United States v. Juan Thomas Suarez

902 F.2d 1466 UNITED STATES of America, Plaintiff-Appellee, v. Juan Thomas SUAREZ, Defendant-Appellant. No. 88-1145. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 15, 1989. Decided May 16, 1990. J.E. Ring Smith, Las Vegas, Nev., for defendant-appellant. Thomas R. Green, Asst. U.S. Atty., Las Vegas, Nev., for plaintiff-appellee. Appeal from the United States District Court for the District of Nevada. Before CHAMBERS, CANBY and NORRIS, Circuit Judges. CANBY, Circuit Judge: 1 Juan Thomas Suarez appeals the district court's denial of his motion to suppress evidence. Suarez entered a conditional plea of guilty to one count of possession with intent to distribute cocaine in violation of 21 U.S.C. Secs. 841 (a)(1) and 846. Suarez contends that the warrantless search of his apartment was conducted without probable cause and absent exigent circumstances. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. Sec. 1291 . We reverse. 1. Probable Cause and Exigent Circumstances 2 We accept the findings of fact made by the district court as not clearly erroneous. We review de novo the motion to suppress, and the existence of probable cause and exigent…

Juan Thomas Suarez appeals the district court’s denial of his motion to suppress evidence. Suarez entered a conditional plea of guilty to one count of possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 841 (a)(1) and 846. Suarez contends that the warrantless search of his apartment was conducted without probable cause and absent exigent circumstances. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291 . We reverse.

1. Probable Cause and Exigent Circumstances

We accept the findings of fact made by the district court as not clearly erroneous. We review de novo the motion to suppress, and the existence of probable cause and exigent circumstances. United States v. Howard, 828 F.2d 552, 554 (9th Cir.1987)

For the reasons stated by the district judge, the agents 1 had probable cause to search Suarez’s premises when they activated the garage door opener. Nevertheless, “[e]ven the existence of probable cause, without more, does not validate a warrantless entry into a residence.” United States v. Delgadillo-Velasquez, 856 F.2d 1292, 1298 (9th Cir.1988) (emphasis in *1468 original). The government bears the additional burden of showing the…

dissenting:

While I do not write out a lengthy dissent, I feel that every test was met by the government to excuse the absence of a search warrant. I worried for some time about the officers opening the garage door of the lean-to garage with Suarez’s electronic door bug. But it was a common garage for several cars of several people, where the majority of the cases seem to *1469 hold that no one user occupant has a reasonable expectation of privacy in common hallways or multiple garages.

But, if I had the votes, I would remand the case for further hearing on the scuffle that occurred after the garage door had been opened, and after Suarez had invited the officers into the house. Suarez was handcuffed. This could have vitiated the invitation to come in and to search. This point was never reached in the trial court or in the appellant’s brief. Never having voted for rough stuff, I would like to see that examined in the district court.

Also, I am troubled by this. Accompanying Suarez’s Motion to Suppress, he made an affidavit saying, inter alia, as follows:

On a de novo review of the evidence, as we do in this sort of case, isn’t there a lot of falsity in these three paragraphs?…