United States v. Crasper ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-30456
Plaintiff-Appellee,
v.  D.C. No.
CR-03-00487-BR
GUNNER LAWSON CRAPSER,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued July 26, 2006;
Resubmitted January 3, 2007
Portland, Oregon
Filed January 10, 2007
Before: Alfred T. Goodwin, Stephen Reinhardt, and
Susan P. Graber, Circuit Judges.
Opinion by Judge Graber;
Dissent by Judge Reinhardt
157
UNITED STATES v. CRAPSER 161
COUNSEL
Nancy Bergeson, Assistant Federal Public Defender, Portland,
Oregon, for the defendant-appellant.
Frank Noonan, Assistant United States Attorney, Portland,
Oregon, for the plaintiff-appellee.
OPINION
GRABER, Circuit Judge:
Defendant Gunner Lawson Crapser appeals his conviction,
upon a guilty plea, of being a felon in possession of a firearm
in violation of 18 U.S.C. § 922(g)(1). He argues that the trial
court erred in denying his motion to suppress. We affirm
because the initial encounter between Defendant and the
police was consensual or, alternatively, was supported by rea-
sonable suspicion, and because his consent to search was vol-
untary.
162 UNITED STATES v. CRAPSER
FACTUAL AND PROCEDURAL BACKGROUND
The district court made extensive findings of fact, none of
which is clearly erroneous and all of which are supported by
evidence in the record. We therefore paraphrase the court’s
findings here.
In July 2003, Multnomah County Sheriff’s Deputy Todd
Shanks stopped a vehicle driven by William Barrett. In the
course of the stop, he found a pressure-cooker in the trunk.
Shanks suspected that the pressure-cooker had been used in
the manufacture of methamphetamine. Barrett told Deputy
Shanks that the pressure-cooker belonged to “Gunner Crap-
ser,” who was staying at an EconoLodge Motel in Gresham,
Oregon, in a room registered to a white, female dancer named
Summer Twilligear.
Shanks also learned that there was an outstanding arrest
warrant for someone who used the name “Gunner Crapser.”
The warrant information, however, was flagged to warn offi-
cers not to confuse the wanted person, whose true name was
James Stover, with anyone else who used the name “Gunner
Crapser.”
Shanks decided to go to the motel for two reasons. First, he
intended to investigate whether the “Gunner Crapser” whom
Barrett had described was the same man who was wanted.
Second, Shanks intended to try to “knock and talk” his way
into obtaining consent to search the room where Crapser was
staying so as to look for evidence of methamphetamine activ-
ity. Shanks, who was in uniform and driving a marked patrol
vehicle, asked for other officers to assist him at the motel. In
the end, four uniformed officers and one plain-clothes officer
were involved in the contact that led to Defendant’s arrest.
The officers confirmed with the motel manager that Sum-
mer Twilligear rented Room 114. They then went to Room
114. Adjacent to an eight-foot-by-five-foot exterior concrete
UNITED STATES v. CRAPSER 163
entryway is a five-foot-wide sidewalk that runs alongside the
motel rooms. Next to the sidewalk is the parking area for
motel guests. Although a sign in the parking lot warns that
parking is reserved for motel guests, the parking lot and the
walkways leading to the doors of the motel rooms are open
to public view and are accessible by anyone in the parking
area.
When the officers arrived at about 11 a.m. on the day in
question, they parked where they were not immediately visi-
ble from Room 114. Sergeant Edward Walls, who was in uni-
form, took a precautionary position at the rear of Room 114.
There are no windows or doors on that side of the structure,
so his presence was not obvious to the occupants of Room
114. Deputies Marc Galloway and Chad Phifer, who also
were in uniform, and Deputy Scott Timms, who was in plain
clothes, accompanied Shanks when he knocked on the door to
Room 114. All of the uniformed officers had visible sidearms,
and the plain-clothes officer had a concealed weapon. The
police firearms, however, remained holstered at all times.
In response to Shanks’ knock on the door of Room 114, a
white woman, later identified as Twilligear, pulled back the
curtains from inside the room and made eye contact with
Shanks. Shanks asked Twilligear if she would open the door
so that he could speak with her. She nodded in the affirmative
and closed the curtains. About two minutes passed before she
opened the door. While the officers waited, they heard what
sounded like people moving things around inside the room.
Nonetheless, the officers remained outside.
When the door opened, Twilligear and Defendant came out
and closed the door behind them. This was the officers’ first
contact with Defendant. Shanks asked Galloway and Phifer to
speak with Defendant to determine whether he was the person
identified in the arrest warrant. The three of them moved a
short distance away. In the meantime, Shanks and Timms
spoke with Twilligear. The two groups stood 10 to 25 feet
164 UNITED STATES v. CRAPSER
from each other on the sidewalk near the parking area. During
this initial part of the contact, the officers did not block or
physically keep Defendant or Twilligear from walking away
or returning to their room, nor did the officers affirmatively
assert authority over the movements of Defendant or Twillig-
ear.
Shanks asked Twilligear for identification. After obtaining
her name and date of birth, he ran a records check and deter-
mined she was “clear.” Shanks explained to Twilligear why
the police had come to her motel room and asked who was
renting the room. Twilligear told Shanks that she had rented
the room and that Defendant had been there the night before.
Twilligear said that other people also had been in and out of
the room. Although Twilligear admitted she used metham-
phetamine, she denied that she was “cooking” any drugs and
denied that there were any drug chemicals in the room. At this
point, Shanks left Twilligear and Timms to join Galloway,
Phifer, and Defendant while Timms continued to speak with
Twilligear in the hope of obtaining her consent to search the
room.
While Galloway and Phifer were speaking with Defendant
about the warrant, they noticed that Defendant was very ner-
vous and that his hands were shaking. Defendant’s nervous
demeanor contrasted sharply with his calm demeanor during
a 20-minute traffic stop by these same officers about a week
earlier. Defendant’s behavior raised Galloway’s suspicions.
When Shanks joined the group a bit later, he, too, noticed that
Defendant was very nervous; his hands were trembling and an
artery was visibly pulsating in his neck.
Defendant explained to the officers that, in the past, he had
been mistaken for another person who used the name “Gunner
Crapser” and that there were no warrants outstanding for his
arrest. Phifer left to run a computer check in his patrol vehi-
cle. While Phifer was away and Defendant was talking with
Galloway, Galloway asked Defendant something about drugs.
UNITED STATES v. CRAPSER 165
Defendant unexpectedly pulled a syringe from his right back
pocket and said, “This is all I have on me.” The syringe was
capped and looked like the kind of syringe used by intrave-
nous drug users. The cylinder contained a clear liquid that
Galloway suspected was methamphetamine.
