United States v. Juan Lemus

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA  No. 08-50403
Plaintiff-Appellee, D.C. No.
v.  3:07-cr-03238-
JUAN HERNAN LEMUS, VQH-1
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Submitted June 1, 2009*
Las Vegas, Nevada
Filed September 22, 2009
Before: Ronald M. Gould, Johnnie B. Rawlinson and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Bybee
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
13719
13722 UNITED STATES v. LEMUS
COUNSEL
Kyle W. Hoffman, Assistant United States Attorney; Karen P.
Hewitt, United States Attorney; and Bruce R. Castetter, Assis-
tant United States Attorney, San Diego, California, for the
plaintiff-appellee.
Jeremy D. Warren, San Diego, California, for the defendant-
appellant.
OPINION
BYBEE, Circuit Judge:
Juan Hernan Lemus appeals the district court’s denial of his
motion to suppress incriminating evidence discovered during
a warrantless search of his apartment following his arrest.
Even assuming that there were no articulable facts which
would warrant a reasonably prudent police officer to believe
that Lemus’s apartment harbored an individual posing a dan-
ger to those on the arrest scene, we nevertheless affirm the
district court’s denial of the suppression motion. Because the
area in which the police officers discovered the incriminating
evidence “immediately adjoin[ed] the place of arrest,” the
officers were justified in conducting a search of that area
without either probable cause or reasonable suspicion, Mary-
land v. Buie, 494 U.S. 325, 334 (1990), and anything in plain
view that they discovered in the course of that search could
be seized without violating the Fourth Amendment, Horton v.
California, 496 U.S. 128, 136-37 (1990).
I
When Detective Longoria clocked in to the office at six
o’clock to report for his morning briefing, Sergeant Gerardo
was waiting for him. The Sergeant informed him that the DA
UNITED STATES v. LEMUS 13723
had issued a warrant for the arrest of Juan Hernan Lemus, of
Calexico. Detective Longoria had dealt with Lemus before. A
year or so back he had been to Lemus’s place for a probation
search, and found drugs. But Detective Longoria knew Lemus
wasn’t just into drugs. He recalled that Lemus had been a
member of a group busted for a drive-by shooting. And he
remembered that some of Lemus’s cousins had been arrested
for violent crimes.
Detective Longoria checked the database. Lemus’s arrest
warrant was in there. It looked like Lemus was still living at
the same place, an apartment out on Sixth Street. If he
remembered right, it was part of a small complex with a house
and two other apartments. Some of Lemus’s family members
lived there too.
He and Detective Diaz drove out to Sixth Street. They
parked in front of Lemus’s residence, and started watching for
Lemus. An hour later, he appeared, walking out of his apart-
ment and over to his mother’s house. Shortly after, he left his
mother’s house and walked back to his apartment, carrying a
beige envelope. Nothing looked out of place. Lemus was just
heading back toward his apartment. But Detective Longoria
thought he’d better call in some more units. Lemus might be
dangerous if cornered.
The detectives drove up to the side of Lemus’s apartment
and pulled up next to a fence surrounding the property. Detec-
tive Longoria jumped out and started calling to Lemus. Lemus
saw them and asked what was going on. The detectives
responded that Lemus had an outstanding arrest warrant and
that they were going to take him into custody.
No response. Lemus slowly backed away, toward the slid-
ing glass door on the side of his apartment.
Sergeant Gerardo and Officer Orozco arrived for backup.
They tried to explain the situation to Lemus from across the
13724 UNITED STATES v. LEMUS
fence. But he continued to retreat towards his apartment. He
opened the sliding glass door.
The officers continued to tell Lemus to come out, but
Lemus instead started to walk into the apartment. The officers
were there in an instant, taking hold of Lemus and handcuff-
ing him before he could fully enter the doorway and retreat
into his living room.
Detective Longoria thought he’d better check to make sure
no one was hiding out in the apartment. He sent Gerardo and
Orozco in. They scanned the living room, and didn’t see any-
one. Just a couch and a TV. Checked the bedroom and bath-
room too. Negative. Lemus was alone.
Diaz, in the living room, got Detective Longoria’s atten-
tion. Wasn’t there something sticking out from the couch?
Detective Longoria thought it looked like the butt of a
weapon. Since Lemus was a felon, having a gun would be a
crime. Detective Longoria lifted the couch cushion to make
sure, and confirmed that it was a semi-automatic handgun. It
was later determined to be a Sturm and Ruger, 9 millimeter.
Detective Longoria let the cushion fall. He thought he
should get a search warrant before touching the gun—he
didn’t want to lose the chance to seize it. He left the officers
at the scene to keep things secure, and headed back to the sta-
tion.
