United States v. Harry McCabe, Sr.

FILED

NOT FOR PUBLICATION JUL 02 2014

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 13-10105

Plaintiff - Appellee, D.C. No. 3:12-cr-08135-JAT-

v.

MEMORANDUM*

HARRY MCCABE, Sr.,

Defendant - Appellant.

Appeal from the United States District Court for the District of Arizona James A. Teilborg, Senior District Judge, Presiding

Argued and Submitted June 10, 2014 San Francisco, California

Before: SCHROEDER, GRABER, and BYBEE, Circuit Judges.

Harry McCabe, Sr. appeals his conviction following a three-day jury trial of

assault with a dangerous weapon in Indian country, 18 U.S.C. §§ 113(a)(3), 1153,

assault resulting in serious bodily injury in Indian country, 18 U.S.C. §§ 113(a)(6),

1153, and two counts of use of a firearm in a crime of violence, 18 U.S.C. §

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. 924(c)(1)(A)(iii). He challenges the denial of his motion to suppress a rifle found

after a warrantless entry into his abode, alleges…

MEMORANDUM *

Harry McCabe, Sr. appeals his conviction following a three-day jury trial of *682 assault with a dangerous weapon in Indian country, 18 U.S.C. §§ 113 (a)(3), 1153, assault resulting in serious bodily injury in Indian country, 18 U.S.C. §§ 113 (a)(6), 1153, and two counts of use of a firearm in a crime of violence, 18 U.S.C. § 924 (c)(l)(A)(iii). He challenges the denial of his motion to suppress a rifle found after a warrantless entry into his abode, alleges fault with the indictment, jury instructions, and verdict forms, and argues that the district court abused its discretion in making several evidentiary rulings. We have jurisdiction under 28 U.S.C. § 1291 . We affirm.

A. Warrantless Entry

We review de novo whether the police officers had probable cause to arrest McCabe and whether exigent circumstances justified their warrantless entry into McCabe’s hogan, a one-room abode in which he was staying. United States v. Mancinas-Flores, 588 F.3d 677, 687 (9th Cir.2009); United States v. Lopez, 482 F.3d 1067, 1071 (9th Cir.2007).

“Exigent circumstances are defined to include ‘those circumstances that would cause a reasonable person to believe that entry ... was…

dissenting:

I respectfully dissent from Part A of the majority’s disposition. In my view, the officers’ warrantless entry into the hogan was not justified by exigent circumstances.

“The Fourth Amendment prohibits police officers from making a warrantless entry into a person’s home, unless the officers have probable cause and are presented with exigent circumstances.” LaLonde v. County of Riverside, 204 F.3d 947, 954 (9th Cir.2000). The government bears a “heavy burden” of proving exigent circumstances. United States v. Licata, 761 F.2d 537, 543 (9th Cir.1985). The panel affirms the district court’s holding that exigent circumstances supported the warrantless entry because the officers reasonably feared for their immediate safety and the safety of others. I disagree.

In no case have we held that officers may enter a home simply because a serious crime has been committed and the perpetrator is located within. The cases cited by the district court differ from this case because each of those cases involved a clear threat to others. See, e.g., United States v. Echegoyen, 799 F.2d 1271, 1278 (9th Cir.1986) (noting that the search was justified by the presence of “a potentially…