After Phifer confirmed that Defendant’s physical character-
istics did not match those of the wanted person, he returned
from his patrol car and told Galloway that Defendant was
“clear.” But, by this time, Defendant had produced the
syringe. Galloway patted him down to ensure that he had
nothing on his person, other than the syringe, that could be
used as a weapon. Shanks was present during the pat-down,
which occurred about five minutes after Defendant emerged
from Room 114.
Shanks confirmed with Defendant that he had stayed in
Room 114 the previous night and that Twilligear was renting
the room. Defendant said he had some personal property in
the room. Shanks asked Defendant whether he would consent
to a search of his person. Defendant answered “yes.” Shanks
then searched Defendant’s pockets. In the right front pants
pocket Shanks discovered a tissue-wrapped roll of three or
four syringes and a small baggie containing what appeared to
be methamphetamine. Shanks arrested Defendant for posses-
sion of a controlled substance, handcuffed him, and gave him
the Miranda warnings. Shanks asked Defendant whether he
understood his rights. Defendant answered “yes.”
Shanks then told Defendant that he believed there might be
a methamphetamine manufacturing operation in Room 114
and asked for Defendant’s consent to search the room. At the
same time, Timms was asking Twilligear for consent to
search the room. Twilligear expressed concern that she not be
held accountable for the content of Defendant’s bags and said
loudly, in Defendant’s direction, that he should “own up” to
what he had in the room. Defendant told Shanks that his blue
adidas duffel bag contained a 9 mm handgun and a shotgun.
166 UNITED STATES v. CRAPSER
Specifically in response to Shanks’ request for consent to
search the room, Defendant said that he would consent.
Shanks presented Defendant with a written consent form and
read it, verbatim, to Defendant. Shanks also ascertained that
Defendant had completed nine years of schooling. Defendant
told Shanks that he understood the form, and he signed it. The
consent form identified the location and gave permission to
search the room and the blue adidas duffel bag for evidence
of controlled substance and firearms offenses. Twilligear
signed a similar form consenting to the search of Room 114.
The resulting search turned up the firearms that are the subject
of this case.
In October 2003, the grand jury returned a three-count
indictment. Defendant filed a motion to suppress, asserting
that the officers had violated the Fourth Amendment when
they detained him because they did not have a reasonable sus-
picion to seize him, search him, pat him down, or search his
motel room. The district court held an evidentiary hearing and
denied the motion. Defendant pleaded guilty to the illegal
firearm count in the indictment in exchange for dismissal of
the other counts. He reserved the right to appeal the district
court’s rulings on his motion to suppress. This timely appeal
followed.
STANDARDS OF REVIEW
We review de novo the denial of a motion to suppress evi-
dence, United States v. Bautista, 362 F.3d 584, 588-89 (9th
Cir. 2004), but review for clear error the district court’s
underlying findings of fact, United States v. Patayan Soriano,
361 F.3d 494, 501 (9th Cir. 2004). Whether an encounter
between law enforcement officers and a defendant amounts to
a seizure is a mixed question of law and fact that we review
de novo. United States v. Chan-Jimenez, 125 F.3d 1324, 1326
(9th Cir. 1997). Likewise, we review de novo whether a sei-
zure was supported by reasonable suspicion. United States v.
Thompson, 282 F.3d 673, 678 (9th Cir. 2002). Finally, we
UNITED STATES v. CRAPSER 167
review for clear error a district court’s finding that the defen-
dant voluntarily consented to a search. United States v. Pang,
362 F.3d 1187, 1191 (9th Cir. 2004).
DISCUSSION
A. The initial contact with Defendant was consensual.
The first question that we must answer is whether the initial
conversation with Defendant was a seizure or, instead, was
voluntary and consensual. We hold that the district court
properly concluded that the encounter was voluntary and con-
sensual, not amounting to a seizure.
This situation bears a strong resemblance to the encounter
that we described in United States v. Cormier, 220 F.3d 1103
(9th Cir. 2000). There, Officer Peters went to Cormier’s motel
room, knocked, and asked to come in and speak with him.
After asking him some questions, Peters asked if she could
look around, and Cormier assented. She found a gun and
placed Cormier under arrest. Id. at 1107. Because Cormier
had a reasonable expectation of privacy in his motel room, we
analyzed “whether he voluntarily opened the door or, alterna-
tively, whether there were coercive circumstances that turned
an ordinary consensual encounter into one requiring objective
suspicion.” Id. at 1109. Citing Davis v. United States, 327
F.2d 301, 303-04 (9th Cir. 1964), we held:
[1] This Court stated the general rule regarding
“knock and talk” encounters almost forty years ago
in the following passage:
Absent express orders from the person in
possession against any possible trespass,
there is no rule of private or public conduct
which makes it illegal per se, or a con-
demned invasion of the person’s right of
privacy, for anyone openly and peaceably,
168 UNITED STATES v. CRAPSER
at high noon, to walk up the steps and
knock on the front door of any man’s “cas-
tle” with the honest intent of asking ques-
tions of the occupant thereof—whether the
questioner be a pollster, a salesman, or an
officer of the law.
Davis, 327 F.2d at 303. That view has now become
a firmly-rooted notion in Fourth Amendment juris-
prudence. See [United States v.] Jerez, 108 F.3d
[684, 691 (7th Cir. 1997)]; United States v. Taylor,
90 F.3d 903, 909 (4th Cir. 1996); United States v.
Tobin, 923 F.2d 1506, 1511 (11th Cir. 1991); United
States v. Roberts, 747 F.2d 537, 543 (9th Cir. 1984).
The facts of this case fall under the general rule of
Davis. Here, Peters knocked on the door for only a
short period spanning seconds. In addition, Peters
never announced that she was a police officer while
knocking nor did she ever compel Cormier to open
the door under the badge of authority. Because there
was no police demand to open the door, see United
States v. Winsor, 846 F.2d 1569, 1573 n.3 (9th Cir.
1988) (en banc), and Peters was not unreasonably
persistent in her attempt to obtain access to Cor-
mier’s motel room, see Jerez, 108 F.3d at 691-92,
there is no evidence to indicate that the encounter
was anything other than consensual. Therefore, no
suspicion needed to be shown in order to justify the
“knock and talk.” See Florida v. Bostick, 501 U.S.
429, 434, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991).
Cormier, 220 F.3d at 1109.
