United States v. Paopao ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-10653
Plaintiff-Appellee,
v.  D.C. No.
CR-04-00326-SOM
ETEUATI PAOPAO,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Hawaii
Susan Oki Mollway, District Judge, Presiding
Argued and Submitted
September 12, 2006—San Francisco, California
Filed October 10, 2006
Before: Betty B. Fletcher and Marsha S. Berzon,
Circuit Judges, and David G. Trager,* District Judge.
Opinion by Judge Trager
*The Honorable David G. Trager, Senior District Court Judge, Eastern
District of New York, sitting by designation.
17351
17354 UNITED STATES v. PAOPAO
COUNSEL
Pamela J. Byrne, Assistant Federal Defender, Honolulu,
Hawaii, for the defendant-appellant.
Marshall H. Silverberg, Assistant United States Attorney,
Honolulu, Hawaii, for the plaintiff-appellee.
OPINION
TRAGER, District Judge:
Eteuati Paopao (“Paopao”) pled guilty to a violation of 18
U.S.C. § 922(g), possession of a firearm by a felon. Under a
reservation of rights, he now appeals two of the District
Court’s rulings. Specifically, Paopao alleges that the District
Court erred in not suppressing the Honolulu Police Depart-
ment’s seizure of his handgun during a protective sweep of an
illegal gambling room. Paopao also claims that the District
Court should have granted his motion to dismiss the charges
because they were unconstitutional as applied to him. This
court has jurisdiction pursuant to 18 U.S.C. § 3231 and 28
U.S.C. § 1291 and affirms.
Background
In late summer 2004, two perpetrators committed a series
of robberies of illegal gambling rooms. The robbers posed as
police officers and were armed. Based on descriptions pro-
vided by victims and information provided by unidentified
sources, Honolulu Police Officer Joseph Lum (“Officer
UNITED STATES v. PAOPAO 17355
Lum”) believed that the two robbers were Sam Matamua
(“Matamua”) and Paopao.
On the morning of August 20, 2004, Honolulu Police
Detective Brian Lee (“Detective Lee”) received a call from a
confidential informant who stated that the men responsible for
the earlier gambling room robberies were currently at “Char-
ley’s Game Room,” (the “Game Room”) another illegal gam-
bling establishment. When Detective Lee arrived at the
intersection near the Game Room, he radioed for assistance.
While doing so, he spotted Officer Lum, who was off-duty
and happened to be traveling through that area. Officer Lum
knew of the Game Room and had been there before; he
agreed to assist Detective Lee. When the other officers
arrived, Officer Lum told them about the layout of the apart-
ment the Game Room was located in, that it had only one
entrance, and that a robbery might be in progress.1
As Officer Lum, Detective Lee and the other officers
approached the Game Room, approximately seven individuals
exited through the front door. The officers instructed those
individuals to lie prone on a walkway a few feet from the
door. After giving this direction, Officer Lum saw Paopao,
whom he recognized from his mug shot, exit the Game Room.
Paopao was carrying a tan bag over his shoulder. Upon seeing
the police, Paopao turned about and went back into the Game
Room. Officer Lum followed Paopao to the Game Room
1
The District Court noted a discrepancy between Detective Lee’s testi-
mony and Officer Lum’s testimony on this point. Detective Lee testified
that the informant had told him that the suspected robbers were in the
Game Room, whereas Officer Lum testified that he told the officers arriv-
ing on the scene that a robbery was potentially in progress. The District
Court, in its findings of fact, stated that this discrepancy was most likely
“an honest difference in memory[,]” and found that, despite minor factual
discrepancies, on the major events the two policemen were credible wit-
nesses. In the end, however, the issue is immaterial; in either case the offi-
cers would still have had a basis to suspect that a potentially armed man
was in the apartment.
17356 UNITED STATES v. PAOPAO
doorway and peered into the apartment with one eye. He
observed Paopao take the bag off of his shoulder, pause for
“a brief period,” and then place the bag on the floor. Paopao
then exited the Game Room and was arrested on an outstand-
ing warrant.
