United States v. Winston Bryant McConney

BROWNING, WRIGHT, Before GOOD- WIN, SNEED, TANG, FLETCHER, ALARCON, NELSON, CANBY, BOO- CHEVER, NORRIS, Judges. Circuit NORRIS, Judge, Circuit delivered Parts I, II, opinion and III of the of the court. GOODWIN, delivered Judge, Circuit IV V the of the court. opinion Parts Winston was convicted on sti- 922(h) violating facts of pulated U.S.C. § person, sitting the door was second from re- a convicted felon which prohibits waiting to the door. Without in interstate com- with his back ceiving shipped firearms challenges the denial appeal entry, His or a refusal of Olson response merce. for a suppress evidence timely agents his motion other the door and led the opened en We took the case obtained. illegally McConney and the living room. into the resolving specific purpose banc for to move several person were ordered other appropriate the issue of the sofa on the floor next to a position feet to a for the mixed review appellate were room. While the two men in the same “exigent circumstances.” law and fact handcuffed, agent another discovered being one of the sofa pistol

a loaded beneath house A search of the subsequent cushions. yielded made under the indicia warrant 12, 1979, filed June an indictment was On weapon. second District for the in the United States Court accusing Northern District California Following discovery of the two fire- defendants, thirty-one and other McConney, arms, a superseding a count was added in Organized IX of the Crime violating title violat- charging McConney with indictment title, commonly 1970. This Act of Control 922(h). ing 18 U.S.C. § Racketeer Influenced and known as the After the district court denied McCon- (RICO), prohib Organizations Act Corrupt motion, government ney’s suppression or in the con conducting participating its charges against drop moved to the RICO enterprise through pattern duct of an a charge. firearms proceeded him and on the 18 1962. racketeering activity. U.S.C. § to the denial McConney objection saved his identified the RICO “enter The indictment motions, right jury his to a of his waived Angels Motorcycle as the Hell’s Club. prise” trial, a writ- agreed and to a court trial on was day after the indictment On found stipulation ten of facts.2 The court filed, executed an “indicia” federal officers charged. appeal as McConney guilty authorizing McConney’s a search of warrant of confine- resulting judgment from the any and seizure of indicia of residence suppres- challenges ment the denial with the Hell’s membership in or association motion. sion In addition to the Angels Motorcycle Club. warrant, searching pos- indicia officers into McConney entry contends that Prescott an arrest warrant and a sessed violated the federal “knock-no- his home warrant.1 which that an requirement provides tice” officer, a house opening before a door of in 13, 1979, evening of June federal On the enter, notice of his give order must the arrest and search war- agents executed admit- identity purpose and and be refused When the McConney’s rants at residence. 3109.3 occupant. 18 U.S.C. § tance approxi- the home at agents approached stated, recently “section 3109 As this court the solid front door was mately p.m., 8:30 Anglo- codifies a tradition embedded closed. but an inner screen door was open reverence law and declares the American Olson, knocked on the door agent, The lead attaches to an individual’s which the law identity purpose. his and and announced in his house.” United right privacy person recognized He saw inside a he imme- 908 Whitney, diately McConney. Between States may open 1. A Prescott warrant authorizes of a The officer break outer or search house, accompanying any part person named in an home for a inner door or window of a or Prescott, therein, arrest warrant. United States v. house, 581 anything or to execute of a (9th Cir.1978). F.2d warrant, if, after notice of his authori- search ty purpose, he is refused admittance McConney’s stipulation 2. did cover the fac- ingredients ruling motion to tual on the 18 U.S.C. 3109. § suppress. specifically The statute states: Cir.1980), denied, 101 circumstances subject is to deferential re 68 L.Ed.2d 208 precedents view on two it considered to be Hart, “analogous”: United Whitney, In this court addressed the (9th Cir.1976) (en banc), F.2d cert. de problem entering upon of officers house States, nied sub nom. Robles v. United announcing identity purpose their with- out first or admittance. awaiting a refusal (1977), and United Page, States v. The court recognized compliance with (9th Cir.1962) (en banc). Hart, we section 3109’s be excused requirements may held that the determination govern by exigent circumstances. Id. at 908. The agents ment had done everything “reason here, government’s Whitney, claim as in ably necessary and proper” make a wit justified circumstances ness available is factual in nature and con agent’s failure to await refusal of admit- subject to the sequently clearly erroneous tance. test. 546 F.2d at 801-02. Similarly, The district court found that the agents Page, we held that whether consent to a had knocked and identity, announced their search “freely was and intelligently given” (without that their simultaneous entry is a factual properly subject issue clearly waiting admittance) just- for refusal of erroneous review. 302 F.2d at 85. On the by exigent ified circumstances. The district cases, basis of these Flickinger panel court also found that seizure of the first concluded: pistol was an incident of a lawful arrest. Our experience dictates that the ques We exigent define circumstances as tion exigent of circumstances is funda those circumstances that would cause a rea mentally the same type of issue as the sonable person (or to believe that entry questions of voluntariness of a consent other prompt action) relevant was neces and whether officers had everything done sary prevent physical harm to the offi reasonably produce necessary a wit cers persons, or other the destruction of ness. Certainly, finding of exigent cir evidence, relevant escape the of the suspect, cumstances is no less based on the “fact- or some other consequence improperly frus finding experience tribunal’s with the trating legitimate law enforcement efforts. mainsprings of human conduct.” Com missioner of Internal Revenue v. Duber II stein, 289, 278, 1190, 363 U.S. 80 S.Ct. 1198, (1960). 4 L.Ed.2d 1218 We turn first to the question of what standard of review applicable to the dis Flickinger, 573 F.2d at 1356. trict court’s determination that the federal In relying Page, on Hart and the Flick- agents’ failure to comply require with the inger panel rejected governing precedent ments of section 3109 was excused exi another related line of cases—the Ninth gent circumstances. In United States v. Circuit decisions the concerning proper Flickinger, 1349, 1356-57 & n. 2 standard of review for the question prob- of

(9th Cir.), denied, 836, 99 S.Ct. able cause. While noting that these deci- 119, 58 L.Ed.2d 132 this court held another, sions appeared to conflict with one the “mixed fact-law question” of exi compare v. Thompson, United States 558 gent circumstances is factual nature and 522, (9th Cir.1977) (probable F.2d 524 cause appeal therefore reviewable on under the reviewable clearly under the erroneous deferential, clearly erroneous standard. test), v. United States One Twin En- We took this case en bane to decide whether 1106, gine Airplane, Beech 1108 Flickinger should be overruled. (9th Cir.1976) (probable cause reviewable de novo), Flickinger panel the found it unnec-