[2] Here, similarly, there was a single, polite knock on the
door. The police did not demand that Twilligear open the
door; they asked, she nodded an affirmative response, and the
police waited patiently and silently for her to decide that she
(and Defendant, as it turned out) were ready to come outside
UNITED STATES v. CRAPSER 169
about two minutes later. Although the officers were armed,
they made no effort to draw Defendant’s attention to their
weapons, nor did they use any form of physical force. The
police made no effort to enter the motel room. The encounter
occurred in the middle of the day, on a sidewalk in public
view. The entire event, up to the time Defendant produced the
syringe, lasted about five minutes. Although there were four
officers present, most of the time only two talked to Defen-
dant, while two talked to Twilligear, and part of the time only
Galloway was with Defendant. The police did not block
Defendant or Twilligear, suggest that they could not leave or
return to their room, give them orders, or affirmatively assert
authority over their movements.
It also is instructive to contrast this case with Orhorhaghe
v. INS, 38 F.3d 488 (9th Cir. 1994), in which we found a sei-
zure instead of a consensual encounter. There, the officers
positioned themselves so as to be certain the defendant could
not escape or leave, the officers made a deliberate effort to
reveal their concealed firearms; the encounter occurred in a
non-public setting, and the officers acted in an aggressive
manner suggesting that compliance would be compelled. The
ratio of officers to defendants was 4 to 1. Id. at 491; see also
United States v. Washington, 387 F.3d 1060, 1068-69 (9th
Cir. 2004) (holding that an encounter was not consensual
where it occurred in a private place, the officers refused to
honor the defendant’s request to shut the door, and the offi-
cers advised the defendant several times that he could be
arrested and told him he could not terminate the encounter).
[3] In short, we hold that the “knock and talk” resulted in
a voluntary, consensual encounter between Defendant and the
police outside Room 114.
B. Even if Defendant was seized, the police had reasonable
suspicion to stop him.
[4] Even if the initial encounter was a seizure, it was a
Terry stop supported by reasonable suspicion. See Terry v.
170 UNITED STATES v. CRAPSER
Ohio, 392 U.S. 1, 27 (1968) (explaining that, in determining
whether an officer had reasonable suspicion, “due weight
must be given, not to his inchoate and unparticularized suspi-
cion or ‘hunch,’ but to the specific reasonable inferences
which he is entitled to draw from the facts in light of his expe-
rience”). Reasonable suspicion is less than probable cause;
“[i]t is merely ‘a particularized and objective basis’ for sus-
pecting the person stopped of criminal activity.” United States
v. Tiong, 224 F.3d 1136, 1140 (9th Cir. 2000) (quoting
Ornelas v. United States, 517 U.S. 690, 695 (1996)).
[5] First, the police had a reasonable suspicion that Defen-
dant was the Gunner Crapser for whom they had an outstand-
ing warrant, until Phifer completed the computer check in his
patrol car. Accordingly, it was permissible to detain him in
order to resolve questions about his identity. See United States
v. Christian, 356 F.3d 1103, 1106 (9th Cir. 2004) (upholding
a Terry stop to determine a suspect’s identity).
[6] Second, the police had a reasonable suspicion that
Defendant was engaged in the manufacture of methamphet-
amine. By the time Galloway asked Defendant a question
about drugs, the police knew four significant facts: (1) Defen-
dant displayed extremely nervous behavior, in contrast to his
behavior a week earlier when the same officers had stopped
him for another reason; (2) Barrett, upon being arrested, had
said that the pressure-cooker found in the trunk of his vehicle
belonged to Gunner Crapser, and a pressure-cooker could be
used in methamphetamine production; (3) Twilligear admitted
to being a methamphetamine user and told police that other
people had come and gone from Room 114 the previous
night; and (4) between the time Twilligear nodded her assent
to talk to Shanks and the time she and Defendant emerged,
two minutes elapsed, during which the police heard the
sounds of people moving things around the room. These facts,
taken together, were enough to permit a reasonable officer to
suspect that criminal activity was afoot. Additionally,
although Defendant had explained that he was not the same
UNITED STATES v. CRAPSER 171
Gunner Crapser for whom the arrest warrant had been issued,
the police had not yet confirmed that fact and still reasonably
suspected that he might be the wanted person.
[7] Although the dissent is correct that nervousness, posses-
sion of a pressure-cooker, staying in a motel room with a per-
son using methamphetamine, and taking a few minutes to
open the door are each, by themselves, not necessarily indica-
tive of criminal behavior, all of these facts together are. In
United States v. Arvizu, 534 U.S. 266, 273-75 (2002), the
Supreme Court emphasized that reviewing courts must con-
sider the totality of the circumstances in determining whether
officers had reasonable suspicion to conduct a Terry stop.
There the court of appeals rejected the facts identified by the
officer as contributing to his suspicion because they were
readily susceptible to innocent explanations, but the Supreme
Court admonished that Terry “precludes this sort of divide-
and-conquer analysis.” Id. at 274; see also United States v.
Rodriguez, 976 F.2d 592, 594 (9th Cir. 1992) (stating that
“the facts used to establish reasonable suspicion need not be
inconsistent with innocence” (internal quotation marks omit-
ted)). Following Arvizu’s guidance, in view of all the circum-
stances known to the officers, we conclude that the initial
encounter with Defendant, if a stop, was supported by reason-
able suspicion.
[8] Defendant responds that, even if reasonable suspicion
existed, a Terry stop cannot occur “at” a person’s residence.
We disagree. Although we have not squarely considered this
issue before, we have held that police may make a warrantless
arrest of a suspect who voluntarily opens the door to his resi-
dence in response to a knock by the police. United States v.
Vaneaton, 49 F.3d 1423, 1426-27 (9th Cir. 1995). In Vanea-
ton, the defendant argued that his arrest violated the rule of
Payton v. New York, 445 U.S. 573 (1980), that police must
have a warrant in order to arrest a suspect inside his home. 49
F.3d at 1424. We reasoned that, where officers use no force,
threats, or subterfuge, a suspect’s decision to open the door
172 UNITED STATES v. CRAPSER
exposes him to a public place, and the privacy interests pro-
tected by Payton are not violated. Id. at 1427.
[9] Likewise, we now hold that when a suspect voluntarily
opens the door of his residence in response to a non-coercive
“knock and talk” request, the police may temporarily seize the
suspect outside the home (or at the threshold) provided that
they have reasonable suspicion of criminal activity. If an
arrest in the doorway is allowed, certainly the lesser intrusion
of a Terry stop in the hallway is also permissible.
In United States v. Gori, 230 F.3d 44 (2d Cir. 2000), the
Second Circuit, using similar reasoning, held that police who
ordered occupants of an apartment to step into the hallway,
and who seized them there based on reasonable suspicion, did
not violate the Fourth Amendment. Although there was no
warrant, and probable cause had not yet developed, the Gori
court relied on Terry and United States v. Santana, 427 U.S.
