search that vehicle would be tainted by a Fourth Amendment violation. Given that the district court had already ruled that the officers’ search of Dixon's apartment violated the Fourth Amendment, the officers would have lacked justification for Dixon's arrest and subsequent stationhouse search. Thus, the trial court would have had to suppress the drugs found on Dixon's person, and the government would have been left with no...