United States v. Johnny Casel Nora , 765 F.3d 1049 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50485
Plaintiff-Appellee,
D.C. No.
v. 2:09-cr-00092-
SVW-1
JOHNNY CASEL NORA, AKA John
Carter, AKA John Nora, AKA
Johnny Nora, AKA Johnny Carl OPINION
Nora,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted
January 8, 2014—Pasadena, California
Filed August 28, 2014
Before: William A. Fletcher, Milan D. Smith, Jr.,
and Paul J. Watford, Circuit Judges.
Opinion by Judge Watford
2 UNITED STATES V. NORA
SUMMARY*
Criminal Law
The panel reversed the district court’s denial of a motion
to suppress evidence seized from the defendant’s home, and
remanded for further proceedings, in a case in which the
defendant entered a conditional guilty plea to possession of
cocaine base with intent to distribute.
The panel held that although the defendant’s arrest was
supported by probable cause, the arrest violated Payton v.
New York, 445 U.S. 573 (1980), and violated the Fourth
Amendment, where the officers physically took the defendant
into custody outside his home in the front yard only by
surrounding his house and ordering him to come out at
gunpoint, and no exigency existed.
The panel held that evidence seized during a pat-down
search incident to an arrest made in violation of Payton must
be suppressed, whether the search occurs inside the home or,
as in the case of the cash and marijuana here, outside the
home. The panel held that the defendant’s post-arrest
statements are subject to suppression as well, as fruit of the
unlawful search of his person. The panel held that
suppression of this evidence renders the portions of the
warrant authorizing a search for narcotics-related evidence
and evidence of gang membership invalid. The panel held
that the remaining untainted evidence did not establish
probable cause to search the defendant’s home for the broad
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. NORA 3
range of firearms described in the warrant, and that as a
consequence, the entire warrant was invalid and all evidence
seized pursuant to it must be suppressed.
COUNSEL
Michael J. Treman (argued), Santa Barbara, California, for
Defendant-Appellant.
André Birotte Jr., United States Attorney, Robert E. Dugdale,
Chief, Criminal Division, Cheryl L. O’Connor (argued) and
Max B. Shiner, Assistant United States Attorneys, Los
Angeles, California, for Plaintiff-Appellee.
OPINION
WATFORD, Circuit Judge:
The issue raised by this appeal is whether the police
violated Johnny Nora’s Fourth Amendment rights when they
searched his home. The search yielded narcotics and
firearms, which formed the basis for the federal charges
brought against him. After the district court denied Nora’s
motion to suppress the evidence seized from his home, Nora
entered a conditional guilty plea pending the outcome of this
appeal.
Nora contends that, although the officers obtained a
search warrant, all of the evidence discovered during the
search must be suppressed because the warrant was invalid.
The warrant was invalid, Nora argues, because it was based
on information acquired as a result of his unlawful arrest.
4 UNITED STATES V. NORA
And his arrest was unlawful, Nora urges, because the officers
either lacked probable cause to arrest him or, alternatively,
arrested him in violation of Payton v. New York, 445 U.S. 573
(1980).
I
The events relevant here occurred on a single night in
January 2008. Two uniformed police officers were patrolling
Nora’s neighborhood in South Central Los Angeles in an
unmarked car. As they drove down Nora’s street, the officers
saw three men they didn’t know standing on the sidewalk in
front of Nora’s two-bedroom house, about 75 yards away.
The officers lost sight of the men for a few seconds. By the
time the officers pulled up in front of the house and got out of
the car, two of the three men (Nora and Andre Davis) were
standing on the porch, while the third (Patrick Hodges) stood
in the front yard, which was enclosed by a metal fence. See
Appendix (photograph of front yard and porch). The officers
stood on the sidewalk and attempted to engage in casual
conversation with the men.
According to the officers, whose testimony the district
court credited over Nora’s conflicting testimony, Nora
appeared nervous and stood stiffly with his right side
obscured from the officers’ view. Seconds into the
conversation, Nora abruptly spun toward the front door and
pushed past Davis to get into the house. As he did so, the
officers could see that Nora was holding a blue-steel semi-
automatic handgun in his right hand. One of the officers
shouted “Stop! Police!” but Nora and Davis ignored the
command, rushed into the house, and shut the door behind
them.