38 (1976), for this holding. In Santana, the police were 15
feet from the suspect’s house when they saw her standing in
the doorway; when she retreated into the vestibule, the offi-
cers followed her through the open door and arrested her. Id.
at 40. The Supreme Court upheld the conviction. In Gori, the
Second Circuit held:
The defendants argue that reasonable suspicion is
not enough because the Santana exception to Payton
is limited to circumstances in which officers have
probable cause to arrest a suspect exposed to public
view. We see no basis for that limitation. The San-
tana analysis, which supports the warrantless arrest
of a suspect who has no legitimate expectation of
privacy, a fortiori allows the lesser intrusion of a
brief investigatory detention. See Illinois v. Ward-
low, 528 U.S. 119 (2000) (investigatory detention “is
a far more minimal intrusion” than arrest); United
States v. Place, 462 U.S. 696, 705 (1983) (same).
UNITED STATES v. CRAPSER 173
230 F.3d at 53.
[10] Our cases establish that Terry does not apply inside a
home. See United States v. Martinez, 406 F.3d 1160, 1165
(9th Cir. 2005) (“Certainly, the usual rules pertaining to Terry
stops do not apply in homes.”); United States v. Winsor, 846
F.2d 1569, 1577-78 (9th Cir. 1988) (en banc) (declining to
apply Terry’s reasonable suspicion standard to a warrantless
search in a home). But see United States v. Flippin, 924 F.2d
163, 165-66 (9th Cir. 1991) (holding that, after police entered
a motel room with the suspect’s consent, it was permissible
to seize and search a make-up bag held by the suspect based
on mere reasonable suspicion that it contained a weapon).
There is a critical difference, however, between the inside of
a home and the outer threshold and beyond, as recognized in
Santana. That difference is the suspect’s expectation of pri-
vacy. When Defendant opened the motel room door and came
outside, he surrendered his heightened expectation of privacy
and the Fourth Amendment protections that go along with it
—including the right not to be detained based on reasonable
suspicion.
[11] In sum, we hold that, if Defendant was seized, the sei-
zure was a permissible Terry stop supported by reasonable
suspicion.
C. Defendant’s consent to search his person, motel room,
and duffel bag was voluntary.
The only remaining question is whether Defendant’s oral
and written consent to search was voluntarily given. We con-
sider five factors in determining the voluntariness of a con-
sensual search: “(1) whether the defendant was in custody; (2)
whether the arresting officers had their guns drawn; (3)
whether Miranda warnings were given; (4) whether the defen-
dant was notified that [he] had a right not to consent; and (5)
whether the defendant had been told a search warrant could
174 UNITED STATES v. CRAPSER
be obtained.” United States v. Jones, 286 F.3d 1146, 1152
(9th Cir. 2002).
[12] The district court found that Defendant was in custody
when he consented to the search, and the government con-
cedes that point. Nonetheless, “[a] person in custody is capa-
ble of giving valid consent to search.” United States v.
Lindsey, 877 F.2d 777, 783 (9th Cir. 1989). The remaining
factors all militate in favor of voluntariness: The officers did
not have their weapons drawn, Defendant was given Miranda
warnings and was told that he had the right to refuse consent,
and Defendant was not told that a search warrant would or
could be obtained if he refused consent.
[13] Accordingly, we hold that the district court’s finding
that Defendant knowingly and voluntarily consented to the
search was not clearly erroneous.
AFFIRMED.
REINHARDT, Circuit Judge, dissenting:
The majority opinion further weakens our Fourth Amend-
ment protections — whatever is left of them. Specifically, I
disagree, first, with the majority’s holding that Crapser’s ini-
tial contact with police was consensual. Our holdings in
United States v. Washington, 387 F.3d 1060, 1068 (9th Cir.
2004) and Orhorhaghe v. INS, 38 F.3d 488 (9th Cir. 1994)
require a contrary result. I likewise disagree with the majori-
ty’s alternative holding that, if a seizure occurred, the officers
possessed the requisite suspicion necessary to interrogate
Crapser about his potential involvement in drug activity.
None of the factors relied upon by the majority to find reason-
able suspicion is sufficient to do so, either alone or in the
aggregate. Finally, because Crapser was illegally seized, his
consent to the search of the room was invalid, and his motion
UNITED STATES v. CRAPSER 175
to suppress should have been granted. Because of those con-
clusions, I would continue to reserve judgment on whether,
even if reasonable suspicion exists, a Terry stop may occur
under the circumstances present here. See Washington, 387
F.3d at 1067-68.
I. Crapser was seized when he exited the motel room.
“It is well settled that ‘[t]he Fourth Amendment protection
against unreasonable searches and seizures is not limited to
one’s home, but also extends to such places as hotel or motel
rooms.’ ” United States v. Bautista, 362 F.3d 584, 589 (9th
Cir. 2004) (quoting United States v. Cromier, 220 F.3d 1103,
1108-09 (9th Cir. 2000)). Where, as here, police conduct a
“knock and talk” at a person’s motel room, “the question is
whether he voluntarily opened the door or, alternatively,
whether there were coercive circumstances that turned an
ordinary consensual encounter into one requiring objective
suspicion.” Cromier, 220 F.3d at 1109. In general, it is not “il-
legal per se, or a condemned invasion of the person’s right of
privacy, for anyone to . . . knock on the front door of any
man’s ‘castle’ with the honest intent of asking questions of
the occupant.” Id. (quoting Davis v. United States, 327 F.2d
301, 303 (9th Cir. 1964)). However, an otherwise permissible
“knock and talk” becomes a seizure requiring reasonable sus-
picion where a law enforcement officer, “through coercion,
‘physical force[,] or a show of authority, in some way restricts
the liberty of a person.’ ” Washington, 387 F.3d at 1068
(quoting United States v. Chan-Jimenez, 125 F.3d 1324, 1325
(9th Cir. 1997)) (emphasis added).
In Orhorhaghe, we identified five factors that aid in deter-
mining whether a reasonable person approached by police
officers at his residence would have believed that he was “at
liberty to ignore the police presence and to go about his busi-
ness.” 38 F.3d at 494 (quoting Florida v. Bostick 501 U.S.
429, 437 (1991)). These factors are: (1) the number of officers
involved; (2) whether the officers’ weapons were displayed;
176 UNITED STATES v. CRAPSER
(3) whether the encounter occurred in a public or non-public
setting; (4) whether the officers’ officious or authoritative
manner would imply that compliance would be compelled;
and (5) whether the officers advised the detainee of his right
to terminate the encounter. Washington, 387 F.3d at 1068 (cit-
ing Orhorhaghe, 38 F.3d at 494-96).