The warrant was issued, and the Ruger was seized. After
agents from the Bureau of Alcohol, Tobacco, Firearms and
Explosives discovered that the weapon was manufactured in
Arizona and had been moved in interstate commerce, a grand
jury returned a one-count indictment charging Lemus with
being a felon knowingly in possession of a firearm in viola-
tion of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(a)(2). In
district court, Lemus moved to suppress the pistol, claiming
that it was obtained unlawfully because it was discovered dur-
UNITED STATES v. LEMUS 13725
ing a warrantless search. When the district court denied the
motion, Lemus entered a conditional guilty plea preserving
his right to appeal the district court’s denial of his suppression
motion. See FED. R. CRIM. P. 11(a)(2). This appeal followed.
II
We review de novo the district court’s determination of
Lemus’s motion to suppress, and may affirm the district
court’s denial of the motion “on any basis supported in the
record,” United States v. Lopez, 482 F.3d 1067, 1071 (9th Cir.
2007) (quoting United States v. Ruiz, 428 F.3d 877, 880 (9th
Cir. 2005)) (quotation marks omitted), “even if the district
court did not consider the issue.” Perfect 10, Inc. v. Visa Int’l
Serv. Ass’n, 494 F.3d 788, 794 (9th Cir. 2007). In undertaking
this review, we must accept the district court’s factual find-
ings unless they are clearly in error. United States v. Orman,
486 F.3d 1170, 1173 (9th Cir. 2007).
A
[1] The Fourth Amendment protects “[t]he right of the peo-
ple to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures . . . .” U.S. CONST.
amend. IV. Because “[i]t is axiomatic that ‘the physical entry
of the home is the chief evil against which the wording of the
Fourth Amendment is directed,’ ” Welsh v. Wisconsin, 466
U.S. 740, 748 (1984) (quoting United States v. United States
District Court, 407 U.S. 297, 313 (1972)), “a ‘basic principle
of Fourth Amendment law’ [is] that searches and seizures
inside a home without a warrant are presumptively unreason-
able.” Id. at 749 (quoting Payton v. New York, 445 U.S. 573,
586 (1980)). See also Katz v. United States, 389 U.S. 347, 357
(1967) (“[S]earches conducted outside the judicial process,
without prior approval by judge or magistrate, are per se
unreasonable under the Fourth Amendment—subject only to
a few specifically established and well-delineated excep-
tions.” (footnote omitted)).
13726 UNITED STATES v. LEMUS
Nevertheless, because “[t]he touchstone of the Fourth
Amendment is reasonableness, and the reasonableness of a
search is determined ‘by assessing, on the one hand, the
degree to which it intrudes upon an individual’s privacy and,
on the other, the degree to which it is needed for the promo-
tion of legitimate governmental interests,’ ” United States v.
Knights, 534 U.S. 112, 118-19 (2001) (quoting Wyoming v.
Houghton, 526 U.S. 295, 300 (1999)), the Supreme Court has
identified exceptions to the warrant requirement for searches
conducted immediately following a home arrest. The Court
has recognized that “unlike an encounter on the street or along
a highway, an in-home arrest puts the officer at the disadvan-
tage of being on his adversary’s ‘turf.’ ” Buie, 494 U.S. at
333. This disadvantage creates concern that the suspect may
gain access to hidden weapons. See generally Chimel v. Cali-
fornia, 395 U.S. 752, 768 (1969). It also creates concern that
others associated with the suspect might ambush the officers,
and “[a]n ambush in a confined setting of unknown configura-
tion is more to be feared than it is in open, more familiar sur-
roundings.” Buie, 494 U.S. at 333. Thus, the Court has held
that “the arresting officers are permitted in such circum-
stances to take reasonable steps to ensure their safety after,
and while making, the arrest.” Id. at 334.
[2] In Chimel, the Court authorized a narrow search of the
arrestee’s “person and the area from within which he might
have obtained either a weapon or something that could have
been used as evidence against him.” 395 U.S. at 768. Such a
search, justified by the State’s interests in the safety of the
arresting officer and in preserving evidence, is strictly limited
to the area “within [the arrestee’s] immediate control”—“the
area into which an arrestee might reach in order to grab a
weapon or evidentiary items.” Id. at 763. See also Michigan
v. Long, 463 U.S. 1032, 1049-50 (1983); Terry v. Ohio, 392
U.S. 1, 27-28 (1968).
[3] Later, in Buie, the Court refined its analysis in Chimel.
