United States v. Michael Duane Hunt

925 F.2d 1181 UNITED STATES of America, Plaintiff-Appellee, v. Michael Duane HUNT, Defendant-Appellant. No. 88-3222. United States Court of Appeals, Ninth Circuit. Feb. 14, 1991. Lawrence Matasar, Hoffman, Matasar & Glaeser, Portland, Or., for defendant-appellant. Stephen F. Peifer, Asst. U.S. Atty., Portland, Or., for plaintiff-appellee. Before WRIGHT, TANG and FERNANDEZ, Circuit Judges. ORDER 1 The government petitioned for rehearing, urging that our opinion published at 893 F.2d 1028 (9th Cir.1990), misapplied the Armed Career Criminal Act (ACCA), 18 U.S.C. Sec. 924 (e)(2)(B)(ii). Michael Duane Hunt petitioned for rehearing, inviting this court to reconsider the applicability of good faith reliance by the police on an administrative warrant. We grant the government's petition and deny the defendant's petition. 2 Our original opinion found the Sec. 924(e)(2)(B)(ii) enhancement inapplicable to Hunt because his Oregon conviction was not "burglary" within the meaning of ACCA. Taylor v. United States, --- U.S. ----, 110 S.Ct. 2143 , 109 L.Ed.2d 607 (1990) requires us to reconsider that position. 3 Under Taylor, an enhancement for burglary is appropriate if the defendant is…

ORDER

The government petitioned for rehearing, urging that our opinion published at 893 F.2d 1028 (9th Cir.1990), misapplied the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924 (e)(2)(B)(ii). Michael Duane Hunt petitioned for rehearing, inviting this court to reconsider the applicability of good faith reliance by the police on an administrative warrant. We grant the government’s petition and deny the defendant’s petition.

Our original opinion found the § 924(e)(2)(B)(ii) enhancement inapplicable to Hunt because his Oregon conviction was not “burglary” within the meaning of ACCA. Taylor v. United States, — U.S. —, 110 S.Ct. 2143 , 109 L.Ed.2d 607 (1990) requires us to reconsider that position.

Under Taylor , an enhancement for burglary is appropriate if the defendant is convicted of a crime “having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Id. 110 S.Ct. at 2158 . Hunt’s first degree burglary conviction under Or.Rev.Stat. § 164.225 falls within this definition. Section I of our original opinion, 893 F.2d at 1030-31 , is ■ withdrawn and the sentence imposed by the district court is…

dissenting in part:

I respectfully dissent from that part of the order denying Hunt’s petition for rehearing.

*1182 In our opinion we affirmed the district court’s ruling that police validly searched a home for Hunt in good faith reliance on an administrative warrant. We concluded that “Hunt’s contention that an administratively issued warrant is constitutionally infirm is irrelevant so long as the police acted in good faith reliance upon the warrant process.” United States v. Hunt, 893 F.2d 1028, 1032 (9th Cir.1990). In reaching this conclusion, as Hunt argues on petition for rehearing, we overstepped the bounds of the exception the Supreme Court has established for good faith reliance.

In United States v. Leon, 468 U.S. 897, 922 , 104 S.Ct. 3405, 3420 , 82 L.Ed.2d 677 (1984), the Supreme Court held that police may rely in good faith on a judicially issued warrant which is later determined to be constitutionally infirm. The Supreme Court reasoned that excluding evidence obtained pursuant to an infirm warrant could not achieve the salutory result of deterring the judicial branch from issuing infirm warrants. Id. at 921 , 104 S.Ct. at 3419 . In Illinois v. Krull, 480 U.S. 340 ,…