United States District Court, D. Nevada
ORDER MODIFYING MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATION AND GRANTING MOTION TO SUPPRESS (ECF NOS. 18,
Warren Pizard Smith filed a motion to suppress all evidence
seized on November 8, 2016. ECF No. 18. After an evidentiary
hearing and supplemental briefing, Magistrate Judge Ferenbach
entered his Report & Recommendation recommending that the
motion to suppress be granted. ECF No. 37. The Government
filed an Objection to the Report & Recommendation (ECF
No. 38), Smith filed a response (ECF No. 39), and the
Government moved for permission to file a reply (ECF No. 40).
Pursuant to Local Rule IB 3-2(b), I have conducted a de
novo review of the motion to suppress and related
officers arrested Smith on the porch of his home without a
warrant, despite having ample time to obtain one. There were
no exigent circumstances justifying this warrantless arrest.
The officers had no permission to be on Smith's porch,
either express or implied. They nevertheless walked onto his
porch to arrest him. "The physical entry of the home is
the chief evil against which the wording of the Fourth
Amendment is directed, " and warrantless entries are
thus "too substantial an invasion to allow, "
"at least in the absence of exigent circumstances."
Payton v. N.Y., 445 U.S. 573, 585-89 (1980)
(citation omitted). And for purposes of the Fourth Amendment,
the home includes the porch where Smith was handcuffed.
Florida v. Jardines, 133 S.Ct. 1409, 1415 (2013).
Because of this violation of Smith's Fourth Amendment
protection against a warrantless arrest, I grant the motion
to suppress. Because my rationale is similar to, but somewhat
different from, Judge Ferenbach's reasoning, I modify his
Report & Recommendation as further explained below. 28
U.S.C. § 636(b)(1); LR IB 3-2(b).
November 8, 2016 at approximately 3:30 a.m., Las Vegas
Metropolitan Police Officer Kim responded to a domestic
violence call. Officer Kim met with the victim (Dawn Davis)
at a nearby gas station and learned that defendant Warren
Smith had beaten Davis when Davis tried to leave with their
toddler (K.S.). After the beating, Smith took K.S. into their
told Officer Kim that there was a handgun in the apartment
but that Smith did not usually carry the gun. She also
confirmed that Smith had not been violent towards her or
their child before and that she had no reason to believe
Smith would harm K.S. ECF No. 22 (CD of body camera
recording, Exhibit 4 to evidentiary hearing, file
Officer Kim told Davis that "in the state of Nevada,
domestic battery is a mandatory arrest. Okay. So at this
point, if we run into him, he is going to be arrested for
domestic battery." Id. However, she also told
Davis that her goal was not to remove K.S. from Davis's
custody, and that although they could go by Smith's home,
if Smith did not answer, they could not "just go in
there." ECF No. 27, Exhibit D (file 11). Officer Kim
also interviewed two other witnesses to the beating. ECF No.
38 at 3:13-20.
one hour later-and without seeking a warrant to arrest
Smith-Officer Kim began walking up the stairs to Smith's
second-floor apartment when she saw an individual on the
porch. ECF No. 33 at 3. She stopped on the stairs, said
hello, and asked if he was Warren. ECF No. 22, Exhibit 4,
file 9. Smith said that he was. Officer Kim then asked Smith
if he had a few minutes so they could talk. Smith responded
that he did. Smith was holding a bag of clothes in one hand
and K.S. was standing near him. Officer Kim greeted K.S., and
Smith asked what Officer Kim wanted to talk about. Officer
Kim requested Smith put down the bag of clothes, which he
did. Officer Kim then asked a few questions about Smith's
relationship with Davis and about whether they had been in an
argument. Smith acknowledged Davis was the mother of his
child but he denied they were in a romantic relationship. The
audio recording reflects that Smith calmly responded to
Officer Kim's few questions. ECF No. 22, Exhibit 4, file
9. Within one minute of encountering Smith, Officer Kim asked
Smith to remove his hand from his pocket and turn around. She
handcuffed Smith and conducted a pat down search during which
she found a handgun in Smith's pocket. Officer Kim gave a
Miranda warning after which Smith claimed that the
handgun belonged to Davis and that he had planned to steal
it. ECF No. 18-1 at 3. Smith moves to suppress the gun and
evidentiary hearing, Officer Kim and her partner, Officer
Saari, testified they could have obtained an arrest warrant
and neither gave a reason why they did not do so. Evid. Hrg.
at 1:24:30 p.m., 1:55:15 p.m. Officer Kim testified she went
to Smith's apartment to arrest him and also to continue
her investigation to get Smith's side of the story.
