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United States v. Smith

United States District Court, D. Nevada

May 9, 2017



         Defendant 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 papers.

         Police 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).


         On 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 shared apartment.

         Davis 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 12).[1] 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.

         About 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 his statement.

         At the 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.

         II. ANALYSIS

         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.").

         The 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.

         That 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.

         A. Whether the officers had express or implied permission to walk onto Smith's porch

         The 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).

         But 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 ...

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