United States v. Antonio Perryman

FILED
NOT FOR PUBLICATION
NOV 16 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-30144
Plaintiff-Appellee, D.C. No.
2:15-cr-00241-RSL-1
v.
ANTONIO LAMAR PERRYMAN, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Argued and Submitted October 3, 2017
Seattle, Washington
Before: LIPEZ,** WARDLAW, and OWENS, Circuit Judges.
Antonio Perryman appeals the district court’s denial of his motion to
suppress a firearm discovered and post-arrest statements made during a traffic stop,
claiming the evidence was obtained in violation of his Fourth Amendment rights.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Kermit V. Lipez, United States Circuit Judge for the
First Circuit, sitting by designation.
Following the district court’s denial of his motion to suppress, Perryman was
convicted at trial of one count of being a felon in possession of a firearm under 18
U.S.C. § 922(g)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
reverse. Because the search was neither permissible under Michigan v. Long, 463
U.S. 1032 (1983), nor Arizona v. Gant, 556 U.S. 332 (2009), we decline to
consider the intersection of Long and Gant.
1. The district court erred in concluding that the search of Perryman’s
car was justified under Long. 463 U.S. at 1049–50. Long establishes that a
warrantless search of a vehicle’s passenger compartment “is permissible if the
police officer possesses a reasonable belief based on ‘specific and articulable facts
which, taken together with the rational inferences from those facts, reasonably
warrant’ the officers in believing that the suspect is dangerous and the suspect may
gain immediate control of weapons.” Id. (emphasis added).
Although Officers Ellis and Prince may have reasonably believed that
Perryman and his cousin, Anthony Perryman (“Anthony”), were dangerous, the
evidence does not support the district court’s conclusion that the officers
reasonably believed that Perryman or Anthony would gain immediate control of
weapons in the car. Before the search, the officers secured Perryman and Anthony,
handcuffed them, and placed Perryman in a patrol car and Anthony by the curb.
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There was thus no immediate risk that Perryman or Anthony would gain control of
weapons at the time the search was conducted.
Any risk that Perryman and Anthony would return to the car and gain
immediate access to weapons is contingent on facts that did not exist at the time of
the search. Perryman and Anthony both had suspended driver’s licenses, so
neither one of them could drive Perryman’s car away. And although the officers
testified that they intended to allow Perryman and Anthony to retrieve their
belongings from the vehicle before impounding it, the grounds for the officers’
search of the vehicle had not developed at the time the search was conducted.
Before deciding to conduct the protective search, the officers did not ask the
cousins if they would want to return to the vehicle and collect their belongings if
given the opportunity, so the officers’ assertion that the search was necessary was
speculative. In fact, Perryman testified that he and Anthony had all of their
personal belongings with them outside the vehicle and would not have needed
anything from the car. Simply put, the Long search was premature on the facts
found by the district court.
2. Nor was the search permissible under Arizona v. Gant, 556 U.S. 332
(2009). Gant held that police officers may not perform a warrantless search of a
vehicle incident to an occupant’s arrest unless “the arrestee is unsecured and within
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reaching distance of the passenger compartment” or “it is ‘reasonable to believe
evidence relevant to the crime of arrest might be found in the vehicle.’” Id. at 343.
Because Perryman was secured in the back of the patrol car and Anthony was
secured on the curb, and both were detained for tinted windows and driving with a
suspended license, no evidence of which could have been found in the car, the
search was constitutionally impermissible.
3. We reject the government’s argument that the firearm was admissible
under the inevitable discovery doctrine. “The doctrine permits the government to
rely on evidence that ultimately would have been discovered absent a
constitutional violation.” United States v. Ruckles, 586 F.3d 713, 718 (9th Cir.
2009) (citing Nix v. Williams, 467 U.S. 431, 443 (1984)). But the district court’s
findings do not support the conclusion that the firearm would have been discovered
by lawful means. See id. (quoting Nix, 467 U.S. at 444). The government
contends that the officers would have found the firearm when they performed an
inventory search incident to the impoundment of the car. However, neither an
inventory search nor impoundment was inevitable. The Washington Constitution
forbids officers from impounding cars without first considering reasonable
alternatives to impoundment, State v. Tyler, 302 P.3d 165, 180 (Wash. 2013)
(citing State v. Hill, 842 P.2d 996, 999 (Wash. Ct. App. 1993)), so the officers
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would have had to explore all reasonable alternatives, which they did not do.
Moreover, officers are not authorized under Washington law to do an “inventory
search” when they call private tow trucks or family members. Id. at 700–01
(explaining when an inventory search is permissible). This speculative sequence of
events belies the government’s assertion of inevitable discovery.
4. Perryman’s confession, which is the product of the unlawful search,
must also be suppressed. The exclusionary rule extends to indirect as well as direct
products of constitutional invasions. Wong Sun v. United States, 371 U.S. 471,
484–85 (1963). “[V]erbal evidence which derives so immediately from an
unlawful entry and an unauthorized arrest . . . is no less the ‘fruit’ of official
illegality than the more common tangible fruits of the unwarranted intrusion.” Id.
at 485. In Perryman’s case, neither the giving of Miranda warnings nor
Perryman’s motivation to protect Anthony through his own confession are
intervening events that remove the taint of the officers’ unconstitutional conduct.
See Brown v. Illinois, 422 U.S. 590, 603 (1975); Taylor v. Alabama, 457 U.S. 687,
692 (1987). Because the confession was close in time to the unlawful search and
prompted by the officers’ detection of the firearm, it must be suppressed.
Accordingly, the district court erred by denying Perryman’s motion to
suppress.
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REVERSED AND REMANDED.
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FILED
United States v. Perryman, No. 16-30144
NOV 16 2017
OWENS, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I respectfully dissent. In my view, the circumstances provided “specific and
articulable facts” that reasonably warranted the officers’ belief that Anthony could
gain immediate control of weapons. Michigan v. Long, 463 U.S. 1032, 1049-50
(1983) (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)). Though the officers
handcuffed Anthony by the curb during their search, the officers had no reason to
arrest him and intended to (1) release him (as they eventually did) and (2) let him
access the car to retrieve his belongings, as was their standard practice.
Recognizing that “investigative detentions involving suspects in vehicles are
especially fraught with danger to police officers,” I believe the officers were
permitted to perform a Terry search of the car to ensure Anthony could not have
access to weapons if he returned to the vehicle to retrieve any remaining
belongings. Id. at 1047, 1049-50.