Examining Crapser’s initial encounter with the officers in
light of these factors, there can be little doubt that he was
seized. When Crapser exited the room he was confronted by
four police officers, three of whom were in uniform and visi-
bly carrying weapons. The encounter occurred on private
property in a location partially shielded from public view. The
officers acted in a manner that suggested compliance would
be compelled, separating Crapser and his companion, interro-
gating them, and never informing them that they had the right
to terminate the encounter.
The majority disregards these facts and fails to undertake
the requisite analysis under Orhorhaghe, instead merely list-
ing various factors it believes demonstrate that the encounter
was voluntary. In so doing, it both misinterprets our case law
and ignores controlling Ninth Circuit precedent.
First, the majority concludes that the fact that the officers
were carrying visible weapons is immaterial because they
“made no effort to draw the Defendant’s attention to their
weapons.” Maj. Op. at 169. Thus, the majority appears to be
under the impression that in order to find that “weapons were
displayed” under the second Orhorhaghe factor, officers must
actually draw or draw attention to their weapons. This conclu-
sion is erroneous under Washington and Orhorhaghe. In
Washington we held that the fact that “Washington was con-
fronted by six officers, five of whom were in uniform and vis-
ibly carrying weapons . . .” weighed against a finding of
voluntariness, even though none of the officers drew their
weapons or otherwise drew attention to them. 387 F.3d at
1068. Similarly, in Orhorhaghe we held that the fact that the
UNITED STATES v. CRAPSER 177
defendant saw that a plain-clothes officer was carrying a
weapon when he had placed his hand on his hip weighed
against a finding of voluntariness, notwithstanding the fact
that the gesture was not intended to draw the defendant’s
attention to the weapon. 38 F.3d at 495. Accordingly, the
majority’s contention that the fact that the officers were visi-
bly carrying weapons does not militate against a finding of
voluntariness is erroneous in light of controlling circuit law.
Second, the majority errs in finding that the setting in
which the encounter occurred weighs in favor of a finding of
voluntariness. Maj. Op. at 169. Specifically, the majority’s
characterization of the setting as “a sidewalk in public view”
is belied by the record. As the district court noted, the incident
occurred on private property, on a walkway between motel
rooms and a parking area in which “a sign . . . warns that
parking is reserved for motel guests.” Moreover, testimony at
the suppression hearing described the area as set far back
from the street and somewhat shielded from view by a set of
stairs up to the second floor. Accordingly, while the location
in which the encounter took place may not weigh as strongly
against a finding of voluntariness as it would have had it
occurred in a narrow enclosed hallway “shielded from the
view of the vast majority of the public,” Washington, 387
F.3d at 1068, contrary to the majority’s contention, it never-
theless tends to support a finding of lack of voluntariness.
Third, the majority ignores the extent to which the officers’
conduct and manner “indicated that compliance would be
compelled.” Washington, 387 F.3d at 1068. When Crapser
and Twilligear emerged from the motel room, they were con-
fronted by numerous uniformed and armed police officers.
The officers then separated Crapser from Twilligear for ques-
tioning and directed Crapser to accompany two officers to a
location 25 to 30 feet from where Twilligear was being ques-
tioned. Even after Crapser told the officers that he was not the
subject of any warrants and that he had been confused with
someone who had used the alias “Gunner Crapser” in the past,
178 UNITED STATES v. CRAPSER
the officers did not indicate that he was free to go. To the con-
trary, Officer Galloway candidly testified that Crapser was
not free to terminate the encounter while Officer Phifer
checked on the identifying information contained in the war-
rant. Thus, this factor likewise weighs in favor of a finding
that the encounter was nonconsensual and that Crapser was
seized. In fact, all five Orhorhaghe factors support such a result.1
Not only does the majority fail to analyze the encounter in
light of the Orhorhaghe factors, and to misapply the factors
it does mention, its conclusion that Crapser was not seized
conflicts with our holding in Washington, 387 F.3d 1060.
There, we held that the defendant had been unlawfully seized
in violation of the Fourth Amendment during an encounter
with police outside his room in a residential motel. Id. at
1069. As here, police believed that Washington was operating
a methamphetamine lab inside his room, and several officers
went to Washington’s room to conduct a knock and talk. Id.
at 1063. When Washington emerged in response to the knock,
he “was confronted by six officers, five of whom were uni-
formed and visibly carrying weapons.” Id. at 1068. Police
then began to question him in the “hallway of his apartment
building — private property shielded from view of the vast
majority of the public.” Id. The officers moved Washington
20 to 30 feet away, and refused to heed his request to shut the
door to his residence. Id. at 1069. One of the officers
reminded Washington several times that his failure to register
with the Reno Police Department after being arrested for car-
rying a concealed weapon was an arrestable offence, and that
he would be arrested if he did not cooperate. Id. At no point
during the interaction did the officers notify Washington that
he had the right not to answer their questions or that he could
1
In addition to the three factors discussed separately in the text the two
others, the number of officers dispatched to conduct the investigation of
Crapser and their failure to advise him of his right to terminate the
encounter also support a conclusion that the encounter was non-
consensual.
UNITED STATES v. CRAPSER 179
terminate the encounter at any time. Id. Analyzing this
encounter under the Orhorhaghe factors, we held that Wash-
ington had been seized within the meaning of the Fourth
Amendment because, “[t]aking into account all of these cir-
cumstances . . . [a] reasonable person in [Washington’s] posi-
tion would not have felt ‘at liberty to ignore police presence
and go about his business.’ ” Id. (quoting Orhorhaghe, 38
F.3d at 494).
Though the facts of Washington are not totally analogous
to those presented here, there are several distinct similarities,
including the number of officers involved, the moving of the
defendant to a location 20 to 30 feet from the door of the
motel room, the officious manner of the officers, their visible
carrying of weapons, and the fact that the officers never indi-
cated the defendant was free to terminate the encounter.
The majority fails to analyze the facts of the case before us
in light of Washington, instead concluding that this case is
controlled by United States v. Cromier, 220 F.3d 1103 (9th
Cir. 2000). Maj. Op. at 167-69. In Cromier, police learned
that the defendant, who was a registered sex offender with an
extensive criminal history, was staying at a motel located in
a high-crime area. Id. at 1106-07. A female police officer,
Officer Peters, decided to conduct a “knock and talk” inter-
view with Cromier in order to determine whether he was cur-
rently involved in any criminal activity. Id. at 1107. Peters,
who was alone and wearing plain clothes, knocked on the
door to Cromier’s room. Id. When he answered, she identified
herself as a police officer and “asked if she could speak with
him inside his room so that other motel occupants would not
overhear their conversation.” Id. Cromier allowed Peters to
enter his room and, when she asked if she could question him,
he said that she could. Id. Peters then asked if she could look
around and Cromier said “go ahead.” Id. Peters soon discov-
ered a gun in the pocket of a jacket hanging in his closet. Id.
