No. 97-50488 D.C. No.CR-97-00112-NAJ

Appeal from the United States District Court
for the Southern District of California
Napoleon A. Jones, District Judge, Presiding

Argued and Submitted
June 1, 1998--Pasadena, California

Filed July 31, 1998

Before: Diarmuid F. O'Scannlain, Stephen S. Trott, and
Ferdinand F. Fernandez, Circuit Judges.

Opinion by Judge Fernandez; Dissent by Judge O'Scannlain


    Michael Littman, San Diego, California, for the defendantappellant.

    David P. Curnow, Assistant United States Attorney, San Diego, California, for the plaintiff-appellee.


FERNANDEZ, Circuit Judge:

    Michael John Albrektsen appeals his conviction after his conditional guilty plea to counterfeiting obligations of the United States. See 18 U.S.C. §471. He alleges that the police violated his rights under the Fourth Amendment of the United States Constitution when they entered his motel room without a search warrant and without his consent. We agree, and reverse his conviction and remand.


    On November 30, 1996 Michael J. Stanton, an officer of the La Mesa Police Department, was on routine patrol. [1] As he was cruising through the parking lot of the Motel 6 in La Mesa, California, he noticed that Albrektsen's automobile was parked in a handicapped parking space. Because it was not displaying the required handicapped placard, it was illegally parked. Stanton wrote down the license number, and then went to the motel office where he determined that the driver was Albrektsen, who was a guest at the motel. Stanton also ascertained that an unidentified second person was registered to the motel room. Stanton then ran a vehicle license and criminal records check. He determined that the automobile was registered to Albrektsen and that Albrektsen also had two outstanding misdemeanor bench warrants. Stanton knew that the Motel 6 location was frequented by people who sold or used methamphetamine. He therefore decided that he wanted to search Albrektsen's room.

    Armed with the warrants and that intention, Stanton approached the room and knocked on the door. Albrektsen came to the door and admitted his identity. However, instead of arresting Albrektsen on the spot, Stanton pursued his goal of entering the room. Without asking, he simply walked into the room. Albrektsen moved away from the door because if he had not done so Stanton would have knocked him down while entering.

    Once in the room, Stanton asked if he could conduct a search, Albrektsen said "I guess so," and Stanton then arrested him. [2] During the ensuing search, Stanton found counterfeited currency in various stages of completion, and a computer system which was apparently used in the counterfeiting operation. Albrektsen's indictment for counterfeiting followed.

    Albrektsen moved to suppress the evidence seized from his motel room. He claimed that his Fourth Amendment rights had been violated. The district court denied the motion, and Albrektsen entered a conditional guilty plea to count one of the indictment -- counterfeiting obligations of the United States. See 18 U.S.C. §471. He was sentenced in due course, and this appeal followed.


    We review de novo a district court's determination that a police officer lawfully crossed the threshold of a dwelling to effect an arrest. See United States v. Litteral, 910 F.2d 547, 553 (9th Cir. 1990). We review a determination that a search was voluntarily consented to for clear error. See United States v. Shaibu, 920 F.2d 1423, 1425 (9th Cir. 1990). However, we review determinations that specific actions are sufficient to give rise to implied consent de novo. See United States v. Garcia, 997 F.2d 1273, 1281 (9th Cir. 1993).


    Albrektsen asserts that there was not the least reason for Stanton to push into his room for the purpose of arresting him on the misdemeanor warrants. On this record, we agree. Stanton could have fulfilled his obligations by arresting Albrektsen at the doorway, even though his desire to look for evidence of other wrongdoing would then have been thwarted.

    We start with a reflection that appears in Los Angeles Police Protective League v. Gates, 907 F.2d 879, 884 (9th Cir. 1990):

Nowhere is the protective force of the fourth amendment more powerful than it is when the sanctity of the home is involved. The sanctity of a person's home, perhaps our last real retreat in this technological age, lies at the very core of the rights which animate the amendment. Therefore, we have been adamant in our demand that absent exigent circumstances a warrant will be required before a person's home is invaded by the authorities. (Citations omitted.)

