United States v. Brett Parkins

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-50186

Plaintiff-Appellee, D.C. No.
8:21-cr-00175-
v. FLA-1

BRETT WAYNE PARKINS,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Central District of California
Fernando L. Aenlle-Rocha, District Judge, Presiding

Argued and Submitted December 11, 2023
Pasadena, California

Filed February 14, 2024

Before: Susan P. Graber, Morgan Christen, and John B.
Owens, Circuit Judges.

Opinion by Judge Owens
2 USA V. PARKINS

SUMMARY *

Criminal Law

The panel reversed the district court’s denial of Brett
Wayne Parkins’s suppression motion concerning the search
of his apartment, affirmed the district court’s refusal to
suppress Parkins’s pre-arrest and post-arrest statements, and
remanded, in a case in which Parkins was convicted of
aiming a laser pointer at an aircraft.
The district court held that patrol officers’ warrantless
search of the apartment, to which Parkins’s girlfriend
consented, was valid. After reviewing the Supreme Court’s
cases regarding warrantless searches involving the consent
of a co-tenant, the panel concluded that to satisfy Georgia v.
Randolph, 547 U.S. 103 (2006), Parkins must have both
been present on the premises and expressly refused
consent. The panel explained that a defendant need not
stand at the doorway to count as being physically present—
presence on the premises (including its immediate vicinity)
is sufficient. The panel wrote that in light of the layout of
the property and Parkins’s close proximity to his apartment,
the nearby mailboxes bordering the parking lot where
Parkins was detained were part of the relevant premises;
thus, under Randolph, Parkins was physically present on the
premises to validly object. The panel also wrote that it is
clear that Parkins expressly refused consent, as Parkins’s
statement not to let the police into the apartment expressly
conveyed his objection and the import of that statement was

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 USA V. PARKINS 3

especially clear following on the heels of his physical
resistance at the doorway of his home. Accordingly, the
consent-based search of Parkins’s home was unlawful.
Because Parkins was not subject to interrogation, the
panel affirmed the district court’s denial of Parkins’s motion
to suppress his pre-arrest un-Mirandized statements made
while he was detained outside his apartment complex.
The panel held that the district court properly declined to
suppress, as fruit of the poisonous tree, Parkins’s post-arrest
statements made during his jailhouse interview. The panel
concluded that Parkins’s statements at the police station
were not a product of the unlawful search of his apartment
because the officers did not confront Parkins with the
evidence obtained as a result of that search. The panel also
concluded that his statements were not a product of a
purportedly unlawful arrest, as the police had ample
probable cause to arrest Perkins before they found the laser
pointer in his apartment.

COUNSEL

Caroline S. Platt (argued), Assistant Federal Public
Defender; Sonam A.H. Henderson, Deputy Federal Public
Defender; Cuauhtemoc Ortega, Federal Public Defender;
Federal Public Defender’s Office, Los Angeles, California;
for Defendant-Appellant.
Kristin N. Spencer (argued) and Melissa S. Rabbani,
Assistant United States Attorneys, Office of the United
States Attorney, Santa Ana Branch, Santa Ana, California;
Bram M. Alden, Assistant United States Attorney, Criminal
Appeals Section Chief; E. Martin Estrada, United States
4 USA V. PARKINS

Attorney; Office of the United States Attorney, Los Angeles,
California; for Plaintiff-Appellee.

OPINION

OWENS, Circuit Judge:

Brett Wayne Parkins was convicted of aiming a laser
pointer at an aircraft, in violation of 18 U.S.C. § 39A. On
appeal, he argues that the search of his apartment for the
laser pointer violated his Fourth Amendment rights and that
his statements made outside his apartment during his
detention and in jail following his arrest should be
suppressed. While we reject the challenges to his
statements, we agree that the search of the apartment was
problematic. Having jurisdiction under 28 U.S.C. § 1291,
we affirm in part, reverse in part, and remand.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The Laser Strikes
On the night of June 25, 2021, a Huntington Beach
Police Department helicopter was searching for a vehicle
involved in a fatal hit-and-run. Suddenly, a bright green
laser, shot from the ground, struck the aircraft. Laser beams
pose a serious safety risk, interfering with a pilot’s eyesight
and ability to fly safely. This was not a first-time event—
over the past six months, lasers repeatedly had hit other
police helicopters, and commercial aircraft at nearby airports
had complained of similar attacks. The helicopter’s crew
(Officers Garwood and Vella) turned their attention (and
their highly sophisticated thermal camera) to a nearby
apartment complex. Officer Garwood had, on previous
 USA V. PARKINS 5

