United States v. Gooch ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 06-30645
Plaintiff-Appellee,
v.  D.C. No.
CR-04-00262-WFN
KENNETH DALE GOOCH,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Washington
William F. Nielsen, District Judge, Presiding
Argued and Submitted
September 28, 2007—Seattle, Washington
Filed November 1, 2007
Before: Betty B. Fletcher and Ronald M. Gould,
Circuit Judges, and Stephen G. Larson,* District Judge.
Opinion by Judge B. Fletcher
*The Honorable Stephen G. Larson, United States District Judge for the
Central District of California, sitting by designation.
14463
UNITED STATES v. GOOCH 14465
COUNSEL
Bryan P. Whitaker, Attorney at Law, Spokane, Washington,
for the defendant-appellant.
Jared C. Kimball, Assistant United States Attorney, Spokane,
Washington, for the plaintiff-appellee.
OPINION
B. FLETCHER, Circuit Judge:
Defendant-Appellant Kenneth Dale Gooch appeals his con-
viction and sentence for felon in possession of a firearm under
18 U.S.C. § 922(g)(1). Gooch’s appeal focuses primarily on
the district court’s denial of his motion to suppress. He con-
14466 UNITED STATES v. GOOCH
tends that the initial entry into his residence, an entry that led
to the issuance of a search warrant where evidence supporting
Gooch’s conviction was obtained, exceeded the bounds of the
Fourth Amendment because that entry was made to execute
a misdemeanor bench warrant for failure to appear in court.
Consistent with the decisions of other federal courts to con-
sider the issue, we hold that police possessing a valid bench
warrant for the arrest of a person who has failed to appear
may enter that person’s residence to the extent necessary to
execute the warrant. We also reject as meritless Gooch’s argu-
ments related to trial and sentencing errors and AFFIRM.
BACKGROUND
On March 20, 2004, Officer Alan Edwards of the Spokane
Police Department approached a car stopped in the road.
Michael A. Conn, whom Edwards knew from a prior arrest
resided at 3010 N. Regal Street in Spokane, was in the pas-
senger seat. While Officer Edwards was running a warrant
check, Conn jumped out of the car and fled in the direction
of the Regal Street residence. Edwards pursued Conn on foot;
he did not see Conn enter the Regal Street residence but heard
a commotion at the back door, the home’s only useable
entrance. While Edwards waited for backup to arrive, he
received radio confirmation that there was an outstanding
misdemeanor warrant for Conn’s arrest. Edwards had no spe-
cific information regarding the warrant other than it was
related to a misdemeanor charge, and that the warrant bore the
Regal Street residence as Conn’s address. Based on records
the government placed in the record on appeal, it appears the
arrest warrant was a bench warrant issued for Conn’s failure
to appear at a hearing to revoke his probation.
Once backup arrived, Edwards and another officer entered
the residence without consent. The officers immediately went
to Conn’s bedroom, but he was not there. They continued to
search the rest of the Regal Street residence, including a bed-
room rented by Gooch. During the course of their search for
UNITED STATES v. GOOCH 14467
Conn the officers saw, in both Conn and Gooch’s bedrooms,
several residue coated spoons and other paraphernalia sug-
gesting heroin use. Conn was not found or arrested during the
search; it was later discovered that he had hidden in the attic.
Based on his observations during the attempt to arrest Conn,
Edwards prepared an affidavit for a search warrant for the
Regal Street residence.
The search warrant for the Regal Street residence issued
and was executed on March 28, 2004. When officers entered
Gooch’s bedroom during the execution of the warrant, he was
lying asleep on his bed. The officers announced their pres-
ence, told Gooch to lie on his stomach, and ordered him to
keep his hands visible. Gooch initially complied, but as the
officers approached he moved his hands towards pillows at
the head of the bed. The officers drew their weapons and
ordered Gooch to stop moving. Once Gooch was handcuffed,
the officers discovered three loaded firearms underneath the
pillows on Gooch’s bed.
Gooch moved to suppress on the grounds that the arrest
warrant did not permit the March 20 entry into the Regal
Street residence, and that without that entry the police would
not have had any basis to seek the subsequent search warrant
that led to Gooch’s arrest. The district court, relying on Pay-
ton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d
639 (1980), concluded that the officers had the limited author-
ity to enter the Regal Street residence in order to effectuate
the arrest warrant and denied the motion. Although in the dis-
trict court Gooch only challenged the manner in which the
arrest warrant was executed, on appeal he also argues that the
warrant was legally defective because it was simply a bench
warrant issued without a proper finding of probable cause.
ANALYSIS
I.
A district court’s denial of a motion to suppress is reviewed
de novo. United States v. Meek, 366 F.3d 705, 711 (9th Cir.
14468 UNITED STATES v. GOOCH
2004). The district court’s factual findings underlying the
decision are reviewed for clear error. United States v. Bynum,
362 F.3d 574, 578 (9th Cir. 2004). “Where no findings of fact
were made or requested, this court will uphold a trial court’s
denial of a motion to suppress if there was a reasonable view
to support it.” United States v. Becker, 23 F.3d 1537, 1539
(9th Cir. 1994).
