United States v. Anthony Ish

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 23 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-30172
Plaintiff-Appellee, D.C. No.
4:15-cr-00119-EJL-1
v.
ANTHONY ISH, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Argued and Submitted July 10, 2020
Portland, Oregon
Before: M. MURPHY,** BENNETT, and MILLER, Circuit Judges.
Anthony Ish appeals from a judgment of conviction for second degree
murder, in violation of 18 U.S.C. § 1111, and assault with a dangerous weapon, in
violation of 18 U.S.C. § 113(a)(3). We have jurisdiction under 18 U.S.C. § 3742(a)
and 28 U.S.C. § 1291. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Michael R. Murphy, United States Circuit Judge for
the U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
1. Ish challenges the district court’s denial of his motion to suppress
evidence gathered in three warrantless searches conducted by Fort Hall tribal
police officers. The district court held that Ish failed to show that he had a
reasonable expectation of privacy in the yard surrounding his grandmother’s house,
where the searches took place. We assume, without deciding, that Ish had a
reasonable expectation of privacy in the home’s curtilage because he was an
overnight guest. See United States v. Gamez-Orduno, 235 F.3d 453, 459 (9th Cir.
2000); United States v. Echegoyan, 799 F.2d 1271, 1277 (9th Cir. 1986).
Nevertheless, we agree with the district court’s alternative conclusion that each of
the three searches was permitted by an exception to the warrant requirement.
The first search was justified under the emergency exception. To
demonstrate an emergency, the government must show that, considering the
totality of the circumstances, (1) officers had an “objectively reasonable basis for
concluding that there was an immediate need to protect others or themselves from
serious harm,” and (2) the “search’s scope and manner were reasonable to meet the
need.” United States v. Snipe, 515 F.3d 947, 952 (9th Cir. 2008). We have held that
emergency reports, especially those that come in late at night, may create such an
objectively reasonable basis. Id. at 953–54. Here, officers received an anonymous
call after midnight reporting a shooting, and when they arrived at the scene, they
immediately discovered blood trails, a blood-spattered rake, and cartridge cases.
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Officers followed the blood trails searching for both the victim and the shooter.
Even once they learned from the anonymous caller that the victim might have died,
it was reasonable for them to continue searching because the “report of a dead
body can easily lead officers to believe that someone might be in need of
immediate aid.” United States v. Stafford, 416 F.3d 1068, 1074 (9th Cir. 2005). Ish
argues that the officers should have cut off the search once they failed to find a
shooting victim, but the officers had no way of knowing that they would not find a
victim, and we have little trouble concluding that the scope of the search was
reasonable here. See United States v. Martinez, 406 F.3d 1160, 1165 (9th Cir.
2005) (reasonable to search the “part of the premises in which the emergency
situation had arisen”).
We agree with Ish that the emergency had dissipated by the time officers
returned to the scene 30 minutes later to collect blood samples, but we nevertheless
find that exigent circumstances justified the second search. To meet its burden, the
government must show both (1) “probable cause to believe that contraband or
evidence of a crime will be found at the premises” and (2) “exigent
circumstances,” which are “circumstances that would cause a reasonable person to
believe that entry was necessary to prevent . . . the destruction of relevant
evidence” or similar law enforcement efforts. Id. at 1164 (quotation marks and
alterations omitted). The combination of the anonymous report of a shooting, the
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blood spatter, and cartridge cases provided probable cause. See United States v.
Brooks, 367 F.3d 1128, 1134 (9th Cir. 2004). Although the district court did not
make an explicit finding that the officers could not have secured a warrant, we
agree with its ultimate conclusion that exigent circumstances were present.
Immediate entry onto the premises was necessary to prevent the destruction of
evidence because, even before the first search, it appeared that someone had
already attempted to obscure the evidence by removing the body and raking over
bloody leaves and rocks. See Martinez, 406 F.3d at 1164.
The third search was justified by the consent of Ish’s grandmother. Ish
questions the validity of her consent, but she was not in custody, the officers did
not have their weapons drawn, and she was not given Miranda warnings. Those
factors suggest that Ish’s grandmother voluntarily gave her consent to the search.
See United States v. Johnson, 875 F.3d 1265, 1276–77 (9th Cir. 2017). No record
evidence suggests she did not freely consent.
Because each of the three warrantless searches was justified by an exception
to the warrant requirement, the additional evidence collected under a later, validly
issued warrant was not fruit of the poisonous tree and need not be suppressed.
2. We also affirm the district court’s denial of Ish’s motion to dismiss
the indictment. We construe the facts in the light most favorable to the prosecution
and review the district court’s factual findings for clear error. See United States v.
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Gurolla, 333 F.3d 944, 950 (9th Cir. 2003). Ish’s arguments rest on Demetris Ish’s
decision not to testify in his defense. But as the district court correctly concluded,
Demetris Ish faced her own federal prosecution, and the letter on which Ish relies
states that she declined to testify to protect her own Fifth Amendment right against
self-incrimination. As a result, even if Ish had established government wrongdoing,
there was no causal link between that conduct and the unavailability of any
witnesses.
AFFIRMED.
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