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United States v. Shook

United States District Court, Ninth Circuit

May 29, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
RICHARD LEE SHOOK, Defendant.

MEMORANDUM DECISION AND ORDER

B. LYNN WINMILL, Chief District Judge.

INTRODUCTION

The Court has before it a motion to suppress filed by defendant Shook. No hearing was held, as the parties stipulated to presenting the motion on the briefs. The Court has reviewed those briefs and the other material submitted by the parties. For the reasons explained below, the Court will grant the motion.

FACTS

The defendant Richard Shook is charged with a single count of being a felon in possession of a firearm, a sawed-off shotgun found by police during a search of his home. He has filed a motion to suppress alleging that the warrantless search was improper and that the shotgun, and incriminating statements he made to police, should be excluded from evidence.

On February 17, 2011, at about 5:30 p.m., the Canyon County Sheriff's dispatcher received a 911 call from a cell phone. The call lasted about 5 seconds, but the caller said nothing and then hung up. The call was traced to a specific address in Caldwell, and Detective Hessman and Officer Farnsworth were dispatched to that address.

When they arrived at the residence, they knocked on the door, and rang the doorbell. They heard a dog bark from within the house, but no one answered the door. As they stood at the front door, they saw a young man come walking toward them from the rear of the residence. When they notified him that they were there because of a 911 hang-up call, he said everything was ok, and explained that he did not answer the front door because he had just stepped out for a smoke. One of the officers asked him, "Where's the marijuana....?" After Kolton explained he "didn't have any, " the officer asked "[d]id you just get done smoking it?" Kolton answered "[n]o." See Transcript (Dkt. No. 15-6) at p. 2.[1]

The officers then asked Kolton, "How many of you are here now?" Id. at p. 3. When Kolton answered "Huh?", the officers asked, "Just the two of you?" Kolton responded, "Yeah I guess. I can go upstairs and get Buey, " apparently referring to his brother's girlfriend who was upstairs. The officers asked him if these other occupants had locked him out and he said "yeah."

When the officers told him they had to clear the premises after getting the 911 call, Kolton began walking back toward the rear of the house with the officers accompanying him, then he reversed and said it would be better to go in the front door. When they reached the front door, Kolton looked over his shoulder at Officer Farnsworth, reached for the door knob, and then slightly opened the front door and stated that he would be right back. He then tried to slide his body through the doorway while he held the door as close as possible to his body. At this point, the officers smelled the odor of burnt marijuana coming from inside, "even stronger than it was on the front porch, " according to Detective Hessman. See Report (Dkt. No. 15-4). The officers instructed Kolton that they were not going to allow him to go unescorted into the residence, and they followed him in.

After entering the residence, the officers encountered (1) a young man with a bong for smoking marijuana, and (2) the strong odor of marijuana. The officers again asked if others were in the house, and were told by Kolton that his brother's girlfriend was upstairs.

Detective Hessman then conducted a security sweep of the house. In an upstairs room, he found the sawed-off shotgun that forms the basis for the Indictment in this case. The defendant, the owner of the residence, was not home at the time, but later admitted to police that he possessed the shotgun.

The defendant now alleges that the search of his home was illegal, and he seeks to suppress the shotgun and his statements to the police.

ANALYSIS

The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. "Nowhere is the protective force of the Fourth Amendment more powerful than it is when the sanctity of the home is involved." Los Angeles Police Protective League v. Gates, 907 F.2d 879, 884 (9th Cir.1990). Accordingly, it is a "basic principle" of Fourth Amendment law that "searches and ...


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