flights, been struck by green lasers originating from this
same area.
Another laser hit the helicopter. The thermal camera
captured the image of a man with a stocky build and large
stomach, wearing shorts and a hat, walking from the area of
the laser blast into a nearby breezeway, and then
disappearing from view. Yet another laser strike, this time
from one of the apartment’s walkways, targeted the
helicopter. The same man reappeared with what seemed to
be a water bottle in his hand, walked toward a parked car,
opened and shut the car doors, returned to the breezeway,
and again disappeared. Moments later, he reappeared in a
different area of the apartment complex, ran up some stairs,
and was out of sight once again. A few minutes later, the
suspect emerged onto a second-floor apartment balcony with
the same water bottle, but wearing different clothes. Officer
Garwood, believing this man to be responsible for the laser
strikes, directed patrol officers to the apartment to
investigate further.
B. The Apartment Encounter
Patrol officers Smith and Rivas arrived at the apartment
complex and spotted the suspect (who turned out to be
Parkins) standing on the second-floor apartment balcony, as
Officer Garwood had described. The officers climbed the
stairs and knocked on the door of the apartment, and a
woman (Parkins’s girlfriend) opened it. She initially denied
that her boyfriend (Parkins) was home. But when the
officers said that they had just seen him and that they needed
to speak with him about shining a laser at the police
helicopter, she turned around and walked back into the
apartment. The door closed—but did not latch—behind
her. The officers pushed the door back open but remained
6 USA V. PARKINS

outside on the landing. While waiting for Parkins, the
officers noticed a sign by the front door indicating that the
apartment’s occupants owned firearms. A few moments
later, Parkins’s girlfriend returned and told the officers that
Parkins was getting dressed.
Parkins soon appeared and stepped outside the apartment
onto the landing. The officers asked him if he had any
weapons, and he said no. But when the officers began to
check him for weapons, Parkins resisted, tried to reenter the
apartment, and asked if he was under arrest. Officer Smith
grabbed Parkins and pulled him away from the door. Officer
Smith confirmed that Parkins lacked any weapons and then
escorted him downstairs to a nearby bench for “a chat.” A
third officer (Officer Jamison) arrived on the scene.
When the officers and Parkins spoke at the bench,
Parkins repeatedly denied owning a laser or pointing one at
the helicopter. He asked if he could see his girlfriend or
return to the apartment, but the officers told him that he was
detained. When Parkins asked the same question roughly
ten minutes later, the officers again told him that he was
detained. At Parkins’s request, the officers moved him to a
set of mailboxes bordering the parking lot roughly twenty
feet from his apartment so he would be less exposed to his
neighbors. From this position, Parkins was located down
one flight of stairs and one short walkway from the entrance
to his unit.
While Officers Rivas and Jamison remained with
Parkins, Officer Smith returned to the apartment and asked
Parkins’s girlfriend if the police could search for the laser
pointer. She agreed, and Officer Smith left the apartment to
obtain a written consent-to-search form from his car. Officer
Smith returned and, as Parkins’s girlfriend was executing the
 USA V. PARKINS 7

consent form, Parkins yelled to her, “Don’t let the cops in,
and don’t talk to them.” Both Officer Smith and Parkins’s
girlfriend heard Parkins loud and clear—the body camera
shows both turning their heads toward Parkins’s voice.
About a minute later, Parkins yelled, “Don’t talk to them,
talk to them outside.” He then followed up with, “Don’t tell
them anything.” Officer Smith returned downstairs and
ordered Parkins removed from the mailbox area in handcuffs
and placed in a squad car because he was “running [his]
mouth” and “obstruct[ing]” the investigation. Up to this
point, Parkins had been detained outside for roughly twenty
minutes.
With Parkins secured in the squad car, where he would
sit for another half hour, officers searched the nearby area,
including his girlfriend’s vehicle. (Officer Smith had
determined that this vehicle was the same one that Officer
Garwood had observed Parkins open.) During the search,
Officer Rivas encountered two men who resided in the same
complex. One of them referred to Parkins as “the laser
pointer guy.” The officers then proceeded to search the
apartment. After about twenty minutes, they found a laser
pointer with the name “Brett” etched on it.
According to their report, the police now believed that
they had probable cause to arrest Parkins based on Officer
Garwood’s observations and the discovery of the laser
pointer. The officers thus arrested Parkins and drove him to
the Huntington Beach Police Department jail. At no time
did Parkins consent to the officers’ entry into the apartment,
and the officers never obtained a search warrant. 1

1
Parkins does not dispute that his girlfriend had authority to consent to
a search of their shared apartment or that her consent was voluntary.
8 USA V. PARKINS

C. The Interrogation
At the jail, the helicopter crew (Officers Garwood and
Vella) obtained an oral Miranda waiver from Parkins and
questioned him. The interrogation was recorded on Officer
Garwood’s body-worn camera. After initially denying that
he owned a laser pointer, Parkins eventually admitted to
having a green one but claimed that he never aimed it at any
aircraft. During the interrogation, the officers never
displayed the laser pointer or mentioned having found it in
Parkins’s apartment.
D. The Indictment, Suppression Motions, and
Conditional Plea
A grand jury indicted Parkins with one count of aiming
a laser pointer at an aircraft, in violation of 18 U.S.C. § 39A.
Parkins moved to suppress the laser pointer and the post-
arrest jailhouse statements as fruits of the warrantless search
and/or seizure. He filed a second motion to suppress the
statements made during his detention outside the
apartment. Neither party requested a hearing.
The challenged search of the apartment required the
district court to harmonize a series of Supreme Court cases,
including Georgia v. Randolph, 547 U.S. 103 (2006), and
Fernandez v. California, 571 U.S. 292 (2014), regarding
warrantless searches involving the consent of a co-
tenant. Believing that those cases did not squarely answer
the question in this case—whether a defendant must be
standing at the doorway to object to a warrantless search to
which his co-tenant consents—the district court looked to
out-of-circuit precedent, United States v. Jones, 861 F.3d
638 (7th Cir. 2017), and concluded that a defendant can
validly object to a search of his residence only if he is
“standing at the door and expressly refusing consent.” Id. at
 USA V. PARKINS 9