A essary to resolve this conflict because it In Flickinger, panel the founded its question exigent de- concluded that of cir- question exigent termination that of cumstances is “more related to closely 1200 in an ef- jurisprudence of review standard involved in United question fact-law

mixed framework analytical ultimate consti- fort to formulate Hart ... than the v. cause.” 573 probable questions. of with mixed dealing tutional standard 2.4 F.2d at 1356 n. appro- of Flickinger’s discussion B question for the of review

priate standard has defined mixed Supreme Court circumstances, a number we find “the historical those in which questions as con- our jurisprudence of indications that established, the rule or are admitted facts questions of mixed review cerning appellate is wheth- undisputed, and the issue law is First, we are clarity and coherence. lacks statutory satisfy the er the facts [relevant] Flickinger panel difficulty struck standard, put or to constitutional] [or which of our determining had in of law as whether the rule way, another case controlled the precedents of review facts is or is to the established applied doubtless reflects difficulty before it. This Swint, 456 v. Pullman-Standard violated.” legal guideposts the absence of clear 1781, n. 273, 19, 102 1790 289 n. U.S. Second, an even clearer of the law. area Thus, 19, there are in our is the conflict disarray indication of deciding a mixed steps distinct three stan- concerning appropriate precedents is the step The first question. fact-law probable question of review for the dard “basic, primary, or his- establishment of the panel noted. Flickinger which the cause ‘in sense of a recital facts: facts torical juris review in standard of disarray This credibility external events and appears pervasive. to be Su prudence Sain, .. . Townsend their narrators “there is stated that preme recently Court 6, 293, 6, 745, n. n. 83 755 U.S. circuits on both authority substantial in the Brown v. Al- (1963) (quoting 9 L.Ed.2d applicability sides of [the 446, 397, len, 506, 73 S.Ct. erroneous standard to 52(a) clearly the rule Frankfurter, (1953) (opinion L.Ed. 469 Pull questions of law mixed fact].” is the selection J.)). step The second Swint, 289- man-Standard step rule of law. The third applicable —and n. 1790-91 n. of re- troublesome for standard the most also acknowl 66 The Court L.Ed.2d of law to application the purposes view —is that, usually it has reviewed edged while words, or, the determination in other fact prece its questions independently, mixed to the applied the rule of law as “whether there dents are not consistent and entirely or is not violated.” established facts is clearly is in its decisions for errone support 19, Pullman-Standard, at 289 n. Id. questions. ous review of some mixed at 1790 n. 19. 102 S.Ct. Commissioner, 302 (contrasting Bogardus v. 34, 61, (1937), and 58 82 L.Ed. 32 U.S. S.Ct. of The district court’s resolution Co., 481, 300 Helvering v. Tex-Penn Oil U.S. is, course, subject inquiries each of these of 569, (1937), 81 L.Ed. 755 Com review. The stan appellate appropriate to Duberstein, 278, 363 80 missioner v. U.S. two of the of review for the first dard 1190, 4 L.Ed.2d 1218 and Com S.Ct. estab court’s determinations —its district 467, 320 64 Heininger, missioner v. facts and its selection lishment of historical 249, (1943)). L.Ed. long legal principle of the relevant —has are re Questions of fact been settled. in Pullman- disarray of the noted light deferential, erro clearly under the of viewed Standard, our reexamination begin we 52(a).5 standard. See Fed.R.Civ.P. principles to first of neous Flickinger by returning 52(a) proce- Flickinger panel’s Although is a rule civil appreciate rule of concern 4. We dure, clearly test which it sets probable erroneous of cause. Probable with the pro- very applied implicate in civil and criminal forth is both cause and circumstances See, Page, e.g., United States ceedings. See infra standard of review concerns. similar Cir.1962) banc). (9th (en F.2d 81 at-. Questions of law are reviewed under the tion of the evidence.7 valua- Consequently, See, non-deferential, de novo standard. appellate ble resources are conserved for Twin e.g., Engine United v. One those issues that in appellate courts turn 1106, Airplane, Beech are best situated to decide. Freeman, Cir.1976); Lundgren The converse rule —that conclusions of (9th Cir.1962). These established subject law are plenary to or de novo re- policy prop- rules reflect the concerns that view—reflects similar concerns. Structur- jurispru- underlie standard of review erly ally, appellate courts have several advan- generally. dence tages deciding questions over trial courts in 52(a)’s appellate Rule mandate First, of law. are appellate judges freer to findings courts not disturb a trial court’s of on legal questions they concentrate because clearly pol fact unless erroneous serves two encumbered, are not as are trial judges, by First, objectives. icy minimizes risk vital, time-consuming, process but of judicial assigning of error re primary Second, hearing judgment evidence. sponsibility resolving disputes factual at least three of an appellate pan- members - “superior position” the court in the to eval- brought el is every bear on case.8 It weigh uate and the evidence —the trial collaborative, stands to reason de- 52(a) Rule that the trial emphasizes court.6 process appellate liberative courts re- judge’s judge opportunity accuracy judicial questions duces the risk of error on make witnesses’ recollections and credi Thus, of law. de novo review of questions live bility determinations cases which law, clearly like erroneous review of him a testimony presented gives signifi fact, questions of judi- serves to minimize advantage appellate judges cant over cial error by assigning to the court best evaluating the evidence: weighing positioned to primary decide issue the “findings of fact shall not be set aside un responsibility doing so. erroneous, clearly less shall regard and due law, De novo review questions how- be to the given opportunity of trial ever, is dictated by still another concern. court judge credibility decisis, appel- Under the doctrine of stare 52(a). Second, witnesses.” Fed.R.Civ.P. late law rulings controlling become test, because under the erroneous clearly and, precedent consequently, affect the reviewing court will affirm the trial of future rights litigants. Rulings on fac- court’s determinations unless it “is left with issues, hand, tual on the other are generally the definite and firm that a conviction mis committed,” litigants. take has of concern to the immediate been Pullman-Stan Swint, judicial From the of sound ad- standpoint dard v. 284-85 n. ministration, therefore, it makes sense to 1788 n. (1982), it appellate ensuring is relieved of the burden of a concentrate resources on full-scale independent review and evalua- the correctness of determinations of law. Corp. only 6. As noted in Zenith Radio v. Hazeltine the courts then need if determine the low- Research, Inc., 123, 100, 1562, one, 395 U.S. 89 S.Ct. er court’s decision is a reasonable 1576, authority of judgment “[t]he substitute their own for that of the court, appellate reviewing findings an when the judge. trial judge jury, of a as well as those of a is circum- by give scribed the deference it must to deci- Coffin, by Judge 8. As noted Chief fact, usually sions of the trier of who is in a every important appellate court decision is superior position appraise weigh to the by group equals. made of This fact reflects evidence.” judgment the shrewd of the architects of our hardly disputed application It judicial systems can be of a that an state and federal requires non-deferential standard of review appellate judge judge. is no wiser than a trial greater appellate investment of then resources superior judgment His claim to lies in application clearly does of the stan- erroneous numbers; three, five, seven or nine heads are Appellate dard. could do their work courts usually better than one. quickly they applied clearly more if the errone- Coffin, Ways Judge F. of a circumstances, ous standard in most because hand, If, question requires other the standard on the Thus, developed a well we have mix concepts in the legal fact to consider for issues of us jurisprudence of review judgment exercise Yet, review the law and to of law. when we fact and and issues legal princi- that animate district court’s determina- about the values third of the judicial fact —we adminis- of law to then the concerns application ples, tions —its court, with “sub- appellate much-mooted issue” tration will favor the confront “a in the circuits on both be classified as one of authority question the should stantial Pullman-Standard, question.” de novo. sides of law and reviewed th[e] 19, at 1790- n. at 289-90 S.Ct. 456 U.S. Supreme appeared Court As the believe, however, the 91 n. 19. We Pullman-Standard, 456 at indicate relating to developed jurisprudence well 19, 19, at 1790 n. the con n. fact offers pure law and questions pure gener administration will judicial cerns of our out of working way guideposts court, de justifying appellate favor the ally confusion. the usually because novo review. This is so review standard of appropriate the require to fact will of law application law to judge’s application for a district and involve legal concepts consideration determined, view, by our may fact be the values judgment about exercise which un principles reference to the sound In United underlying legal principles. the settled rules of review appellate derlie Corp., Motors General judicial If the concerns of just discussed. 16, 1328 n. 141 n. 86 S.Ct. efficiency, accuracy, administration — instance, (1966), for the Su L.Ed.2d 415 appro it more precedential weight —make that “the ultimate con Court ruled preme to determine priate judge for a district the defend judge, the trial by clusion established facts fall within whether a combina ants’ conduct did not constitute definition, sub we should legal the relevant in violation of the Sher conspiracy tion or deferential, clearly ject his determination Act, the ‘clear man is not to be shielded hand, If, review. on the other erroneous explanation, ly erroneous test’.” fa judicial the concerns of administration here is not question noted that “the Court court, subject we should appellate vor the legal ‘fact,’ but consists rather of one of re judge’s finding to de novo district the un applied to be required Thus, case, ques the pivotal view. in each Helvering Id. facts of the case.” disputed judicial tion do the concerns of adminis is Co., 57 S.Ct. v. Tex-Penn Oil they court or do tration favor district (1937), offers another in 81 L.Ed. 755 appellate favor the court. Oil, the example. In Tex-Penn structive view, findings the factual key In our to the resolu Court treated as established be Appeals nature of the Board of Tax question tion of this is the substantial supported by “whether cause were required they that is to decide inquiry 490-91, at 573. In Id. at applied the rule of law as to the established evidence. the Board contrast, the determination applica is or is not violated.” Id. If facts that a transaction did not fall within requires the rule of law the facts tion of factual,” of the non-recognition gains provision id. inquiry “essentially “a was classified as 288, 102 at 1790—one that is found Internal Revenue Code at least a determina fact-finding conclusion of law or application ed “on fact.” of law and mainsprings with the tion of a mixed experience tribunal’s 491, The thus conduct,” v. 57 at 574. Court Duber Id. at S.Ct. human Commissioner from 278, 289, 1190, 1198, distinguished “it to be stein, 80 felt that 363 S.Ct. U.S. [was] cir evidentiary or (1960) judi findings primary, the 4 L.Ed.2d 1218 concerns —the subject to facts ... will favor the district cumstantial cial administration was] [and the court judicial [during review court, the district court’s determination which] for that of judgment its as one of fact reviewa substitute should be classified [could] tax This assessment of Id. the erroneous standard. the board.” clearly ble under