Id. at 11:45:23 a.m., 11:50:30 a.m. However, Officer
Kim also testified that even if she had not conducted the pat
down and found the gun, she would have arrested Smith.
Id. at 12:07:38 p.m. Officer Saari's testimony
was unequivocal: he went there to arrest Smith. Id.
at 1:53:10 p.m.
It is a
"basic principle of Fourth Amendment law that searches
and seizures inside a home without a warrant are
presumptively unreasonable." Brigham City, Utah v.
Stuart, 547 U.S. 398, 403 (2006) (quotations omitted).
The Government concedes that the "Fourth Amendment's
protection of the home against warrantless searches extends
to a home's curtilage." ECF No. 32 at 4:12-13
(citing United States v. Dunn, 480 U.S. 294, 300
(1987)); see also Jardines, 133 S.Ct. at 1415
("The front porch is the classic exemplar of an area
adjacent to the home and 'to which the activity of home
life extends.'") (citation omitted). Magistrate
Judge Ferenbach found the porch where Smith was arrested to
be part of the apartment's curtilage, and the government
concedes as much. ECF No. 37 at 5:20-21. I adopt that
finding. Because Officer Kim arrested Smith in the curtilage
of his home without a warrant, the arrest is presumptively
unreasonable unless the government can show that an exception
to the warrant requirement applies. United States v.
Perea-Rey, 680 F.3d 1179, 1184 (9th Cir. 2012)
("[S]eizures in the curtilage without a warrant are . .
. presumptively unreasonable.").
most common exception to the warrant requirement is an
exigent circumstance requiring immediate action. Brigham
City, 547 U.S. at 403. For example, where officers are
pursuing a fleeing criminal, or they have a reasonable belief
that a homeowner is destroying evidence, the officers can
enter the home or curtilage to make a warrantless arrest.
Id. But there was no such exigency here. Davis
confirmed to Officer Kim that this was the first time Smith
had beaten her and, more importantly, that she had no reason
to believe Smith would harm K.S. ECF No. 22, Exh. 4, file 12.
Over an hour passed between Officer Kim's interview of
Davis and the time she approached Smith at his apartment. ECF
33 at 3. There was sufficient time to call for an arrest
warrant. The officers did not seek a warrant and no exigent
circumstances justified foregoing one.
leaves three other arguments that the government contends
justify this warrantless arrest: (1) Officer Kim was
permitted to arrest Smith on his porch because she had
permission to be there, (2) in the alternative, the officers
needed no permission or exigency to conduct a warrantless
arrest because Smith was standing in view of the public (even
though he was standing in the curtilage of his home), and (3)
the officers would have inevitably discovered the weapon they
found on Smith.
Whether the officers had express or implied permission to
walk onto Smith's porch
government first contends no warrant was required because
Officer Kim had permission to be on Smith's porch-either
implied permission under the so-called knock and talk rule,
or express permission from Smith when he agreed to briefly
talk to Officer Kim. "An officer does not violate the
Fourth Amendment by approaching a home at a reasonable hour
and knocking on the front door with the intent merely to ask
the resident questions, even if the officer has probable
cause to arrest the resident." United States v.
Lundin, 817 F.3d 1151, 1160 (9th Cir. 2016). This is
because officers, like girl scouts selling cookies, generally
have an implied license to walk up to a home and attempt to
engage the occupant in conversation. Id. Similarly,
if the occupant of a home invites officers to enter his home
or its curtilage, the officers may do so. Jar dines,
133 S.Ct. at 1416 (discussing both express and implied
consent to enter the curtilage of someone's home).
when officers forego a warrant and rely on an express or
implied license to enter the curtilage of a citizen's
home, additional limitations apply. These limitations exist
because the officers' right to be there is defined by
what the resident consents to. The first limitation is that
the officers may walk only in areas for which the homeowner
has given them express or implied permission to go, and
officers may remain there only for a reasonable time.
Jardines, 133 S.Ct. at 1416. Thus, under the implied
license afforded by the knock and talk rule, officers may
"approach the home by the front path, knock promptly,
wait briefly to be received, and then (absent invitation to
linger longer) leave." Jardines, 133 S.Ct. at
1415. When seeking actual consent to enter someone's
home, officers must generally ...