643. Because the officers lawfully removed Parkins from
the doorway and escorted him downstairs, the district court
concluded that he was not “physically present” to object
successfully to the search. And, the district court held,
Parkins did not “expressly” refuse consent to search the
apartment, as he merely instructed his girlfriend not to admit
the officers. The district court reasoned that Parkins never
told the officers “directly” that he did not want them in the
apartment and Parkins’s pleas that the officers not enter the
apartment were “[a]t best . . . an implicit refusal” to consent
to the search. As Parkins failed to satisfy both requirements
of the co-tenant consent search doctrine—presence at the
doorway and an express refusal of consent—the district
court held that the officers’ warrantless search was
valid. And, because the district court upheld the warrantless
search, the subsequent jailhouse statements could not have
been fruit of the poisonous tree.
The district court also denied Parkins’s second
suppression motion, ruling that Parkins’s statements during
his detention outside his apartment were not the product of
custodial interrogation and thus not protected by Miranda v.
Arizona, 384 U.S. 436, 444 (1966). The district court
explained that, although Parkins was not free to leave, his
interrogation did not go beyond a brief and relatively non-
threatening Terry stop. In so holding, the court pointed to
the following circumstances: Parkins was consistently told
that he was not under arrest; he was afforded some freedom
of movement; a twenty-minute detention was reasonable; the
police acted diligently in pursuing their investigation; and he
was asked a moderate number of questions. The district
court also deemed his statements to have been voluntary.
After the denial of his suppression motions, Parkins
entered a conditional guilty plea, which permitted him to
10 USA V. PARKINS

challenge these rulings on appeal. The district court
sentenced him to eight months in prison and three years of
supervised release.
II. DISCUSSION
A. Standards of Review
We review de novo a district court’s denial of a motion
to suppress. United States v. Zapien, 861 F.3d 971, 974 (9th
Cir. 2017) (per curiam). We review the underlying factual
findings for clear error. Id. We may affirm the denial of a
motion to suppress “on any basis supported in the record.”
United States v. Ruiz, 428 F.3d 877, 880 (9th Cir. 2005).
We review de novo whether a defendant is “in custody,”
United States v. IMM, 747 F.3d 754, 766 (9th Cir. 2014), or
subject to “interrogation” pursuant to Miranda, Zapien, 861
F.3d at 974.
B. Warrantless Consent Searches Involving Co-
Tenants
Though the Fourth Amendment generally prohibits
warrantless entry into a person’s home, an exception applies
to consent-based searches. Schneckloth v. Bustamonte, 412
U.S. 218, 228 (1973). The government bears the burden to
demonstrate that an exception to the warrant requirement
applies. United States v. Lundin, 817 F.3d 1151, 1157 (9th
Cir. 2016).
The Supreme Court has addressed a string of consent
search cases involving co-tenants. Before assessing the
consent search at issue here, a review of those precedents is
helpful. In United States v. Matlock, 415 U.S. 164 (1974),
Matlock was arrested in the front yard of the house in which
he lived with his partner (among others), id. at 166, and
 USA V. PARKINS 11

subsequently “restrained in a squad car a distance from the
home,” id. at 179 (Douglas, J., dissenting). Following
Matlock’s arrest, his partner granted the police entry. Id. at
166. The Court held that, as between two co-tenants, “the
consent of one who possesses common authority over
premises or effects is valid as against the absent,
nonconsenting person with whom that authority is shared.”
Id. at 170.
The Supreme Court confronted a related situation in
Illinois v. Rodriguez, 497 U.S. 177 (1990). There, the police
gained entry to an apartment with the permission of one
cohabitant who had apparent but not actual authority to
consent to the search. Id. at 180. Upon entering, the police
moved through the living room and proceeded to the
bedroom, where they found Rodriguez asleep. Id. The
Court ruled that a warrantless entry does not violate the
Fourth Amendment if the police reasonably believe that the
person who consented had the authority to do so. Id. at 188–
89. Both Matlock and Rodriguez focused on the actual or
apparent authority of a third party to consent to a search of a
home; neither case squarely confronted the legality of such
a search in the face of a contemporaneous objection by the
defendant.
The Supreme Court addressed that issue in Georgia v.
Randolph, 547 U.S. 103 (2006), ruling that a warrantless
search of a shared dwelling cannot be justified “over the
express refusal of consent by a physically present resident.”
Id. at 120. In that case, Randolph arrived at his house to find
his wife speaking to the police. Id. at 107. When the police
asked Randolph for permission to search the house, he
“unequivocally refused.” Id. Police nevertheless ignored
Randolph’s refusal and, on the basis of his wife’s consent,
proceeded to search the house. Id. The Court invalidated
12 USA V. PARKINS