1203 strictly did not turn on a fac- hours consequences forty-eight following the seizure of Rather, analy- an required tual it inquiry. property conformed to fourteenth amend- intricacies of the reor- corporate sis of the requirements, ment process due Goichman provisions of the Internal Reve- ganization Motors, Inc., (9th v. 682 Rheuban F.2d 1320 legislative purpose nue and the Code Cir.1982). gains certain from immediate exempting are, however, types There some of mixed taxation.9 questions exceptions are general to this favoring of factors de predominance predominance of factors favoring de novo is even more when the striking novo review First, review. there are ques- those mixed question implicates constitutional mixed tions in the applicable legal which standard questions, In rights. involving cases such test, provides a factual as strictly for such of law to fact application usually the will mind, application state of and the law the require that the court look to well fact, consequently, “essentially involves an of law relevant body concerning defined the Pullman-Standard, factual” inquiry. 456 Thus, provision. constitutional Su 288, U.S. at 102 at 1790. In Pullman- S.Ct. ques has held that preme Court the mixed Standard, example, question mixed a ques tion of cause is treated as probable before the Court was whether the estab- See, tion e.g., of law reviewed de novo. lished facts demonstrated the intent to dis- California, 23, 1623, 374 Ker v. U.S. 83 S.Ct. 703(h) criminate required by section of title holding 10 726 implic L.Ed.2d This Rights Since, VII of the Act of Civil 1964. recognizes that the involved in itly inquiry 703(h) purposes of section of title probable goes cause applying standard VII, intent, subjective intent means rel- beyond well the facts of the case and re standard was legal evant that of “actual quires legal consideration of the abstract 290,102 motive.” Id. S.Ct. at 1791. juris principles inform constitutional distinguished legal Court A similar prudence. recognition, though from legal concept discriminatory “some unarticulated, be underlie may seems to intent,” 289,102 id. at S.Ct. at 1790 (empha- cases in which our court has reviewed as added), sis noting “ap- actual motive questions of law such questions mixed fact,” pears pure question ... to be id. reasonableness certain restrictions on basis, On this the Court concluded that rights, first amendment Ellwest Stereo the case it the judicial before concerns of Theatres, Wenner, (9th Inc. v. 1243 administration favored the district court Cir.1982); whether there was a “search” in question and that the mixed under consider- sweep an of a International factory, INS ation thus not ... a mixed question Sureck, “[was] Ladies’ Garment Workers’ Union v. of law of the and fact kind that in some 624 Cir.1982), granted appellate cases re- may allow court Immigration sub nom. and Naturalization .to — —, Id. Delgado, subjected view the facts.” The Court Service 103 U.S. 1872, clearly (1983); L.Ed.2d 805 lower court’s determination to a post-deprivation hearing whether within erroneous review.10 293, Sain, question 9. See also Townsend v. automobile—the Court reviewed the 745, 6, clearly standard, n. 755 n. explain- under the erroneous Mesa, (1963); United States v. F.2d ing that when J., (3d Cir.1980)(Adams, n. 3 concur- [djecision presented case issue in [the] ring). ultimately application be based on the [can] fact-finding experience of the tribunal’s Duberstein, Commissioner mainsprings the totality of human conduct to the L.Ed.2d 1218 is to the case, [application facts of the of [the] Duberstein, same effect. under appro- of a deferential standard of review is priate], donor, by giving an review was whether a mobile to auto- [Then,] the nontechnical nature or acquaintance, business, had made a statutory standard, relationship the close “gift” meaning within the of the Reve- Internal practical experi- of it to the data of human nue non-technical, Because the on a Code. answer turned ence, multiplicity and the of relevant factual inquiry fact-based donor’s —the elements, with their various transferring ownership combinations. intent in actual 1204 strictly whether es vides for a factual test and the