After arresting Paopao, Officer Lum called into the Game
Room, announcing his presence and telling anyone inside to
come out. Two women exited. Officer Lum testified that he
and the other officers then entered the Game Room to conduct
a protective sweep. Specifically, based on the tip Detective
Lee received, Officer Lum was concerned that the other sus-
pect, Matamua, might still be in the apartment. The Game
Room consisted of only three rooms and the protective sweep
took less than a minute. As the officers were leaving the
apartment, Officer Lum noticed that a gap existed between a
sofa and the wall behind it. Concerned that someone could be
hiding behind the sofa, Officer Lum went over to look in the
gap. Officer Lum did not find anyone hiding in the gap, but
as he walked over to the sofa, he noticed that the tan bag Pao-
pao had put on the floor was unzipped. Looking into the bag,
Officer Lum saw what he thought to be the handle of a hand-
gun and an ammunition magazine. He seized the bag and its
contents, which were later determined to be, in addition to the
gun and ammunition magazine, a knife and a black pouch that
contained jewels.
On September 2, 2004, the government indicted Paopao on
the charge, inter alia, that he was a felon in possession of a
firearm and ammunition, in violation of 18 U.S.C.
§ 922(g)(1). Paopao moved to dismiss this claim on the
grounds that it was unconstitutional under the Commerce
Clause, as applied to him. That motion was denied. He also
filed a motion to suppress the firearm and ammunition, argu-
ing that the search that resulted in their discovery violated his
Fourth Amendment rights. After an evidentiary hearing, the
District Court denied the motion to suppress on grounds that
the search was justified under the protective sweep and plain
UNITED STATES v. PAOPAO 17357
view exceptions to the Fourth Amendment. Paopao then pled
guilty to violating § 922(g)(1), reserving the right to appeal
the denial of both the motion to dismiss and the suppression
motion.
Discussion
I.
Standing
On appeal of the denial of his suppression motion, Paopao
claims that the District Court erred in upholding the protective
sweep of the Game Room. The government argues that Pao-
pao did not have Fourth Amendment standing to challenge the
protective sweep because he lacked an expectation of privacy
in the Game Room. The government did not raise this argu-
ment below. However, “[t]he fact that the [g]overnment did
not specifically raise the expectation of privacy issue during
the course of the hearing on the motion[ ] to suppress is of no
consequence.” United States v. Nadler, 698 F.2d 995, 998
(9th Cir. 1983). In this case, Paopao has appealed the denial
of his suppression motion; as such, he carries the burden to
show that the District Court was in error. The District Court
never ruled on whether Paopao had a privacy interest in the
Game Room; nonetheless, the government may argue for the
first time on appeal that Paopao lacks standing to challenge
the protective sweep. United States v. Taketa, 923 F.2d 665,
670 (9th Cir. 1991) (holding that, where reliance was not an
issue, and the government was not the party with the burden,
the issue of standing could be raised for the first time on
appeal).
[1] “[I]n order to claim the protection of the Fourth Amend-
ment, a defendant must demonstrate that he personally has an
expectation of privacy in the place searched, and that his
expectation is reasonable[.]” Minnesota v. Carter, 525 U.S.
83, 88 (1998). A person’s reasonable expectation of privacy
17358 UNITED STATES v. PAOPAO
may differ based upon the location of the search. See United
States v. Gonzalez, 328 F.3d 543, 547 (9th Cir. 2003). A
lesser expectation of privacy exists in a commercial area than
in a residential area. Id. (citing Carter, 525 U.S. at 90). “In-
deed, ‘[a]n individual whose presence on another’s premises
is purely commercial in nature . . . has no legitimate expecta-
tion of privacy in that location.’ ” Id. (quoting United States
v. Gamez-Orduno, 235 F.3d 453, 458 (9th Cir. 2000)).