the search, holding that “a physically present co-occupant’s
stated refusal to permit entry prevails, rendering the
warrantless search unreasonable and invalid as to him.” Id.
at 106.
In reaching its conclusion, Randolph was careful to
preserve both Matlock and Rodriguez and, in so doing,
explained that it was “drawing a fine line”—“if a potential
defendant with self-interest in objecting is in fact at the door
and objects, the co-tenant’s permission does not suffice for
a reasonable search, whereas the potential objector, nearby
but not invited to take part in the threshold colloquy, loses
out.” Id. at 121 (emphasis added). However, “[w]hether
those words [‘at the door’] should be taken literally . . .
would seem open to question.” 4 Wayne R. LaFave, Search
& Seizure § 8.3(d) (6th ed. 2022).
The better reading of Randolph counsels that the words
“at the door” should not be taken as mandatory. See United
States v. Tatman, 397 F. App’x 152, 161 (6th Cir. 2010)
(declining to place undue emphasis on Randolph’s reference
to “the door” because Randolph itself did not intend that
language “to be talismanic”). As the Supreme Court stated
over and over in Randolph, a defendant need only be
“physically present” to object to a search. 547 U.S. at 106,
120 (using the term “physically present” when handing
down its holding). 2
Fernandez v. California, 571 U.S. 292 (2014), next in
this line of two-party consent cases, removes any lingering

2
See also Randolph, 547 U.S. at 106 (“present at the scene”); id. at 108
(“a co-tenant who is present”); id. at 109 (“physically present”); id. at
114 (“a present and objecting co-tenant”); id. at 121 (“a physically
present fellow tenant”); id. (a “fellow occupant on hand”); id. at 122 (“a
physically present inhabitant’s express refusal of consent”).
 USA V. PARKINS 13

doubt—physical presence is not limited to the doorway, but
merely “requires presence on the premises to be searched.”
Id. at 306 (noting that, as a result, “there may be cases in
which the outer boundary of the premises is disputed”). As
the Colorado Supreme Court explained when examining this
same issue, “the Court in Fernandez clarified that the
requirement of physical presence is not restricted to presence
at ‘the threshold’ of the residence.” Williams v. People, 455
P.3d 347, 353 (Colo. 2019). Fernandez continued:

The Court confronted a similar problem last
Term in Bailey v. United States, 568 U.S.
[186] . . . (2013), but despite arguments
similar to those now offered by petitioner, the
Court adopted a rule that applies only when
the affected individual is near the premises
being searched. Having held that a premises
rule is workable in that context, we see no
ground for reaching a different conclusion
here.

571 U.S. at 306.
In Bailey, the Court had held that the authority to detain
a person incident to the execution of a search warrant “must
be limited to the immediate vicinity of the premises to be
searched,” 568 U.S. at 199, and offered the following
guidance: that the “immediate vicinity” is not limited to the
doorway or even the property lines, see id. at 201. Instead,
courts should examine the entire context, “including the
lawful limits of the premises, whether the occupant was
within the line of sight of his dwelling, the ease of reentry
from the occupant’s location, and other relevant factors.” Id.
Accordingly, in evaluating a consent-based search, the
14 USA V. PARKINS

Colorado Supreme Court took heed of Fernandez and Bailey
and held that a defendant could object from “the threshold of
the premises, elsewhere on the premises, or near the
premises.” Williams, 455 P.3d at 354.
Courts applying the Bailey factors in detention cases also
have not limited their inquiry to a “doorway rule.” For
example, in United States v. Freeman, 964 F.3d 774 (8th Cir.
2020), the court concluded that a defendant who sat in a
parked car “three car lengths” from the residence was within
the immediate vicinity and could be detained because he was
“within the line of sight of the dwelling” and “close enough
to allow easy access to the home.” Id. at 781. Even areas
not within the “lawful limits of the premises” can be within
the immediate vicinity for Fourth Amendment purposes. Id.;
see also State v. Tripp, 873 S.E.2d 298, 309 (N.C. 2022)
(holding that a detainee was in the immediate vicinity where
detained sixty yards away on a porch neighboring the
premises to be searched); State v. Davis, 353 P.3d 1091,
1095–96 (Idaho Ct. App. 2015) (extending Bailey to the
common area of a multi-unit, multi-building apartment
complex).
Despite Fernandez’s explicit reference to Bailey’s
“premises rule,” the Seventh Circuit has focused exclusively
on the doorway when evaluating Randolph challenges. First,
in United States v. Witzlib, 796 F.3d 799 (7th Cir. 2015), the
Seventh Circuit upheld a consent-based search even though
the objecting defendant was standing in the driveway, and
therefore not “in fact at the door.” Id. at 802 (quoting
Randolph, 547 U.S. at 121). And in Jones, the Seventh
Circuit again upheld a consent-based search where the
defendant was “located ten to twenty feet from the entrance
of the residence.” 861 F.3d at 640. The Seventh Circuit
reasoned that, even if Jones had objected, “he was no longer
 USA V. PARKINS 15