A trial court’s determination question negligence. mixed of negligence offers tablished facts constitute us a situation in which the concerns second the district judicial

of administration favor C judg legal court. Because the standard summary, classify questions mixed requires ing negligent whether conduct is of review of law and fact for standard determine, by reference to the “data us to analysis we a functional purposes, adopt Duberstein, practical experience,” human inquiry that focuses on the nature of the 289, 1199,whether an 363 80 at S.Ct. when we the relevant rule of required apply communi “reasonably” by individual acted analy law to the facts as established. standards, ty findings the trial court’s precise sis is not a one and does not offer legal fact our conclu effectively determine ques litmus test which all mixed erroneous re Consequently, clearly sions. It does not neatly categorized. tions can be Industries, appropriate. view is Hasbro See “unerringly distinguish findings between Constantine,” Inc. 705 F.2d 339 v. M/S “St. fact and conclusions of law.” Pullman- denied, — U.S. —, Cir.1983), cert. Swint, 19, 102 v. at 289 n. Standard (1983).11 537,78 L.Ed.2d 104S.Ct. Nonetheless, we think at 1790 n. 19. S.Ct. nature of the in that if we focus on the Thus, law to application because the determining in whether the quiry required generally require fact will the consideration established facts fall within the relevant legal judicial concerns of principles, the definition, we a neutral test legal employ usually appel- administration will favor the reflects the concerns that accurately court, late most mixed be questions will juris underlie standard of review properly independently. particular- reviewed This is prudence. true ly question when the mixed involves rights. identify constitutional But we from Ill existing precedent exceptions at least two to this rule: mixed in general questions Applying analysis our functional hand, legal pro- which the standard the case at we conclude that applicable noting judge creating necessity ascribing proper After that the trial is “best situat- each, decision,” intelligently force to confirm us in our conclusion ed to make such a id. at 7, primary weight (quoting that the in this area must be 677 n. at 2090 n. 7 v. S.Ct. Gori States, 368, 1523, 364, given to the conclusions of the trier of fact. United 367 U.S. 289, 1526, (1961)), Id. at at 1198. 6 L.Ed.2d 901 the Court stated: S.Ct. entirely Similarly, Oregon Kennedy, expect, in 456 U.S. It seems reasonable to there- 667, fore, 2083, appellate judges will continue S.Ct. Supreme judgment judges considered the issue of when a of trial who are Court defer to barred, area, they jeopardy will retrial under the double “on the scene” in this and that clause, by prosecutorial inexorably conduct results reach the same conclusion on holding appellate stage they a mistrial. After that a retrial is barred a cold record at the might anyone sitting giving when the rise to the suc- if of them had been as a conduct judge. cessful motion a mistrial was “intended” to trial provoke moving into for a mis- the defendant Id. trial, the indicated that lower court find- Court disagreement among the cir 11. We note the ings on this were to be reviewed def- regarding appropriate re cuits standard of erentially. questions negligence found, view for as a further Oregon Since the trial court and the indication of the confusion to which the Su Oregon Appeals accepted, Court of preme prosecutorial Court referred Pullman-Standard. culminating in the ter- conduct Industries, Compare Hasbro mination of the first trial in case was not Brasileiro, prosecutor, Pacific Great Atlantic & Tea Co. so intended that is the end (2d Cir.) (non-deferential purposes of the matter for the of the Double applied negligence Jeopardy determination of the Fifth and Fourteenth Clause admiralty case), Republic sub nom. Amendments to the United States Constitu- denied Brazil v. Atlantic tion. United States of Great footnote, Co., Id. at at 2091. In a & Pacific Tea n deference. 91 L.Ed. 1849 Court indicated the reasons for this exigent suspect of circumstances is that a is a member of the question mixed Hell’s law, Club, question reviewable de novo as a of Angels without demonstration of a and, Flickinger. we overrule consequently, activity, to criminal link is relevant to the if Our reason is this: to decide the facts issue cf. exigency, United v. Ru States legal exigency whether, test of satisfy bio, 727 F.2d 786 at Cir.1983) — standard, judged objective an “there by (membership Angels Hell’s without a link occupants a likelihood that criminal activity to actual insufficient to [was] resist, attempt escape, destroy to support finding probable a cause to issue [would] within,” evidence, or harm someone United warrant). We search must also decide Bustamante-Gamez, 4,12 weight much may given how be to an offi denied, (9th Cir.1973), cert. 416 U.S. knowledge cer’s that a suspect previous has (1974),— convicted of an ly unspecified felony. been necessar ily inquiry goes involves us be When, here, as the application of yond the historical facts. requires law to fact us to make judg value question exigency The mixed is rooted ments about the law and its policy under principles in constitutional and policies.12 when, here, pinnings, and the application Like such mixed its reso- many questions,13 precedential of law to fact is of clear impor requires legal lution us to consider abstract tance, policy reasons for de novo review doctrines, weigh underlying policy con- are satisfied we should not hesitate to siderations, competing legal and to balance judge’s review district determination In its re- particular, interests. resolution independently. quires that we strike a balance between two conclusion, we hold that the mixed conflicting sometimes societal values —the question exigent circumstances is not safety of law enforcement officers and reviewable under the clearly erroneous test privacy fourth amendment interests. The not, intent, because it is like the question of question essential and difficult raised essentially junc- factual. We do not at this balancing police is how much risk offi- how any question ture decide other mixed cers can be to assume reasonably expected do, true, adopt should be reviewed. We it is the rules has disregarding society before analysis a functional for the resolution adopted to otherwise circumscribe the exer- questions. approach these But our is an ad cise of their considerable au- discretionary one, hoc permitting analysis individual thority carrying out their vital-law en- ques- classification of each of mixed type forcement duties. it, Under we need decide that tion. question This is a that no amount of is exigent circumstances factfinding inquiry will answer. The re- subject to de novo review. quires merely us to ask not whether judge finding trial was correct in that Olson IV believe, instance, in fact had reason to required We have made the re was a member of the Hell’s record, view of the and we affirm the dis he Angels Motorcycle Club or that had a conviction; holding trict court’s circum prior felony requires it also excused the failure await agents’ stances determination whether these facts and entering refusal of admittance before other information had about Olson McCon- ney’s past satisfy legal McConney’s are sufficient to home. The “knock-notice” decide, officer, exigency. provides standard for We must statute that an before instance, enter, whether a reasonable belief a door of a house in opening order privacy house”), dispute requirements right 12. There no an individual’s in his denied, 3109 are rooted in constitutional values. See § , Whitney, United States v. L.Ed.2d (9th Cir.1980) (“[sjection 3109 codifies a tradi- Anglo-American tion embedded in law and de- supra 13. See at 1203. clares the reverence which law attaches time to arm him- pur McConney were allowed authority of his give notice must refused admittance self. pose, and be require 3109. The

