UNITED STATES OF AMERICA, Plaintiff-Appellee, v. HOWARD DIXON, Defendant-Appellant.
No. 19-10112
United States Court of Appeals, Ninth Circuit
December 31, 2020
D.C. No. 3:18-cr-00319-CRB-1
Before: Eugene E. Siler, Kim McLane Wardlaw, and Milan D. Smith, Jr., Circuit Judges.
OPINION
Appeal from the United States District Court for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted March 2, 2020
San Francisco, California
Filed December 31, 2020
Before: Eugene E. Siler,* Kim McLane Wardlaw, and Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Wardlaw
Criminal Law
The panel vacated the district court‘s denial of a motion to suppress evidence resulting from a vehicle search conducted pursuant to a supervised release condition; conditionally vacated a conviction and sentence for possession of controlled substances; and remanded for an evidentiary hearing and (if the conviction is reinstated) for resentencing.
Applying the Supreme Court‘s analysis in United States v. Jones, 565 U.S. 400 (2012), which reminded that the
Having concluded that the officer conducted a
The panel held that the district court, at sentencing, erred in finding that the defendant, who was convicted of a lesser included offense of simple possession of controlled substances, was categorically ineligible for an acceptance-of-responsibility reduction on the ground that the defendant did not accept responsibility for the greater offense of possession with intent to distribute. The panel explained that
COUNSEL
Jonathan Abel (argued), Juliana C. DeVries, and Elizabeth M. Falk, Assistant Federal Public Defenders; Steven G. Kalar, Federal Public Defender; Office of the Federal Public Defender, San Francisco, California; for Defendant-Appellant.
OPINION
WARDLAW, Circuit Judge:
Howard Dixon appeals the district court‘s partial denial of his motion to suppress evidence resulting from a search of his vehicle. We must decide whether the insertion of a car key into a lock on the vehicle‘s door for the sole purpose of aiding the police in ascertaining its ownership or control is a “search” within the meaning of the
I.
A.
In January 2018, San Francisco Police Department (“SFPD“) Officer Eduard Ochoa began surveilling Dixon, a felon serving a term of supervised release and subject to a
On March 9, 2018, Officer Ochoa learned that Dixon was under federal supervision and subject to the suspicionless search condition. Although Dixon had reported the Oakdale Apartments as his residence to his probation officer, Officer Ochoa did not know this and did not ask the probation officer what address he had on file. Rather, Officer Ochoa searched other databases for Dixon‘s residence, which resulted in several different addresses but none that matched the Oakdale Apartments.
Officer Ochoa nonetheless returned to the apartment building to surveil the area with other SFPD officers. There, they saw Dixon exit the building, re-enter it, and then exit again holding two garbage bags. Officer Ochoa attests that he observed Dixon walk towards a blue Honda minivan in the parking lot, which Officer Ochoa recognized as the one he had previously seen Dixon driving.
Officer Ochoa instructed officers to detain Dixon, prompting Dixon to drop both garbage bags and a set of keys on the ground. Officer Ochoa used those keys to enter the apartment, where he discovered various illegal drugs and drug paraphernalia in a room identified as belonging to Dixon. Following the apartment search, officers transported Dixon to Bayview Station.
B.
Dixon was indicted for possession with intent to distribute heroin, cocaine, and methamphetamine. Dixon moved to suppress the evidence obtained from the apartment and vehicle searches as unconstitutional, and from the later stationhouse search as tainted by these previous searches. In support, Dixon submitted a declaration explaining his relationship to the apartment and the van. In response, the government submitted Officer Ochoa‘s declaration, which detailed his investigation of Dixon. In turn, Dixon submitted an additional declaration that disputed several of Officer Ochoa‘s statements, including that he had never sat in or owned a black BMW during the relevant time period and that he did not approach the blue Honda minivan while carrying the trash bags, but had continued walking past it before being stopped. Dixon also attested that there were two “sky blue” minivans parked side-by-side in front of the apartment complex on that day, a fact confirmed by an officer‘s body camera footage. Dixon claimed that, initially, the officers attempted to enter the other minivan before its owner “came running out” of the complex to stop them. Dixon also alleged that while detained, an officer repeatedly requested Dixon provide the keys for a black Audi that was also parked in the lot.
