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United States v. Nora

United States Court of Appeals, Ninth Circuit

August 28, 2014

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
JOHNNY CASEL NORA, AKA John Carter, AKA John Nora, AKA Johnny Nora, AKA Johnny Carl Nora, Defendant-Appellant

Argued and Submitted January 8, 2014, Pasadena, California

Page 1050

Appeal from the United States District Court for the Central District of California. D.C. No. 2:09-cr-00092-SVW-1. Stephen V. Wilson, District Judge, Presiding.

SUMMARY[*]

Criminal Law

The panel reversed the district court's denial of a motion to suppress evidence seized from the defendant's home, and remanded for further proceedings, in a case in which the defendant entered a conditional guilty plea to possession of cocaine base with intent to distribute.

The panel held that although the defendant's arrest was supported by probable cause, the arrest violated Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), and violated the Fourth Amendment, where the officers physically took the defendant into custody outside his home in the front yard only by surrounding his house and ordering him to come out at gunpoint, and no exigency existed.

The panel held that evidence seized during a pat-down search incident to an arrest made in violation of Payton must be suppressed, whether the search occurs inside the home or, as in the case of the cash and marijuana here, outside the home. The panel held that the defendant's post-arrest statements are subject to suppression as well, as fruit of the unlawful search of his person. The panel held that suppression of this evidence renders the portions of the warrant authorizing a search for narcotics-related evidence and evidence of gang membership invalid. The panel held that the remaining untainted evidence did not establish probable cause to search the defendant's home for the broad range of firearms described in the warrant, and that as a consequence, the entire warrant was invalid and all evidence seized pursuant to it must be suppressed.

Michael J. Treman (argued), Santa Barbara, California, for Defendant-Appellant.

André Birotte Jr., United States Attorney, Robert E. Dugdale, Chief, Criminal Division, Cheryl L. O'Connor (argued) and Max B. Shiner, Assistant United States Attorneys, Los Angeles, California, for Plaintiff-Appellee.

Before: William A. Fletcher, Milan D. Smith, Jr., and Paul J. Watford, Circuit Judges.

OPINION

Page 1051

WATFORD, Circuit Judge:

The issue raised by this appeal is whether the police violated Johnny Nora's Fourth Amendment rights when they searched his home. The search yielded narcotics and firearms, which formed the basis for the federal charges brought against him. After the district court denied Nora's motion to suppress the evidence seized from his home, Nora entered a conditional guilty plea pending the outcome of this appeal.

Nora contends that, although the officers obtained a search warrant, all of the evidence discovered during the search must be suppressed because the warrant was invalid. The warrant was invalid, Nora argues, because it was based on information acquired as a result of his unlawful arrest. And his arrest was unlawful, Nora urges, because the officers either lacked probable cause to arrest him or, alternatively, arrested him in violation of Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).

I

The events relevant here occurred on a single night in January 2008. Two uniformed police officers were patrolling Nora's neighborhood in South Central Los Angeles in an unmarked car. As they drove down Nora's street, the officers saw three men they didn't know standing on the sidewalk in front of Nora's two-bedroom house, about 75 yards away. The officers lost sight of the men for a few seconds. By the time the officers pulled up in front of the house and got out of the car, two of the three men (Nora and Andre Davis) were standing on the porch, while the third (Patrick Hodges) stood in the front yard, which was enclosed by a metal fence. See Appendix (photograph of front yard and porch). The officers stood on the sidewalk and attempted to engage in casual conversation with the men.

According to the officers, whose testimony the district court credited over Nora's conflicting testimony, Nora appeared nervous and stood stiffly with his right side obscured from the officers' view. Seconds into the conversation, Nora abruptly spun toward the front door and pushed past Davis to get into the house. As he did so, the officers could see that Nora was holding a blue-steel semi-automatic handgun in

Page 1052

his right hand. One of the officers shouted " Stop! Police!" but Nora and Davis ignored the command, rushed into the house, and shut the door behind them.

After Nora and Davis fled into the house, one of the officers detained Hodges, who was still standing in the front yard, while the other officer ran around the side of the house to watch the back door. Someone inside the house turned off the only light that had been on, leaving the house completely dark. The officers then called for backup. Within minutes, some 20 to 30 officers arrived and surrounded the house with weapons drawn. They were aided by a police helicopter hovering above whose lights, Nora's wife testified, lit up the house " like the daytime."

A standoff ensued for the next 20 to 30 minutes, which ended when the officers used a public address system to order the occupants of the house to come out. Nora and Davis complied, followed a few minutes later by Nora's wife and children.

Officers immediately handcuffed Nora and searched him. They found a small amount of marijuana and more than $1,000 in cash on his person. One of the officers read Nora the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and then briefly questioned him. Nora made several incriminating statements in response to those questions. Specifically, Nora admitted that he had personal use quantities of methamphetamine and heroin in a dresser drawer, that he lived at the house, and that he belonged to a particular street gang. After determining Nora's identity, the officers ran a criminal background check, which revealed that Nora had a prior conviction for carrying a loaded firearm and two prior convictions for being a felon in possession of a firearm.

The officers sought and obtained a warrant to search Nora's home for the following items: marijuana, methamphetamine, heroin, and related paraphernalia; evidence relating to the sale of narcotics; firearms, magazines, and ammunition; and evidence of gang membership. The affidavit supporting the warrant relied on the officers' observations of Nora outside his home, as well as the evidence obtained as a result of Nora's arrest--namely, the marijuana and cash found on his person, his post-arrest statements, and the record of his prior convictions. Among other things, the search of Nora's home resulted in seizure of the following:

o From an ironing-board closet hidden behind the refrigerator: quantities of cocaine, cocaine base, marijuana, over $9,000 in cash, and four semi-automatic handguns.
o From a bedroom dresser drawer: quantities of heroin and methamphetamine.
o From the detached garage: quantities of cocaine base, one handgun, one rifle, two shotguns, two electronic scales, ...

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