occupant. 18 U.S.C. § present Whether the circumstances [H] and apply to locked ments of section 3109 necessarily involves exigency sufficient v. United Sabbath alike. unlocked doors sincere fear unjustified An but judgment. States, 590, 1755, 585, 391 88 S.Ct. U.S. noncompliance cannot excuse an officer 1758, (1968). purpose 20 L.Ed.2d 828 occupants’ privacy of the protection or the First, it is to is twofold. requirement than an depend on no more interest would right privacy an individual’s protect Here, however, is there anxiety. officer’s consist possible to the extent and the home or sincerity to discount either the no reason the warrant. ent the execution of with agent’s concern. the reasonableness of themselves, Second, protect it is to officers as an Agent When Olson served mistaken, un upon who otherwise be might agent, he had a close relation undercover intrusion, someone with no announced McConney had a con ship McConney. with Id. at 589, 88 right to be there. S.Ct. crime, a violent and Olson testi viction for of time an officer must 1757. The interval McConney knew that was a fied that he de entry announcement and wait between felon. Olson further knew that convicted circumstances of each case. pends on the that he McConney drug was a dealer and Phelps, See United States 490 F.2d 644 charged racketeering. types Both denied, 419 836, Cir.), cert. possession of offenses often involve 64, (1974). L.Ed.2d Moreover, made McConney firearms. once knocked police properly When have “protection statement to Olson about the identity purpose, announced their and and club,” supporting a rea of members justify simul exigency mild is sufficient to danger inference that there was sonable accom entry entry taneous when can be arresting any club member. plished physical without destruction Although any one of these factors stand- v. Bustamante-Ga property. United States insufficient to create the ing might alone be mez, 4, (9th Cir.1973), the combination of exigency required, mild denied, 1993, 94 S.Ct. require- in this case satisfies the factors (1974). Accord United L.Ed.2d 559 ments of Bustamante-Gamez. agents Whitney, exigency 633 F.2d at 909. Mild not violate section 3109. did exist where there is a likelihood that may resist, occupants try escape, will or V specific More inferences destroy evidence. if the en- McConney contends that even be exigency necessary entry may are if unobjectionable, gun the first try were only by physical obtained destruction was inadmissible as evidence because seized explicit an refusal of admittance property; invalid and the indicia search warrant was or of time is lapse significant of a amount justified incident to the seizure cannot be as necessary if the officers have no facts indi first arrest. Because we hold that his v. Busta exigency. United States cating arrest, to his was seized as an incident gun mante-Gamez, at 12. But here the McConney’s arguments reach we need not found door. open officers indicia search warrant. Because about the concedes, McConney emphasize, We is right of fourth amendment type the same knocked and announced agents involved as in the determination simultaneously opened their entry. They circumstances, indepen- apply we the same which through an unlocked wire screen door of review. dent standard a second then they observed “ to arrest” is an incident Agent unknown seated inside. Ol- Search person general against rule exception he recognized McConney son had ob- door, justifica a warrant. The him and feared for searches without through served search officers if a warrantless safety permitting his and that of the other tion for weapons things the need to seize or other not reach the admissibility of evidence con- which be used to assault an or might cerning gun officer the second finding as the escape, effect an as well as the need to did not guilt depend upon it. prevent the loss or destruction of evidence. 30, 1981, The decision filed on March States, See Preston v. United 376 U.S. 15,1982, January withdrawn on is supersed- 11 L.Ed.2d 777 ed this decision. California, Chimel v. AFFIRMED. legitimate

search incident to arrest was limited to the join All members the court in Parts I arrestee’s person and the area “within his opinion. V of the and immediate control.” Id. at 89 S.Ct. at 2040. WRIGHT, TANG, A. EUGENE FLETCHER, CANBY, and NELSON Cir- then, The critical is wheth inquiry, NORRIS, Judges, join cuit Judge, Circuit er the search that produced McConney’s II. Part pistol properly was limited to the area with in his immediate control at the time of his TANG, FLETCHER, NELSON, persons arrest. The number of ar being CANBY, NORRIS, Judges, join Circuit Cir- rested, the number of officers their present, Judge, cuit in Part III. ar physical positioning regard to the BROWNING, Chief Judge, GOOD- searched, place restee and the display WIN, BOOCHEVER, ALARCON and Cir- and, course, guns the officers by Judges, cuit concur in the result of Part III. the place distance between the arrestee and weighed by searched are all factors to be BROWNING, Chief Judge, and EUGENE Mason, the court. See United States WRIGHT, SNEED, TANG, ALARCON, A. (D.C.Cir.1975); F.2d 1122 United States v. NELSON, BOOCHEVER, CANBY Cir- Patterson, (10th Cir.1971), 447 F.2d 424 join GOODWIN, Judges, cuit Circuit Judge, denied, in Part IV. (1972). L.Ed.2d 752 SNEED, Circuit Judge, with whom EU- We conclude that under search WRIGHT, joins, GENE A. Judge, Circuit cushion, the sofa which revealed the loaded concurring in judgment: pistol, did not exceed the limitations under I concur in the result reached searched, Chimel. At the time the sofa was I, majority, Part with much what is said McConney only was two feet from the gun, II, in Part and with the conclusions reached yet and was not handcuffed. Chimel does IV Parts and V. would not reach the require police to presume that an issue whether over- Flickinger should be arrestee is rational. wholly Persons under ruled which is dealt with in Part III. attempt stress may actions which are un likely to succeed. presence The of the I come to rest in this position because agents guns with drawn may have limited the proper whatever standard of review the area could have McConney reached had respect should be with to a trial court find- he made a sudden attempt to do so. This circumstances, ing the majority however, presence, was no guarantee that concluded, court, has as did the trial armed violence could not break out when a Therefore, in this they existed case. gun loaded two away. feet disposed case should have been of with an opinion that would read substantially as reasons, foregoing pis-