UNITED STATES V. NORA 5
After Nora and Davis fled into the house, one of the
officers detained Hodges, who was still standing in the front
yard, while the other officer ran around the side of the house
to watch the back door. Someone inside the house turned off
the only light that had been on, leaving the house completely
dark. The officers then called for backup. Within minutes,
some 20 to 30 officers arrived and surrounded the house with
weapons drawn. They were aided by a police helicopter
hovering above whose lights, Nora’s wife testified, lit up the
house “like the daytime.”
A standoff ensued for the next 20 to 30 minutes, which
ended when the officers used a public address system to order
the occupants of the house to come out. Nora and Davis
complied, followed a few minutes later by Nora’s wife and
children.
Officers immediately handcuffed Nora and searched him.
They found a small amount of marijuana and more than
$1,000 in cash on his person. One of the officers read Nora
the warnings required by Miranda v. Arizona, 384 U.S. 436
(1966), and then briefly questioned him. Nora made several
incriminating statements in response to those questions.
Specifically, Nora admitted that he had personal use
quantities of methamphetamine and heroin in a dresser
drawer, that he lived at the house, and that he belonged to a
particular street gang. After determining Nora’s identity, the
officers ran a criminal background check, which revealed that
Nora had a prior conviction for carrying a loaded firearm and
two prior convictions for being a felon in possession of a
firearm.
The officers sought and obtained a warrant to search
Nora’s home for the following items: marijuana,
6 UNITED STATES V. NORA
methamphetamine, heroin, and related paraphernalia;
evidence relating to the sale of narcotics; firearms,
magazines, and ammunition; and evidence of gang
membership. The affidavit supporting the warrant relied on
the officers’ observations of Nora outside his home, as well
as the evidence obtained as a result of Nora’s arrest—namely,
the marijuana and cash found on his person, his post-arrest
statements, and the record of his prior convictions. Among
other things, the search of Nora’s home resulted in seizure of
the following:
• From an ironing-board closet hidden behind the
refrigerator: quantities of cocaine, cocaine base,
marijuana, over $9,000 in cash, and four semi-
automatic handguns.
• From a bedroom dresser drawer: quantities of heroin
and methamphetamine.
• From the detached garage: quantities of cocaine base,
one handgun, one rifle, two shotguns, two electronic
scales, handgun magazines, and ammunition.
A federal grand jury charged Nora with possession with
intent to distribute controlled substances, possession of
firearms in furtherance of a drug trafficking offense,
possession of an unregistered firearm, and one count of being
a felon in possession of a firearm. Nora entered a conditional
guilty plea to possession of cocaine base with intent to
distribute, reserving his right to appeal the district court’s
denial of his suppression motion. The court ultimately
sentenced Nora to 122 months in prison.
UNITED STATES V. NORA 7
II
Nora first contends that the officers lacked probable cause
to arrest him. The government counters that the officers had
probable cause to arrest Nora for violating California Penal
Code § 25850(a) (formerly § 12031(a)). That statute, as
relevant here, makes it a misdemeanor to carry a loaded
firearm “while in any public place or on any public street.”
§ 25850(a).1
The officers’ firsthand observations of Nora on the porch
undoubtedly gave them probable cause to believe he was
carrying a firearm. But for purposes of § 25850(a), Nora’s
front porch is not a “public place.” See People v. Strider,
100 Cal. Rptr. 3d 66, 74 (Ct. App. 2009). The question, then,
is whether the officers had probable cause to believe both that
Nora had been carrying the firearm while standing on the
sidewalk (which is a public place), and that the firearm was
loaded.
The officers’ observations gave rise to a “fair probability”
that Nora had been carrying the handgun while standing on
the sidewalk. Illinois v. Gates, 462 U.S. 213, 238 (1983).
