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May 3, 2016
  United States v. Lundin
Headline: The Ninth Circuit panel held that the warrantless search of the defendant's home was not justified by exigent circumstances, explaining that the "knock and talk" exception to the Fourth Amendment's warrant requirement does not apply when officers encroach upon the curtilage of a home with the intent to arrest the occupant.

Area of Law: Criminal Law, Warrantless Search, Motion to Suppress Evidence, Knock and Talk Exception

Issue Presented: Whether police officers were permitted to knock on Lundin's door under the so-called "knock and talk" exception to the warrant requirement, which permits law enforcement officers to "'encroach upon the curtilage of a home for the purpose of asking questions of the occupants,'" when the officers' purpose in knocking on Lundin's door was to find and arrest him.

Brief Summary: Humboldt County Sherriff's Office issued a "Be on the Look Out" ("BOLO") and request for arrest of defendant Eric "Whitey" Lundin ("Lundin") after Deputy Aponte interviewed Susan Hinds ("Hinds") at the local hospital. Hinds gave a statement in which she described Lundin breaking into her home, forcing her to ingest illegal substances, and driving her away against her will while threatening to kill her.
Police had probable cause to arrest Lundin but no warrant was issued for the search of his home. In response to the BOLO and request for arrest, law enforcement officers went to Lundin's residence and knocked on the door without identifying themselves. While standing on the front porch, they heard crashing noises coming from the back of Lundin's home. Officers ran to the back of the house and detained Lundin. While he was placed in the back of the patrol car, officers proceeded to search Lundin's residence and backyard. At the end of the search, officers recovered two firearms which corroborated Hinds' description of the prior incidents.
Lundin was charged with being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). Lundin moved to suppress the evidence of the firearms as fruit of the poisonous tree because officers illegally searched his home without a warrant. The district court suppressed evidence of the firearms, and the government appealed.
On appeal, the government argued its authority to conduct a warrantless search of the defendant's home was justified as an exigent circumstance. Since the exigency arose out of the crashing noises coming from the backyard which was caused by the officers' knock at Lundin's front door, the government was required to justify its presence on the defendant's porch in the first place. The government argued that under the knock and talk exception, officers lawfully approached the defendant's residence and knocked on his door. The Ninth Circuit panel held that the officers exceeded the scope of knock and talk exception because (1) they failed to act as an ordinary private citizen would as an uninvited guest and (2) they subjectively intended to arrest the defendant at the time they approached his residence.


Significance: Although law enforcement officers may conduct a warrantless search of a home when "the exigencies of the situation make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment, exigent circumstances cannot justify a warrantless search when the police "create the exigency by engaging . . . in conduct that violates the Fourth Amendment."
Extended Summary: Deputy Aponte of the Humboldt County Sheriff's Office ("HCSO") interviewed 63 year old Susan Hinds ("Hinds") at a local hospital. She claimed she was the victim to kidnapping several hours earlier. Hinds told Deputy Aponte that the defendant Eric "Whitey" Lundin ("Lundin") knocked on the door of her mobile home and that, when she opened the door, Lundin grabbed her by the neck and forced his way inside.
Hinds told Deputy Aponte that once inside the mobile home, Lundin brandished a compact silver handgun and forced her into his truck where he forced her to ingest methadone pills and pointed out locations where he could safely dispose of her body. Lundin drove Hinds back to her mobile home, told her that he only meant to scare her, and warned her not to call the police.

Deputy Aponte then asked dispatch to issue a "Be On the Look Out" ("BOLO") for Lundin and a request for Lundin's arrest under California Penal Code § 836, which authorizes a warrantless arrest when there is probable cause to believe a suspect has committed a felony. Dispatch issued the BOLO and arrest request just before 2:00 a.m.

Upon receiving the BOLO and arrest request, police officers approached Lundin's front door without identifying themselves. They stood on the porch, knocked loudly, waited thirty seconds for an answer, and then knocked again. After the second knock, the officers heard several loud crashing noises coming from the back of the house. The officers ran to the back of the house and encountered Lundin. He was ordered to put his hands up and was then handcuffed and placed in a patrol car.

