United States v. Marcus Koepinick

FILED
NOT FOR PUBLICATION JAN 13 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-30447
Plaintiff - Appellee, D.C. No. 1:09-cr-00064-BLW-1
v.
MEMORANDUM *
MARCUS JORDAN KOEPNICK,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Argued and Submitted December 7, 2010
Seattle, Washington
Before: O’SCANNLAIN and TALLMAN, Circuit Judges, and EZRA, District
Judge.**
Marcus Koepnick appeals the district court’s ruling which admitted into
evidence a sawed-off shotgun that police found in the bedroom of Jeffery
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
Koepnick, his father. As the facts are known to the parties, we repeat them here
only as necessary to explain our decision.
Officer Clint Doerr went to Jeffery Koepnick’s house in order to execute a
warrant for the arrest of his adult son, Marcus. Jeffrey gave Doerr consent to
search the house for his son. When in Jeffrey’s bedroom, Doerr saw a gun stock
protruding from a pile of clothes and later testified that the gun, combined with the
presence of other people in the house, made him concerned for his safety. ER 87.
Officer Doerr removed the gun, which turned out to be an illegal sawed-off
shotgun. Marcus was charged with its possession.
The Supreme Court has instructed that the purpose of the plain view
exception is to protect police officers from danger, as well as to prevent destruction
of evidence. See Arizona v. Hicks, 480 U.S. 321, 327 (1987) (noting that “the
practical justification” for the plain view exception “is the desirability of sparing
police . . . the inconvenience and the risk—to themselves or to preservation of the
evidence—of going to obtain a warrant” (emphasis added)). Even if the district
court were correct in finding that Doerr did not have probable cause to believe the
gun was illegal, it was still a gun. Additionally, there was another person in the
bedroom, Jeffery was elsewhere in the house, and Marcus’s whereabouts were
unknown. These circumstances justify Doerr’s temporary seizure of the gun as a
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reasonable safety precaution. Every circuit to confront this question has so held.
See United States v. Rodriguez, 601 F.3d 402, 408 (5th Cir. 2010); United States v.
Bishop, 338 F.3d 623, 628–29 (6th Cir. 2003); United States v. Timpani, 665 F.2d
1, 5 n.8 (1st Cir. 1981); United States v. Malachesen, 597 F.2d 1232, 1234 (8th
Cir. 1979).
After Officer Doerr seized the gun from the pile of clothes, he could see that
it was an illegal sawed-off shotgun, justifying a permanent seizure of the weapon.
See Rodriguez, 601 F.3d at 408.1 Accordingly, the conviction is
AFFIRMED.
1
We note that there are serious questions about whether Marcus Koepnick
has standing to challenge the search of his father’s bedroom. We need not reach
these questions, however, because Fourth Amendment standing is a matter of
substantive Fourth Amendment law, not a prerequisite to jurisdiction. See Rakas v.
Illinois, 439 U.S. 128, 140 (1978) (stating that Fourth Amendment standing issues
are “more properly placed within the purview of substantive Fourth Amendment
law than within that of standing”); cf. United States v. Leon, 468 U.S. 897, 925
(1984) (“There is no need for courts to adopt the inflexible practice of always
deciding whether the officers’ conduct manifested objective good faith before
turning to the question whether the Fourth Amendment has been violated.”).
3