We rejected Cromier’s argument that he had been seized at
the time he allowed Peters to enter his motel room because he
180 UNITED STATES v. CRAPSER
had been confronted by only a single officer in plain clothes
and the officer neither displayed a weapon nor spoke to Cro-
mier in an authoritative tone. Id. at 1110. Moreover, Cromier
failed to present evidence that he had tried to terminate the
encounter, and there was no testimony that suggested that
Cromier was “not at liberty to ignore the police presence and
go about his business.” Id. (quoting Florida v. Bostick, 501
U.S. 429, 437 (1991)).
While neither Washington nor Cromier present facts that
are identical to those before us, the facts in Washington are
clearly far more analogous. Indeed, the only similarity
between the facts of Cromier and the facts here is that the
officers did not, in either case, advise the individual in ques-
tion of his right to terminate the encounter with the police,
which is true of Washington as well. In all other respects, the
Cromier police conduct was not only materially different
from that in Washington and in the case before us but it com-
pletely failed to meet the Ohorhaghe standards as well. Thus,
the majority’s conclusion that Crapser’s initial encounter with
the officers was voluntary is erroneous in light of our holding
in Washington and the fact that here all five of the
Orhorhaghe factors weigh against a finding of voluntariness.
Indeed, looking at the totality of the circumstances, it is clear
that the established law of this Circuit requires the common-
sense conclusion that a reasonable person in Crapser’s posi-
tion would not have felt “at liberty to ignore the police pres-
ence and to go about his business,” Orhorhaghe, 38 F.3d at
494 (quoting Bostick, 501 U.S. at 437); thus, even prior to
Crapser’s production of the syringe, he was seized within the
meaning of the Fourth Amendment. Id.
II. The officers did not possess reasonable suspicion to
question Crapser about drug activity.
Because Crapser was seized, all evidence obtained as a
result of the seizure must be excluded unless the police had
reasonable suspicion to detain and question him. Terry v.
UNITED STATES v. CRAPSER 181
Ohio, 392 U.S. 1, 27 (1968). Although I agree with the major-
ity that the officers possessed the requisite suspicion to ques-
tion Crapser as to whether he was the person named in the
warrant for James Stover a.k.a. “Gunner Crapser,” I dissent
from its holding that the officers had reasonable suspicion to
question him about drug activity, the event from which the
seizure of the evidence here at issue flowed.
The scope of an investigative detention “must be carefully
tailored to its underlying justification.” Florida v. Royer, 460
U.S. 491, 500 (1983). During a Terry stop, a police officer
may only “ask questions that are reasonably related in scope
to the justification for his initiation of contact.” United States
v. Murillo, 255 F.3d 1169, 1174 (9th Cir. 2001); see also
United States v. Chavez-Valenzuela, 268 F.3d 719, 724 (9th
Cir. 2001) (“An officer must initially restrict the questions he
asks during a stop to those that are reasonably related to the
justification for the stop.”). An officer may expand the scope
of questioning beyond the initial purpose of the stop only if
he “articulate[s] suspicious factors that are particularized and
objective.” Murillo, 255 F.3d at 1174; see also Chavez-
Valenzuela, 268 F.3d at 724 (stating that an officer may
expand scope of questioning “only if he notices particularized,
objective factors arousing his suspicion” (emphasis added));
United States v. Perez, 37 F.3d 510, 513 (9th Cir. 1994)
(same).
The officers’ reasonable suspicion as to whether Crapser
was the object of the warrant did not provide reasonable sus-
picion as to his involvement in drug activity, or allow for
questioning on that subject. There is no evidence in the record
indicating that the warrant was for a drug-related offense or
for anything more serious than a traffic violation. Although
we do not know the precise questions asked by Officer Gallo-
way prior to Crapser’s production of the syringe, the district
court found that they related to drugs. As such, this interroga-
tion was permissible only if there were particularized, objec-
tive factors that justified an expansion of the scope of the
182 UNITED STATES v. CRAPSER
inquiry from Crapser’s identity vis-a-vis the Crapser warrant
to the subject of narcotics. See United States v. Murillo, 255
F.3d 1169, 1174 (9th Cir. 2001).
The majority holds that Officer Galloway had the requisite
suspicion to question Crapser about his involvement in drug
activity because
(1) Defendant displayed extremely nervous behavior,
in contrast to his behavior a week earlier when the
same officers had stopped him for another reason;
(2) Barrett, upon being arrested, had said that the
pressure-cooker in the trunk of his vehicle belonged
to Gunner Crapser, and a pressure-cooker could be
used in methamphetamine production; (3) Twilligear
admitted to being a methamphetamine user and told
police that other people had come and gone from
Room 114 the previous night; and (4) between the
time Twilligear nodded her assent to talk to Shanks
and the time she and Defendant emerged, two min-
utes elapsed, during which the police heard the
sounds of people moving things around the room.
Maj. Op. at 170. This holding is erroneous. First, Twilligear’s
statements regarding her own methamphetamine use and the
coming and goings from Room 114 cannot support a finding
of reasonable suspicion, if only because they were not known
to Officer Galloway at the time he questioned Crapser about
drug activity. Second, the remaining factors — viewed indi-
vidually and in the aggregate — were insufficient to provide
Galloway with reasonable suspicion that Crapser was
involved in drug activity.
As noted, Officer Galloway was unaware that Twilligear
had admitted to using methamphetamine at the time he ques-
tioned Crapser about his involvement in drug activity. Crapser
and Twilligear were questioned simultaneously by different
UNITED STATES v. CRAPSER 183
officers and were separated by 25-30 feet.2 Officer Shanks, to
whom Twilligear admitted using methamphetamine, did not
join Crapser and Galloway until after Galloway had ques-
tioned Crapser about drugs and Crapser had produced the
syringe.3 Accordingly, Galloway did not know of Twilligear’s
admission at the time he questioned Crapser about drug activ-
2
The majority states that Crapser and Twilligear, along with the officers
questioning them were separated by 10-25 feet. However, Officer Shanks
testified that the distance between the two groups was 25-30 feet.
3
Indeed, the district court found that Shanks did not approach Crapser
and Galloway until after Galloway questioned Crapser about his involve-
ment in drug activity. Specifically, it found that, after Crapser and Twillig-
ear exited the motel room
Deputy Shanks asked Deputies Galloway and Phifer to speak
with Defendant to determine whether he was the person identi-
fied in the arrest warrant. The three of them moved a short dis-
tance away. In the meantime, Deputies Shanks and Timms spoke
with Twilligear. . . . Deputy Phifer left Deputy Galloway and
Defendant and ran a computer check [on the warrant] in his
patrol vehicle. While Deputy Phifer was away and Defendant and
Deputy Galloway were talking, Defendant unexpectedly pulled a
syringe from his right back pocket and said to Deputy Galloway,
“This is all I have on me.” . . . [T]he Court concluded it is likely
Deputy Galloway asked Defendant something about drugs before
Defendant produced the syringe. . . . After Deputy Phifer con-
firmed that Defendant’s physical description (including tattoos)
did not match the wanted person, Deputy Phifer returned from his
patrol car and told Deputy Galloway that Defendant was “clear.”