    But, says the government, there were warrants in this case, arrest warrants. Of course there were, but they formed a necessary rather than a sufficient basis for the entry. They did not, by themselves, allow the invasion of Albrektsen's motel room. [3] There can be little doubt that police can enter a dwelling for the purpose of executing an arrest warrant. See United States v. Underwood, 717 F.2d 482, 485 (9th Cir. 1983) (en banc). That, however, does not mean that officers armed with a warrant can enter a private home at any time or for any reason. Quite the contrary. Because our free society embraces the protections of the Fourth Amendment with appetency, rather than velleity, the courts have demanded more than the mere existence of a warrant.

    Thus, the Supreme Court has pointed out that, "an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within." Payton v. New York, 445 U.S. 573, 603, 100 S. Ct. 1371, 1388, 63 L. Ed. 2d 639 (1980) (emphasis added). The Court reiterated that theme when it said that "[b]ecause an arrest warrant authorizes the police to deprive a person of his liberty, it necessarily also authorizes a limited invasion of that person's privacy interest when it is necessary to arrest him in his home." Steagald v. United States, 451 U.S. 204, 214 n.7, 101 S. Ct. 1642, 1649 n.7, 68 L. Ed. 2d 38 (1980) (emphasis added); see also United States v. Route, 104 F.3d 59, 62 (5th Cir.) ("A valid arrest warrant carries with it the implicit but limited authority to enter the residence of the person named in the warrant in order to execute the warrant, where there is `reason to believe' that the suspect is within."), cert. denied, _______ U.S. _______, 117 S. Ct. 2491, 138 L. Ed. 2d 998 (1997); United States v. Risse, 83 F.3d 212, 216 (8th Cir. 1996) ("Under Payton, officers executing an arrest warrant must have a `reasonable belief that the suspect resides at the place to be entered . . . and [have] reason to believe that the suspect is present' at the time the warrant is executed."). Therefore, cases where there was both a warrant and some reason to believe that the defendant might live at and be present within the premises do not help the government in this case. See, e.g., United States v. Spencer, 684 F.2d 220, 222 (2d Cir. 1982); United States v. Harper, 928 F.2d 894, 896 (9th Cir. 1991). [4]

    Stanton knew that Albrektsen was not somewhere back in the room; he was standing right before Stanton at the threshold. Stanton agreed that he could have arrested Albrektsen right then, and had no need to push into the room for that purpose. He was correct about that. In United States v. Vaneaton, 49 F.3d 1423, 1425 (9th Cir. 1995), cert. denied, 516 U.S. 1176, 116 S. Ct. 1271, 134 L. Ed. 2d 218 (1996), we asked, "whether the police, acting with probable cause but without a warrant and while standing outside [Vaneaton's] motel room, could lawfully arrest him while he was standing immediately inside the open doorway." We went on to refine the issue when we said that, "the question presented in this case is not decided only on the basis of whether Vaneaton was standing inside or outside the threshold of his room, but whether he `voluntarily exposed himself to warrantless arrest' by freely opening the door of his motel room to the police." Id. at 1426. Our answer was that, "by opening the door as he did, Vaneaton exposed himself in a public place. His warrantless arrest, therefore, does not offend the Fourth Amendment." Id. at 1427. Mutatis mutandis, the same reasoning demonstrates that the arrest of Albrektsen with a warrant could have been effected at the doorway of his motel room. It should have been; there was no need to do otherwise. [5] In fine, it was not "necessary to arrest him" in the depths of the room, and that "invasion of [Albrektsen's] privacy interest" in order to effect the arrest was, therefore, not authorized. Steagald, 415 U.S. at 214 n.7, 101 S. Ct. at 1649 n.7.