[2] In response to a question posed by Paopao’s attorney
during the suppression hearing, Officer Lum stated that
nobody lived in the apartment in question; it was just used as
an illegal gambling room. From this testimony it is clear that
the Game Room was a commercial establishment; Paopao
does not challenge this determination. There is no evidence to
suggest that Paopao worked in the Game Room, that he had
any possessory interest in the Game Room or that he was
there for anything other than a commercial or possibly crimi-
nal purpose. Therefore, Paopao had no reasonable expectation
of privacy in the Game Room. See Carter, 525 U.S. at 90-91
(holding that the defendant, who was in a friend’s apartment
solely for a drug transaction, did not have an expectation of
privacy in the apartment); Gonzalez, 328 F.3d at 547 (holding
that a defendant did not have a reasonable expectation of pri-
vacy in a hospital mailroom). Since Paopao had no reasonable
expectation of privacy in the Game Room, he cannot chal-
lenge the officer’s entry or protective sweep. See United
States v. Nohara, 3 F.3d 1239, 1243 (9th Cir. 1993) (holding
that the defendant did not have a reasonable expectation of
privacy in the hallway outside his apartment and, therefore,
could not challenge the officer’s plain view search into his
open doorway).
[3] The only argument offered by Paopao is that standing
should not matter in this case. He argues that if Officer Lum
did not have a legal right to be in the Game Room, then the
plain view exception is inapplicable, regardless of who has
privacy rights in the room. This claim is contrary to the long-
UNITED STATES v. PAOPAO 17359
established Supreme Court and Circuit precedent that a pri-
vacy interest in the place or thing searched is always required
in order for a defendant to challenge the search. See United
States v. Pulliam, 405 F.3d 782, 785-86 (9th Cir. 2005) (stat-
ing that an aggrieved person cannot challenge the search of a
premises in which the aggrieved person has no privacy inter-
ests because the search did not infringe upon his Fourth
Amendment rights); see also California v. Ciraolo, 476 U.S.
207, 211 (1986) (“The touchstone of Fourth Amendment
analysis is whether a person has a ‘constitutionally protected
reasonable expectation of privacy.’ ” (quoting Katz v. United
States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring))). As
a result, without a privacy interest in the Game Room, Paopao
cannot challenge the protective sweep.
II.
Legality of the Search
Even if Paopao did have standing to challenge the protec-
tive sweep, his claims are meritless. Paopao argues that where
the arrest is made outside a premises, the protective sweep
exception, as defined by the Supreme Court in Maryland v.
Buie, 494 U.S. 325 (1990), never allows for a warrantless
entry into the premises. Additionally, Paopao claims that even
if it does, the officers did not have justification to enter in this
situation.
[4] The Supreme Court in Maryland v. Buie defined a pro-
tective sweep to be “a quick and limited search of premises,
incident to an arrest and conducted to protect the safety of
police officers and others.” Id. at 327.