. . . Deputy Galloway decided to “pat-down” the defendant to
ensure he did not have anything besides the syringe on his person
that could be used as a weapon. Deputy Galloway found nothing
of concern during the pat-down. . . . About this time, which was
approximately five minutes after Defendant and Twilligear first
came out of Room 114, Deputy Shanks joined Deputy Galloway,
Deputy Phifer and Defedant. Deputy Shanks learned about the
syringe and was present during the pat-down.
Thus, the district court’s findings of fact make clear that, at the time Gal-
loway asked Crapser “something about drugs,” Shanks had not yet
informed him of Twilligear’s statements with respect to her drug use and
the comings and goings from Room 114.
184 UNITED STATES v. CRAPSER
ity, and it therefore cannot be used to support reasonable sus-
picion.
At the time that Galloway interrogated Crapser, the only
factors that could have provided him with reasonable suspi-
cion that Crapser was involved in drug activity were the (1)
pressure cooker found in Barrett’s car, which Barrett stated
belonged to Crapser, (2) the two minutes that transpired
between the time that the officers knocked on the door to the
motel room and when Crapser and Twilligear emerged, and
(3) Crapser’s nervousness when confronted by a group of
armed police officers.4 The pressure cooker cannot provide
any basis for reasonable suspicion absent some evidence of
drug activity. A pressure cooker is a common, legal kitchen
appliance, most often used to cook foods such as beans, rice,
and barley. There is no indication in the record that the pres-
sure cooker contained drug residue or any other characteris-
tics that would suggest that it had ever been used for unlawful
purposes. Nor is there anything in the record connecting Bar-
rett to drug activity.5 Thus, Barrett’s possession of the pres-
sure cooker that he told the officers was owned by Crapser
adds nothing to the equation.
Similarly, neither the two minutes that transpired between
4
The warrant provides no basis for reasonable suspicion of narcotics
activity. Although at the time of the questioning the officers had not defin-
itively established that Crapser was not the person named in the warrant,
they were aware that he likely was not that person because Crapser did not
match the physical description in the warrant and the warrant specifically
warned officers that there might be more than one person using the name
“Gunner Crapser.” Moreover, as noted above, even if the officers believed
that Crapser was the person described in the warrant, the warrant does not
provide reasonable suspicion of drug activity because there is no indica-
tion that the warrant related to a drug related crime.
5
Barrett was arrested during a traffic stop because there was an out-
standing warrant for his arrest. The record does not reveal what that war-
rant was for or whether anything, besides the pressure cooker, was found
in Barrett’s car.
UNITED STATES v. CRAPSER 185
the time the officers knocked on the door of Twilligear’s
motel room and the time she and Crapser emerged, nor the
fact the officers heard people moving about the room, sug-
gests that anyone was involved in drug activity. Nothing in
the record suggests that either Crapser or Twilligear was
doing anything other than simply getting out of bed and put-
ting on clothes or straightening up before opening the door.
Accordingly, the two minute period, alone or in conjunction
with the other facts pointed to by the majority, does not give
rise to reasonable suspicion. In fact, Twilligear indicated to
the officers, shortly after they knocked, that she would open
the door so that they could speak with her. (At this point, the
police had not suggested that Crapser rather than she was the
object of their inquiry.) That it took Summer Twilligear, an
exotic dancer, two minutes to get ready to make a public
appearance for an interview is hardly a suspicious circum-
stance.
Nor did Crapser’s apparent nervousness, by itself or in
combination with the pressure cooker and Twilligear’s two
minute delay before opening her motel room door, provide
reasonable suspicion that Crapser was involved in drug activ-
ity. Nervousness upon being approached, detained, and ques-
tioned by a group of visibly armed police officers is far too
common to be of much probative value, nor does it suggest
that a person is involved in drug activity as opposed to other
unlawful conduct. The nervousness is especially understand-
able in Crapser’s case as the same group of armed officers
had detained him only a week before, and were now back on
his doorstep for further interrogation. Moreover, although this
court has held that nervousness may in some instances be con-
sidered as part of the totality of the circumstances demonstrat-
ing reasonable suspicion, all Ninth Circuit cases relying on
nervousness involved other factors that were more inculpatory
than the two innocuous other factors involved here. See, e.g.,
United States v. Perez, 37 F.3d 510, 514 (9th Cir. 1994) (con-
sidering nervousness as one of six factors); United States v.
Baron, 94 F.3d 1312, 1319 (9th Cir. 1996) (same). In Crap-
186 UNITED STATES v. CRAPSER
ser’s case, there are no other factors suggesting that he was
involved in drug activity, other than the immaterial facts that
another individual was stopped with a pressure cooker that
allegedly belonged to him and that it took him and his female
friend Twilligear two minutes to emerge from the motel room.
Thus, considering the totality of the circumstances, Galloway
did not possess the requisite suspicion necessary to expand
the Terry stop to include an interrogation regarding Crapser’s
alleged involvement in drug activity.6 Because the drug inter-
rogation was not related to the legitimate purpose of the stop
— namely determining whether the Gunner Crapser staying
with Twilligear in her motel room was the same “Gunner
Crapser” named in the warrant — it violated the Fourth
Amendment. Murillo, 255 F.3d at 1174; Chavez-Valenzuela,
268 F.3d at 724.
6
In reaching the opposite conclusion, the majority relies on United
States v. Arvisu, 534 U.S. 266, 273-74 (2002), in which the Supreme Court
held that courts must look to the “totality of the circumstances” in evaluat-
ing whether an officer possessed reasonable suspicion and may find rea-
sonable suspicion where a series of facts that in themselves are innocuous
would, when taken together, provide a reasonable officer with a “ ‘particu-
larized and objective basis’ for suspecting legal wrongdoing.” Arvisu does
nothing to disturb the requirement that the facts, taken collectively, must
suggest that criminal activity is afoot. Arvisu involved a combination of
eight factors which in combination suggested to a reasonable officer that
a drug violation was in progress. Id. at 270-72. Here, the facts known to
Officer Galloway at the time he questioned Crapser about drugs — that
he allegedly owned a pressure cooker, that he appeared nervous, and that
it took him a few minutes to exit the motel room with his lady friend,
Summer Twilligear after the police knocked on his door — viewed collec-
tively, simply do not suggest that Crapser was involved in criminal activ-
ity. They certainly do not provide a “particularized and objective basis”
for suspecting that he was engaged in illegal drug activity. After Arvisu
it is still the function of the courts to review an officer’s asserted grounds
for suspicion and determine whether collectively they provide an objec-
tively reasonable basis for a Terry stop. Accordingly, the majority’s reli-
ance on Arvisu does not save its misapplication of Terry.
