Metropolitan News-Enterprise


Tuesday, January 14, 2003


Page 3


Parolee ‘in Wrong Place’ Not Victim of Illegal Search, Court Rules


By KENNETH OFGANG, Staff Writer/Appellate Courts


A parolee found in possession of a gun while occupying the back bedroom of a house where officers were looking to arrest someone else was not the victim of an illegal search and seizure, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

Bobby Der Enlsin “was truly in the wrong place at the wrong time,” Judge Thomas G. Nelson explained. But because an occupant of the house had apparent authority to, and did, consent to the search of Enslin’s room, the search was reasonable, the judge concluded.

Enslin was convicted of being a felon in possession of a firearm after being arrested by deputy U.S. marshals at the home of John and Shannon Palacios.

The marshals testified they went to the Palacios home looking for a fugitive named Mickey Bass, for whom they had a warrant and whom they believed had frequented the home. Shannon Palacios, they said, told them that Bass was not there but gave permission for them to search the house.

In the back bedroom, they found Enslin, who was in bed and apparently had been sleeping. Because his hands were concealed by the bed covers, they testified, he was ordered to show them.

When he moved, they said, they were able to see a gun that had previously been concealed by the covers, so they drew their weapons and placed Enslin under arrest.

A later check revealed that Enslin was a felon on parole.

At a hearing on Enslin’s motion to suppress, Palacios—in testimony characterized by Nelson as “confusing and inconsistent”—denied giving the officers permission to search the house. She claimed that she had asked Enslin to stay in the back room in order to help evict a tenant who had been staying there as recently as three days earlier.

Some of the property in the room belonged to Enslin, some to the tenant, and some to her and her husband, Palacios testified.

U.S. District Judge Napoleon A. Jones of the Southern District of California denied the motion to suppress. He reasoned that Palacios had actual authority to consent to a search of the entire house, including the back room, and that the presence of other peoples’ property in the room deprived Enslin of any reasonable expectation of privacy.

The judge also held that once Enslin moved, the gun was in plain view and officers had the right to seize it.

Nelson, writing for the Court of Appeals, said Palacios had, at minimum, apparent authority to consent to the search.

He distinguished United States v. Reid, 226 F.3d 1020 (9th Cir. 2000), in which the court held that the person who opened the door of an apartment to police lacked apparent authority to consent to a search of the premises.

In Reid, Nelson noted, the police knew that the person who answered the door was not the resident, nor was that person’s name on the lease, which the police had a copy of, so the appellate court held that a reasonable officer would not have believed that person had the authority to consent to a search.

Nelson rejected the claim that the presence of a key lock on the bedroom door should have caused the officers to question Palacios’ authority to consent to a search. The judge noted that the door was not locked, concluding that under Ninth Circuit precedent, “the presence of a key lock alone, without more, is not sufficient to bring this case within the realm of Reid.

Nelson went on to agree with the defense that the police order that the defendant show his hands was a seizure. But it was a reasonable one, the appellate jurist explained, because the “de minimis” intrusion was outweighed by the government’s interest in officer safety, which was particularly acute in this case because the officers were searching an unfamiliar place, looking for a fugitive, and did not know who Enslin was.

The opinion was joined by Senior Judge Dorothy W. Nelson and Senior U.S. District William W. Schwarzer of the Northern District of California, sitting by designation.

The case is United States v. Enslin, 02-50087.


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