United States v. Marvin Joseph Lindsey

877 F.2d 777 UNITED STATES of America, Plaintiff-Appellee, v. Marvin Joseph LINDSEY, Defendant-Appellant. No. 88-5054. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 2, 1988. Decided June 9, 1989. Gerard Engelskirchen for Allan H. Stokke, Santa Ana, Cal., for defendant-appellant. John F. Walsh III, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Central District of California. Before WRIGHT, NORRIS and WIGGINS, Circuit Judges. WIGGINS, Circuit Judge: 1 Marvin Lindsey pleaded guilty conditionally to possession of illegal firearms and destructive devices. He reserved the right to appeal from the district court's denial of his motion to suppress evidence seized from his home. Lindsey contends that the police lacked the requisite probable cause and exigent circumstances to secure his house without a warrant, that the police failed to knock and announce before entry, that the police lacked probable cause to arrest him, and that his consent to search was involuntarily given. He asks this court to set aside his conviction and to direct the district court to grant the motion to suppress evidence…

Marvin Lindsey pleaded guilty conditionally to possession of illegal firearms and destructive devices. He reserved the right to appeal from the district court’s denial of his motion to suppress evidence seized from his home. Lindsey contends that the police lacked the requisite probable cause and exigent circumstances to secure his house without a warrant, that the police failed to knock and announce before entry, that the police lacked probable cause to arrest him, and that his consent to search was involuntarily given. He asks this court to set aside his conviction and to direct the district court to grant the motion to suppress evidence and allow him to withdraw his guilty plea. We affirm.

BACKGROUND

On August 17, 1987, a narcotics informant arranged for Detective Cook of the Buena Park Police Department to buy methamphetamine from a local dealer named David Ogata. Cook met Ogata at approximately 3:40 p.m. while six other Buena Park detectives positioned themselves in the vicinity. Ogata requested that Cook pay the $1200 purchase price before delivery. Cook replied that he wanted to see the merchandise first.

Ogata said he would go to a nearby house and pick up the drugs…

dissenting:

I agree with the majority that the police had probable cause to believe that the methamphetamine came from Lindsey’s house. I also agree that exigent circumstances would have existed had the police reasonably believed that the source in Lindsey’s house was expecting Ogata to return with the money, because a delay in Ogata’s return might have made the source nervous about the possibility of police involvement. If that thought had crossed the source’s mind, it might have led to the destruction of evidence, flight by the source, or “some other consequence improperly frustrating legitimate law enforcement efforts,” the evils toward which the exigency exception to the warrant re *784 quirement of the Fourth Amendment is directed. United States v. McConney, 728 F.2d 1195, 1199 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 , 105 S.Ct. 101 , 83 L.Ed.2d 46 (1984).

The critical inquiry, then, is whether the police had a reasonable basis for believing that the source expected Ogata to return promptly with the money. In other words, was there a reasonable basis for believing that the source fronted Ogata with the drugs?

Detective Cook testified, as the majority notes, that…