United States v. Chiem Euy Saechao

ORDER

The petition for rehearing is GRANTED.

The Memorandum disposition filed on August 16, 2006, is hereby amended. The Amended Memorandum disposition and Judge Berzon’s concurrence shall be filed concurrently with this order. No further petitions for rehearing will be entertained.

AMENDED MEMORANDUM *

Chiem Euy Saechao appeals from the district court’s denial of his motion to suppress the fruits of a warrantless search of his home. We conclude that exigent circumstances existed at the time of the warrantless search, and introduction of the package and its contents at trial was therefore proper.

An officer’s warrantless search of a dwelling does not violate the Fourth Amendment if the search is “supported by probable cause and the existence of exigent circumstances.” Bailey v. Newland, 263 F.3d 1022, 1032 (9th Cir.2001). Probable cause is established when “the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found.” Ornelas v. United States, 517 U.S. 690, 696 , 116 S.Ct. 1657 , 134 L.Ed.2d 911 (1996). Furthermore, “exigent circumstances are present when a reasonable person…

concurring:

I concur in the majority’s denial of Saechao’s motion to suppress. I do not, however, agree that exigent circumstances excused the warrantless entry of Saechao’s residence.

Warrantless entry for the purpose of preventing destruction of evidence is permissible only when police can demonstrate with “particularized evidence” a “reasonable belief’ that extends beyond “mere[] speculation]” that there are coconspirators who may destroy evidence inside a building. United States v. Suarez, 902 F.2d 1466, 1468 (9th Cir.1990). There is no evidence that police had any such belief prior to their entry into the trailer. The majority’s observation that police could not rule out the presence of someone inside Saechao’s trailer does not meet the relevant standard.

I nevertheless conclude that introduction of the package and its contents at the trial is appropriate under the independent source rule. The government did not argue the applicability of the independent source rule until appeal. We can nonetheless decide the issue if it is “purely one of law and either does not depend on the factual record developed below, or the pertinent record has been developed.” Bolker v. Comm’r, 760…