II.
Although there is a presumption of invalidity attaching to
warrantless entry of a residence, “for Fourth Amendment pur-
poses, an arrest warrant founded on probable cause implicitly
carries with it the limited authority to enter a dwelling in
which the suspect lives when there is reason to believe the
suspect is within.” Payton, 445 U.S. at 603. See also Steagald
v. United States, 451 U.S. 204, 214 n.7, 101 S. Ct. 1642, 68
L. Ed. 2d 38 (1981) (“Because an arrest warrant authorizes
the police to deprive a person of liberty, it necessarily also
authorizes a limited invasion of that person’s privacy interest
when it is necessary to arrest him in his home.”).
[1] The Ninth Circuit has not previously had occasion to
decide whether a misdemeanor bench warrant for failure to
appear—as opposed to a felony arrest warrant—is sufficient
to permit entry into a residence under Payton. The Second
Circuit, however, in United States v. Spencer persuasively
reasoned that the Court’s decision in Payton permits entry
into a residence to effectuate a valid arrest warrant, regardless
of the precise nature of the underlying warrant. 684 F.2d 220,
223 (2d Cir. 1982), cert. denied, 459 U.S. 1109 (1983).
Rejecting an argument identical to the one that Gooch makes
here—that a misdemeanor bench warrant not premised on a
formal finding of probable cause does not lie within Payton’s
reach—the Second Circuit explained:
The decision of the New York City Criminal Court
Judge to issue a bench warrant constituted a finding
UNITED STATES v. GOOCH 14469
made by a neutral magistrate that [the defendant] had
failed to appear in a pending criminal matter. We
recognize that its issuance did not amount to a judi-
cial finding of probable cause to Farrest in the tradi-
tional sense . . . . Nonetheless, the police, armed with
the warrant, had authority to find and seize [the
defendant] anywhere they could find him for his fail-
ure to appear in court. Thus, the presence of the
police in the defendant’s room was pursuant to a
direction made by a neutral magistrate. Defendant’s
rights under the Fourth Amendment require no more.
684 F.2d at 223 (citing Payton, 445 U.S. at 582 n.17, 586
n.24); see also id. at 223-24 (“[T]he courts, in striving to safe-
guard a suspect’s Fourth Amendment rights when he is
arrested at home, emphasized the necessity that a warrant be
issued by a neutral magistrate. . . . In determining reasonable-
ness, the nature of the underlying offense is of no moment.”).1
[2] We find the reasoning of Spencer persuasive, and affirm
the district court’s denial of Gooch’s motion to suppress. We
hold that a valid arrest warrant issued by a neutral magistrate
judge, including a properly issued bench warrant for failure to
appear, carries with it the limited authority to enter a resi-
dence in order to effectuate the arrest as provided for under
Payton.2 The Fourth Amendment presumption against war-
1
The holding in Spencer, permitting entry into a residence based on a
misdemeanor arrest warrant or a bench warrant for failure to appear, has
been followed in similar cases with near uniformity by the federal courts.
See Shreve v. Jessamine County Fiscal Court, 453 F.3d 681, 689 (6th Cir.
2006); United States v. Clayton, 210 F.3d 841, 843-44 (8th Cir. 2000);
Cogswell v. County of Suffolk Deputy Sheriff’s Dept., 375 F. Supp. 2d 182,
187-88 (E.D.N.Y. 2005); United States v. Ray, 199 F. Supp. 2d 1104,
1112-13 (D. Kan. 2002); Smith v. Tolley, 960 F. Supp. 977, 991-92 (E.D.
Va. 1997); Heine v. Connelly, 644 F. Supp. 1508, 1514-15 (D. Del. 1986).
2
In order to enter a residence to execute an arrest warrant the police
must still have probable cause to believe the suspect is within the resi-
dence. United States v. Gorman, 314 F.3d 1105, 1110-11 (9th Cir. 2002).
14470 UNITED STATES v. GOOCH
rantless entries into the home is designed to protect privacy
interests against uncabined police discretion. Payton, 445
U.S. at 586 (“[W]e have long adhered to the view that the
warrant procedure minimizes the danger of needless intru-
sions [into the home].”). Those interests are sufficiently safe-
guarded when an entry is premised on the execution of a valid
arrest warrant issued by a judge or magistrate, regardless of
whether that warrant is for a felony, a misdemeanor, or simply
a bench warrant for failure to appear. Here, the police held a
valid warrant for Conn’s arrest, a warrant that bore the con-
firmed address of the residence police entered after following
Conn. The entry and subsequent search for Conn were reason-
able and permissible under Payton and the Fourth Amend-
ment.
[3] In so holding, we note that our decision in United States
v. Albrektsen, 151 F.3d 951 (9th Cir. 1998) is not to the contrary.3
In Albrektsen, we held that police were not permitted to pass
beyond the doorway and enter a suspect’s hotel room in order
to execute a misdemeanor arrest warrant. 151 F.3d at 954.
