United States v. Ronnie Biddle , 467 F. App'x 693 ( 2012 )

FILED
NOT FOR PUBLICATION JAN 31 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S . CO UR T OF AP PE A LS
FOR THE NINTH CIRCUIT
United States of America, No. 10-10379
Plaintiff - Appellant, D.C. No. 3:09-cr-01159-MHP-1
v.
MEMORANDUM *
RONNIE BIDDLE, etc.
Defendant - Appellee.
United States of America, No. 11-10271
Plaintiff - Appellant, D.C. No. 3:09-cr-01159-MHP-1
v.
RONNIE BIDDLE, etc.
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
Marilyn H. Patel, Senior District Judge, Presiding
Argued and Submitted January 10, 2012
San Francisco, California
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: WALLACE and M. SMITH, Circuit Judges, and RAKOFF, District
Judge.**
The government appeals the district court's grant of Ronnie Biddle's motion
to suppress evidence found during a search of his vehicle. Separately, the
government also appeals the district court's dismissal of the indictment against
Biddle while the interlocutory appeal of the suppression motion was pending
before this court. Because the parties are familiar with the factual and procedural
history of this case, we repeat only those facts necessary to resolve the issues
raised on appeal. We have jurisdiction pursuant to 28 U.S.C. yy 1291, 3731, and
we affirm in part and reverse and remand in part.
We affirm the suppression of the evidence found in Biddle's vehicle. Any
of Biddle's actions that may have constituted abandonment of the searched vehicle
were colored by the officer's initial illegal searches. United States v. Jacµson, 544
F.2d 407, 409 (9th Cir. 1976) (stating that the court cannot consider 'tainted' acts
that 'may have been brought by unlawful police conduct'); see also United States
v. Stevens, 206 F.3d 914, 916 (9th Cir. 2000) ('An abandonment must be
voluntary, and an abandonment that results from Fourth Amendment violations
cannot be voluntary.') (citation omitted). Upon initially approaching the vehicle,
** The Honorable Jed. S. Raµoff, Senior United States District Judge for
the Southern District of New Yorµ, sitting by designation.
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one officer reached into the car, turned the car off, and tooµ the µeys out of the car
and secured them on his person. Three minutes later, after the officers had already
run the license plates and found out that the car was registered to Biddle, they
opened the door of the vehicle and began to search through the glove box of the
car.
A person retains some expectation of privacy in his car. See New Yorµ v.
Class, 475 U.S. 106, 114 (1986). Neither the officer's seizure of the µeys or search
of the glove compartment of an unoccupied vehicle can be justified as a stop under
Terry v. Ohio, 392 U.S. 1 (1968). The officers µnew the car was registered to
Biddle and was not stolen before they searched the glove compartment. The search
cannot be justified as a search incident to arrest because Biddle was not arrested at
that time. Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 1721 (2009). Nor can
the search be justified on the grounds of officer safety because Biddle was not
identified and present during the search. Michigan v. Long, 436 U.S. 1032, 1049
(1983). These initial actions by the officers tainted any succeeding actions by
Biddle, whether or not those succeeding actions constituted abandonment. United
States v. Gilman, 684 F.2d 616, 620 (9th Cir. 1982). Moreover, these initial
searches also tainted the towing of the car and subsequent search of the trunµ under
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a community caretaµing function rationale. See Wong Sun v. United States, 371
U.S. 471, 488 (1963).
We conclude, and the parties agree, that the district court erred in dismissing
the indictment while the interlocutory appeal on the suppression issue was pending
before us. The district court may retain jurisdiction in appropriate situations to
dismiss an indictment, in spite of a pending interlocutory appeal. See United
States v. Gatto, 763 F.2d 1040, 1049 (9th Cir. 1985); United States v. Cox, 475
F.2d 837, 841 (9th Cir. 1973). However, the district court abused its discretion in
doing so here. United States v. W.R. Grace, 526 F.3d 499 (9th Cir. 2008) (en
banc); United States v. Adrian, 978 F.2d 486 (9th Cir. 1992). Accordingly, we
reverse and remand the dismissal of the indictment.
AFFIRMED in part and REVERSED and REMANDED in part.
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FILED
USA v. Biddle 10-10379/11-10271
JAN 31 2012
WALLACE, Senior Circuit Judge, concurring in part and dissenting in part.
I concur with my colleagues in reversing for the erroneous dismissal of the
MOLLY C. DWYER, CLERK
U .S . CO UR T OF AP PE A LS
indictment. I dissent from the holding that the police's seizure of the µeys and
search of the glove box tainted the later search of the trunµ with the resultant
seizure of the gun.
Even if the seizure of the µeys and search of the glove box were unlawful,
these Fourth Amendment violations do not render Biddle's subsequent
abandonment involuntary unless there is 'a nexus between the allegedly unlawful
police conduct and abandonment of property.' United States v. Gilman, 684 F.2d
616, 620 (9th Cir. 1982). The disposition does not identify this nexus, and I have
not found it. Nothing suggests that Biddle disavowed ownership of the car
because the police tooµ the µeys and rummaged through his glove box. The police
tooµ the car µeys only to shut off the engine-maµing the surroundings safer.
Nothing illegal was found in the glove box, and nothing was done to the glove box
or µeys to maµe the car ownership less desirable. See Gilman, 684 F.2d at 620
('Abandonment of property in response to police investigation does not per se
render abandonment involuntary').
Because we have no facts before us that establish a nexus between the initial
seizure and search and Biddle's subsequent abandonment, I would remand for the
district court to develop the record further. In doing so, I remind the district court
that the µey issue in abandonment is not the intent of the police, but the intent of
the car owner. United States v. Nordling, 804 F.2d 1466, 1469 (9th Cir. 1986).
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