For the the loaded follows: tol was properly admitted as evidence

against McConney charge agents on the of viola- entry appellant’s The in the tion 922(h). of 18 McConney U.S.C. does residence did not violate 18 § U.S.C. him, not contend that the against Exigent justified evidence circumstances § admitted, if the pistol was is insuf- at the as the properly entry same time knock support ficient to his We need identity. conviction. and announcement of their ascending descending search incident to the arrest did not ex- be described in or lev- the limits fixed ceed Chimel Califor- els of abstraction. term “historical nia, merely description fact” indicates that [89 L.Ed.2d These conclusions 685] fairly should be at a low level of abstrac- regard follow without to the standard of example, tion. For whether Officer Olson might employ scrutinizing review we prior felony knew that had the record. The trial de- properly court conviction can be as an “historical described appellant’s suppression nied the motions. fact”; true, however, it is also that Officer Affirmed. knowledge can be described more Olson’s stating the precisely by exact circumstances The court states that this case was taken specific purpose resolving “for the under which the conviction came to his at- question of the appropriate ap- tention. The latter also can be described as review of pellate ‘exigent circumstances’ as precise the “historical facts.” The level of a mixed of fact and law.” The deserving being abstraction characteriz- statement is inaccurate in two respects. fact, otherwise, ed as a historical or turns The en banc call was not cast in those purpose being on the served. In the con- and, terms precise although it is true that respect text of the standard of review with some members of court undoubtedly the circumstances, exigent to I believe the trial voted to take the en case banc courts, by employing the definition of such reason, it is also true undoubtedly circumstances stated by majority, page the similarly some who voted did so other 1199, can do a job better than we. There- short, reasons. the case en was taken fore, say per- I would whether a reasonable banc, Second, question. not the the charac- entry necessary son would believe that terization “exigent of circumstances” as a prevent physical to “either harm to the question mixed of proceeds fact and law not persons,” etc., officers or other see Majority from the en banc call majori- but from the Opinion page is a of fact. question ty’s analysis of the issue Flicking- whether True, the employs fairly high definition er, which treated “exigent circumstances” level of abstraction provides but it suffi- question fact, as a of should be overruled. guidance cient to enable trial courts to Nonetheless, the standard-of review dis- bring superior to bear their unquestionably cussion in Part II contains much wisdom. with experience police officers and defend- problem is essentially managing one of ants accused of crime. superiority This appellate the allocation of court resources. flows from their frequent opportunity to the things Those trial court does better we them Appellate observe face-to-face. attempt True, should not to repeat. we courts can read classify and cold should review the trial court’s performance records; trial people courts confront respect even with things to those it can do whose actions they characterize. better to eliminate intolerable deviations. And, course, those things appellate superior For me this experience resolves court can do better we should not delegate goes the “which problem. Flicking- where” to the trial court. er was properly appellate decided. An good court cannot do as joba in this area as problem things is which where. go trial recogniz- courts. This is said while Part II is a wise and intelligent attempt to must, as I ing, unrelenting duty that our formulate general principles pro- that will constitutional it protect rights. To me vide the solution. My basic reservation is serves those rights “exigent better to treat process that I believe the deciding which circumstances,” as the majority defines things tentative, where go experi- is more them, question subject as a of fact to the mental, and ad hoc than even II sug- Part “clearly erroenous” gests. What is a “fact” standard review. can never be satis- But, above, Green, pointed fixed. as I out I factorily Judge L. and would See Jury phenomena External reach the issue. can even GOODWIN, with whom and Judge, independently question examine the Circuit BROWNING, exigent and ALARCON circumstances as a of law. Judge, Chief BOOCHEVER, Judges, join, I Accordingly, Circuit would be content to rest the concurring judgment: in the has for so specially long engaged debate that this upon by court a statement made the Su- majority opinion I in the concur Court, preme to which we look for leader- findings review a trial court’s appellate ship in such matters: circumstances on the existence sit as in “While Court does not nisi requires application legal of a appraise contradictory factual prius “clearly erroneous” stan- rather than will, where to the questions, necessary routinely 52 which we dard of Fed.R.Civ.P. rights, determination of constitutional findings by made trial apply to factual independent make an examination of the purely courts in the decision of factual facts, the so findings, and the record questions. it can determine for itself whether in the respect scholarship, agree I decision as to reasonableness the funda- majority. But reasoning much of the i.e., constitutional—criteria es- mental — decision, disagree majority’s with the stat- respect- tablished this Court have been opinion, II III of the ed in Parts ” California, ed.... Ker v. at categories suppression leave a number of 34, 83 to review under standards questions open Mata, 591, 597, While Sumner for each of developed that will have to be 1303, 1306, categories by separate weighing scope has limited the of federal court re- of facts or law in so- preponderance concerning view facts state found fact. questions called mixed of law and proceedings pro- courts in that satisfied due likely prove This exercise is both time- cess, have found no Supreme we Court case consuming and uncertain in its results. holding that federal are appellate courts agree simple, bright I that there is no or bound the district court’s application line, always test that will steer this court to the principles following constitutional dis- ques- the characterization of a appropriate designation questions trict court’s of certain tion, difficulty whether of law or fact. The do, course, questions of fact. We defining ques- in the difference between judge’s findings defer to the district when given tions of law of fact in a questions deal with facts. But when they historical suppression question formulation of a itself question the ultimate involves both histori- argument underscores the that we should meaning, cal facts and their constitutional adopt a rule that when the court is in we have the to review the ultimate duty doubt, it question should treat the as one of question independently. United doubtful, law. Judicial in review the or Engine Airplane, One Twin Beech complex questions law-fact would then be (9th Cir.1976). be, novo, conducted as giving it should de concern to proper underlying constitutional With the in exception language of the as the principles court makes certain that III, opinion. Parts II-B and I concur in the they correctly applied were to the historical BOOCHEVER, Judge, concurring Circuit

facts. If lawyers judges reasonable judgment: in the agree given can’t whether a is one question law, of fact or one of then a probably agree Judge I with Goodwin’s concur- question of law. assumption reasoning rence on the applies only to contentions that constitu- ques- It is in the close and debatable In rights tional have been violated. cases tions that arise when one invokes constitu- rights I implicating tional is not basic constitutional principles anything important that turn the we believe that institutional values are better likely upon way characterize by applying clearly the event. It is in served erroneous stan- precisely we when has type ought proceed judge ap- case that dard of review a trial danger ence that there was in arrest- to established legal correct

plied a member.” ing any facts. club Supra agree 1205-1206. While I NORRIS, with whom Judge, Circuit constitute legal these facts would as a matter FLETCHER, dissent- Judge, joins, Circuit exigency, they support I believe find no judgment: from ing the evidentiary record before us. other the I, II, III, in Parts fully I concur Although words, made judge explicitly if the trial had opinion, disagree I and V of the court’s majority imputes of fact the findings evidentiary I Part IV. believe him, errone- clearly I would hold them to be us fails to the conclu- support record before ous. justified circumstances sion that majority apparently what the Contrary Agent the manner in which Olson entered assumes, evidence on the is- probative that, accordingly, home and McConney’s is limited to an affidavit exigency sue of of the district court should be judgment he arrest- shortly executed after Olson reversed. and that Olson was asked to McConney, ed suppression the record at read into I Reporter’s Transcript at 1547. hearing. to a novo review of proceeding Before de part: The affidavit stated in relevant exigency, trial determination of judge’s warrants, Prior to the execution of the review, clearly we must first under I was a con- was aware standard, of fact on findings erroneous a member allegedly victed felon and was —or could have which such conclusion Angels Motorcycle Hell’s Club ... judge made been —based. Because trial I because of under- recognized prior [him] findings exigency, no of fact on the issue of experience cover law enforcement ... initial those we must as an matter derive know that members and associates of the findings by drawing from the record have, in the Angels past, Hell’s been reasonable inferences that are most favor- possession explo- of various firearms and legal exigency able to the conclusion that sive devices and also that certain mem- Miner, United States existed. suspected complici- bers of the club are (9th Cir.1973). It is in this pro- in the murder of a Jose ty attempted San drawing permissible cess of inferences from police officer as well as four unsolved the evidence and that I inferring findings Oregon. murders in part company majority. with the The ma- support finds for the jority judge’s trial Therefore, my out of a for own concern conclusion that there was a “reasonable” officers, and that of the other safety basis for fear that McConney Olson’s was McConney, opened soon as I saw in dangerous implied findings: four screen door .... (1) agent, when he was an undercover 1548, 1549, 1550. Reporter’s Transcript at had had a close undercover re- Olson the sum total of the This affidavit is with lationship McConney; permitted that we are to consider evidence