That’s where the officers first saw him, and they lost sight of
him for only a few seconds before they next saw him standing
on the porch with the gun in his hand. They did not see him
pick up anything or accept anything from Davis or Hodges
while on the porch. Given the short interval during which the
1
“A person is guilty of carrying a loaded firearm when the person
carries a loaded firearm on the person or in a vehicle while in any public
place or on any public street in an incorporated city or in any public place
or on any public street in a prohibited area of unincorporated territory.”
Cal. Penal Code § 25850(a).
8 UNITED STATES V. NORA
officers lost sight of Nora, they had reasonable grounds to
believe that the firearm they saw him holding on the porch
had been in his hand just moments earlier on the sidewalk as
well. See Maryland v. Pringle, 540 U.S. 366, 371 (2003).
The facts known to the officers also established a fair
probability that the firearm was loaded. The particular
firearm involved here—a semi-automatic handgun—is
principally used for self-defense and protection of the home,
see District of Columbia v. Heller, 554 U.S. 570, 628 (2008),
purposes served most effectively if the weapon is loaded.
The officers saw Nora carrying the handgun at night outside
a home in which he later sought refuge, suggesting he was in
fact carrying the handgun for those purposes. As the district
court noted, the fact that Nora carried the handgun in his hand
“at the ready” strengthened the inference it was loaded; it
wasn’t stored in a gun case or left unattended in a vehicle,
circumstances in which a firearm might more plausibly be
unloaded. And Nora’s unprovoked flight into the house upon
seeing the officers added further weight to the inference that
criminal wrongdoing might be afoot. See Illinois v. Wardlow,
528 U.S. 119, 124–25 (2000); Sibron v. New York, 392 U.S.
40, 66–67 (1968). These facts, taken together, provided a
reasonable basis for believing Nora had violated § 25850(a).
Nora argues that it’s possible he picked up the handgun
between the time he was standing on the sidewalk and the
time he reached the porch, and that the gun could have been
unloaded. But the concept of probable cause requires us to
deal in probabilities, not certainties, and for that reason it
doesn’t demand “the same type of specific evidence of each
element of the offense as would be needed to support a
conviction.” Adams v. Williams, 407 U.S. 143, 149 (1972).
Taking into account the totality of the circumstances, the
UNITED STATES V. NORA 9
officers needed to have only a “reasonable ground” for
believing Nora had violated § 25850(a). Pringle, 540 U.S. at
371. Here, they did.
III
Nora next contends that, even if the officers had probable
cause to arrest him, they arrested him in violation of Payton
v. New York, 445 U.S. 573 (1980). The Court held in Payton
that the Fourth Amendment forbids arresting a suspect inside
his home unless the police first obtain an arrest warrant or an
exception to the warrant requirement applies. Id. at 590.
That rule is designed to protect “the privacy and the sanctity
of the home,” id. at 588, and stems from “the overriding
respect for the sanctity of the home that has been embedded
in our traditions since the origins of the Republic.” Id. at 601.
The government properly concedes that the police
arrested Nora “inside” his home for purposes of the Payton
rule. Although officers physically took Nora into custody
outside his home in the front yard, they accomplished that
feat only by surrounding his house and ordering him to come
out at gunpoint. We’ve held that forcing a suspect to exit his
home in those circumstances constitutes an in-home arrest
under Payton. See, e.g., Fisher v. City of San Jose, 558 F.3d
1069, 1074–75 (9th Cir. 2009) (en banc); United States v. Al-
Azzawy, 784 F.2d 890, 893 (9th Cir. 1985). Since the officers
didn’t obtain an arrest warrant, Nora’s arrest violated the
Fourth Amendment unless an exception to the warrant
requirement applies.
The government argues, and the district court found, that
the “exigent circumstances” exception to the warrant
requirement applies. That exception permits a warrantless in-
10 UNITED STATES V. NORA
home arrest in certain narrowly defined circumstances. See
United States v. Struckman, 603 F.3d 731, 743 (9th Cir.