The officers then searched Lundin's backyard, patio and house, finding a clear plastic freezer bag containing a silver revolver and a black semiautomatic handgun. Deputy Aponte confirmed that the handguns matched Hinds' description of the guns used during the earlier incident.

Lundin was charged with being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). Lundin moved to suppress the evidence obtained from the patio as fruits of an unreasonable warrantless search. The district court granted the motion and suppressed the evidence of the two handguns seized on the patio. On appeal, the government argued that the warrantless search of Lundin's home was justified either due to an (1) exigent circumstance or (2) protective sweep. In the alternative, the government contended the handguns are admissible under the inevitable discovery exception to the exclusionary rule.

Exigent Circumstances

A warrantless search is presumptively invalid. However, law enforcement officers may conduct a warrantless search of a home in certain exigent circumstances. Because the officers in this case had no reason other than the crashing noises coming from the backyard to believe that there were exigent circumstances justifying a warrantless search of Lundin's home, and that the officers' knock at Lundin's front door caused Lundin to make the crashing noises, the government was required to show that the officers lawfully stood on Lundin's front porch and knocked on his door.
Knock and Talk Exception

The government argued that under the "knock and talk" exception an officer does not violate the Fourth Amendment by encroaching on the curtilage of a home and knocking on the door with the intent to ask the resident questions. The exception is similar to a consensual encounter in that the consent is implied from treating a knock on the door as an invitation.

Ruling that the application of the exception ultimately depends upon whether the officers have an implied license to enter the curtilage, the panel rejected application of the knock and talk exception for two reasons. First, the panel noted that "unexpected visitors are customarily expected to knock on the front door of a home only during normal waking hours. * * * Here, however, the officers knocked on Lundin's door around 4:00 a.m. without evidence that Lundin generally accepted visitors at that hour, and without a reason for knocking that a resident would ordinarily accept as sufficiently weighty to justify the disturbance." Second, "the scope of a license is often limited to a specific purpose, Jardines, 133 S. Ct. at 1416, and the customary license to approach a home and knock is generally limited to the "purpose of asking questions of the occupants." Here, however, the officers' purpose in knocking on Lundin's door was to arrest him. Accordingly, the Ninth Circuit held that officers violated Lundin's Fourth Amendment right to be free from unlawful searches when they stood on his porch and knocked on his front door. Thus, unconstitutional conduct caused the allegedly exigent circumstance - the crashing noises in the backyard - which cannot justify the search resulting in the seizure of the two handguns.

Protective Sweep

The protective sweep doctrine authorizes quick and limited warrantless inspections of spaces where a person may be found when there are articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbored an individual posing a danger to those on the arrest scene.
Officers had no reasonable, articulable suspicion that anyone other than Lundin was present at his residence. Thus, the only plausible threat to the safety of those on the scene was Lundin himself. But by the time the officers conducted the sweep of Lundin's home, he was already handcuffed in the patrol vehicle. Therefore, officers lacked a reasonable ground for believing that there was a danger that would have justified the sweep of Lundin's home.

Inevitable Discovery

Lastly, the court held that the inevitable discovery doctrine does not apply to warrantless searches where probable cause existed and a warrant could have been obtained but was not, because it would encourage officers never to bother to obtain a warrant.

The panel affirmed the Motion to Suppress evidence of the firearms.

To read the full opinion, please visit:
https://cdn.ca9.uscourts.gov/datastore/opinions/2016/03/22/14-10365.pdf
Panel: William A. Fletcher, Marsha S. Berzon, and Carlos T. Bea
Argument Date: September 18, 2015
Date of Issued Opinion: March 22, 2016
Docket Number: 14-10365
Decided: Mar. 22, 2016
Case Alert Author: Mia Lomedico
Counsel:
Barbara J. Valliere (argued), Chief, Appellate Division, and Melinda Haag, United States Attorney, San Francisco, California, for Plaintiff-Appellant.
Geoffrey A. Hansen (argued), Chief Assistant Federal Public Defender, Steven G. Kalar, Federal Public Defender, and Steven J. Koeninger, Research and Writing Attorney, San Francisco, California, for Defendant-Appellee.
Author of Opinion: Judge W. Fletcher
Circuit: Ninth
Case Alert Circuit Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 05/03/2016 03:24 PM     9th Circuit  

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