‘standing at the door and expressly refusing consent’ when
the officers received . . . consent to search the residence.” Id.
at 643. The government urges us to follow the Seventh
Circuit’s emphasis on presence at the door and to hold that,
because the police had lawfully removed Parkins from the
doorway, he lacked the ability to object.
But the Seventh Circuit in Witzlib and Jones never
analyzed or acknowledged Fernandez’s reliance on Bailey
to establish a “premises rule” and define its scope. The
proposed doorway rule thus ignores Fernandez’s clear
application of Bailey’s “premises rule” to the co-tenant
consent context. Fernandez, 571 U.S. at 306; see also
Williams, 455 P.3d at 353–54. And the doorway rule is, as
a result, not “workable.” See Fernandez, 571 U.S. at 306.
Under the government’s view, a defendant standing in his
own driveway or on his porch mere feet from the doorway
could not validly object. Consider, furthermore, a potential
objector standing within the curtilage—the area
“immediately surrounding and associated with the home”
that is treated as “part of [the] home itself for Fourth
Amendment purposes.” Lundin, 817 F.3d at 1158 (alteration
in original) (quoting Oliver v. United States, 466 U.S. 170,
180 (1984)). A doorway rule would seem to require that
even a person standing in their curtilage is not sufficiently at
“home” to lodge a valid objection.
Finally, requiring a defendant to stand “at the door”
ignores the practical reality that the “threshold [consent]
colloquy” may not actually take place on the threshold.
Randolph, 547 U.S. at 121. In this case, for instance, the
relevant colloquies between the officer and Parkins’s
girlfriend occurred in the living room. In short, ignoring
Fernandez’s instruction that “Randolph requires presence on
the premises” creates all kinds of practical problems,
16 USA V. PARKINS

including a dangerous and bizarre incentive to race to the
doorway to lodge an objection. 571 U.S. at 306. Nothing in
any of the Supreme Court’s cases suggests that this incentive
is necessary or that it is a good idea.
Thus, our review of the Supreme Court’s co-tenant
consent cases leads us to conclude that, to satisfy Randolph,
Parkins must have both been present on the premises and
expressly refused consent. See Randolph, 547 U.S. at 106.
And a defendant need not stand at the doorway to count as
being physically present—presence on the premises
(including its immediate vicinity) is sufficient. See
Fernandez, 571 U.S. at 306; Bailey, 568 U.S. at 201.
1. Physical Presence
Applying the Bailey factors to this case, it is clear that
Parkins was well within the immediate vicinity of his
apartment when he objected to the officers’ presence at his
apartment. Parkins objected while located down one flight
of stairs and one short walkway from the entrance to his unit.
See Davis, 353 P.3d at 1096 (stating that a “communal
sidewalk” eight to ten feet from the “bottom of the stairs”
leading to the apartment being searched counted as
immediate vicinity). As he sat on the curb of the parking lot
by the mailboxes, he was roughly twenty feet from the front
window and balcony of his unit. Parkins was both within the
line of sight of his apartment and close enough to have made
an easy entry had the officers allowed him to return. See
United States v. Murray, 659 F. App’x 1023, 1027 (11th Cir.
2016) (per curiam) (holding that a driveway of the property
adjacent to the defendant’s residence was in the immediate
vicinity because of line of sight and ease of reentry). Parkins
was in such close proximity to his apartment that even the
officer inside heard Parkins object to the search and
 USA V. PARKINS 17

immediately thereafter moved him to the police cruiser, to
stop him from “running [his] mouth” and “obstruct[ing]” the
investigation.
In light of the layout of the property and Parkins’s close
proximity to his apartment, the nearby mailboxes bordering
the parking lot where Parkins was detained were part of the
relevant premises. Thus, under Randolph, Parkins was
physically present on the premises to validly object.
2. Express Objection
Satisfied that Parkins was physically present, we turn to
whether he expressly refused consent. It is clear that he did.
A defendant’s objection must be express. “[I]mplicit
refusals” are insufficient. United States v. Moore, 770 F.3d
809, 813 (9th Cir. 2014). But both words and actions can
constitute an express refusal to grant the police entry. See
Bonivert v. City of Clarkston, 883 F.3d 865, 875 (9th Cir.
2018) (rejecting the government’s argument that an express
refusal must be a “verbal refusal”). In Bonivert, we
identified two express refusals where Bonivert first “locked
the side door” and then “attempted to close the back door”
on the officers as they tried to gain entry to his home. Id.;
see also United States v. Williams, 521 F.3d 902, 907 (8th
Cir. 2008) (recognizing an express refusal where “Williams
slammed the door and put the dead bolt on”).
Parkins’s statement (“Don’t let the cops in”), which all
the officers heard, was sufficiently clear to convey his
objection to allowing the police to enter his apartment. A
reasonable person would have understood Parkins’s intent to
keep the inside of his home private. Just fifteen minutes
prior, Parkins had, moreover, already resisted contact with
the police at his front door by attempting to pull away from
18 USA V. PARKINS