2010). One such circumstance is where the government can
show that the delay necessary to secure a warrant would
create “a substantial risk of harm to the persons involved or
to the law enforcement process.” Al-Azzawy, 784 F.2d at 894
(internal quotation marks omitted).
Nora didn’t present the kind of immediate threat to the
safety of officers or others necessary to justify a disregard of
the warrant requirement. Our decision in Al-Azzawy provides
a useful contrast. In that case the defendant refused
commands to exit his home a short time after he threatened to
shoot his neighbor, to light his neighbor’s trailer on fire, and
to “blow up” the entire trailer park in which the two lived if
the neighbor bothered the defendant’s family again. Id.
at 891, 894. Officers were told that the defendant had also
threatened the neighbor with a pistol the day before and had
been seen in possession of hand grenades and automatic
weapons a few days earlier. Id. at 891. We held that exigent
circumstances justified the defendant’s warrantless in-home
arrest because the officers reasonably believed that he
“possessed illegal explosives and was in an agitated and
violent state.” Id. at 894. Even on those facts, we said the
exigency question was close. Id.
The facts of this case are decidedly less compelling from
an exigency standpoint than those in Al-Azzawy. True, the
officers saw Nora in possession of a handgun. But Nora
never aimed the weapon at the officers or anyone else, and
the officers had no evidence that he had used or threatened to
use it. Cf. Fisher, 558 F.3d at 1072–73 (suspect aimed rifle
at officers and threatened to shoot). The officers had no
reason to believe that illegal weapons such as explosives were
UNITED STATES V. NORA 11
present inside Nora’s home, or that anyone else to whom
Nora may have posed a danger was inside. Nor had Nora
given any other indication that he was in “an agitated and
violent state.” Al-Azzawy, 784 F.2d at 894. Finally, the
officers had no reason to believe Nora might pose a danger to
the public by attempting to flee, since they had the house
completely surrounded and could monitor all exit points. See
United States v. Gooch, 6 F.3d 673, 679 (9th Cir. 1993)
(defendant resting in closed tent posed no present danger to
officers or other campers, despite having discharged firearm
in crowded campground hours earlier).
Our conclusion that no exigency existed is buttressed by
the fact that the offense involved here was a misdemeanor.
At the time the officers ordered Nora to exit his home, they
had probable cause to believe he had committed only a
misdemeanor violation of California Penal Code § 25850(a).2
The Supreme Court has said we should be hesitant to find
exigent circumstances “when the underlying offense for
which there is probable cause to arrest is relatively minor.”
Welsh v. Wisconsin, 466 U.S. 740, 750 (1984). Reflecting
that hesitancy, we’ve held that “an exigency related to a
misdemeanor will seldom, if ever, justify a warrantless entry
into the home.” Hopkins v. Bonvicino, 573 F.3d 752, 769
(9th Cir. 2009) (internal quotation marks omitted). In our
view, this isn’t one of the rare cases in which exigent
circumstances can be found notwithstanding the relatively
minor nature of the offense involved.
2
The officers were not yet aware of Nora’s criminal history, which
would have elevated the offense to a felony. See Cal. Penal Code
§ 25850(c)(1).
12 UNITED STATES V. NORA
IV
Having concluded that the officers had probable cause to
arrest Nora but made the arrest in violation of Payton, we
must next decide whether the evidence obtained as a result of
Nora’s unlawful arrest should be suppressed. See Wong Sun
v. United States, 371 U.S. 471, 484–88 (1963). That evidence
falls into three categories: (1) the cash and marijuana found
on Nora during the pat-down search incident to his arrest;
(2) Nora’s post-arrest statements admitting gang membership
and the presence of personal use quantities of narcotics in the
house; and (3) information relating to Nora’s identity—in
particular, the record of his past convictions.
A
As to the cash and marijuana found on Nora’s person, our
analysis is guided first and foremost by New York v. Harris,
495 U.S. 14 (1990), which established the scope of the
exclusionary rule’s application following a Payton violation.
