FILED
NOT FOR PUBLICATION NOV 30 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-30026
Plaintiff - Appellee, D.C. No. 3:10-cr-00116-TMB-1
v.
MEMORANDUM*
LEONARD ANDREW LAWSON,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Alaska
Timothy M. Burgess, District Judge, Presiding
Argued and Submitted November 6, 2012
Seattle, Washington
Before: W. FLETCHER and FISHER, Circuit Judges, and DEARIE, Senior
District Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Raymond J. Dearie, Senior United States District
Judge for the Eastern District of New York, sitting by designation.
Defendant-Appellant Leonard Lawson appeals his conviction for being a
felon in possession of a firearm. He argues that the firearm was discovered in the
course of an unlawful search and should have been suppressed.
Seizure of evidence in a home is improper under the Fourth Amendment
“unless the initial entry is lawful, either pursuant to a valid warrant or under one of
the recognized exceptions to the warrant requirement.” United States v. Hotal, 143
F.3d 1223, 1228 (9th Cir. 1998). Here, the police did not comply with the
conditions of the warrant. The warrant allowed entry into a dwelling to retrieve a
controlled package containing mostly sham narcotics under three circumstances:
(1) if the electronic transmitter emitted a continuous tone indicating the box had
been opened; (2) if the electronic transmitter failed to transmit; or (3) if two hours
had elapsed after delivery with no change in the transmitter. It is undisputed that
circumstances (1) and (3) did not exist. The only circumstance at issue is (2). The
electronic transmitter never failed to transmit. Instead, it prematurely emitted the
continuous tone indicating the box had been opened, beginning before the box left
police custody. Because none of the three circumstances specified in the warrant
existed, the district court erred when it determined that entry was based on the
warrant.
2
The district court also erred when it determined, in the alternative, that the
police lawfully made warrantless entry into Lawson’s residence due to exigent
circumstances. “Exigent circumstances justify a warrantless entry, search, or
seizure when police officers, acting on probable cause and in good faith,
reasonably believe from the totality of the circumstances that . . . evidence or
contraband will imminently be destroyed . . . .” United States v. Ojeda, 276 F.3d
486, 488 (9th Cir. 2002) (internal quotation marks omitted) (quoting United States
v. Kunkler, 679 F.2d 187, 191-92 (9th Cir. 1982) (footnote omitted)). “The
government bears the burden of showing specific and articulable facts to justify the
finding of exigent circumstances.” Ojeda, 276 F.3d at 488.
Exigent circumstances were not present here. Because the electronic
transmitter continued to transmit a signal, the police could track the box throughout
the operation. The person who had collected the box at the first dwelling had left
the second dwelling and had already been arrested when police made entry into the
second dwelling. No facts indicated that essential evidence would imminently be
destroyed. Most of the drugs that had been in the box had been removed by police
and replaced with sham substances before the box was delivered. The government
has not shown that a replacement warrant could not have been obtained fairly
quickly. See United States v. Howard, 828 F.2d 552, 555 (9th Cir. 1987).
3
The firearm was seized during an unlawful search and should have been
suppressed. We VACATE the conviction and REMAND to the district court for
further proceedings.
4