the officers and retreat into his apartment when they initiated
a frisk for weapons. That resistance to the police at his
doorstep further clarifies the import of Parkins’s subsequent
express objection—he did not want the police in his home.
See Bonivert, 883 F.3d at 875–76 (crediting Bonivert’s
physical resistance to the police as they approached his home
and ultimately attempted to gain entry); see also Cummings
v. City of Akron, 418 F.3d 676, 685 (6th Cir. 2005) (An
occupant’s “attempt to close the door . . . communicated his
lack of consent to any further intrusion by the officers.”).
Parkins’s yell, following his Bonivert-like physical
resistance at his doorstep fifteen minutes earlier, made clear
to everyone that he did not want the police in his home.
Compare Bonivert, 883 F.3d at 876 n.9 (defendant “engaged
in affirmative conduct to prevent the police from entering his
home”), with Moore, 770 F.3d at 813–14 (defendant “simply
acquiesced” by ignoring the police, refusing to come to the
door, and doing nothing to prevent the officers from entering
his home). Indeed, immediately following Parkins’s yell not
to let the police in, the officers moved him into the police car
because he was “obstruct[ing]” their investigation. That
Parkins was seen to be impeding the investigation reveals
that the police understood well that Parkins did not want
them to enter his apartment. See Bonivert, 883 F.3d at 876
(noting that the police’s subjective understanding that
Bonivert did not want contact with them left “no doubt that
Bonivert’s refusal of consent was ‘express’”).
The government nonetheless contends that Parkins did
not lodge an express objection because he never told the
officers directly that he was refusing them entry. The district
court accepted this argument. But no case law supports the
district court’s requirement that objections be directed
specifically toward the officers to qualify under Randolph.
 USA V. PARKINS 19

If anything, the case law points in the opposite direction. See
Bonivert, 883 F.3d at 875–76. 3
Thus, Parkins’s statement not to let the police into the
apartment expressly conveyed his objection. And the import
of that statement was especially clear following, as it did, on
the heels of his physical resistance at the doorway of his
home. Accordingly, the consent-based search of Parkins’s
home was unlawful. It was conducted “over the express
refusal of consent by a physically present resident.”
Randolph, 547 U.S. at 120. We reverse the district court’s
denial of Parkins’s suppression motion concerning the
apartment search.
C. Pre-Arrest Statements
Parkins also seeks to suppress his un-Mirandized
statements made while he was detained outside his
apartment complex. We affirm the district court’s denial of
Parkins’s suppression motion as to this claim; these
statements were not a product of Miranda interrogation.
Only suspects who are subject to “custodial
interrogation” are entitled to Miranda warnings. See
Miranda, 384 U.S. at 444. Interrogation “refers not only to
express questioning, but also to any words or actions on the
part of the police (other than those normally attendant to
arrest and custody) that the police should know are
reasonably likely to elicit an incriminating response from the

3
The government also argues that Parkins’s objection came “too late to
override [his girlfriend’s] consent,” citing United States v. Stabile, 633
F.3d 219, 225 (3d Cir. 2011), a case in which the defendant did not arrive
home until after “the search had been completed.” By contrast, we are
satisfied that the objection in this case was sufficiently
contemporaneous. Indeed, Parkins audibly objected as Officer Smith
waited for Parkins’s girlfriend to complete the consent form.
20 USA V. PARKINS

suspect.” Rhode Island v. Innis, 446 U.S. 291, 301 (1980)
(footnote omitted). “[I]nterrogation ‘must reflect a measure
of compulsion above and beyond that inherent in custody
itself.’” Bradford v. Davis, 923 F.3d 599, 618 (9th Cir.
2019) (quoting Innis, 446 U.S. at 300).
During a Terry stop, the police “may ask the detainee a
moderate number of questions to determine his identity and
to try to obtain information confirming or dispelling the
officer’s suspicions” without running afoul of Miranda.
Berkemer v. McCarty, 468 U.S. 420, 439 (1984).
“Ordinarily, the routine gathering of background
biographical data will not constitute interrogation.” United
States v. Booth, 669 F.2d 1231, 1238 (9th Cir. 1981). Nor
are a suspect’s “[v]oluntary statements . . . considered the
product of interrogation.” United States v. Washington, 462
F.3d 1124, 1132 (9th Cir. 2006) (citing Innis, 446 U.S. at
300).
The district court determined that Parkins’s detention
lasted only twenty minutes, from the moment he was initially
detained until he was handcuffed and placed in the back of
the police car. Parkins was restrained in the police car for
another thirty minutes before he was arrested and driven to
the Huntington Beach Police Department jail. Because
Parkins does not contend that the police asked him any
questions or that he made any statements during that
subsequent thirty-minute period, we focus our analysis on
the first twenty minutes of his detention.
After detaining Parkins at his doorstep, the officers asked
basic questions, including his name and whether he was on
probation or parole. The officers then directed Parkins
downstairs to “have a chat.” The officers explained that they
had been having “a ton of problems” with Parkins striking
 USA V. PARKINS 21

