*1
are
exposed
the defendant to Pens’ admissions and confessions
of the state
(footnote
privilege.
reaching
consequences.”
squarely
Id.
omit-
within the
serious
conclusion,
any new
ted);
this
we do not
on
see also Estelle v.
(1981)
yet
rule not
announced at the time
case
courts,
against
in
rather
(finding
privilege
pending
self-incrimina- was
the state
but
Gault,
applicable
penalty phase
application
at
to defen-
of
straightforward
tion
on a
compe- Estelle,
in court-ordered
dant’s statements
v. McKel
and Jones.
Butler
Cf.
—
examination).
tency
lar,
(1990).
L.Ed.2d 347
(1)
judge's
The Board relied on
rec-
ommendation,
in turn relied on the
which
Ill
(2)
long history
report,
Pens’
of aber-
WSH
exceptional
may
jus-
An
sentence
well be
behavior,
revealed
rant sexual
which Pens
case,
may
in
not be
(3)
tified
this
based
therapy,
report’s
in
con-
WSH
post-convic-
in
large,
on statements Pens made
Pens was not safe to be at
clusion
tion, court-ordered,
treatment.
part
admis-
confidential
which was based
on Pens’
report’s descriptions
of Pens’
sions.
note Pens is not entitled to immedi
withdrawn, secretive behavior are based on
upon expiration
sentence
ate release
as to deviant masturba-
Pens’ admissions
Washington
may impose.
the Board
Under
deceiving hospital
tion and excitement
71.06.120,
psycho
Revised Code
a sexual
notes,
example,
report
“Mr.
staff. For
path may
only by court order
be released
appeared
doing quite
Pens has
to be
subject
and is
to indefinite commitment
periods
Gradually he
long
of time....
appropriate
facility
treatment
if the
an
would withdraw more into himself and be-
prove
dangerous
can
his continued
state
very
anyone,
fore this was
noticeable to
beyond a
ness
reasonable doubt. State
major
group
make a
disclosure to his
Gann,
Wash.App.
his activities.” The conclusion society continuing danger is a Pens gathered from admis-
was also Pens’ own effect, along
sion to that with his confes- during report *2 Nev., Vegas, Ring
J.E. defendant-appellant. Green, Atty., Las
Thomas R. Asst. U.S. Nev., plaintiff-appellee. CHAMBERS, CANBY Before and NORRIS, Judges. Circuit CANBY, Judge: appeals the district suppress denial of his motion court’s a conditional Suarez entered possession count of guilty to one plea cocaine violation intent to distribute with 841(a)(1)and 846. Suarez 21 U.S.C. §§ of his that the warrantless search contends probable without apartment was conducted exigent circumstances. and absent cause timely ap- over this jurisdiction have We We to 28 U.S.C. peal pursuant reverse. Exigent Circum- Probable Cause and
stances made findings of fact accept the clearly erroneous. court as not the district suppress, motion to We review de novo probable cause the existence exigent circumstances. Cir.1987) (9th by the dis stated
For the reasons
probable cause
agents1 had
judge,
trict
they acti
premises when
to search Suarez’s
opener.
garage door
Neverthe
vated
less,
existence
“[e]ven
more,
cause,
does not validate
without
Unit
entry into a residence.”
warrantless
ed States
Cir.1988)(emphasis
opinion,
purposes
we refer
For
of this
operation
was conducted
1. This
“agents."
collectively
Agency
participants
as detectives
as
Drug
Enforcement
Vegas
Department.
Police
the North
original).
charge
operation
the addi-
rest. The
bears
arranged
the existence of
testified that he
have
for a
tional burden of
could
by particularized
magistrate
ev-
he de-
to issue a warrant once
departure
idence in order to
from termined which
*3
fact,
procedure
obtaining
entering.
the normal
a
surveillance
war-
the
Alvarez,
apartment
complex
rant.
v.
810
be-
See United States
knew which
(9th Cir.1987). Here,
879,
longed
F.2d
881
the
to Suarez and could have communi-
government
a
has not met this burden.
cated that information in
to obtain
Alternatively,
arresting
the
warrant.
arresting agents attempted
to
agents
apart-
secured
could have
Suarez’s
justify
necessary
protect
to
the search as
See,
they
ment until
a warrant.
obtained
personal safety.
justify
their
To
such a
States,
796,
e.g., Segura v.
