FILED
NOT FOR PUBLICATION JUN 21 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10317
Plaintiff - Appellee, D.C. No. 2:10-CR-90-GEB
v. MEMORANDUM *
GABRIEL BENJAMIN JOHNSON,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., Senior United States District Judge, Presiding
Argued and Submitted June 12, 2013
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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Before: O’SCANNLAIN and HURWITZ, Circuit Judges, and SINGLETON,
District Judge.**
Gabriel Johnson appeals the district court’s denial of his motion to suppress
evidence obtained from the search of a house, arguing that the officers lacked
probable cause to believe that he resided there. This Court reviews de novo a
district court’s denial of a motion to suppress. United States v. Grant, 682 F.3d
827, 832 (9th Cir. 2012).
Johnson argues that the district court erred in determining that there was
probable cause to believe he lived at the house because it considered evidence
officers obtained after the officers entered the backyard of the house through a
neighbor’s adjoining backyard. Johnson argues that the search began when the
officers entered the backyard, and that the officers lacked probable cause at that
time to believe that Johnson lived there.
The government does not argue that the officers had probable cause to
believe that Johnson lived at the residence when they entered the backyard.
Rather, the government asserts that entry into the backyard did not constitute a
search under the “knock and talk” doctrine. See United States v. Washington, 387
F.3d 1060, 1063 n.2 (9th Cir. 2004). In the alternative, the government argues that
** The Honorable James K. Singleton, Senior United States District
Judge for the District of Alaska, sitting by designation.
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entry into the backyard was permissible “because the back and east side yard of
[the house] were common areas and apparently open to the public, [such that] the
officer’s [sic] did not violate Johnson’s reasonable expectation of privacy by
entering them.”
Because the record does not indicate that the enclosed backyard was in
common use by the public, it is part of the curtilage of the residence, and, because
the officers’ entry was “not consistent with an attempt to initiate consensual
contact with the occupants of the home,” the knock and talk exception does not
excuse the officers’ warrantless entry. See United States v. Perea-Rey, 680 F.3d
1179, 1188-89 (9th Cir. 2012). Consequently, the motion to suppress should have
been granted. See United States v. Howard, 447 F.3d 1257, 1265-66 (9th Cir.
2006).
Therefore, we REVERSE Johnson’s conviction and REMAND with
instructions to grant the Defendant’s motion to suppress.
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