their helicopter with a laser, that the helicopter’s camera had
recorded him that evening, and that they were “here to talk
to you and tell you stop.” During this exchange, the officers
conducted themselves in a manner that was professional and
unabusive—even friendly at times.
The remainder of the twenty minutes during which
Parkins sat outside with the officers comprised periods of
silence interspersed with brief exchanges. The officers
asked no further questions about the laser strikes apart from
asking once where Parkins’s laser pointer was located. This
question did no more than “confirm[] or dispel[] the officer’s
suspicions.” Berkemer, 468 U.S. at 439. The officers did
not resume questioning after Parkins denied that he owned
one.
Importantly, Parkins re-initiated conversation multiple
times, repeatedly asking the officers what was happening
and what they were investigating. Each time, the officers
briefly answered Parkins’s question and did not ask him
about the offense. “We require more than has been
presented here to establish that a conversation between an
officer and an accused constituted the functional equivalent
of interrogation.” United States v. Foster, 227 F.3d 1096,
1104 (9th Cir. 2000).
Because Parkins was not subject to interrogation, we do
not consider whether he was in custody. We decline to
suppress his pre-arrest statements under Miranda.
D. Post-Arrest Jailhouse Statements
Last, we consider whether Parkins’s post-arrest
statements, made during his jailhouse interview, should be
suppressed as fruit of the poisonous tree. The exclusionary
rule bars the government from introducing evidence that has
22 USA V. PARKINS

been obtained through a violation of the Fourth Amendment.
Wong Sun v. United States, 371 U.S. 471, 484–85 (1963).
The rule “applies to statements and evidence obtained as a
product of illegal searches and seizures.” United States v.
Crawford, 372 F.3d 1048, 1054 (9th Cir. 2004) (en banc).
The government must show that the challenged evidence is
not fruit of the poisonous tree. United States v. Shetler, 665
F.3d 1150, 1157 (9th Cir. 2011).
We conclude that this doctrine does not apply here—
under either theory advanced by the defense. Parkins’s
statements at the police station were not a product of the
unlawful search of his apartment because the officers did not
confront Parkins with the evidence obtained as a result of
that search. See id. at 1158. Nor were his statements a
product of a purportedly unlawful arrest; the police had
ample probable cause to arrest Parkins before they found the
laser pointer. See New York v. Harris, 495 U.S. 14, 19
(1990).
1. Fruit of the Poisonous Search 4
In an illegal-search case, we look to whether the
interrogating officers “confront the suspect, either physically
or verbally, with the evidence that has been illegally
obtained” and whether “the answers the suspect gives to
officials questioning him may be influenced by his
knowledge that the officials had already seized certain

4
We reject the government’s contention that Parkins forfeited his fruit-
of-the-poisonous search argument. The issue was sufficiently raised for
the district court to have ruled on it had the court deemed the search
unlawful. See Cornhusker Cas. Ins. Co. v. Kachman, 553 F.3d 1187,
1191–92 (9th Cir. 2009). Because Parkins preserved the argument, we
do not evaluate it for plain error, as the government invites us to do. See
Fed. R. Crim. P. 52(b).
 USA V. PARKINS 23

evidence.” Shetler, 665 F.3d at 1158; see also United States
v. Green, 523 F.2d 968, 972 (9th Cir. 1975) (holding that 400
pounds of marijuana had a “[d]e minimis” role in producing
the confession at issue because the defendant had also been
confronted with substantial lawfully obtained evidence);
United States v. Marasco, 487 F.3d 543, 547–48 (8th Cir.
2007) (statements admissible because “nothing in the
record” indicated that defendant was confronted with the
illegally seized evidence before she made them).
During his post-arrest interview, the police told Parkins
that he was in custody for shining a laser at an aircraft. When
Officer Garwood asked Parkins if he owned a laser, Parkins
said, “No,” and then immediately, “Oh yeah, do I? I do. We
have one in my house.” Officer Garwood proceeded to ask
Parkins what color the laser was, when was the last time he
had used it, and where it was located. When Officer
Garwood asked where the laser pointer was located inside
his apartment, Parkins responded, “I’m sure it’s in there
somewhere. I don’t know.” After some additional
questions, Parkins again admitted to owning a laser pointer.
Finally, the police asked Parkins if his laser pointer had any
“identifying information,” if he “put anything on it that you
would know it’s yours.” Parkins responded that he had “no
clue . . . . It’s a regular f------ thing that I’ve had for a long
time. I don’t know what the problem is. I don’t.”
The police never “confront[ed]” Parkins with the
discovery of the laser pointer. Shetler, 665 F.3d at 1158.
During the interview, the police neither presented Parkins
with the physical laser pointer nor mentioned having found
it. The police asked the same kinds of general questions
regarding the laser pointer that they had asked Parkins prior
to its discovery. None of those questions suggest knowledge
gleaned from finding the laser pointer. Only Officer
24 USA V. PARKINS