468 U.S.
search,
protective
agents
point
the
must
to
104
ed. government correctly con As cedes, finding exigent circum absent Moreover, government has not stances, Suarez’s consent was invalid. The presented sufficient evidence to indicate entry unconstitutionally illegal tainted his agents that the had a reasonable belief subsequent consent to search. See United apart Suarez had codefendants in his v. destroy ment There who could Cir.1987). Accordingly, we need not con testimony any agent no in the record that sider whether Suarez’s consent would oth anyone ever observed other than Gonzalez regarded voluntary. erwise be id. See addition, apartment. Suarez’s when agents, nothing detained Suarez did REVERSED AND REMANDED.3 to alert confederates. Because the agents merely speculated that cocaine was CHAMBERS, Judge, dissenting:
present and that there was an imminent lengthy I do out a While not write dis- danger destroyed, they it would be sent, every I feel that test was met have failed to show to excuse the absence of apartm the search of Suarez’s search warrant. for some time worried Driver, ent.2 See United States opening garage about the door officers (9th Cir.1985). garage of the lean-to with Suarez’s elec-
Finally, bug. the record indicates that the tronic door it was a common But agents garage people, could have obtained a warrant for several cars of several apartment majority search Suarez’s before his ar- where the the cases seem to government argues apartment following 2. The that it was reasonable returned to transactions, one for the officers to believe that Gonzalez's failure he did not after the other. to return Suarez's after the trans- put action would thing Suarez on notice that some- Supreme We are aware of the Court’s recent gone wrong, allowing destroy had him to - Harris, decision in New York v. evidence before the could obtain a war- concern, again rant. We understand this majority impair does not thinks that decision specific see no indicate evidence to that it was foregoing opinion. The dissenter believes that procedure standard immediately for Gonzalez to meet Suarez supports his dissent. Though after each sale. rea- occupant has a no one user hold that in common expectation privacy
sonable UNITED STATES multiple garages. hallways or Plaintiff/Appellee, votes, But, I would remand if I had the hearing scuffle on the the case for further SCHROEDER, Ronald door had after the garage that occurred had invited Defendant/Appellant. opened, and been into the house. Suarez the officers 89-1209. No. have vitiated the This could handcuffed. This in and to search. to come
invitation United States Court trial court reached *4 point was never Tenth Circuit. having Never appellant’s brief. or stuff, I like to see rough voted April court. in the district that examined Also, Accompany- this. I am troubled Suppress, he made Motion to
ing Suarez’s alia, as follows: saying, inter
an affidavit not consent your That affiant did
“2. ga- garage or the any entry into the Lane, 574 Roxella
rage area located at C, on or about Vegas, Nevada
# 7, 1987, by any law enforcement
October
officer; did not consent your That affiant premises or area any search of the at 574 Rox- premises located
within said Nevada, Lane, C, on-or #
ella 7, 1987, by any law en-
about October officer;
forcement your affiant was not advised
4. That at the Rights time
of his Miranda premises;
aforementioned for the first Rights Miranda
read his at the office of on October Agency; that this Drug Enforcement affiant your
advisement occurred custody transported in
had been premises; aforementioned evidence, novo review of
On a de case, isn’t there a lot in this sort of
we do paragraphs? falsity in these three inferences entitled to draw some
Aren’t we falsity thereof? Shouldn’t
from the these attorney be concerned about
district statements?
verified
Otherwise, the district court’s Suarez, (See
opinion and order. (D.Nev.1987.) F.Supp. 1269 sions treatment.3 notes UNITED STATES predictor dangerousness best “[t]he Plaintiff-Appellee, past dangerous behavior. Mr. Pens’ sexual history offense is extensive and violent.” SUAREZ, purposes, ad- For fifth amendment Pens’ Defendant-Appellant. missions of deviant behavior are no differ- No. 88-1145. ent his of other crimes. confessions All used to enhance de- were his sentence Court spite representations confidentiality Ninth Circuit. requirements cooperation participate Argued Sept. and Submitted program. the court-ordered treatment May Decided “every While not encounter between state and a convicted but unsentenced de- brings privi- the Fifth fendant Amendment Jones, lege play,” into possible resentencing notwithstanding partial reliance 3. It on Pens' tes- dangerousness question is a court to find based on informa- timonial evidence for the state resentencing. than Pens’ statements. Whether court to consider on See State v. tion other Payne, Wash.App. P.2d there is non-testimonial evidence sufficient dangerousness report’s conclusion