United States v. Ronnie Biddle

FILED

NOT FOR PUBLICATION JAN 31 2012

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S . CO UR T OF AP PE A LS

FOR THE NINTH CIRCUIT

United States of America, No. 10-10379

Plaintiff - Appellant, D.C. No. 3:09-cr-01159-MHP-

v.

MEMORANDUM *

RONNIE BIDDLE, etc.

Defendant - Appellee.

United States of America, No. 11-10271

Plaintiff - Appellant, D.C. No. 3:09-cr-01159-MHP-

v.

RONNIE BIDDLE, etc.

Defendant - Appellee.

Appeal from the United States District Court for the Northern District of California Marilyn H. Patel, Senior District Judge, Presiding

Argued and Submitted January 10, 2012 San Francisco, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: WALLACE and M. SMITH, Circuit Judges, and RAKOFF, District Judge.**

The government appeals the district court's grant of Ronnie Biddle's motion

to suppress evidence found during a search of his vehicle. Separately, the

government also appeals the district court's dismissal of…

MEMORANDUM **

The government appeals the district court’s grant of Ronnie Biddle’s motion to suppress evidence found during a search of his vehicle. Separately, the government also appeals the district court’s dismissal of the indictment against Biddle while the interlocutory appeal of the suppression motion was pending before this court. Because the parties are familiar with the factual and procedural history of this case, we repeat only those facts necessary to resolve the issues raised on appeal. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 , 3731, and we affirm in part and reverse and remand in part.

We affirm the suppression of the evidence found in Biddle’s vehicle. Any of Biddle’s actions that may have constituted abandonment of the searched vehicle were colored by the officer’s initial illegal searches. United States v. Jackson, 544 F.2d 407, 409 (9th Cir.1976) (stating that the court cannot consider “tainted” acts that “may have been brought by unlawful police conduct”); see also United States v. Stephens, 206 F.3d 914, 916 (9th Cir.2000) (“An abandonment must be voluntary, and an abandonment that results from Fourth Amendment violations cannot be voluntary.”)…

concurring in part and dissenting in part.

I concur with my colleagues in reversing for the erroneous dismissal of the indictment. I dissent from the holding that the police’s seizure of the keys and search of the glove box tainted the later search of the trunk with the resultant seizure of the gun.

Even if the seizure of the keys and search of the glove box were unlawful, these Fourth Amendment violations do not render Biddle’s subsequent abandonment involuntary unless there is “a nexus between the allegedly unlawful police conduct and abandonment of property.” United States v. Gilman, 684 F.2d 616, 620 (9th Cir.1982). The disposition does not identify this nexus, and I have not found it. Nothing suggests that Biddle disavowed ownership of the car because the police took the keys and rummaged through his glove box. The police took the car keys only to shut off the engine-making the surroundings safer. Nothing illegal was found in the glove box, and nothing was done to the glove box or keys to make the car ownership less desirable. See Gilman, 684 F.2d at 620 (“Abandonment of property in response to police investigation does not per se render abandonment involuntary”).

Because…