Metropolitan News-Enterprise


Thursday, September 27, 2018


Page 1


Ninth Circuit:

Fruits of Officers’ 4 a.m. Warrantless Visit to Home Must Be Suppressed

Panel Rejects Government’s Argument That if Consent to Search Had Not Been Given, Police Would Have Secured Perimeters and Sought Issuance of a Warrant


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals has reversed a conviction for armed robbery because the District Court should have suppressed evidence that police officers obtained pursuant to a warrantless search at 4 a.m. after knocking on the door of the house where the defendant was sleeping, asking to search the premises, and being admitted by an occupant.

The memorandum opinion, filed Tuesday, voids the conviction of Kevin Baires-Reyes for robbery affecting interstate commerce and aiding and abetting the use of a firearm, with a remand for further proceedings.

Officers “exceeded the scope of the customary license to ‘encroach upon the curtilage of a home for the purpose of asking questions of the occupants’…by knocking on the door at 4:00 a.m. without a warrant, and thus the ‘knock and talk’ exception to the warrant requirement did not apply,” the opinion declares.

Government’s View

It rejects the contention of the Office of United States Attorney that the absence of a search warrant was immaterial because consent was given. An occupant of the premises, Norma Ortiz, told officers they could come in.

Assistant U.S. Attorney Reema Shah of the Central District of California articulated the government’s position at oral argument in San Francisco on July 13 by saying:

“The officers testified that, at 4 a.m., had Norma Ortiz not consented and opened the door, then the officers would have sought the warrant at that time.”

They would have secured the perimeters, she said, pending arrival of the warrant.

Uninvited visitors, the opinion responds, are not customarily expected to be knocking at the front door of a residence in the early morning hours and that “even if the owner of the home consented to the officers’ entry, this consent was wrongfully obtained, as was any evidence viewed by the officers while in the home without a warrant.”

 Officers’ Belief

At oral argument—before Senior Circuit Judge Michael D. Hawkins and Circuit Judges Carlos T. Bea and Andrew D. Hurwitz—Baires-Reyes’ attorney, Marc J. Zilversmit, noted that when police came to the home, they believed the owner, Jonathan Flores-Ayar, to have been one of two men who had robbed a market two weeks earlier. The duo had taken money and a bottle of Hennessy cognac.

Flores-Ayar was recognizable on a surveillance video, but Baires-Reyes was not.

Baires-Reyes, Zilversmit stressed, “wasn’t a suspect at time” that police “went into the house.”

The government’s case, he put forth, “was built” on observing his client “in that bedroom with the stolen property,” including a bottle of Hennessy cognac, and wearing clothing of the sort which Flores-Ayar’s cohort was seen in the video as being clad in.

Zilversmit said he conceded that trial counsel “did not make this argument as clearly as he should have” and that, because it was not effectively presented to District Court Edward M. Chen of the Northern District of California who presided over the case, the appellate court, in order to reverse, must find “clear error.”

‘Clear Error’ Found

The opinion says:

“[W]e find that the Fourth Amendment violation is clear.”

Subsequent to the arrest of Baires-Reyes and Flores-Ayar, a search warrant was obtained and executed, resulting in the seizure of various items, including a bottle of Hennessy cognac and the red cap Flores-Ayar was seen in the video as wearing. The panel rejected Chen’s theory that the independent source doctrine came into play, saying, in the opinion, that the doctrine “permits only the introduction of evidence actually acquired through a separate and lawful means.”

The opinion says that it is “apparent that the specific items or observations now objected to by Baires-Reyes were obtained through the officers’ unlawful presence in the home without a warrant, and not from the later executed warrant.”

Inevitable Discovery Doctrine

The opinion cites United States v. Lundin, a Ninth Circuit opinion from 2016 which addresses the scope of the inevitable discovery doctrine. The government contended that police would have discovered the evidence identifying Baires-Reyes absent the warrantless search.

The opinion says:

“[A]s we held in Lundin, ‘[t]he inevitable discovery exception does not apply when officers have probable cause to apply for a warrant but simply fail to do so.’…The district court here found that even without the additional evidence obtained through entry into the home, the officers had probable cause for a warrant for suspect Flores-Ayar. However, they intentionally chose not to obtain one: ‘We would have to wake up the on-call judge after writing the warrant, driving to wherever they’re located—which could be somewhere in the southern part of San Mateo County to get the order signed—and then returning.’ ”

In a footnote, the opinion continues:

“In any event, it is not ‘inevitable’ that the officers would have found the same evidence and made the same incriminating observations of Baires-Reyes that they did during the unlawful entry at 4:00 a.m. It is certainly not inevitable that Baires-Reyes would have been wearing the same clothes as the suspect in the robbery and sleeping near the spoils of the robbery if the officers obtained a warrant and returned later in the day. By daylight or before leaving the apartment, Baires-Reyes could have awoken, changed clothes, or even disposed of clothing or other evidence from the robbery.”

Flores-Ayar’s Standing

A matter of concern to Bea and Hurwitz, expressed at oral argument, but not alluded to in the opinion, was whether Flores-Ayar had standing to contest the warrantless search. He was a guest in Flores-Ayar’s premises.

Zilversmit told the panel:

“If I bring an intimate partner into my bedroom at 4 in the morning, I don’t want the police knocking on my door and bursting into my bedroom….”

Bea said:

“But that’s your standing. What about the guest’s standing?

The San Francisco lawyer responded:

“I do think my guest has the same expectation when he or she comes with me into a home at 4 a.m. to share the bed…I think that’s the very core of what the Fourth Amendment protects.”

Zilversmit cited the 1990 U.S. Supreme Court decision in Minnesota v. Olson where Justice Byron White (now deceased), writing for the majority, said the defendant’s “status as an overnight guest is alone sufficient to show that he had an expectation of privacy in the home that society is prepared to recognize as reasonable.”

Shaw acknowledged:

“The government did not contest the defendant’s standing to make the argument below.”

The case is United States v. Baires-Reyes, No. 16-10545.


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