In Harris, police had probable cause to arrest the defendant
but arrested him in his home without a warrant or exigent
circumstances. The defendant made incriminating statements
while still inside his home, and later signed a written
confession incriminating himself at the police station. The
Court noted that the statements made inside the home were
properly suppressed. Id. at 20. But the Court held that the
written statement made at the police station was not subject
to suppression, reasoning that “where the police have
probable cause to arrest a suspect, the exclusionary rule does
not bar the State’s use of a statement made by the defendant
outside of his home, even though the statement is taken after
an arrest made in the home in violation of Payton.” Id. at 21.
 UNITED STATES V. NORA 13
The Court refused to suppress the statement made outside
the home because doing so would not have advanced the
deterrent purpose the exclusionary rule is designed to serve.
That purpose is served, the Court held, only by suppressing
evidence that “is in some sense the product of illegal
governmental activity.” Id. at 19 (internal quotation marks
omitted). In the context of a Payton violation, the illegality
doesn’t consist of gaining custody of the defendant; the
existence of probable cause to arrest provides a lawful basis
for that intrusion upon the defendant’s liberty. Id. at 18.
Instead, the illegality consists of the officers’ intrusion into
the privacy and sanctity of the home without prior judicial
authorization. Id. at 17. Only evidence that the police
discover as a result of having made the arrest “in the home
rather than someplace else” can be deemed the product of a
Payton violation. Id. at 19.
Both the Supreme Court and our court have held that we
must suppress evidence seized during a pat-down search of
the defendant’s person following a Payton violation. See
Kirk v. Louisiana, 536 U.S. 635, 637–38 (2002) (per curiam);
United States v. Blake, 632 F.2d 731, 733, 736 (9th Cir.
1980). Those cases involved Payton violations in which the
police physically intruded into the home and conducted the
pat-down search while still inside. The question before us is
whether the rule of Kirk and Blake should be applied to
Payton violations involving a suspect who, like Nora, is
forced to exit his home in response to police coercion, such
that the pat-down search takes place outside the physical
confines of the home. The Sixth Circuit appears to have
applied the rule in these circumstances, albeit without
analysis. See United States v. Saari, 272 F.3d 804, 807, 812
(6th Cir. 2001) (upholding suppression of handgun found in
14 UNITED STATES V. NORA
defendant’s waistband after police ordered him to exit his
home).
Deciding whether to apply a rule to a new factual scenario
requires knowing something of the rule’s rationale. Although
the exact rationale underlying the rule established in Kirk and
Blake wasn’t articulated, each of the potential rationales
supports extending the exclusionary rule to the scenario at
issue here. On the one hand, the rule could be based simply
on the notion that a Payton violation renders an arrest
unlawful, and a search incident to an unlawful arrest is itself
always unlawful, wherever it happens to occur. If Kirk and
Blake rest on that rationale, then deciding the suppression
issue before us is easy: The cash and marijuana found during
the search incident to Nora’s unlawful arrest must be
suppressed, even though the search occurred outside his home
in the front yard.
On the other hand, Kirk and Blake could rest on the notion
that, when the police arrest a suspect by physically intruding
into his home without a warrant, any personal effects found
on his person must be suppressed in order to protect the
privacy and sanctity of the home. An individual might wear
or carry things on his person within the confines of his home
that he wouldn’t take with him when venturing out in public,
so items discovered during a pat-down search conducted
inside the home could well be “the fruit of having been
arrested in the home rather than someplace else.” Harris,
495 U.S. at 19. Viewed in that light, Payton’s protection of
the privacy and sanctity of the home would be incomplete if
it didn’t extend to the person of a suspect arrested inside his
home.
UNITED STATES V. NORA 15
That same rationale applies when the police violate
Payton by ordering a suspect to exit his home at gunpoint.
The home receives special constitutional protection in part
because “at the very core of the Fourth Amendment stands
the right of a man to retreat into his own home and there be
free from unreasonable governmental intrusion.” Payton,
445 U.S. at 589–90 (internal quotation marks and alterations
omitted). When the police unreasonably intrude upon that
interest by ordering a suspect to exit his home at gunpoint, the
suspect’s opportunity to collect himself before venturing out
in public is certainly diminished, if not eliminated altogether.