The district court ruled on the suppression motion without conducting an evidentiary hearing. The district
The district court upheld the search of the minivan, however, reasoning that under Currency, the insertion of the key into the minivan‘s lock was not itself a search, and that possession of a key that fit the minivan‘s lock amounted to probable cause to believe that Dixon exercised control of the minivan. Because the minivan search was constitutional, the court held that this intervening lawful search, which produced a large bag of marijuana, attenuated any taint from the apartment search, and therefore declined to suppress the evidence found when police searched Dixon at the jail.
At trial, the district court excluded the marijuana found in the minivan because it was improperly mixed with the suppressed marijuana found in the apartment, leaving the drugs recovered at the jail as the only admissible evidence against Dixon. The jury hung on the charge of possession with intent to distribute controlled substances, but convicted Dixon of the lesser-included offense of simple possession. At sentencing, the district court denied Dixon a two-step guideline reduction for acceptance of responsibility, rejected an enhancement for obstruction of justice, and sentenced
II.
We have jurisdiction under
“[W]e ‘review de novo whether the district court misapprehended the law with respect to the acceptance of responsibility reduction.‘” United States v. Green, 940 F.3d 1038, 1041 (9th Cir. 2019) (quoting United States v. Cortes, 299 F.3d 1030, 1037 (9th Cir. 2002)).
III.
The
Therefore, we must determine whether inserting that key into the minivan‘s lock was itself permissible under the
To determine whether a
The district court relied on our decision in Currency, to hold that the insertion of the key into the minivan‘s lock was not a search within the meaning of the
In Currency, a criminal forfeiture proceeding, a police officer obtained a set of car keys as the result of a lawful Terry stop of the claimant. 228 F.3d at 1083–87. To identify which car belonged to the claimant, the officer inserted the
Our holding in Currency, however, is clearly irreconcilable with the Supreme Court‘s more recent holdings in United States v. Jones, 565 U.S. 400 (2012), and Florida v. Jardines, 569 U.S. 1 (2013). See Miller, 335 F.3d at 893. In the last decade, these cases have confirmed that a search occurs when the government “physically occup[ies] private property for the purpose of obtaining information.” Jones, 565 U.S. at 404. Thus, ”Katz did not narrow the
Applying these principles, the Supreme Court in Jones held that officers could not physically intrude on a Jeep to plant a GPS tracking device. Id. at 406. Even if the
The same principles apply here.2 When Officer Ochoa inserted the key into the minivan‘s lock, an “effect,” he physically intruded onto a constitutionally protected area. This physical intrusion was done for the express purpose of obtaining information, specifically to learn whether Dixon exercised control over the minivan. Thus, the insertion of
Our conclusion is in accord with that of our sister circuits, which, post-Jones and Jardines, have similarly concluded that such physical intrusion constitutes a search. See, e.g., United States v. Bain, 874 F.3d 1, 15 (1st Cir. 2017) (holding that testing a key in an apartment door lock to see if it fit constituted a search under Jardines); cf. Taylor v. City of Saginaw, 922 F.3d 328, 333 (6th Cir. 2019) (finding city‘s chalking of tires to determine how long a vehicle had been parked in the same location constituted a search under Jones); United States v. Richmond, 915 F.3d 352, 357 (5th Cir. 2019) (holding that officer pushing his finger against the defendant‘s tire to learn what was inside constituted a search under Jones); see also Schmidt v. Stassi, 250 F. Supp. 3d 99, 101 (E.D. La. 2017) (holding that an officer‘s collection of DNA from the defendant‘s car door while it was parked was a search under Jones).
B.
Having concluded that Officer Ochoa conducted a
The level of suspicion required to determine whether a vehicle is subject to a warrantless search condition appears to be an issue of first impression in this circuit, although we have squarely addressed the issue in two related contexts. First, to search a residence “pursuant to a parolee‘s parole condition, law enforcement officers must have probable cause to believe that the parolee is a resident of the house to be searched.” Id. at 973 (quoting United States v. Howard, 447 F.3d 1257, 1262 (9th Cir. 2006)); see also Motley, 432 F.3d at 1080. And second, we have held that “once
We hold that before conducting a warrantless search of a vehicle pursuant to a supervised release condition, law enforcement must have probable cause to believe that the supervisee owns or controls the vehicle to be searched. Our en banc decision in Motley is instructive. There, we first adopted the rule that before conducting a warrantless search pursuant to a parolee‘s parole condition, “officers must have probable cause to believe that the parolee is a resident of the house to be searched.” Motley, 432 F.3d at 1080. We emphasized that this requirement “protects the interest of third parties“—a consideration that carried through our related precedents. Id. For example, we explained that
We see no reason to depart from this standard with respect to a supervisee‘s vehicle. As in Motley, a reasonable suspicion standard runs the risk of officers conducting intrusive searches on vehicles that have no connection to the individual subject to the search condition. This case provides informative examples: Dixon attested that the police initially confused his minivan with another parked next to it, and that they also threatened to break into a nearby Audi. Both of these vehicles belonged to unrelated third parties. Applying a reasonable suspicion standard would place innocent third parties at heightened risk of having their vehicles searched simply because Dixon dropped his car keys next to their locations.