[5] Shortly before Buie, the Ninth Circuit decided United
States v. Hoyos, 892 F.2d 1387 (9th Cir. 1989) overruled on
other grounds by United States v. Ruiz, 257 F.3d 1030, 1032
(9th Cir. 2001) (en banc). After applying a similar standard
for protective sweeps as was used in Buie, the Hoyos Court
17360 UNITED STATES v. PAOPAO
upheld the protective sweep of the interior of a house when
the defendant had been arrested just outside the door to the
house. Hoyos, 892 F.2d at 1397. The court reasoned that “[a]
bullet fired at an arresting officer standing outside a window
is as deadly as one that is projected from one room to anoth-
er.” Id. Similar holdings with similar rationales have been
adopted by several other circuits since the Buie decision. See,
e.g., United States v. Lawlor, 406 F.3d 37, 41 (1st Cir. 2005)
(“[A]n arrest that occurs just outside the home can pose an
equally serious threat to arresting officer as one that occurs in
the home.”); United States v. Cavely, 318 F.3d 987, 995-96
(10th Cir. 2003) (“Depending on the circumstances, the exi-
gencies of a situation may make it reasonable for officers to
enter a home without a warrant in order to conduct a protec-
tive sweep.”); United States v. Watson, 273 F.3d 599, 603
(5th Cir. 2001) (upholding a protective sweep of a house
where the arrest was made on the porch outside the house);
United States v. Colbert, 76 F.3d 773, 776-77 (6th Cir. 1996)
(affirming the general principle that a protective sweep of the
interior of a house can follow an arrest outside the house, but
ultimately holding the sweep in that case to be illegal due to
a lack of justification for the sweep); United States v. Henry,
48 F.3d 1282, 1284 (D.C. Cir. 1995) (upholding a sweep
inside the dwelling where the arrest was made outside);
United States v. Oguns, 921 F.2d 442, 446-47 (2d Cir. 1990)
(allowing the protective sweep where the officers could have
reasonably believed that people inside the apartment heard
them arresting the defendant outside the apartment).
[6] Paopao has not shown any reason why the precedent
established in Hoyos is no longer good law. The rationale
espoused in Hoyos, that an individual within a house can still
pose a threat to arresting officers outside of it, remains as true
today, post-Buie, as it did seventeen years ago. As other cir-
cuits have noted, the location of the arrest, inside or outside
the premises, should only bear on the question of whether the
officers had a justifiable concern for their safety. See Henry,
48 F.3d at 1284 (“That the police arrested the defendant out-
UNITED STATES v. PAOPAO 17361
side rather than inside his dwelling is relevant [only] to the
question of whether they could reasonably fear an attack by
someone within it.”).
[7] In order to be justified in conducting the protective
sweep of the Game Room, the officers must have had a rea-
sonable suspicion of danger. Buie, 494 U.S. at 335-36. For an
officer to harbor a reasonable suspicion of danger there must
be “articulable facts which, taken together with the rational
inferences from those facts, would warrant a reasonably pru-
dent officer in believing that the area to be swept harbors an
individual posing a danger to those on the arrest scene.” Id.
at 334. In the present case, the officers had received a tip that
the two perpetrators from the previous gambling room rob-
beries were in the Game Room. Even though the officers did
not provide any detailed information concerning the identity
of the informant, they were not required to do so. It was suffi-
cient that the informant had provided Detective Lee “very
accurate” information on approximately twenty previous
occasions. See Adams v. Williams, 407 U.S. 143 (1972) (hold-
ing, in an analogous Terry stop situation, where the officer
had received his information concerning a man in a car with
a gun from an informant he knew to be reliable, the tip alone
provided the officer with sufficient reasonable suspicion to
reach into the car to retrieve the gun, which was not in plain
sight); United States v. Fernandez-Castillo, 324 F.3d 1114,
1118 (9th Cir. 2003) (stating that it was sufficient to justify
a Terry stop that the officer know from prior experience that
the person who provided the information was reliable); see
also Buie, 494 U.S. at 334 (stating that the standard applied
to protective sweeps is no more and no less than is applied to
Terry stops).
[8] Furthermore, the tip itself was reasonably detailed in
nature; it identified the nationality of the men, identified that
they were under suspicion by the police, identified the name
and general location of the Game Room and stated that the
men were still in the Game Room. See Fernandez-Castillo,
17362 UNITED STATES v. PAOPAO
324 F.3d at 1117 (stating that one indicia of reliability for a
tip can be that it was detailed in nature). The tip, therefore,
was sufficient for the officers to believe that the two robbers
they suspected were present in the Game Room.
[9] It is clear that when the officers conducted their sweep,
they were justified in believing that at least one of the robbers
could still have been in the apartment. Two women had exited
when the police announced their presence. The tip stated that
both robbers were in the Game Room and the officers had yet
to encounter Paopao’s suspected confederate, Matamua. The
fact that Paopao was arrested outside the Game Room did not
automatically preclude the officers from conducting an appro-
priate sweep of the interior of the Game Room to dispel this
suspicion and protect themselves. Paopao’s argument to the
contrary is meritless.