It noted the “interest of the [arresting] officers in taking steps
UNITED STATES v. LEMUS 13727
to assure themselves that the house in which a suspect is
being, or has just been, arrested is not harboring other persons
who are dangerous and who could unexpectedly launch an
attack” and described two types of searches that might imme-
diately follow an arrest and for which a warrant was not
required. 494 U.S. at 333-34. First, the officers’ interest in
their own safety justifies a search “incident to the arrest . . .
as a precautionary matter and without probable cause or rea-
sonable suspicion, . . . [of] closets and other spaces immedi-
ately adjoining the place of arrest from which an attack could
be immediately launched.” Id. at 334. Second, the officers can
perform a further protective sweep beyond immediately
adjoining areas when there are “articulable facts which, taken
together with the rational inferences from those facts, would
warrant a reasonably prudent officer in believing that the area
to be swept harbor[ed] an individual posing a danger to those
on the arrest scene.” Id. This “protective sweep” is not a
license to search every nook and cranny of a house, but is
subject to two significant limitations: it “extend[s] only to a
cursory inspection of those spaces where a person may be
found” and lasts “no longer than it takes to complete the arrest
and depart the premises.” Id. at 335-36.
B
In this case, we need not decide whether Detective Lon-
goria or the other investigating officers had “articulable facts
which . . . would warrant [the officers] in believing that the
area to be swept harbor[ed] an individual posing a danger to
those on the arrest scene” that would justify a protective
sweep. Buie, 494 U.S. at 334.1 Because the record clearly
1
We also need not decide whether Detective Longoria’s search of the
living room is authorized as a search of the area “within [Lemus’s] imme-
diate control.” See United States v. Hudson, 100 F.3d 1409, 1419 (9th Cir.
1996) (citing Chimel, 395 U.S. at 763). The testimony presented during
the suppression hearing did not conclusively establish the positioning of
the couch (and the weapon within the couch) in relation to Lemus at the
time of the arrest, and the parties have not argued that the search was per-
missible under Chimel.
13728 UNITED STATES v. LEMUS
demonstrates that Lemus was arrested in an area “immedi-
ately adjoining” the living room, a limited search of that room
was proper without either reasonable suspicion or probable
cause as a protective search incident to the arrest. See id.[4] According to Buie, a “protective search ‘incident to the
arrest’ ”2 to protect the arresting officers from the danger of
a surprise attack can be completed without reasonable suspi-
cion or probable cause if two conditions are present. First, the
area searched must “immediately adjoin[ ]” the area of arrest.
Id. Second, the area searched must be one “from which an
attack could be immediately launched,” and thus in any event
2
Although other courts have labeled this type of search a “protective
sweep,” see, e.g., United States v. Waldner, 425 F.3d 514, 517 (8th Cir.
2005) (“In Buie the Supreme Court established a two-prong test for deter-
mining whether a protective sweep incident to an arrest was constitution-
ally permissible.”); United States v. Ford, 56 F.3d 265, 269 (D.C. Cir.
1995) (“The Court [in Buie] identified two situations in which protective
sweeps are justified, and two types of protective sweeps.”), it is clear from
the Court’s description in Buie that this search is distinct from that nor-
mally classified as a protective sweep. In its conclusion, the Court stated
that “[t]he Fourth Amendment permits a properly limited protective sweep
in conjunction with an in-home arrest when the searching officer possesses
a reasonable belief based on specific and articulable facts that the area to
be swept harbors an individual posing a danger to those on the arrest
scene.” 494 U.S. at 337 (emphasis added). Because the Court had already
made clear that a search of adjoining areas did not require reasonable sus-
picion, see id. at 334, it would thus be contradictory to classify a search
of such areas as a “protective sweep.” See also Buie, 494 U.S. at 342 n.6
(Brennan, J., dissenting) (“The Court’s decision also to expand the ‘search
incident to arrest’ exception previously recognized in Chimel v. Califor-
nia, allowing police officers . . . to look into ‘closets and other spaces
. . .,’ is equally disquieting” (internal citations omitted)). Accordingly, we
refer to the search of immediately adjoining areas, as did Buie, as a “pro-
tective search incident to arrest” to distinguish it from the broader “protec-
tive sweep” also authorized by Buie. Because we have not been entirely
clear on this distinction in the past, see, e.g., United States v. Reid, 226
F.3d 1020, 1027 (9th Cir. 2000), we do not consider the government to
have forfeited the argument that the search was justified as a protective
search incident to arrest merely by arguing that the search was a valid
“protective sweep” under Buie.
UNITED STATES v. LEMUS 13729
must be capable of concealing at least one person. Id. Both of
these conditions are satisfied here.
