United States v. Richard Ward ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 27 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-10501
Plaintiff-Appellee, D.C. No.
2:14-cr-00306-LDG-NJK-1
v.
RICHARD WILLIAM WARD, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Lloyd D. George, District Judge, Presiding
Argued and Submitted March 16, 2018
San Francisco, California
Before: McKEOWN, FUENTES,** and BEA, Circuit Judges.
Richard Ward appeals the district court’s denial of his motion to suppress.
Ward argues that evidence derived from a warrantless entry into his home should
have been suppressed because no exigency justified the entry. Because the parties
are familiar with the facts, we do not recite them here. We have jurisdiction under
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Julio M. Fuentes, United States Circuit Judge for the
U.S. Court of Appeals for the Third Circuit, sitting by designation.
28 U.S.C. § 1291, and we affirm.
The Fourth Amendment permits a warrantless search if the “exigencies of
the situation make the needs of law enforcement so compelling that the warrantless
search is objectively reasonable under the Fourth Amendment.” Brigham City v.
Stuart, 547 U.S. 398, 403 (2006) (citing Mincey v. Arizona, 437 U.S. 385, 393–94
(1978)). An important and well-established exigency exists when officers must
render emergency assistance to an injured person or protect someone from
imminent injury. Id. Entry pursuant to the emergency aid exception is reasonable
when, “(1) considering the totality of the circumstances, law enforcement had an
objectively reasonable basis for concluding that there was an immediate need to
protect others or themselves from serious harm; and (2) the search’s scope and
manner were reasonable to meet the need.” United States v. Snipe, 515 F.3d 947,
952 (9th Cir. 2008).
Given the district court’s factual findings—which were not challenged on
appeal—and considering the totality of the circumstances, there was sufficient
objective evidence to support the officers’ first warrantless entry and sweep of
Ward’s home under the emergency aid exception. At the time of entry, the officers
knew that there had been a 911 call reporting shots fired on the block, and that a
woman approached the first officer on the scene, pointed to Ward and the two men
standing outside of the home, and told the officer “that’s them, that’s them, there
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they are.” When Officer McKenzie approached the three men and ordered them to
the ground, Ward was slow to comply and Sean Dearing stepped into the house
and closed the door as if he was trying to hide something. Officer McKenzie also
observed that, before entering the house, Dearing was holding his hands in a way
consistent with how officers hold firearms while at a shooting range, although he
did not see a firearm. The men were unresponsive when questioned, and Ward
blatantly lied when he told Officer McKenzie that no one else was inside the home
even though Dearing had just entered. Officers also observed spent shell casings
“litter[ing]” the walkway in front of the home prior to entering. Under these
circumstances, it was objectively reasonable to conclude that there was an
immediate need to aid or protect someone in the home, as well as a need to ensure
officer safety as the officers continued to investigate the 911 call. See Sandoval v.
Las Vegas Metro. Police Dep't, 756 F.3d 1154, 1163 (9th Cir. 2014) (“[O]fficer
safety may also fall under the emergency rubric.”).
The scope and manner of the search was also reasonable to meet the
officers’ needs. The officers spent only as much time in the house as needed to
confirm that no one else was inside the home. The officers were also unable to use
alternative means by sending in a police dog due to the presence of Ward’s dog in
the house.
We need not determine whether the officers’ second walkthrough was
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improper because, even if it was, the independent source doctrine applies. Nix v.
Williams, 467 U.S. 431, 432 (1984) (“[T]he independent source doctrine . . .
allow[s] admission of evidence that has been discovered by means wholly
independent of any constitutional violation.”). All of the evidence viewed by the
officers during the second walkthrough had already been viewed during the
preceding, lawful sweep.
Nor did the magistrate judge err by denying Ward’s request for a Franks
hearing. See Franks v. Delaware, 438 U.S. 154, 171 (1978). Although Ward
provided a laundry list of allegedly false statements, Ward failed to make any
showing that the affidavit underlying the search warrant would not have supported
a finding of probable cause without the allegedly false information. See United
States v. Reeves, 210 F.3d 1041, 1044 (9th Cir. 2000) (“A defendant is entitled to
[a Franks hearing] if the defendant can make a substantial preliminary showing
that (1) the affidavit contains intentionally or recklessly false statements or
misleading omissions, and (2) the affidavit cannot support a finding of probable
cause without the allegedly false information.”).
AFFIRMED.
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