Paopao’s other claim concerning the protective sweep is
that Officer Lum exceeded the permissible scope of the pro-
tective sweep when he looked behind the sofa. Paopao argues
that once the police had made their initial cursory inspection
of the rooms, the protective sweep was complete and Officer
Lum no longer had a legal right to be in the room. The Buie
opinion emphasized that a protective sweep is “a cursory
inspection of those spaces where a person may be found.”
Buie, 494 U.S. at 335. The protective sweep purposefully
does not have hard time constraints associated with it. “The
sweep lasts no longer than is necessary to dispel the reason-
able suspicion of danger and in any event no longer than it
takes to complete the arrest and depart the premises.” Id. at
335-36.
[10] In the present matter, Officer Lum’s search behind the
sofa did not exceed the scope of the protective sweep. Particu-
larly instructive in this determination is Officer Lum’s testi-
mony that he was not secure in the notion that no one was left
in the apartment until after he searched behind the sofa. The
District Court found this portion of Officer Lum’s testimony
UNITED STATES v. PAOPAO 17363
credible. The diagram of the Game Room, used by both sides
to illustrate the layout of the apartment, showed that the sofa
was placed by a wall between the entry room and the room
with the gambling machines. This wall would have obstructed
the officer’s ability to see behind the sofa. As a result, it was
reasonable for Officer Lum to suspect that someone still could
be hiding behind the sofa, even after the officers had com-
pleted their preliminary sweep of the other parts of the apart-
ment. As a result, Paopao’s final claim that Officer Lum
exceeded the scope of the protective sweep when he looked
behind the sofa also fails. Since Paopao has failed to show
that the District Court’s decision not to suppress the seizure
of the gun and ammunition magazine was in error, that deci-
sion is affirmed.
III.
Motion to Dismiss
[11] Paopao also appeals the District Court’s denial of his
motion to dismiss. Paopao asserts that his possession of the
gun was not affecting commerce when he was arrested and,
therefore, the application of 18 U.S.C. § 922(g) to him was
unconstitutional. This argument, however, was previously
rejected by this court in United States v. Hanna, 55 F.3d 1456(9th Cir. 1995), and again in United States v. Rousseau, 257
F.3d 925 (9th Cir. 2001). In Hanna this court held that, to be
constitutional, the government need only show a “ ‘minimal
nexus that the firearm [had] been, at some time, in interstate
commerce.’ ” Hanna, 55 F.3d at 1462 (quoting Scarborough
v. United States, 431 U.S. 563, 575 (1977)). In both Hanna
and Rousseau the firearm had been manufactured in one state
or outside the country, then shipped for sale to another state.
On both occasions, this court found that this commercial
interstate movement was sufficient to create the required
minimum connection.
Paopao argues that this court’s holding in United States v.
McCoy, 323 F.3d 1114 (9th Cir. 2002), calls into question the
17364 UNITED STATES v. PAOPAO
holdings in Hanna and Rousseau. The McCoy holding, how-
ever, is easily distinguishable. The item in question in that
case, an allegedly pornographic home photograph of a child,
had never traveled in interstate commerce and was never
intended for interstate distribution. On the other hand, in this
case neither side disputes that Paopao’s gun was manufac-
tured in Minnesota and the ammunition was made in Illinois,
and both were recovered in Hawaii. In light of this distinction,
we conclude that McCoy has no effect on the Hanna and
Rousseau holdings and that the District Court’s denial of Pao-
pao’s motion to dismiss was proper.
Conclusion
Paopao has failed to show that the denial of his suppression
motion and his motion to dismiss were in error. The District
Court’s rulings and the judgment of conviction are
AFFIRMED.