United States v. David Matthew , 712 F. App'x 688 ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 20 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-30268
Plaintiff-Appellee, D.C. No.
1:15-cr-00081-SPW-1
v.
DAVID JAMES MATTHEW, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Susan P. Watters, District Judge, Presiding
Argued and Submitted February 5, 2018
Seattle, Washington
Before: GOULD and PAEZ, Circuit Judges, and MCSHANE,** District Judge.
David Matthew was convicted of being a felon in possession of firearms and
ammunition, in violation of 18 U.S.C. § 922(g)(1). Matthew appeals the district
court’s denial of his motion to suppress evidence as well as the imposition of three
special conditions of supervised release. We have jurisdiction under 28 U.S.C. §
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Michael J. McShane, United States District Judge for
the District of Oregon, sitting by designation.
1291. We affirm the district court’s denial of the motion to suppress. We vacate
the three special conditions of supervised release and remand for further factual
findings and resentencing.
1. Matthew argues that his Fourth Amendment rights were violated during
Officer Waldo’s initial contact with Matthew and the ensuing search, and that
therefore the evidence gathered in the search should be suppressed. He makes two
distinct arguments. First, he contends that Waldo entered the screened front patio
without a valid warrant, which directly violated the Fourth Amendment, as the
triggering conditions for the anticipatory search warrant had not been met.
Second, he contends that the terms of the anticipatory search warrant were never
met, as Matthew did not re-enter the residence with the package, and therefore the
subsequent search of Matthew’s residence lacked probable cause. We will address
each argument in turn.
Waldo did not violate the Fourth Amendment by entering the screened front
patio in order to deliver the package containing marijuana. As Matthew
recognizes, the front patio area was part of the curtilage of the house. See Florida
v. Jardines, 569 U.S. 1, 7 (2013) (stating that the “front porch is the classic
exemplar” of curtilage). The curtilage is considered to be part of the home for the
purposes of the Fourth Amendment inquiry. Id. at 6. There is, however, an
implicit license for police officers to enter the curtilage, provided that they do so in
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a manner that complies with the customs of the community. Id. at 8 (This implicit
license typically permits the visitor to approach the home by the front path, knock,
wait briefly to be received, and then (absent invitation to linger longer) leave”); see
also United States v. Perea-Ray, 680 F.3d 1179, 1188 (9th Cir. 2012).
In this case, Waldo’s actions were those that would be typical of any
neighbor trying to deliver a package. He approached the screened patio and
finding it unlocked, entered the patio to knock on the door leading from the patio
into the rest of the house. There were opened packages on a table in the patio-area,
and Waldo believed that if he were to knock on the patio door, no one would hear
him. Waldo reasonably entered the unlocked patio pursuant to an implicit license
and did not violate the Fourth Amendment by doing so.
Additionally, the terms of the anticipatory search warrant were satisfied.
Anticipatory search warrants are based upon the occurrence of a “triggering
condition,” which provides the probable cause needed for the search warrant to be
valid. United States v. Grubbs, 547 U.S. 90, 94 (2006). We interpret triggering
conditions in a common-sense manner rather than adopting a “hypertechnical and
narrow reading of the warrant language.” United States v. Vesikuru, 314 F.3d
1116, 1123 (9th Cir. 2002).
The anticipatory search warrant required Matthew to accept the package at
his residence described in the search warrant and then to re-enter the residence.
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Matthew argues that because the package was found on the front porch, the
requirement that Matthew “re-enter” his residence with the package was not met.
The warrant’s description of the premises, however, expressly includes the
“screened front patio.” Without question, the front patio was part of the residence
for the purposes of the search warrant. As Matthew never left his residence, but
rather accepted the package while in the patio, it would be nonsensical to require
that he “re-enter” his residence. See id. The terms of the anticipatory search
warrant were satisfied.
2. Matthew also challenges the imposition of three special conditions of
supervised release: 1) completion of sex offender treatment (special condition no.
4); 2) six polygraph examinations a year (special condition no. 5); and 3) he cannot
reside or be in the company of children under age 18 (special condition no. 10).
To impose special conditions of supervised release, the district court must make a
finding that they relate to the “goal of deterrence, protection of the public, or
rehabilitation of the offender.” United States v. T.M., 330 F.3d 1235, 1240 (9th
Cir. 2003) (vacating conditions of supervised release based solely on a sexual
offense twenty years prior). Here, both parties agree that the district court did not
make sufficient findings to warrant imposition of these three special conditions of
supervised release. Indeed, Matthew asserted at sentencing that he had previously
completed sex offender treatment as ordered by the state court. Both parties agree
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that this issue should be remanded to the district court. We therefore vacate these
three special conditions of supervised released (special condition nos. 4, 5, and 10)
and remand to the district court for resentencing.
AFFIRMED in part; REVERSED in part and REMANDED for
resentencing.
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