    In an attempt to salvage the search, the government now argues that the officer was entitled to conduct a sweep in order to protect himself. In doing so, the government seeks to avoid its statement to the district court that it was "not seeking to justify the entry under any form of security sweep at all." The protective sweep issue is not uninteresting. See, e.g., Maryland v. Buie, 494 U.S. 325, 334, 110 S. Ct. 1093, 1098, 108 L. Ed. 2d 276 (1990); Ortiz-Sandoval v. Gomez, 81 F.3d 891, 896-97 (9th Cir. 1996); United States v. Hoyos, 892 F.2d 1387, 1395-97 (9th Cir. 1989); United States v. DelgadilloVelasquez, 856 F.2d 1292, 1298 (9th Cir. 1988). However, the government's waiver of the issue purdures. We will not consider the question on appeal. See United States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997) (en banc); Raines v. U.S. Parole Comm'n, 829 F.2d 840, 844-45 (9th Cir. 1987); United States v. Whitten, 706 F.2d 1000, 1012 (9th Cir. 1983). That reduces the explanation for Stanton's entry into Albrektsen's room to serve the misdemeanor bench warrants [6] to nothing more than a desire to conduct a general exploratory search.

    We can understand the desire, but we do not evince preciosity when we point out that needlessly pushing into a man's home in order to " `rummage at will among his papers in search of whatever will convict him' " is unacceptable. Chimel v. California, 395 U.S. 752, 767, 89 S. Ct. 2034, 2042, 23 L. Ed. 2d 685 (1969). The effect of Stanton's action was to conduct a search that "went far beyond[Albrektsen's] person and the area from which he might have obtained either a weapon or something that could have been used as evidence against him." Id. at 768, 89 S. Ct. at 2043; see also Whitten, 706 F.2d at 1016 ("[E]ntry into [his] room [cannot] be justified as a search incident to arrest. At time of his arrest in the doorway . . . nothing in the room was within his reach.") The search was accomplished by Stanton's unnecessary plunge into the room and was unreasonable.

    The government makes a final attempt to rescue the search by asserting that Albrektsen at least impliedly consented to the entry of his room. The assertion does rest on a valid legal theory. It is theoretically valid because in somewhat limited circumstances we will find an implied consent to entry. See United States v. Impink, 728 F.2d 1228, 1232 (9th Cir. 1984); see also United States v. Rosi, 27 F.3d 409, 412 (9th Cir. 1994). We have found consent in a case where the defendant opened his door and after the police said," `we'd like to talk to you,' " he said, " `okay,' nodded and stepped back." Garcia, 997 F.2d at 1281. On the other hand, we declined to find consent when police contacted a defendant outside of his apartment and he walked back into it without saying anything at all. See Shaibu, 920 F.2d at 1424, 1427. However, the theory does not fit the facts of this case. The argument that it does depends on little more than an amphilogism centered on the word "consent." A person who must submit or be forced might be said to have consented when he submits, but not in ordinary legal parlence. Here the government emphasizes the fact that Albrektsen moved aside, but it ignores the more pregnant fact that had he not done so Stanton "could have knocked him down" because entry was going to be made with or without permission. Stanton admitted as much. Albrektsen's view was the same. As he saw it, he "was forced to move so that the entering officers would not knock him down." Consent that is not.


    Today's case demonstrates why our patrol of the boundary between the sanctity of the home and officers of the law must be sempiternal. The laudable desire to detect and stamp out crime continually threatens to undermine the equally laudable protections of the Fourth Amendment. That must not happen.

    Thus, we hold that the mere existence of an arrest warrant does not authorize entry into a defendant's home, where there is no necessity to enter because the defendant can be arrested at the threshold of that home. An officer's curiosity about the contents of the home must go unsatisfied. Therefore, we overturn Albrektsen's conviction and remand for further proceedings.



