United States v. Steven Dale Winsor

Appellant Steven Winsor was found guilty by a jury of possessing forty dollars taken in a bank robbery. 1 See 18 U.S.C. § 2113 (c). On appeal he argues that his conviction rests on evidence obtained as a result of an unconstitutional search of the hotel room where he lived. A panel of this court affirmed the conviction, holding that although the police searched the room with only reasonable suspicion rather than probable cause, the search did not violate the Fourth Amendment because it was a minimal intrusion justified by important law enforcement interests. United States v. Winsor, 816 F.2d 1394 (9th Cir.1987). A *1571 limited en banc panel was convened to review the case following a vote of the majority of our active judges. See United States v. Winsor, 822 F.2d 1466 (9th Cir.1987).

We now hold that Winsor’s motion to suppress must be granted because the search of Winsor’s room without probable cause violated the Fourth Amendment. The panel opinion and the judgment of conviction are, accordingly, vacated and the case is remanded to the district court for further proceedings.

I

In January 1986, Dennis Winsor (appellant’s brother, who is not a party to this appeal) robbed a…

dissenting:

I.

The threshold issue, as the majority acknowledges, is whether the police conducted a search when Dennis Winsor opened the door and exposed his face to the officers. No search occurred if Winsor voluntarily opened the door. See Katz v. United States, 389 U.S. 347, 351 , 88 S.Ct. 507, 511 , 19 L.Ed.2d 576 (1967). Whether Winsor voluntarily opened the door is a question of fact to be determined from all the surrounding circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 248-49 , 93 S.Ct. 2041, 2058-59 , 36 L.Ed.2d 854 (1973); United States v. Ritter, 152 F.2d 435, 439 (9th Cir.1985). The district court never made a finding on the issue because it justified the police conduct on the basis of (1) the “hot pursuit” doctrine, and (2) the hotel manager’s consent to search the rooms. Although I agree that the grounds upon which the district court relied were improper, the case must be remanded to the district court for findings on the issue of voluntariness. Because the majority chooses not to remand, but to engage in fact finding as a necessary step in reversing a criminal conviction, I dissent.

In the order denying Steven Winsor’s motion to suppress, the district…

dissenting:

I respectfully dissent.

Officer Errol Bowser of the Los Angeles Police Department observed Dennis Winsor run out of a bank which had just been robbed. Officer Bowser pursued Dennis Winsor to the Chesterfield Hotel. Other law enforcement units were called upon to assist in capturing the bank robber, and they arrived within minutes. A police helicopter circled overhead during the manhunt.

The officers determined that an immediate search of the hotel for the bank robber was necessary. The officers were aware that at the time of the bank robbery Dennis Winsor claimed that he was armed and appeared to be carrying a firearm in his pocket. The officers knocked on a number of doors before arriving at Winsor’s room. They knocked and said, “Police, open the door.” The door was partially opened by Dennis Winsor. The police immediately recognized him as the person who had run from the scene of the bank robbery to the hotel, notwithstanding the fact that Winsor had attempted to alter his appearance by shaving his moustache. After making this identification, the police pushed open the door to the hotel room, at which time they saw Steven Winsor.

The district court concluded from…

846 F.2d 1569 56 USLW 2711 UNITED STATES of America, Plaintiff-Appellee, v. Steven Dale WINSOR, Defendant-Appellant. No. 86-5179. United States Court of Appeals, Ninth Circuit. Argued En Banc and Submitted Nov. 9, 1987. Decided May 24, 1988. Carlton F. Gunn, Deputy Federal Public Defender, Los Angeles, Cal., for defendant-appellant. George B. Newhouse, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Central District of California. Before BROWNING, ANDERSON * , TANG, FLETCHER, FARRIS, PREGERSON, ALARCON, CANBY, NORRIS, BEEZER, and WIGGINS, Circuit Judges. NORRIS, Circuit Judge: 1 Appellant Steven Winsor was found guilty by a jury of possessing forty dollars taken in a bank robbery. 1 See 18 U.S.C. Sec. 2113 (c). On appeal he argues that his conviction rests on evidence obtained as a result of an unconstitutional search of the hotel room where he lived. A panel of this court affirmed the conviction, holding that although the police searched the room with only reasonable suspicion rather than probable cause, the search did not violate the Fourth Amendment because it was a minimal intrusion justified by important law…