In this context, too, Payton’s protection of the privacy and
sanctity of the home would be incomplete if it didn’t extend
to the person of a suspect forced to abandon the refuge of his
home involuntarily.
For these reasons, evidence seized during a pat-down
search incident to an arrest made in violation of Payton must
be suppressed, whether the search occurs inside the home, as
in Kirk and Blake, or outside the home, as in this case. In
either scenario, evidence found on the suspect’s person
should be regarded as “the fruit of having been arrested in the
home rather than someplace else.” Harris, 495 U.S. at 19.
Accordingly, the cash and marijuana seized during the search
incident to Nora’s arrest must be suppressed.
B
We conclude that Nora’s post-arrest statements are
subject to suppression as well. Under our decision in United
States v. Shetler, 665 F.3d 1150 (9th Cir. 2011), Nora’s
statements must be deemed the fruit of the unlawful search of
his person.
16 UNITED STATES V. NORA
In Shetler, the police conducted an extensive illegal
search of the defendant’s home while the defendant was
detained outside, watching as the search progressed. Id. at
1154. Officers found evidence of methamphetamine
production in the house and garage. When questioned by the
police 36 hours later, the defendant confessed to having
engaged in methamphetamine production. We held that the
defendant’s confession was the product of the illegal search
and had to be suppressed. We noted that in these
circumstances officers will likely use evidence gleaned from
the illegal search in questioning the suspect, and the suspect’s
answers “may be influenced by his knowledge that the
officials had already seized certain evidence.” Id. at 1158.
Because the government bore the burden of proving that the
defendant’s confession was not “fruit of the poisonous tree,”
id. at 1157, the government was required to produce evidence
demonstrating that the defendant’s answers “were not
induced or influenced by the illegal search.” Id. at 1158. The
government failed to do so.
The same is true here. Nora’s incriminating statements
followed immediately on the heels of the unlawful search of
his person, which yielded marijuana and a large amount of
cash. Whether the police questioned Nora about that
evidence or not, his answers were likely influenced by his
knowledge that the police had already discovered it. As in
Shetler, the government produced no evidence to the
contrary. Nor has the government shown that intervening
circumstances rendered the connection between Nora’s
statements and the illegal search “so attenuated as to dissipate
the taint.” Id. at 1159 (internal quotation marks omitted).
Nora’s post-arrest statements must therefore be suppressed.
UNITED STATES V. NORA 17
C
As to Nora’s identity—in particular, the record of his
prior convictions—we need not decide whether that evidence
is admissible. We will assume that it is, resolving any doubts
on that score in the government’s favor. As will become
clear, even on that assumption, we conclude that the
government cannot prevail.
V
In light of what we’ve said above, some of the evidence
included in the search warrant affidavit was admissible and
some of it wasn’t. The remaining question is whether that
fact renders the search warrant invalid in whole or in part.
A search warrant isn’t rendered invalid merely because
some of the evidence included in the affidavit is tainted.
United States v. Reed, 15 F.3d 928, 933 (9th Cir. 1994). The
warrant remains valid if, after excising the tainted evidence,
the affidavit’s “remaining untainted evidence would provide
a neutral magistrate with probable cause to issue a warrant.”
Id. (internal quotation marks omitted); see also United States
v. Grandstaff, 813 F.2d 1353, 1355 (9th Cir. 1987). Thus,
after excising the cash and marijuana found on Nora’s person
and his post-arrest statements, we must determine whether the
remaining untainted evidence was sufficient to support
issuance of the warrant.3 We make that determination
without the usual deference owed to the magistrate’s initial
3
The government doesn’t challenge the district court’s decision to
suppress evidence discovered during a protective sweep of Nora’s home,
which officers conducted before obtaining the warrant, so we will
disregard that evidence as well.
18 UNITED STATES V. NORA
finding of probable cause. United States v. Kelley, 482 F.3d
1047, 1051 (9th Cir. 2007).
