United States v. Kevin Baires-Reyes

FILED
NOT FOR PUBLICATION
SEP 25 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-10545
Plaintiff-Appellee, D.C. No.
3:15-cr-00122-EMC-2
v.
KEVIN BAIRES-REYES, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Edward M. Chen, District Judge, Presiding
Argued and Submitted July 13, 2018
San Francisco, California
Before: HAWKINS, BEA, and HURWITZ, Circuit Judges.
Kevin Baires-Reyes was convicted and sentenced in federal court for robbery
and firearms crimes after he was arrested as one of two suspects who robbed a Quick
Pick Market in Daly City. He appeals his judgment and sentence. Because we
determine that the district court plainly erred by admitting certain evidence obtained
*
This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
in violation of Baires-Reyes’s Fourth Amendment rights, we reverse his conviction
and remand.
As Baires-Reyes argued below, the officers here exceeded the scope of the
customary license to “encroach upon the curtilage of a home for the purpose of asking
questions of the occupants,” United States v. Perea-Rey, 680 F.3d 1179, 1187 (9th
Cir. 2012) (internal citation and quotation marks omitted), by knocking on the door
at 4:00 a.m. without a warrant, and thus the “knock and talk” exception to the warrant
requirement did not apply, United States v. Lundin, 817 F.3d 1151, 1158-60 (9th Cir.
2016) (“[U]nexpected visitors are customarily expected to knock on the front door of
a home only during normal waking hours.”). As such, even if the owner of the home
consented to the officers’ entry, this consent was wrongfully obtained, as was any
evidence viewed by the officers while in the home without a warrant.
The district court, however, denied Baires-Reyes’s motion to exclude all
evidence obtained from the home, concluding that the evidence was lawfully obtained
through an independent source when the officers left, obtained a warrant, and returned
to the home around noon. On appeal, Baires-Reyes concedes that many of the items
so obtained, such as the handgun, bottle of Hennessy, and Cincinnati Reds cap, were
properly admitted pursuant to this doctrine. However, because he was no longer
present on the property when the officers returned with the warrant (having been
2
arrested and taken to the police station by that point), he contends that four critical
pieces of evidence linking him to the crime were no longer available or observable by
officers executing the warrant and thus could not be justified by the independent
source doctrine:
(1) the observation of the three suspects asleep in the room together;
(2) the observation of the clothes Baires-Reyes was wearing when
arrested;
(3) the seizure of those clothes; and
(4) the DNA swab taken upon his arrest.
Baires-Reyes did not make this argument in response to the government’s
independent source argument below,1 and he conceded at oral argument that it should
be reviewed for plain error.2 But, we find that the Fourth Amendment violation is
clear under Lundin. Further, the independent source doctrine permits only the
introduction of evidence actually acquired through a separate and lawful means, see
1
Because Baires-Reyes’s motion to suppress presented the district court with
the overarching issue of whether all the seized evidence was admissible through
independent source, Baires-Reyes preserved this issue for appeal; his failure to rebut
the government’s independent source argument below, with respect to this narrower
subset of evidence, does not forfeit objection on appeal.
2
Under plain error review, the defendant must establish that “(1) there is an
error; (2) the error is clear or obvious, rather than subject to reasonable dispute; (3)
the error affected [defendant's] substantial rights, which in the ordinary case means
it affected the outcome of the district-court proceedings; and (4) the error seriously
affected the fairness, integrity, or public reputation of judicial proceedings.” United
States v. Walter-Eze, 869 F.3d 891, 911 (9th Cir. 2017) (internal quotation and citation
omitted and alteration in original).
3
Murray v. United States, 487 U.S. 533, 537–38 (1988). It is also apparent that the
specific items or observations now objected to by Baires-Reyes were obtained through
the officers’ unlawful presence in the home without a warrant, and not from the later-
executed warrant.
The government argues that this evidence could still be admitted under the
inevitable discovery doctrine. However, as we held in Lundin, “[t]he inevitable
discovery exception does not apply when officers have probable cause to apply for a
warrant but simply fail to do so.” 817 F.3d at 1161. The district court here found that
even without the additional evidence obtained through entry into the home, the
officers had probable cause for a warrant for suspect Flores-Ayar. However, they
intentionally chose not to obtain one: “We would have to wake up the on-call judge
after writing the warrant, driving to wherever they’re located—which could be
somewhere in the southern part of San Mateo County to get the order signed—and
then returning.” “[T]o excuse the failure to obtain a warrant merely because the
officers had probable cause and could have inevitably obtained a warrant would
completely obviate the warrant requirement of the fourth amendment.” United States
4
v. Young, 573 F.3d 711, 723 (9th Cir. 2009) (quoting United States v. Echegoyen, 799
F.2d 1271, 1280 n.7 (9th Cir. 1986)). 3
Admission of the officers’ observations of Baires-Reyes asleep in the room with
the other robbery suspect and near the spoils of the robbery, wearing clothes identical
to those worn by the second robber in the surveillance tape, was undoubtedly
prejudicial and affected his substantial rights. Indeed, the police had no means of
even identifying Baires-Reyes as the second suspect until they entered the home and
found him sleeping there; thus they would have had no reason to arrest him or obtain
the DNA swab from him without this improperly-obtained evidence. The
observations made by the police at the time of the warrantless entry were repeatedly
referred to and emphasized throughout the trial and affected the fundamental fairness
of the proceeding.
3
In any event, it is not “inevitable” that the officers would have found the
same evidence and made the same incriminating observations of Baires-Reyes that
they did during the unlawful entry at 4:00 a.m. It is certainly not inevitable that
Baires-Reyes would have been wearing the same clothes as the suspect in the robbery
and sleeping near the spoils of the robbery if the officers obtained a warrant and
returned later in the day. By daylight or before leaving the apartment, Baires-Reyes
could have awoken, changed clothes, or even disposed of clothing or other evidence
from the robbery. See Young, 573 F.3d at 722-23 (noting that “nothing more than
speculation . . . support[ed] the discovery of the challenged evidence outside the
improper search”); see also United States v. Boatwright, 822 F.2d 862, 865 (9th Cir.
1987) (“[Defendant] would not have waited patiently beside his weapons for an agent
to arrive with a warrant.”).
5
For these reasons, we reverse Baires-Reyes’s conviction and remand.
REVERSED AND REMANDED.
6