[1] The district court did not make specific factual findings, but there were no real disputes of historical fact. Thus, we draw for the most part on the forthright testimony of Officer Stanton at the suppression hearing. See United States v. Rabe, 848 F.2d 994, 997 (9th Cir. 1988); United States v. Harrington, 636 F.2d 1182, 1185 (9th Cir. 1981).

[2] The parties dispute whether Albrektsen voluntarily consented to the search. However, the government does not assert that consent would help, if the entry was improper. We are satisfied that the government wisely eschews that assertion. See Wong Sun v. United States, 371 U.S. 471, 485, 83 S. Ct. 407, 416, 9 L. Ed. 2d 441 (1963); United States v. Hotal, No. 97-10302, slip op. 4577, 4587 (9th Cir. May 11, 1998); United States v. Howard, 828 F.2d 552, 556 (9th Cir. 1987); see also United States v. Bramble, 103 F.3d 1475, 1478 (9th Cir. 1997).

[3] There is no contention that any relevant distinction is to be drawn between a motel room and a house. See, e.g., United States v. Holzman, 871 F.2d 1496, 1506 (9th Cir. 1989), overruled on other grounds, Horton v. California, 496 U.S. 128, 130, 110 S. Ct. 2301, 2304, 110 L. Ed. 2d 112 (1990).

[4] Incidently, decisions of the California courts regarding the State's knock-notice statute, see, e.g., People v. Hagen, 6 Cal. App. 3d 35, 43, 85 Cal. Rptr. 556, 561 (1970), which were issued long before the Supreme Court decided Powell and Steagald, cannot serve to deflect the consequences of an illegal search. Cf. United States v. Peterson, 812 F.2d 486, 492 (9th Cir. 1987).

[5] Of course, this area of the law is very fact specific. If, for example, Albrektsen had retreated from the threshold, Stanton could have followed him in.

[6] One was issued because Albrektsen had not completed an AIDS counselling class arising out of a misdemeanor simple possession of a controlled substance. The other was issued because he had not completed 24 days of public works service arising out of a misdemeanor driving violation.

O'SCANNLAIN, Circuit Judge, dissenting.

    I am not persuaded that the police violated Albrektsen's Fourth Amendment rights by entering the motel room in these circumstances. The entry would appear to be justifiable as part of a search incident to Albrektsen's arrest.

    After Albrektsen opened the door to his motel room, he stood at the threshold under the door frame. One of the officers -- who clearly could have arrested Albrektsen in the doorway pursuant to the outstanding warrants -- entered, stepping a mere three to four feet past Albrektsen and inside the room. The officer then requested consent to search the premises. Once Albrektsen agreed, the officer placed him under arrest and conducted the search, which uncovered counterfeit currency and computer equipment presumably used in a counterfeiting operation.

    The court today holds that the officer's one-pace entry into the motel room -- not the subsequent consent search, but the initial entry -- contravened the Fourth Amendment. What the court overlooks, in my view, is that this entry can be justified as part of a search incident to Albrektsen's arrest. Under Chimel v. California, 395 U.S. 752 (1969), the police may, incident to an arrest, search "the arrestee's person and the area `within his immediate control.' " Id. at 763. The police are authorized to cover "the area from within which the arrestee might gain possession of a weapon or destructible evidence." Id. As I see it, when Albrektsen was standing in the doorway, he was most capable of lunging inside the room for a weapon and using it to assault the officers. With the police on the other side of the door, Albrektsen -- who was not yet handcuffed -- had an unobstructed path to a desk, a dresser, and other places in the room where a weapon could be stored. Thus, I believe the police were justified in entering Albrektsen's room, looking around, and precluding Albrektsen from obtaining a weapon which could be used against them.[1]

