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United States v. Iwai

United States Court of Appeals, Ninth Circuit

July 23, 2019

United States of America, Plaintiff-Appellee,
Bryant Kazuyoshi Iwai, Defendant-Appellant.

          Submitted February 14, 2019 [*] Honolulu, Hawaii

          Appeal from the United States District Court for the District of Hawaii Derrick Kahala Watson, District Judge, Presiding D.C. No. 1:15-cr-00723-DKW

          Myles S. Breiner, Honolulu, Hawaii, for Defendant-Appellant.

          Mark A. Inciong, Assistant United States Attorney; Kenji M. Price, United States Attorney; United States Attorney's Office, Honolulu, Hawaii; for Plaintiff-Appellee.

          Before: Richard C. Tallman, Jay S. Bybee, and N. Randy Smith, Circuit Judges.


         Criminal Law

         The panel affirmed the district court's order denying a motion to suppress evidence seized following law enforcement agents' warrantless entry into defendant's condominium.

         The agents secured a court order authorizing insertion of a tracking device to conduct a controlled delivery of a package of methamphetamine, but their subsequent entry into defendant's residence to secure the package was warrantless.

         The panel affirmed the district court's ruling that the agents' entry was presumptively unreasonable under the Fourth Amendment but, considering the totality of the circumstances, exigent circumstances existed to justify the entry because it was reasonable to conclude that the destruction of incriminating evidence was occurring. Defendant's subsequent consent for a more thorough search was not therefore tainted by an illegal entry, and the district court did not err by denying his motion to suppress.

         Dissenting, Judge Bybee wrote that the search and seizure was unreasonable in violation of the Fourth Amendment because the officers should have obtained an anticipatory warrant; the officers should have sought a warrant once defendant returned to his apartment with the package; and the officers lacked facts supporting exigent circumstances and, in any event, created the exigent circumstances when they violated the Fourth Amendment in their knock and announce at the apartment door.



         Defendant Bryant Iwai appeals the final judgment and sentence in his drug trafficking case and challenges the denial of his motion to suppress evidence. Iwai entered a conditional plea of guilty to prosecute this appeal. The charges arose from a controlled delivery of methamphetamine to his residence conducted by the United States Postal Inspection Service, Drug Enforcement Administration ("DEA") agents, and local drug task force officers (collectively "agents"). The agents secured a court order authorizing insertion of a tracking device to conduct the controlled delivery, but their subsequent entry into Iwai's condominium to secure the package was warrantless. Nevertheless, considering the totality of the circumstances, the district court ruled that exigent circumstances existed to justify the agents' entry. We affirm.


         On August 4, 2015, the United States Postal Inspection Service in Honolulu intercepted a package from Las Vegas, Nevada, that was addressed to Iwai's condominium. After a narcotic detection dog alerted to the presence of a controlled substance in the package, a search warrant was obtained to open the box. Among other incriminating evidence, the box contained roughly six pounds of methamphetamine.

         The next day, DEA agents obtained a second judicial authorization to track a controlled delivery of the package to Iwai's condominium building. Agents removed a majority of the methamphetamine and replaced it with a non-narcotic substitute, leaving behind only a small representative sample of the drug. They also placed in the package a GPS tracking device, which identified the location of the package, and contained a sensor, which would activate a rapid beeping signal on their monitoring equipment when the package was subsequently opened.

         The agents learned that Iwai's residence was located in a multi-story condominium building that did not permit direct delivery of packages to a particular unit, but rather utilized a central location to which packages were delivered for its residents. Believing that they did not have the requisite probable cause that the package would actually end up in Iwai's unit, the agents did not, as they normally would have, seek an anticipatory search warrant to enter his residence in order to secure the box once the beeper was triggered. The agents testified that at this point in the investigation, they had no way of knowing whether the package would be retrieved in the central mail room and removed from the property and taken somewhere else.

         At approximately 11:48 a.m. on August 5, 2015, a United States Postal Inspector posing as a mail carrier went to the condominium building, and from the lobby callbox telephoned Iwai's unit number to notify him that he had received a package. Iwai answered from his cell phone and requested that the package be left at the front desk with the manager. The Inspector complied.

         When Iwai returned at approximately 12:56 p.m., the agents observed him pick up the package from the manager and bring it up the elevator and into his unit. Agents maintained surveillance outside to see what might transpire.

         At 3:15 p.m., the beeper activated, signaling the package had been opened inside Iwai's unit. The agents went to Iwai's door, and knocked and announced their presence. After no initial response, Agent Richard Jones saw shadowy movements through the peephole, indicating that someone had come to the door, which had yet to open. After announcing their presence again, Agent Jones saw the figure walking away from the door. He knocked and announced again, but received no response. Agent Jones, the only agent directly in front of the door, then heard noises from inside the unit that sounded like plastic and paper rustling. He interpreted these noises to mean that Iwai was destroying evidence, which in his judgment required immediate action to prevent, and the agents forced entry at approximately 3:17 p.m.

         When the agents entered, Iwai was in the kitchen area, and the package was lying on the floor in the living room. Apparently, the signaling device had malfunctioned, because the package was still unopened. While securing the residence, the agents observed in plain view on a table in the living room a gun and zip lock bags containing what appeared to be a powder resembling methamphetamine.

         After securing the premises, Agent Jones asked Iwai for verbal consent to search the residence; consent was given, and a few minutes later Officer Jennifer Bugarin arrived with a consent-to-search form. Iwai was cooperative and calm, and promptly signed the consent form. After receiving Iwai's consent, in addition to seizing the weapon, "law enforcement officers searched the apartment and found approximately 14 pounds of crystal methamphetamine, more than $32, 000 in United States currency, a digital scale, a ledger, and plastic bags."

