Submitted February 14, 2019 [*] Honolulu, Hawaii
from the United States District Court for the District of
Hawaii Derrick Kahala Watson, District Judge, Presiding D.C.
S. Breiner, Honolulu, Hawaii, for Defendant-Appellant.
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,
panel affirmed the district court's order denying a
motion to suppress evidence seized following law enforcement
agents' warrantless entry into defendant's
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
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.
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
TALLMAN, CIRCUIT JUDGE.
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.
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.
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
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.
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
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.
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.
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.
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."
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.
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
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
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.
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
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.
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. 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.
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.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