United States v. Jasper Black

Opinion by Judge BETTY B. FLETCHER; Dissent by Judge BERZON.

ORDER AMENDING OPINION AND DISSENT AND AMENDED OPINION AND AMENDED DISSENT

ORDER

The opinion and dissent filed on October 26, 2006, United States v. Black, 466 F.3d 1143 (9th Cir.2006), are amended as follows:

AMENDMENTS TO OPINION

On page 1145, line 32 add the following sentence at the beginning of the paragraph: “First, the police did not have stopwatches in hand and could only approximate the elapsed times.” In the sentence that originally headed this paragraph, delete “First” and substitute “Second”. Delete from page 1145, lines 33-39:

At the end of the altered paragraph, add:

AMENDMENTS TO DISSENT

In the third full paragraph on page 1148, replace the sentence “The first officer arrived at 804 J Street, about three minutes after Walker called 911” with “The first officer, Rodriguez, arrived at 804 J Street at 8:43 a.m., three minutes after Walker ended her 911 call.”

AMENDED OPINION

On appeal, Jasper Black challenges his conviction as a felon in possession, arguing that the district court erred when it denied his motion to suppress the gun. We affirm.

I.

The police justify their entry into Black’s…

*1042 AMENDED DISSENT

dissenting:

I dissent. Because I believe the officer’s warrantless search of the apartment cannot be justified under the Fourth Amendment’s “exigent circumstances” exception to the warrant requirement, I would reverse the district court’s decision to deny Black’s motion to suppress and overturn his conviction.

I begin by emphasizing the “heavy burden” that the government bears when trying to prove exigent circumstances. See United States v. Howard, 828 F.2d 552, 555 (9th Cir.1987) (citing United States v. Licata, 761 F.2d 537, 543 (9th Cir.1985)). Exigent circumstances are “those circumstances that would cause a reasonable person to believe that entry ... was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.” United States v. Brooks, 367 F.3d 1128, 1135 (9th Cir.2004) (omission in original) (citing United States v. McConney, 728 F.2d 1195, 1199 (9th Cir.1984) (en banc)). To prove that such circumstances existed, the government cannot rely on “speculation about what may or might have…

482 F.3d 1035 UNITED STATES of America, Plaintiff-Appellee, v. Jasper BLACK, Defendant-Appellant. No. 05-10640. United States Court of Appeals, Ninth Circuit. Argued and Submitted September 14, 2006. Filed October 26, 2006. Amended April 9, 2007. Anne Traum, Assistant Federal Public Defender, Las Vegas, NV, for the defendant-appellant. J. Gregory Damm, Assistant United States Attorney, Las Vegas, NV, for the plaintiff-appellee. Appeal from the United States District Court for the District of Nevada; Lloyd D. George, District Judge, Presiding. D.C. No. CR-04-00093-LDG. Before BETTY B. FLETCHER and MARSHA S. BERZON, Circuit Judges, and DAVID G. TRAGER, * District Judge. Opinion by Judge BETTY B. FLETCHER; Dissent by Judge BERZON. ORDER AMENDING OPINION AND DISSENT AND AMENDED OPINION AND AMENDED DISSENT B. FLETCHER, Circuit Judge. ORDER 1 The opinion and dissent filed on October 26, 2006, United States v. Black, 466 F.3d 1143 (9th Cir.2006), are amended as follows: AMENDMENTS TO OPINION 2 On page 1145, line 32 add the following sentence at the beginning of the paragraph: "First, the police did not have stop-watches in hand and could only approximate the elapsed times." In the…