[5] Although the exact location of Lemus’s arrest was dis-
puted in the district court, the district court found that he was
apprehended shortly after he had “stepped into the apartment
breaking the threshold of the sliding glass door.” This finding
was not clearly in error. Even taking Lemus’s account of the
events as authoritative, it is clear that at most Lemus was only
partially outside the living room when he was arrested. The
living room thus “immediately adjoined” the area where
Lemus was arrested. Cf. Peals v. Terre Haute Police Dep’t,
535 F.3d 621, 628 (7th Cir. 2008) (holding that it was not a
constitutional violation, under Buie, for a police officer to
enter the plaintiff’s house after the plaintiff’s arrest in the
attached garage); United States v. Charles, 469 F.3d 402,
405-06 (5th Cir. 2006) (holding that Buie permitted a search
of an open storage unit when the suspect was arrested imme-
diately outside); United States v. Thomas, 429 F.3d 282, 288,
290-91 (D.C. Cir. 2005) (holding that Buie permitted the
search of a bedroom fifteen feet down a hallway in which the
suspect was arrested); In re Sealed Case, 153 F.3d 759, 763,
770 (D.C. Cir. 1998) (holding that Buie permitted a search of
a small bedroom a few feet down the hallway from the bed-
room in which the suspect was arrested); United States v.
Lauter, 57 F.3d 212, 216-17 (2d Cir. 1995) (holding that,
under Buie, the second room in a two-room apartment imme-
diately adjoined the first room in which the suspect was
arrested).
[6] Lemus’s living room not only immediately adjoined the
area of arrest, but was a place from which an attack could be
immediately launched. The district court found that Lemus
had opened the sliding glass door, which created additional
hazards for the officers. We have recognized that “[a] bullet
fired at an arresting officer standing outside a window is as
deadly as one that is projected from one room to another.”
United States v. Hoyos, 892 F.2d 1387, 1397 (9th Cir. 1989),
13730 UNITED STATES v. LEMUS
overruled on other grounds by United States v. Ruiz, 257 F.3d
1030, 1032 (9th Cir. 2001) (en banc). When Lemus opened
the door, he not only gave himself access to the living room
but exposed the officers to anyone lying in wait inside. The
room was obviously large enough to hide one or more attack-
ers. Although, as Lemus points out, the police officers could
have left the premises immediately after the arrest, this fact
does not make the search of the living room any less
necessary—there was no guarantee that a potential attacker
would not ambush the officers after they had turned their
backs to the door.
[7] Because the living room immediately adjoined the place
of arrest and was large enough to contain an attacker, we need
not reach the second prong of Buie and decide whether the
search of the living room was justified as a “protective
sweep.” The officers were permitted to search the room “as
a precautionary matter” without either reasonable suspicion or
probable cause to believe that an attacker lay in ambush. Buie,
494 U.S. at 334.
C
[8] Because the police officers were lawfully permitted by
Buie to enter the “immediately adjoining” living room to
search for potential assailants, they could also seize the fire-
arm under the “plain view” doctrine if (1) the weapon was in
“plain view” and (2) “its incriminating character [was] imme-
diately apparent.” Horton, 496 U.S. at 136-37 (quotation
marks omitted); see also United States v. Stafford, 416 F.3d
1068, 1076 (9th Cir. 2005) (“To fall within the plain view
exception, two requirements must be met: the officers must be
lawfully searching the area where the evidence is found and
the incriminatory nature of the evidence must be immediately
apparent.” (quotation marks omitted)).
[9] Detective Longoria’s un-rebutted testimony established
that the weapon was in plain view. The testimony made clear
UNITED STATES v. LEMUS 13731
that Detective Diaz noticed something sticking out from under
a couch cushion, and when Detective Longoria raised the
cushion, he saw clearly that it was the butt of a pistol.
[10] Detective Longoria’s prior experience with Lemus
made the incriminating nature of the evidence immediately
apparent, because the detective had “probable cause to believe
that [the pistol was] associated with criminal activity.” Staf-
ford, 416 F.3d at 1076 (quoting Horton, 496 U.S. at 131).
Detective Longoria was one of the police officers who was
present during the prior probationary search of Lemus’s apart-
ment, and knew that Lemus had been convicted of a felony.
Because it is illegal for a felon to possess a firearm, see 18
U.S.C. § 922(g)(1), Detective Longoria had probable cause to
believe that the pistol was illegal.
[11] Detective Longoria’s decision to lift the couch cushion
to confirm his belief did not render the search unconstitu-
tional. Once the detective realized that the weapon was ille-
gal, he was justified in lifting the couch cushion to confirm
his beliefs. See Arizona v. Hicks, 480 U.S. 321, 326 (1987)
(“It would be absurd to say that an object could lawfully be
seized and taken from the premises, but could not be moved
for closer examination.”).3
III
Because the warrantless search of Lemus’s living room was
justified as a protective search incident to arrest, no Fourth
Amendment violation occurred when police officers discov-
ered the semi-automatic pistol. Accordingly, we affirm the
district court’s denial of the motion to suppress.
AFFIRMED.
3
In fact, the police officers were even more careful than necessary.
Although they were justified in seizing the weapon when they first entered
Lemus’s apartment, they proceeded to obtain a search warrant before
removing the pistol from the premises.