The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER
The Court has before it Defendant's Motion to Suppress (Docket No. 18). The Court held an evidentiary hearing on the motion on July 19, 2010. For the reasons explained below, the Court will deny the motion.
On December 29, 2009, Sgt. Hoadley of the Caldwell Police Department received a report regarding the theft of a firearm. Shadrack ("Shad") Snow, an individual on misdemeanor probation, was implicated in the theft. At the instigation of the officers investigating the theft, Rick Lopez, Shad's probation officer, conducted a home visit on Shad.
On the morning of December 29, 2009, Lopez called Shad's home, where Shad resided with his Mother, Gloria Snow, his brother, Isaiah, and his Mother's boyfriend, Eddie Graham. During the telephone conversation, Lopez informed Snow that he wanted to do a home visit on Shad. Snow responded that she was leaving to care for her livestock. Lopez told her to stay home so he could do the home visit. The specific language used by Lopez and Snow during this conversation is somewhat unclear. The call was not recorded, and neither Snow nor Lopez could recollect the exact language used. However, during the evidentiary hearing, Snow testified that Lopez told her that "she could not leave until he completed his probation check." Lopez's version is not too dissimilar from that of Snow. He testified that Snow told him they were about to leave, and that he "asked her not to, and . . . said it wouldn't be very long before [he would be] there," and "told her to stick around because [he] wanted to talk to Shad."
Later that morning, Lopez, accompanied by Sgt. Hoadley and at least four other officers, visited Shad's home at 2705 Rawhide Drive. Two of the officers recorded the visit. After greeting Snow, Shad and Graham at the residence, Lopez asked if there was anyone else in the home. Snow responded that her sixteen year old son Isaiah was sleeping in his bedroom.
Lopez then said, "We're going to look around a little bit, ok?" (Ex. 203, at 1:12.) Lopez and the other officers then began their search. In Shad's room, Lopez located a .303 caliber round of ammunition. Lopez and the other officers continued the search for a few more minutes, but did not locate any firearms. Sgt. Hoadley then asked Snow if there were any guns in the house. Snow responded that the only guns she owned were kept locked in her bedroom. Sgt. Hoadley told Snow about the ammunition he found in Shad's Memorandum room and asked, "Do you mind if I take a look at your guns real quick?" (Ex. 203, at 8:00.) Snow responded by asking Graham if he had his keys to the bedroom. Graham stated that he had locked his keys in the bedroom. Snow then located her keys and unlocked the door. Sgt. Hoadley entered the bedroom and examined the guns. He asked Snow and Graham if either of them owned a handgun. Both stated that they did not. The officers exited the bedroom.
Lopez next began searching a desk in an area referred to as the office of the home. Graham protested the search, suggesting that the officers had no right to search that area. A dispute over the officers' right to search the area ensued. During the dispute, Graham stated that he "was on parole and probation . . . too" and was therefore aware of the laws governing probation searches. (Ex. 203, at 11:02.) Sgt. Hoadley asked Graham why he was formerly on probation. Graham told Sgt. Hoadley that he served time for grand theft.
Sgt. Hoadley told Graham that as a convicted felon he could not have firearms. Graham responded by asking Snow, "Gloria, whose guns are those?" (Ex. 203, at 13:14.) Snow replied, "they're mine, do I need to move them?" Sgt. Hoadley responded, "they can't be in this house," while Graham simultaneously responded, "I guess." Snow replied, "ok, I'll find somewhere else to put them." (Ex. 203, at 13:19.) Sgt. Hoadley then told Graham to "stay back." Graham responded, "I can exit my office," and Sgt Hoadley replied, "not until we seize the firearms." (Ex. 203, at 13:22.) Snow then recovered her bedroom key for a second time, and another officer said, "Ma'am, I'm just going to walk back here with you, ok?" (Ex. 203, at 13:47.) Snow responded by saying "ok." (Ex. 203, at 13:48.)
The dispute between Sgt. Hoadley and Graham escalated verbally, and Sgt. Hoadley ultimately placed Graham in handcuffs. The officers then seized four guns from the bedroom, including a .303 bolt-action rifle, a 12-gauge pump-action shotgun, a 12-gauge singleshot shotgun, and .22 bolt-action rifle. After further discussions between Sgt. Hoadley and Graham, Sgt. Hoadley transported Graham to the county jail.
A warrantless search is presumptively unreasonable under the Fourth Amendment to the Constitution, except in limited circumstances. Kyllo v. United States, 533 U.S. 27, 31 (2001); United States v. Reid, 226 F.3d 1020, 1025 (9th Cir. 2000), quoting United States v. Shaibu, 920 F.2d 1423, 1425 (9th Cir. 1990). The government bears the burden of justifying a warrantless search. United States v. Johnson, 936 F.2d 1082, 1084 (9th Cir. 1991).
Here, the government contends that the warrantless search was done with consent. "Consent, when voluntarily granted by someone with authority, is one of the recognized exceptions to the warrant requirement." United States v. Matlock, 415 U.S. 164, 170 (1974). In this case, the government contends that Graham's then girlfriend (the two have since married), Gloria Snow, with whom Graham ...