(2) knew that was a McConney Olson was a reasonable deciding in whether there McConney convicted felon and that McConney fear that was basis Olson’s in fact been a violent had convicted of Although Olson also dangerous. armed and crime; gave testimony suppression live at the hear- (3) McConney Olson further knew that to his testimony none of his was linked ing, drug dealer had been was a and of his entry. state of mind at the time charged racketeering; and testified on direct examina- Although Olson (cid:127) (4) in 1975 he had encountered McConney had once made a statement tion that negotiations McConney drug

to Olson about members in undercover protection by him McConney promised had Angels during of the Hell’s Club which Motorcycle people” who “by [McConney’s] infer- “support[ed] protection that a reasonable sumes, therefore, Reporter’s Transcript probative at there is no evi- Angels, were Hell’s 1551-53, then or at testify support finding he did not dence to that Olson re- “protection” that he had the 1975 conversa- membered the statement in point later McConney’s he entered making McConney’s tion in mind when his assessment of dan- fact, examina- shows, in 1979. In on cross gerousness. home For all the record Olson tion, the reasons explicitly he testified McConney’s “protection” did not recall with section 3109 comply for his failure to his memory statement until was refreshed in be limited to those listed his affi- should sup- in for his at the preparation testimony davit, he excluded the 1975 specifically and hearing. pression something he had in mind conversation as thus represents Olson’s affidavit McConney’s at the time he entered home: evidence in the record on the issue of exi- that, Q. state in affidavit “I your You and, gency. scrutiny says, Close of what know that members and associates of importantly, say, more what it does in Angels past the Hell’s have evidentiary makes clear that there is no of various fire- possession been majority for the ac- support facts arms,” you et cetera. Do recall that? as established. cepts A. Yes. II

Q. you Those were the reasons that en- affidavit, tered as you did? proffered In his Olson four (1) for his grounds actions: he knew that A. Yes. felon; McConney (2) was a convicted Q. Your affidavit here in you read McConney “allegedly” a member of the court, you hap- don’t talk about what Club; (3) Angels Motorcycle Hell’s he rec- McConney between and pened you prior because of under- ognized McConney correct, 1975. That’s is it Your not? (4) experience; cover law enforcement affidavit doesn’t talk about that? aware that he was members and associates A. That’s correct. Angels weapons of the Hell’s owned Q. your what is in affidavit was So suspected complicity were in murders what was in mind at the time your Oregon. A analysis San Jose discrete you through went the door in grounds of each of these is instructive. you manner described? (1) McConney Knew That Was a Olson A. Yes. majority Convicted Felon. The states that at 1555. Reporter’s Transcript “McConney had a conviction violent obviously concerned that prosecutor, crime, testified that he knew that and Olson effectively defense counsel had restricted McConney Supra was a convicted felon.” exigency the record basis for the claim of is glosses over majority 1206. What affidavit, opened the contents of the redi- specify fails to in his affidavit that Olson following rect with the question: felony; the nature of the thus there no Q. went you One other reasons that Olson knew or even believed evidence the door to immobilize Mr. through of a had been convicted it, McConney, take was the conver- crime of violence. The fact that we know in you sation that had had with him the that independently from record McCon- 1975? robbery, been convicted of armed ney had arrest, pro- not Reporter’s Transcript resisting battery at 1556. never does Olson for an inference that Olson question. support answered that Defense counsel’s vide sustained, McConney it was that had been convicted objection leading that was knew that rather than violent crime. If Olson had known prosecutor, rephrasing a have McConney, easily abandoned the effort to have fact about he could question, have in his affidavit or could Olson that he had the 1975 conversa- so stated testify testimony McConney supplemented tion mind when he arrested in his affidavit with in hearing: suppression as- effect at the Contrary majority 1979. to what to that fact, only point through waiting evidence on the the screen door without to in in his affidavit that he admittance. Olson’s statement be refused McConney “was aware that was a convicted (3) Recognized McConney Olson From way knowing We have no felon.” Expe- Law Enforcement Prior Undercover specific this failure to be more in whether Although rience. the affidavit recites that of the any part of the record is result McConney past from un- recognized Olson right ques- failure to ask the prosecutor’s it experience, dercover law enforcement inabili- right tions in the form or of Olson’s no about the encounter. The gives details that he was in fact ty testify truthfully a statement that Olson “had majority’s convicted McConney aware that had been McConney with while relationship” close case, the any of crimes of violence. In supra see serving agent, as an undercover exists, deficiency powerless and we are conjecture. is sheer The bald fact cure it. recognized McConney past from that Olson (2) Angels The Hell’s Connection. The more, without adds experience, undercover say any affidavit fails to that Olson had of exi- nothing to the record on the issue knowledge McConney that was a personal gency. Motorcycle Angels member of the Hell’s Members of (4) Olson Knew That Some Club or was even associated known Arms and Angels the Hell’s Carried Were members. It recites that Olson knew In Murder. Final- Suspected Complicity member.1 McConney “allegedly” that was a ly, suggest the affidavit fails that of that Absent indication source McConney any way was associated in —oth- rumor, a from an informer allegation tip —a in “alleged” membership er than common a reliability, police of known or unknown Angels any of organization the Hell’s —with report, or an indictment —we cannot on unidentified members and associates of fairly record before us evaluate this “fact” Angels the Hell’s whom Olson stated he objec- was an determining in whether there suspected knew had carried arms or were tive basis for Olson’s asserted belief that in murders in Jose and Ore- complicity San McConney dangerous. govern- was fact, carefully the affidavit refers gon. suggests ment that in the allegation unnamed as “members persons only to such that underlying RICO indictment McCon- Angels” gener- and associates of the Hell’s Angel supported was a Hell’s a belief ney McConney ally, person- associates of that he was associated with by Olson Even were we to assume that McCon- ally. Appel- Brief for group. Supplemental See still a member when he was arrest- ney was again, lee at But once the prosecutor 14. ed,2 nothing suggests in the record that suppression failed to ask at the hear- Olson was reasonable Olson to believe he familiar with the in- ing whether was of some unidentified propensities violent when he entered McConney’s dictment Angels by McConney. Hell’s were shared a defi- again, home. And once the result is original government As the conceded in in the record we cannot cure. As a ciency case, in this it does not claim argument oral consequence, the indictment is useless to us Angels the Hell’s Club is itself in whether could that deciding reasonably Olson it claims rather that it is safety illegal enterprise; have feared for his when he went McConney McConney support in was no offers unrefuted record was aware Angels. longer for his contention that he had terminated his affiliated with the Hell’s Angels membership years contention, Hell’s four government fo- never denied before Olson said his 1979 affidavit cusing response in its instead on whether alle- McConney “alleged” to be a member of McConney gations was still a member McConney’s organization. An affidavit good faith in the affida- 1979 had been made in attorney testimony by grand jury cites wit- justify of the search war- vit used issuance ness that “used to be member” McConney’s Excerpt home. of Record rant for group government and a bail memorandum at 583-84. identifying McConney as an “ex-member of the chapter,” Excerpt Oakland at as of Record supra at note 1. 2. See proof government of his claim that even the enterprise being Angels] an lawful used fendants with the otherwise some [Hell’s for activities. The by illegal some members activity.” form criminal Id. at 794. In us no useful information government gives holding, we that so noted Angels organization about the Hell’s or its the subject enterprise wholly were [i]f membership help that would us decide illegitimate, then there certainly would whether fears about the reactions of some be cause to believe that evidence of a reasonably general- of its members could be suspect’s with that enterprise association to provide objective ized an basis for fears would aid in a RICO conviction. How- McConney. about The record fails to tell ever, no allegation where there is us, instance, for about the size of the mem- enterprise illegitimate, wholly is as is true bership of government alleges what the in case, in this evidence of mere association organiza- the indictment to be a “worldwide would necessarily aid in a obtaining tion”; nor is there evidence any indicating conviction. members, chapters, the number of or in the Area of Bay Northern California where Id. 793. Nor should evidence of mere located, in McConney Oregon; was or final- making a association aid in determination is no that Olson ly, might there indication particular that a group member have known or had reason to believe that it likely to resist with arrest violence. Con- was common Hell’s practice Angels for trary Rubio, to the teaching majority or carry members firearms otherwise to here an that permits McConney inference violence, particularly during resort ar- violently would have reacted to Olson to be record, For all we rests. know from drawn from evidence “mere association” possession of limited to a small firearms is Hell’s Angels. of a large membership gener- fraction ally abiding organization. way law no To recapitulate, support the record for suggest, does record even much less of exigent determination circumstances ex- demonstrate, that violent behavior so thor- cusing non-compliance with the commands pervades oughly Angels the Hell’s Motorcy- section 3109 consists the affidavit cle that Club an officer could reasonably Agent nothing Olson and more. That affi- from membership believe the fact of alone provide any proba- davit fails to substantial that his would threatened if he safety be evidence professed tive that Olson’s fear of to arrest any particular tried member in his McConney knowledge was based on home. McConney had been convicted of a violent In the absence of evidence any linking crime, arms, that he carried that he was a McConney to the violent criminal activities dealer, indeed, drug or on other fact of some members of Hell’s Angels,3 might given have Olson reason to be- it impermissible majority believe dangerous. The McConney lieve record McConney’s alleged membership treat shows that Olson knew two facts about the Club a valid basis Olson’s fear McConney arguably support lend to a that he would and dangerous. be armed (1) determination of exigency: McCon- This is the recent teaching of our decision in ney had been convicted of an unspecified Rubio, United States v. F.2d felony, (2) recognized that Olson him Cir.1983). There, we held that a warrant because of an undercover unspecified en- for the search of a home of an alleged majority counter. What the does is what Angel supported by probable Hell’s was not appellate no doing: court has business because cause the facts set forth in the curing prosecutor’s a defect in case affidavit submitted to obtain the warrant gaps in the evidentia- gratuitously filling provide requisite were “insufficient between the ry nexus association of the de- record.

