United States v. Black

On appeal, Jasper Black challenges his conviction as a felon in possession, arguing that the district court erred when it denied his motion to suppress the gun. We affirm.

I.

The police justify their entry into Black’s apartment, not as one looking for evidence of a crime but as a welfare search occasioned by a 911 domestic violence call. Police were dispatched to the apartment after Black’s ex-girlfriend, Tyroshia Walker, called 911 and reported that Black had beaten her up that morning in the apartment and that he had a gun. Toward the end of her 911 call, Walker told the dispatcher that she intended to return to the apartment with her mother in order to retrieve her clothing and that the two women would wait outside the apartment, in a white Ford pickup truck, for police to arrive. Officer Rodriguez was dispatched to the scene to meet the women. When he arrived at the apartment a few minutes later there were no signs of Walker, her mother, or the truck. Rodriguez contacted Officer Kikkert, who was already on his way to the apartment, and directed him to stop by the grocery store from which Walker had made her phone call. Kikkert checked the store for signs of Walker…

dissenting.

I dissent. Because I believe the officer’s warrantless search of the apartment cannot be justified under the Fourth Amendment’s “exigent circumstances” exception to the warrant requirement, I would reverse the district court’s decision to deny Black’s motion to suppress and overturn his conviction.

I begin by emphasizing the “heavy burden” that the government bears when trying to prove exigent circumstances. See United States v. Howard, 828 F.2d 552, 555 (9th Cir.1987) (citing United States v. Licata, 761 F.2d 537, 543 (9th Cir.1985)). Exigent circumstances are “those circumstances that would cause a reasonable person to believe that entry ... was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.” United States v. Brooks, 367 F.3d 1128, 1135 (9th Cir.2004) (omission in original) (citing United States v. McConney, 728 F.2d 1195, 1199 (9th Cir.1984) (en banc)). To prove that such circumstances existed, the government cannot rely on “speculation about what may or might have happened.” See Howard, 828…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 05-10640 Plaintiff-Appellee, v.  D.C. No.

CR-04-00093-LDG

JASPER BLACK,

OPINION

Defendant-Appellant.  Appeal from the United States District Court for the District of Nevada Lloyd D. George, District Judge, Presiding

Argued and Submitted September 14, 2006—San Francisco, California

Filed October 26, 2006

Before: Betty B. Fletcher and Marsha S. Berzon, Circuit Judges, and David G. Trager,* District Judge.

Opinion by Judge Betty B. Fletcher; Dissent by Judge Berzon

*The Honorable David G. Trager, Senior United States District Judge for the Eastern District of New York, sitting by designation.

17951 17954 UNITED STATES v. BLACK

COUNSEL

Anne Traum, Esq., AFPD, Las Vegas, Nevada, for the defendant-appellant.

J. Gregory Damm, Esq., AUSA, Las Vegas, Nevada, for the plaintiff-appellee.

OPINION

B. FLETCHER, Circuit Judge:

On appeal, Jasper Black challenges his conviction as a felon in possession, arguing that the district court erred when it denied his motion to suppress the gun. We affirm.

I.

The police…