Garwood’s question as to whether the laser pointer had any
“identifying information” suggests such knowledge.
(Parkins’s laser pointer had the word “Brett” etched into it.)
But at that point in the interview, Parkins had already twice
admitted to owning a laser pointer, and—as discussed
below—his answer (“no clue”) does not suggest that he
suspected the search was successful.
Parkins counters that Shetler requires suppression here.
In that case, the police conducted “extensive” illegal
searches of Shetler’s home that uncovered “numerous” items
indicative of methamphetamine production while he was
detained outside for more than five hours, watching the
search unfold. Id. at 1158–59. We held Shetler’s subsequent
confession to be a product of the illegal search because the
“government did not bear its burden” of showing otherwise,
as the confession was not recorded. Id. at 1157. The
government had not refuted the “likelihood” that the illegally
obtained evidence was used to question Shetler. Id. at 1158
(speculating about what kinds of questions the police may
have asked).
Here, however, the video recording of Parkins’s
jailhouse interview—and the inferences we can draw from
it—distinguish this case from Shetler. We need not
speculate about what questions Parkins was asked, and
nothing suggests that Parkins was “influenced by . . .
knowledge that the officials had already seized certain
evidence.” Id. (suppressing statements where defendant had
witnessed “multiple illegal searches,” including one search
“using protective clothing and masks, of the garage which
he knew contained extensive materials associated with
methamphetamine production”); see also United States v.
Nora, 765 F.3d 1049, 1057 (9th Cir. 2014) (suppressing
pursuant to Shetler where statements followed “immediately
 USA V. PARKINS 25

on the heels of the unlawful search of his person, which
yielded marijuana and a large amount of cash”).
Accordingly, we reject Parkins’s Shetler argument, as
this factual scenario aligns with Green and Marasco.
2. Fruit of the Poisonous Arrest
Parkins asserts, in the alternative, that his jailhouse
statements must be suppressed because he would not have
been arrested but for the discovery of the laser pointer; in
other words, his arrest was unlawful because it arose out of
the unlawful search of his home. Though Parkins did not
present this argument in his instant briefing to this court, he
did do so at oral argument. See Saxton v. Hous. Auth. of
Tacoma, 1 F.3d 881, 884 n.5 (9th Cir. 1993) (addressing and
rejecting an argument raised for the first time in oral
argument).
Though we choose to consider Parkins’s argument, see
United States v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992),
we reject it. The police had probable cause to arrest Parkins
prior to the illegal search of his home and, as Parkins himself
conceded below, Harris thus controls. 495 U.S. at 19
(declining to exclude jailhouse statements made following
an illegal search because there was probable cause to arrest).
Probable cause independent of the unlawful apartment
search supported Parkins’s arrest. Using the helicopter’s
thermal camera, Officer Garwood observed a suspicious
individual in the same vicinity as the laser strikes enter the
apartment. That individual strongly resembled Parkins.
Additional facts discovered during Parkins’s ensuing
detention (and before the discovery of the laser pointer)
transformed reasonable suspicion into probable cause.
Parkins appeared nervous as soon as the officers initiated
26 USA V. PARKINS

contact with him. Five minutes into Parkins’s detention,
Officer Smith confirmed via radio that the car Officer
Garwood had seen Parkins unlock was registered to
Parkins’s girlfriend. Lastly, at least one person in the
apartment complex came up to the police and referred to
Parkins as the “laser pointer guy” during the investigation.
Thus, Officer Garwood’s initial observations, combined
with the additional facts gathered by the officers on the
ground, constituted probable cause to arrest Parkins even
without the laser pointer.
Accordingly, Harris controls. 495 U.S. at 17 (declining
to exclude station house statement following an arrest made
in violation of Payton v. New York, 445 U.S. 573 (1980), but
with probable cause). Following Harris, we have
determined that “the presence of probable cause to arrest has
proved dispositive when deciding whether the exclusionary
rule applies to evidence or statements obtained after the
defendant is placed in custody.” Crawford, 372 F.3d at
1056. 5 We also have stated that “the rationale and holding
of Harris are not limited to the context of Payton
violations.” Id. at 1058 (applying Harris to a presumptively
unlawful parole search).
Consequently, we decline to suppress post-arrest
statements made following a Randolph violation, as long as
the arrest was independently supported by probable cause.
And here, the police had probable cause to arrest Parkins
prior to—and independent of—their unlawful search of his

5
While the presence of probable cause may generally be dispositive
when evaluating whether to suppress fruit of an illegal detention, see
Crawford, 372 F.3d at 1056, suppression claims based on an illegal
search require analysis of the two additional considerations laid out in
Shetler, 665 F.3d at 1157, as previously discussed.
 USA V. PARKINS 27

home. Therefore, Parkins’s jailhouse statements were not
“an exploitation of the illegal entry into [his] home.” Harris,
495 U.S. at 19.
III. CONCLUSION
In sum, though we affirm the district court’s refusal to
suppress any of Parkins’s statements, we reverse its ruling
concerning the search of the apartment.
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.