3. The such link naked fact that knew that at some to the criminal activities of Olson other Angels. time had been convicted of an un- members of the Hell’s specified felony surely provide any does not

1214 it). The record on might belief that he use

III much weaker than that exigency here is so can the inferences that When consider foregoing the courts in the upon by relied under the most chari permissibly be drawn exigency” “mild that it fails even the cases evidence, I to see how fail table view test, which does not relieve the a test or even the legal exigency, standard of that proving of the burden of government exigency,” standard of “mild United legal occupants will “there is a likelihood Bustamante-Gamez, 4,11 v. States evidence, resist, destroy attempt escape, denied, Cir.1973), 416 94 cert. U.S. within,” someone Bustamante-Ga- or harm 559 can be 40 L.Ed.2d S.Ct. mez, at 12. of all draining concept without satisfied reading the refusal of legal substance and record before us and evidentiary theOn statute requirement out of the admittance I believe inferences that permissible on the McConney That Olson believed altogether. it, from I conclude that fairly can be drawn he had a convicted felon and that to be a dan- was by a belief Olson not, him does undercover contact with prior upon have been based gerous could more, objec provide required without vio- assumptions about the unsubstantiated his for fear that he and tive basis Olson’s Hell’s tendencies of members of the lent endangered ob by fellow officers would be general- Angels generally. Any attempt mandate to wait serving statutory nature of individu- dangerous ize about the knock and briefly response for a to their serious first amend- al members raises Club purpose going before identity notice of the record questions precisely ment because screen door. The through McConney’s organ- that that Club is a worldwide tells us falls exigency basis for in this case record engaged in lawful activi- generally ization government’s bur carrying far short ties, record does not indi- because the in com proving exigency; pales den of pervasive violent behavior is a cate that held in other parison with the circumstances characteristic of its members. Su- objective bases for claims present cases to which has invalidated statutes preme Court peril.” exigency upon “palpable based membership penalize solely individuals McShane, See, v. e.g., United States “es- organizations and which unpopular (9th Cir.1972) (officers had informa F.2d alone, without guilt by tablish association suspects possessed shotgun tion that that an individual’s need to establish had been convicted of armed as previously the threat feared poses association officers); v. against police sault Gilbert it,” proscribing United Government States, (9th Cir.) (offi United 366 F.2d 923 Robel, 258, 265, 88 v. States killing suspect charged cers knew 419, 424, (1967) (invalidating denied, firearm), policeman with a Communists from prevented statute which 18 L.Ed.2d without de- working in defense factories Indeed, as stated in United States indi- showing particular manding any Kane, Cir.1981), (3d v. 637 F.2d 974 “courts organiza- aims of supported illegal viduals ground have found reasonable generally Russell, tion); see also Elfbrandt require the knock-notice exception [to 1238, 1241, 11, 17, 16 L.Ed.2d pos ... only] ment when the inhabitants (statute impermissibly created (1966) and there was indica weapons sessed some the member presumption “conclusive weapons,” to use those propensity tion of a organiza- aims of the shares the unlawful occu (officer’s knowledge at 979 id. groups members of certain denying tion” in drug op engaged large-scale were pants jobs). government state or right hold in house suffi guns and had five eration which we rigorous Under entry). unannounced Com justify cient to conclusion, I legal judge’s the trial review Fluker, F.2d 709 United pare can- reverse. I believe we would therefore oc (9th Cir.1976) (officer’s knowledge that we restrict this conviction if law not affirm possessed narcotics and cupant illegally record, when That to the record. justify ourselves fully gun owned a insufficient allusions by extraneous unembellished group characteristics of dangerous associ- allegedly which

ated, carry government’s simply fails circumstances proving

burden of failure to Agent Olson’s to excuse

sufficient 3109 before of section

observe the strictures home.

entering McConney’s and Z of San

William WALKER O. Ltd.,

Diego, Appellants and

Cross-Appellees Heublein, Inc.,

KFC CORPORATION Cross-Appellants.

Appellees and 81-5600, 81-5639.

Nos. Appeals,

United States Court

Ninth Circuit. 10, 1982. Dec.

Argued Submitted

Decided Feb.

Case Details

Case Name: United States v. Winston Bryant McConney

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Feb 10, 1984

Citation: 728 F.2d 1195

Docket Number: 80-1012

Court Abbreviation: 9th Cir.