Two principal pieces of evidence remain after excising
the tainted evidence from the affidavit: (1) the officers’
observation of Nora with a handgun under circumstances
establishing probable cause to believe he had violated
California Penal Code § 25850(a); and (2) the officers’
knowledge of Nora’s criminal history, in particular his prior
conviction for carrying a loaded firearm and his two prior
convictions for being a felon in possession of a firearm.
This remaining, untainted evidence did not provide
probable cause to search Nora’s home for marijuana, heroin,
and methamphetamine, or for evidence of gang membership,
all of which were listed in the warrant as items subject to
seizure. Those portions of the warrant are therefore invalid.
That leaves the portion of the warrant authorizing the seizure
of “[f]irearms, assault rifles, handguns of any caliber and
shotguns of any caliber,” as well as ammunition for such
firearms. We must decide whether that portion of the warrant
is valid; if it is, the severance doctrine might apply. See
United States v. Gomez-Soto, 723 F.2d 649, 654 (9th Cir.
1984) (noting that, if applicable, the severance doctrine
“allows us to strike from a warrant those portions that are
invalid and preserve those portions that satisfy the fourth
amendment”).
To satisfy the Fourth Amendment, the warrant’s firearms
clause must be supported by probable cause and describe with
particularity the items to be seized. United States v. Sells,
463 F.3d 1148, 1156 (10th Cir. 2006); In re Grand Jury
Subpoenas Dated Dec. 10, 1987, 926 F.2d 847, 857 (9th Cir.
1991). Because we conclude that the firearms clause was not
UNITED STATES V. NORA 19
supported by probable cause, we need not decide whether the
clause satisfies the particularity requirement.
The untainted evidence unquestionably provided probable
cause to search Nora’s home for the blue-steel semi-
automatic handgun the officers saw him carrying. Nora ran
into the house with the gun in his hand but exited without it,
giving the officers reason to believe it was still inside. The
gun was of course evidence of the crime for which the
officers had probable cause to arrest him and would therefore
have been subject to seizure on that basis alone. But without
more, the officers’ firsthand observations of Nora with a gun
in his hand did not give them reasonable grounds to believe
that any additional firearms would be found in the house. See
Millender v. Cnty. of Los Angeles, 620 F.3d 1016, 1025 (9th
Cir. 2010) (en banc), rev’d on other grounds sub nom.
Messerschmidt v. Millender, 132 S. Ct. 1235 (2012).
The only other arguably untainted evidence the officers
had was knowledge of Nora’s criminal history. We have
stated that criminal history “can be helpful in establishing
probable cause, especially where the previous arrest or
conviction involves a crime of the same general nature as the
one the warrant is seeking to uncover.” Greenstreet v. Cnty.
of San Bernardino, 41 F.3d 1306, 1309 (9th Cir. 1994); see
also 2 Wayne R. LaFave, Search & Seizure: A Treatise on the
Fourth Amendment § 3.2(d), at 72 & n.147 (5th ed. 2012).
For example, in Hart v. Parks, 450 F.3d 1059 (9th Cir. 2006),
we noted that the suspect’s prior theft convictions were
“particularly relevant” (when combined with other evidence)
to determining whether the police had probable cause to
arrest him for another theft. Id. at 1066.
20 UNITED STATES V. NORA
By the same logic, Nora’s prior firearms convictions
might have been relevant if the officers had observed Nora
holding an object that appeared to be a firearm, and the issue
was whether the officers had probable cause to believe the
object was in fact a firearm. But here, the officers didn’t need
the prior convictions to support the inference that Nora in fact
possessed a firearm; they already had probable cause to
believe that. Rather, at issue is whether a fair probability
existed that Nora owned other firearms, in addition to the
single firearm the officers had observed. Nora’s prior
firearms convictions don’t speak to that issue and thus are of
marginal relevance to the probable cause issue before us.