    I am unable to discern why my colleagues have chosen to ignore the search-incident-to-arrest explanation for the entry. Under our circuit's precedent, "[w]here no findings of fact were made or requested, we will uphold a trial court's denial of a motion to suppress if there is a reasonable view of the evidence that will sustain it."[2] United States v. Harrington, 636 F.2d 1182, 1185 (9th Cir. 1980) (emphasis added). Assuredly, it is not unreasonable to believe that Albrektsen was in a position to reach for a weapon and endanger the arresting officers. Although Albrektsen was being arrested for misdemeanors, and not for violent felonies, he posed a threat just the same. As the Supreme Court has made patently clear, courts should not "qualify the breadth of the general authority to search incident to a lawful custodial arrest" on the basis of a "speculative judgment" that "persons arrested for [minor offenses] are less likely to possess dangerous weapons than are those arrested for other crimes." United States v. Robinson, 414 U.S. 218, 234 (1973). When the concern is police officer safety, authority to search incident to an arrest does not depend on the nature of the alleged crime. [3] It is automatic. The simple fact that the police were about to arrest Albrektsen is sufficient reason to render the search -- and the entry necessary for that search -- constitutional. [4]

    I respectfully dissent.


[1] United States v. Whitten, 706 F.2d 1000 (9th Cir. 1983), is consistent with this conclusion. In Whitten, we evaluated the constitutionality of a room search which followed the arrest of a suspect in the doorway of the room. Although we held that "entry into [the arrestee's] room [could not] be justified as a search incident to arrest," we explained our holding as follows: "At the time of his arrest in the doorway,[the suspect] was handcuffed and nothing in the room was within his reach." Id. at 1016 (emphasis added). We did not purport to create a per se rule that a room can never be searched incident to the arrest of a suspect who manages to position himself in a doorway, instead of a foot inside the room. Indeed, such a holding would be in tension with the Supreme Court's express rejection of formalism in Fourth Amendment jurisprudence. See Ohio v. Robinette, 117 S. Ct. 417, 421 (1996) ("[T]he touchstone of the Fourth Amendment is reasonableness. . . . In applying this test we have consistently eschewed bright-line rules, instead emphasizing the fact-specific nature of the reasonableness inquiry.") (quoting Florida v. Jimeno, 500 U.S. 248, 250 (1991)) (internal quotation marks omitted). Surely, the risk a suspect poses to arresting officers does not magically disappear when he maneuvers himself into a doorway.

[2] The court now holds that there is an exception to this general rule when the government expressly waives an issue before the district court. See Maj. Op. at 8300-01. Perhaps so. However, the government did not waive the argument that the police were conducting a search incident to Albrektsen's arrest. The prosecutor merely said that he was "not seeking to justify the entry under any form of security sweep." The protective sweep, or "security sweep," issue is distinct from what is discussed here, the performance of a search incident to an arrest. See Maryland v. Buie, 494 U.S. 325, 336 (1990) (explaining that justification for search incident to arrest is safety threat posed by arrestee whereas justification for protective sweep is threat posed by unseen third parties in the house). See generally, 3 Wayne R. LaFave, Search and Seizure, §§6.3, 6.4 (3d ed. 1996).

[3] Although the Robinson Court was addressing a search of a person incident to an arrest, and not a search of the area within the person's immediate control, see Robinson, 414 U.S. at 234, this distinction is one without a constitutional difference. As one leading scholar of criminal procedure has observed, "the [Robinson] Court expressed a distaste for any overly-sophisticated scrutiny of what is necessarily a quick ad hoc judgment." Wayne R. LaFave, Search and Seizure, §6.3(c), at 309 (internal quotation marks omitted). The distaste for forcing police officers to make nuanced, speculative judgments on the spur of the moment is, of course, equally unsavory when the police are searching the arrestee's person and when they are searching the area within the arrestee's immediate control.

[4] Of course, it is of no consequence that the officer had not yet made the arrest when he entered the motel room. As we held in United States v. Potter, 895 F.2d 1231 (9th Cir. 1990), "[a] search incident to an arrest is valid whether it occurs immediately before or after the arrest." Id. at 1234.