UNITED STATES v. CRAPSER 187
III. The legality of a Terry stop when officers approach a
suspect at his residence is a question that need not be
resolved here.
Because I would hold that there was no reasonable suspi-
cion that would justify a Terry stop here, I would not address
the question whether police officers may request an individual
to step outside his home and then conduct a Terry-stop as
soon as he does. See Washington, 387 F.3d at 1068 (expressly
not deciding this issue because the detention and search there
at issue were unlawful under traditional Terry analysis). Were
I to reach this issue, I am far from convinced that I would
reach the same conclusion as the majority. In Washington we
noted that, while the Supreme Court has expanded the scope
of what constitutes a permissible Terry stop over the years, “it
has never expanded Terry to allow a Terry-stop at an individ-
ual’s home.” Id. at 1067. We further observed that,
Terry’s twin rationales for a brief investigatory
detention — the evasive nature of the activities
police observe on the street and the limited nature of
the intrusion — appear to be inapplicable to an
encounter at a suspect’s home. Officers on the beat
may lose a suspect before the officers have gathered
enough information to have probable cause for an
arrest. In contrast, officers who know where a sus-
pect lives have the opportunity to investigate until
they develop probable cause, all the while knowing
where to find the suspect. Because “[n]owhere is the
protective force of the Fourth Amendment more
powerful than [within] the sanctity of the home,” the
second rationale for a Terry-stop seems almost
absent by definition when the intrusion is at the sus-
pect’s home.
Id. at 1067-68 (internal citations omitted).7 Moreover, we
7
In reaching the opposite conclusion, the majority relies on our decision
in United States v. Vaneaton, 49 F.3d 1423, 1426-27 (9th Cir. 1995), in
188 UNITED STATES v. CRAPSER
have repeatedly held that an intrusion into someone’s home
may not be premised on Terry’s reasonable suspicion stan-
dard. See United States v. Martinez, 406 F.3d 1160, 1165 (9th
Cir. 2005) (“Certainly, the usual rules pertaining to Terry
stops do not apply in homes.”); LaLande v. County of River-
side, 204 F.3d 947, 953-54 (9th Cir. 2000) (“The reasons that
gave rise to the rule in Terry are simply not applicable to a
warrantless entry to seize a person within his home.”); United
States v. Winsor, 846 F.2d 1569, 1577-78 (9th Cir. 1988) (en
banc) (rejecting the position that Terry’s reduced Fourth
Amendment standards can be applied to a warrantless entry to
search for property within a home, even when the search
involves a highly limited intrusion); see also Payton v. New
York, 455 U.S. 573, 589 (1980) (reversing a state-court ruling
that relied on the premise that a warrantless entry to seize a
person within a home can be held to Terry’s lower Fourth
Amendment standard).
Because the rationales that underlie the Terry doctrine do
not support the extension of that doctrine to cases in which
the encounter occurs immediately outside the home of a
defendant who has been requested to step outside so that he
may be questioned, Washington, 387 F.3d at 1067-68, and
because given the lack of reasonable suspicion no basis for a
Terry stop exists here, I would follow Washington and reserve
judgment regarding any such extension of Terry to a case in
which the issue is properly before us. Id. at 1068.
which we held that, where police officers use no force, threats, or subter-
fuge, a person who voluntarily opens the door to his home in response to
a knock at the door by police gives up his Fourth Amendment right against
warrantless arrest in his home by exposing himself to public view. The
majority reasons that, “[i]f an arrest in the doorway is allowed, certainly
the lesser intrusion of a Terry stop in the hallway is also permissible.”
Maj. Op. at 172. In reaching this conclusion, it fails to address the fact that
the rationales underlying the Terry doctrine do not support the extension
of the Vaneaton rule to the Terry context, an observation we made in
Washington.
UNITED STATES v. CRAPSER 189
IV. Crapser’s subsequent consent to the search of his motel
room did not “purge the taint” of the illegal seizure and
interrogation.
Because Crapser’s arrest and his eventual consent to the
search of his motel room resulted from an illegal investigatory
stop, further inquiry is necessary to determine whether the
evidence subsequently obtained should be excluded on that
basis notwithstanding Crapser’s subsequent consent to the
search of his person and the motel room. In general, “evi-
dence obtained subsequent to an illegal investigation is tainted
by the illegality and thus inadmissible, notwithstanding . . .
consent, unless subsequent events have purged the taint.”
United States v. Bautista, 362 F.3d, 584 592 (quoting United
States v. Chavez-Valenzuela, 268 F.3d 719, 727 (9th Cir.
2001)). “In determining whether the taint has been suffi-
ciently purged, we ask whether, granting establishment of the
primary illegality, the evidence has been come at by exploita-
tion of the illegality or instead by means sufficiently distin-
guishable to be purged of the primary taint.” Id. “Elements to
be considered in answering this question include temporal
proximity between illegality and consent and the presence of
intervening circumstances.” Chavez-Valenzuela, 268 F.3d at
727.
In Bautista we held that, where officers entered the defen-
dant’s hotel room without a warrant and without consent, the
fact that the defendant’s wife subsequently consented to the
search was not sufficient to purge the taint of the illegal entry
because “the government points to no ‘significant intervening
time, space or event’ between the officer’s illegal conduct and
Mrs. Baustista’s consent.” Id. (quoting Jones, 286 F.3d at
1152). Consequently, we held that “Mrs. Bautista’s consent
was tainted and the evidence obtained pursuant to it should
have been suppressed.” Id.
Here, as in Bautista, the government cannot point to any
“significant intervening time, space or event” between the
190 UNITED STATES v. CRAPSER
unlawful seizure and Crapser’s consent to the search of his
person and his motel room. “In other words, the government
has not shown that there was a break in the chain of events
sufficient to refute the inference that the search . . . [was the]
product[ ] of the illegal [seizure].” Id. (quoting United States
v. Twilley, 222 F.3d 1092, 1097 (9th Cir. 2000)). “Conse-
quently, [Crapser’s] consent was tainted and the evidence
obtained pursuant to it should have been suppressed.” Id.
I would hold that the district court erred in denying Crap-
ser’s motion to suppress. Accordingly, I respectfully dissent.