Our decision in United States v. Weber, 923 F.2d 1338
(9th Cir. 1991), illustrates the shortcoming here. In Weber,
the defendant ordered four photographs of children engaged
in sexually explicit acts from a fictitious distributor created as
part of a government-orchestrated sting operation. Id. at
1340. The agents planned to deliver the photographs to the
defendant’s home through a mail courier. They then sought
an anticipatory warrant to search the defendant’s home, not
just for the four photographs he had ordered, but for any other
photographs, books, magazines, and videotapes depicting
child pornography. Id. at 1340–41. To justify this much
broader search for child pornography, the warrant affidavit
contained an officer’s expert opinion regarding three classes
of suspects likely to keep such materials at home (“child
molesters,” “pedophiles,” and “child pornography
collectors”). Id. at 1341. We found the evidence insufficient
to establish probable cause to search for materials beyond the
four photographs involved in the sting. Although the expert’s
opinion described three classes of suspects likely to possess
the broad range of child pornography materials described in
UNITED STATES V. NORA 21
the warrant, the government failed to demonstrate that the
defendant belonged to one of those classes. Id. at 1341, 1345.
Here, the government’s evidence is insufficient for the
opposite reason: The affidavit established that Nora belonged
to a class of suspects with prior firearms convictions, but
didn’t show why that class of suspects would tend to own
multiple firearms. Nor did the affidavit contain other facts
tying Nora himself to firearms beyond the one he had been
observed carrying. Were we to hold that this evidence
suffices for probable cause, officers would have free rein to
search a suspect’s home anytime the suspect had prior
firearms convictions and was spotted with a single gun,
whether near his home or not. While the police in those
circumstances might have probable cause to search for the
specific firearm they observed, they would need evidence
tending to show that the suspect in question—or the class of
people to which the suspect belonged—possessed additional
firearms to justify a more expansive search. As we stated in
Weber, “probable cause to believe that some incriminating
evidence will be present at a particular place does not
necessarily mean there is probable cause to believe that there
will be more of the same.” Id. at 1344.
We are thus left with no portion of the warrant that
satisfies the Fourth Amendment’s requirements. The officers
had probable cause to search for the blue-steel semi-
automatic handgun they saw Nora carrying, but the only
clause of the warrant addressing firearms did not specifically
describe that weapon. It instead purported to authorize the
seizure of firearms of any stripe, expanding the scope of the
search to include firearms for which the officers did not have
probable cause. Since a warrant must “be no broader than the
probable cause on which it is based,” id. at 1342, the firearms
22 UNITED STATES V. NORA
clause must be stricken as well. With no valid portion of the
warrant that could even potentially be saved, the severance
doctrine cannot apply.
Because the entire warrant was invalid, the government’s
plain view argument also fails. In order for the plain view
doctrine to apply, “the officer must lawfully have been in the
place from which the object could be seen in plain view.”
United States v. Galpin, 720 F.3d 436, 451 (2d Cir. 2013); see
Minnesota v. Dickerson, 508 U.S. 366, 375 (1993). The
officers’ entry into Nora’s home was not authorized by a
valid warrant or an exception to the warrant requirement,
which means they were not lawfully present in the home in
the first place. The plain view doctrine is therefore
inapplicable. See United States v. Spilotro, 800 F.2d 959, 968
(9th Cir. 1986).
* * *
Although Nora’s arrest was supported by probable cause,
the manner in which officers made the arrest violated Payton.
Evidence obtained as a result of Nora’s unlawful arrest must
be suppressed, which renders the portions of the warrant
authorizing a search for narcotics-related evidence and
evidence of gang membership invalid. The remaining
untainted evidence did not establish probable cause to search
Nora’s home for the broad range of firearms described in the
warrant. As a consequence, the entire warrant was invalid
and all evidence seized pursuant to it must be suppressed.
We reverse the district court’s order denying Nora’s
suppression motion and remand for further proceedings.
REVERSED and REMANDED.
UNITED STATES V. NORA 23
APPENDIX
24 UNITED STATES V. NORA
Case 2:09-cr-00092-SVW Document ID: 862538211/02/09 Page 2 of Page: 31 ID #:189
Case: 12-50485 05/10/2013 36-7 Filed DktEntry: 10-2 3 Page of 257
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United States v. Nora 28 Excerpts of Record
CA # 12-50485 Volume II