The outcome in Albrektsen, however, was based on the fact
that entry into the arrestee’s room was unnecessary because
the police had already apprehended him in the doorway, and
so our decision there did not turn on the nature of the underly-
ing warrant. Id. Here, the officers were not able to arrest Conn
at the threshold of his residence, or even in his bedroom,
because Conn fled into the residence and successfully hid in
3
Gooch’s reliance on the Washington Court of Appeals decision in State
v. Parks, is also misplaced. 148 P. 3d. 1098 (Wash. Ct. App. 2006). Parks
does not address whether particular forms of warrants provide sufficient
authority for entry into a residence under Payton. Rather, Parks held that
a warrant issued for the defendant’s arrest pursuant to Washington crimi-
nal rule CrRLJ 2.5 based on his failure to appear at trial, was insufficient
where there had never been a prior finding of probable cause to arrest the
defendant at any time in the proceedings. Id. at 1102. Parks is inapplicable
here, where the bench warrant for Conn’s arrest was made for failure to
comply with the terms of probation after a finding of guilty for the under-
lying offense.
UNITED STATES v. GOOCH 14471
the attic. Hence, Albrektsen does not place restrictions on
entry based on the character of the warrant at issue, and its
limitations on the scope of entry are likewise not implicated
in this case. Id. at 954 n.5 (“[T]his area of the law is very fact
specific. If, for example, Albrektsen had retreated from the
threshold, [the police] could have followed him in.”). The dis-
trict court’s decision to deny Gooch’s motion to suppress was
not in error and we therefore affirm.
III.
[4] Gooch’s remaining arguments related to claimed errors
at trial are without merit and are easily resolved. Gooch com-
plains that he was entitled to a “mere presence” jury instruc-
tion. No “mere presence” instruction was necessary here. The
jury was properly instructed on all of the elements of the
charged offense, and the government’s case for possession
rested on more than Gooch’s presence in the room with the
firearms. United States v. Negrete-Gonzales, 966 F.2d 1277,
1282 (9th Cir. 1992). Similarly, Gooch’s argument that the
court improperly responded to a question from the jury seek-
ing clarification of the definition of the term “possession” in
the jury instructions is also baseless. The district court issued
a carefully limited clarification of the instruction that pro-
vided the jury with lay terms synonymous with the words in
the existing instruction. This clarifying response to the jury’s
question “neither directed the verdict, constituted judicial
fact-finding, nor exceeded the scope of the question in a prej-
udicial way.” United States v. Verduzco, 373 F.3d 1022, 1032
(9th Cir. 2004). The district court’s response to the jury’s
question was not an abuse of discretion. Id. at 1030 n.3.
[5] Gooch also complains of prosecutorial misconduct in
the form of “vouching” for government witnesses and other
improper statements during closing. The government sug-
gested in closing that certain government witnesses testified
consistently with other government witnesses. These state-
ments, which referred only to evidence in the record that
14472 UNITED STATES v. GOOCH
allowed the jury to independently assess the witnesses’ credi-
bility, did not constitute vouching. United States v. Necoe-
chea, 986 F.2d 1273, 1279-80 (9th Cir. 1993). Likewise, the
prosecution’s statement in closing that the jury could con-
sider, “[Gooch’s] conduct, his demeanor on the stand, his
believability on the stand, and the weight of the evidence
brought by the witnesses that have been called,” falls well
short of prosecutorial misconduct. Gooch took the stand and
testified on his own behalf; the prosecution’s fairly innocuous
statement regarding his demeanor was not improper. United
States v. Schuler, 813 F.2d 978, 981 n.3 (9th Cir. 1987)
(“When a defendant chooses to testify, a jury must necessarily
consider the credibility of the defendant. In this circumstance,
courtroom demeanor has been allowed as one factor to be
taken into consideration.”).
[6] Finally, the district court did not err in imposing
Gooch’s sentence. Gooch’s two prior state court convictions
(for second degree burglary and third degree assault) were
correctly assessed for purposes of determining the severity of
Gooch’s sentence pursuant to the Armed Career Criminals
Act, 18 U.S.C. § 924(e) (2006). The district court properly
relied on the “modified categorical” approach to determine
the effect of those convictions on Gooch’s sentence. United
States v. Piccolo, 441 F.3d 1084, 1088 n.7 (9th Cir. 2006).
Finally, Gooch was not entitled to a separate jury trial to
determine the applicability of his prior convictions to his sen-
tence in this case. United States v. Smith, 390 F.3d 661, 666
(9th Cir. 2004).
CONCLUSION
The district court properly denied Gooch’s motion to sup-
press. The misdemeanor bench warrant for Conn’s arrest gave
police the necessary authority to enter the Regal Street resi-
dence and execute that warrant. Gooch’s conviction and sen-
tence are AFFIRMED.