Moreover, requiring probable cause that the vehicle to be searched belongs to or is controlled by the suspect subject to the search condition is consistent with the framework we outlined in Bolivar and Davis, which addressed the level of suspicion required for objects within a residence. In Bolivar, we recognized that under Motley, law enforcement must first determine that there is probable cause that the residence is subject to the parolee‘s warrantless search condition. See Bolivar, 670 F.3d at 1095. But once officers have made this initial determination, reasonable suspicion applies to the “downstream issue of the level of certainty that the parolee owns, possesses, or controls a particular item within the
Because this case involves a vehicle, rather than a home, the government suggests that we should apply the “reasonable suspicion” standard given the lesser expectation of privacy afforded to vehicles. We do not disagree that “when it comes to the
C.
In sum, the officers needed probable cause that the blue Honda minivan was either owned by Dixon or under his control before physically entering it pursuant to Dixon‘s warrantless search condition. But on the record before us, it is unclear whether this standard was in fact met. The government makes no distinct argument as to probable cause, and the district court did not conduct an evidentiary hearing because the core underlying fact—the key fit the minivan—was undisputed. However, there are highly contested factual disputes as to whether Officer Ochoa had probable cause to believe that the particular blue minivan into which he inserted the key was owned or controlled by Dixon. We therefore remand this case for the district court to conduct an evidentiary hearing and to rule on Dixon‘s
IV.
Finally, in the event that the vehicle search is upheld on remand, we address Dixon‘s challenge to the district court‘s denial of a reduction in his offense level for acceptance of responsibility at sentencing. The district court must begin sentencing proceedings by correctly calculating the applicable Sentencing Guidelines range. See United States v. Carty, 520 F.3d 984, 991 (9th Cir. 2008) (en banc). “A mistake in calculating the recommended Guidelines sentencing range is a significant procedural error that requires us to remand for resentencing.” United States v. Munoz-Camarena, 631 F.3d 1028, 1030 (9th Cir. 2011) (per curiam).
A defendant who “clearly demonstrates acceptance of responsibility for his offense” is entitled to a two-level guideline reduction to his offense level.
Given these principles, Dixon was at least eligible for the two-point acceptance reduction because he accepted responsibility for all conduct for which he was convicted. Dixon argues that from the beginning, even before he was indicted, he admitted that he possessed the controlled substances found on his person at Bayview Station, but contested that he possessed these drugs with an intent to distribute—the charged offense on which the jury hung. In other words, the jury convicted Dixon of only the lesser-included offense of simple possession, for which he had consistently admitted responsibility.7 The Guidelines thus permitted the district court to conclude that Dixon had accepted responsibility for his criminal conduct. Cf. United States v. Luong, 965 F.3d 973, 992–93 (9th Cir. 2020) (holding that a defendant‘s challenge solely to the presence of an interstate-commerce element while conceding factual guilt did not preclude acceptance of responsibility); United States v. Rojas-Flores, 384 F.3d 775, 780–81 (9th Cir. 2004)
The district court‘s denial of Dixon‘s request for a two-point reduction is at odds with this understanding of the Guidelines. It held that Dixon could not receive this reduction because “acceptance of responsibility is essentially [for] the charged offense,” and Dixon did not accept responsibility for the greater offense of possession with intent to distribute. As we have just explained, however,
V.
For the foregoing reasons, we VACATE the district court‘s denial of Dixon‘s motion to suppress, conditionally VACATE Dixon‘s conviction and sentence, and REMAND this case for an evidentiary hearing. In the event the district court upholds the search on remand and reinstates Dixon‘s conviction, the district court shall conduct a resentencing so that it may make a factual finding regarding acceptance of responsibility in the first instance.