         Iwai moved to suppress all evidence and statements the government obtained from the controlled delivery operation, and the district court held a multi-day evidentiary hearing on the motion. The court denied Iwai's motion to suppress, holding, in relevant part, that the agents' entry was justified to prevent the imminent destruction of evidence, that the subsequent seizure of objects in plain view was lawful, and that Iwai's consent was voluntary. Following the denial of the suppression motion, Iwai entered a conditional guilty plea to conspiracy to possess and distribute methamphetamine, and possession of a firearm in furtherance of a drug trafficking crime.


         We review de novo the denial of a motion to suppress evidence, which presents a mixed question of law and fact. United States v. Crawford, 372 F.3d 1048, 1053 (9th Cir. 2004) (en banc). While "[t]he ultimate issue of whether exigent circumstances justify a warrantless entry and/or search" is reviewed de novo, United States v. Wilson, 865 F.2d 215, 216 (9th Cir. 1989), the district court's findings of fact are reviewed for clear error. United States v. Washington, 490 F.3d 765, 769 (9th Cir. 2007).


         A warrantless search of a home is "presumptively unreasonable" because "the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." Payton v. New York, 445 U.S. 573, 585-86 (1980) (quotations and citation omitted). This presumption is overcome only "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.'" Kentucky v. King, 563 U.S. 452, 460 (2011) (quoting Mincey v. Arizona, 437 U.S. 385, 394 (1978)). Preventing the imminent destruction of evidence is one such exigency, and exists when "officers, acting on probable cause and in good faith, reasonably believe from the totality of the circumstances that [] evidence or contraband will imminently be destroyed . . . ." United States v. Ojeda, 276 F.3d 486, 488 (9th Cir. 2002) (per curiam) (quoting United States v. Kunkler, 679 F.2d 187, 191-92 (9th Cir. 1982)). Probable cause exists where, under the totality of the circumstances, there is "a fair probability or substantial chance of criminal activity." United States v. Alaimalo, 313 F.3d 1188, 1193 (9th Cir. 2002). "The government bears the burden of showing specific and articulable facts to justify the finding of exigent circumstances." Ojeda, 276 F.3d at 488.

         It is undisputed here that, although the agents obtained a warrant to open the package and a second judicial authorization to insert a tracking device and alarm, they did not seek a warrant to subsequently enter Iwai's condominium to retrieve the package. Iwai contends, and the Dissent agrees, that the evidence found in his home should thus be suppressed because the agents could have, and therefore should have, obtained an anticipatory search warrant. See Dissent at 16-26. But this disregards the Supreme Court's admonition that officers have no constitutional duty to obtain a warrant as soon as they have probable cause. See King, 563 U.S. at 467. Rather, the consequence of failing to obtain a warrant is that any entry into a residence is presumptively unreasonable without an applicable exception. Id. at 459. Thus, whether or not the agents could have obtained an anticipatory search warrant in this case is beside the point: The relevant fact is simply that they did not, and any entry into Iwai's residence was presumptively unreasonable. Id.

         Because the agents did not have a warrant to enter and retrieve the package, their entry is lawful only if an exception to the warrant requirement such as exigent circumstances existed. Considering the totality of the circumstances on the evidence presented at the hearing, the district court credited the agents' testimony and concluded that they reasonably believed that the imminent destruction of evidence existed to justify the agents' entry. See Ojeda, 276 F.3d at 488.

         The court's finding of exigency was based on the following key evidence adduced at the hearing: (1) six pounds of methamphetamine had been intercepted the day before in a package addressed to Iwai; (2) the multi-story condominium complex had a central mail room to which all packages had to be delivered, preventing the agents from sending the package on a sure course to Iwai's unit; (3) the agents observed Iwai take the package up to his unit; (4) the beeper thereafter signaled that the package had been opened; (5) the agents knew that drugs are easily destroyed or disposed of; (6) upon knocking on the door, Agent Jones saw a shadowy figure approach the door and then retreat; and (7) Agent Jones then heard a suspicious rustling noise from inside, which in his experience as a highly trained narcotics investigator, indicated the destruction of evidence was occurring. The district court believed the agents were testifying truthfully. And no evidence refutes the conclusion that the agents were acting in good faith.

         Considering all of these facts together, it was reasonable to conclude that the destruction of incriminating evidence was occurring. Exigency arose at the time Agent Jones heard the suspicious sounds. But to focus on the noises in isolation from all other factors, as the Dissent does, is not a proper "totality of the circumstances" analysis.[1] See Dissent at 32-34; Ojeda, 276 F.3d at 488. Agent Jones did not hear "a rustling of papers or plastic or something to that effect" in a vacuum. Six pounds of methamphetamine had been discovered the day before in the package addressed to Iwai. At those quantities, agents were clearly investigating a major drug distributor. The agent heard this noise after the beeper had signaled that the package had been opened, and he knew Iwai was inside.

         Although the Dissent questions the significance of the noises Agent Jones heard, Dissent at 32-34, conduct meaningless "to the untrained eye of an appellate judge . . . may have an entirely different significance to an experienced narcotics officer" like Agent Jones. United States v. Hicks, 752 F.2d 379, 384 (9th Cir. 1985) (citing Bernard, 623 F.2d at 560), overruled on other grounds by United States v. Ramirez, 523 U.S. 65 (1998). Agent Jones believed that the noise he heard was Iwai destroying evidence, the trial court found his testimony credible, and there is no evidence in the record to suggest otherwise.[2]See Ornelas v. United States, 517 U.S. 690, 699 (1996) ("[A] reviewing court should take care . . . to give due weight to inferences drawn from those facts by resident judges and local law enforcement ...

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