United States v. Richard Ward

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 27, 2018
• Docket: 16-10501
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 27 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-10501

Plaintiff-Appellee, D.C. No. 2:14-cr-00306-LDG-NJK-1 v.

RICHARD WILLIAM WARD, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Nevada Lloyd D. George, District Judge, Presiding

Argued and Submitted March 16, 2018 San Francisco, California

Before: McKEOWN, FUENTES,** and BEA, Circuit Judges.

Richard Ward appeals the district court’s denial of his motion to suppress.

Ward argues that evidence derived from a warrantless entry into his home should

have been suppressed because no exigency justified the entry. Because the parties

are familiar with the facts, we do not recite them here. We have jurisdiction under

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Julio M. Fuentes, United States Circuit Judge for the U.S. Court of Appeals for the Third Circuit, sitting by designation. 28 U.S.C. § 1291, and we affirm.

The Fourth Amendment permits a warrantless search if the “exigencies of

the situation make the needs of law enforcement so compelling that the warrantless

search is objectively reasonable under the Fourth Amendment.” Brigham City v.

Stuart, 547 U.S. 398, 403 (2006) (citing Mincey v. Arizona, 437 U.S. 385, 393–94

(1978)). An important and well-established exigency exists when officers must

render emergency assistance to an injured person or protect someone from

imminent injury. Id. Entry pursuant to the emergency aid exception is reasonable

when, “(1) considering the totality of the circumstances, law enforcement had an

objectively reasonable basis for concluding that there was an immediate need to

protect others or themselves from serious harm; and (2) the search’s scope and

manner were reasonable to meet the need.” United States v. Snipe, 515 F.3d 947,

952 (9th Cir. 2008).

Given the district court’s factual findings—which were not challenged on

appeal—and considering the totality of the circumstances, there was sufficient

objective evidence to support the officers’ first warrantless entry and sweep of

Ward’s home under the emergency aid exception. At the time of entry, the officers

knew that there had been a 911 call reporting shots fired on the block, and that a

woman approached the first officer on the scene, pointed to Ward and the two men

standing outside of the home, and told the officer “that’s them, that’s them, there

2 they are.” When Officer McKenzie approached the three men and ordered them to

the ground, Ward was slow to comply and Sean Dearing stepped into the house

and closed the door as if he was trying to hide something. Officer McKenzie also

observed that, before entering the house, Dearing was holding his hands in a way

consistent with how officers hold firearms while at a shooting range, although he

did not see a firearm. The men were unresponsive when questioned, and Ward

blatantly lied when he told Officer McKenzie that no one else was inside the home

even though Dearing had just entered. Officers also observed spent shell casings

“litter[ing]” the walkway in front of the home prior to entering. Under these

circumstances, it was objectively reasonable to conclude that there was an

immediate need to aid or protect someone in the home, as well as a need to ensure

officer safety as the officers continued to investigate the 911 call. See Sandoval v.

Las Vegas Metro. Police Dep't, 756 F.3d 1154, 1163 (9th Cir. 2014) (“[O]fficer

safety may also fall under the emergency rubric.”).

The scope and manner of the search was also reasonable to meet the

officers’ needs. The officers spent only as much time in the house as needed to

confirm that no one else was inside the home. The officers were also unable to use

alternative means by sending in a police dog due to the presence of Ward’s dog in

the house.

We need not determine whether the officers’ second walkthrough was

3 improper because, even if it was, the independent source doctrine applies. Nix v.

Williams, 467 U.S. 431, 432 (1984) (“[T]he independent source doctrine . . .

allow[s] admission of evidence that has been discovered by means wholly

independent of any constitutional violation.”). All of the evidence viewed by the

officers during the second walkthrough had already been viewed during the

preceding, lawful sweep.

Nor did the magistrate judge err by denying Ward’s request for a Franks

hearing. See Franks v. Delaware, 438 U.S. 154, 171 (1978). Although Ward

provided a laundry list of allegedly false statements, Ward failed to make any

showing that the affidavit underlying the search warrant would not have supported

a finding of probable cause without the allegedly false information. See United

States v. Reeves, 210 F.3d 1041, 1044 (9th Cir. 2000) (“A defendant is entitled to

[a Franks hearing] if the defendant can make a substantial preliminary showing

that (1) the affidavit contains intentionally or recklessly false statements or

misleading omissions, and (2) the affidavit cannot support a finding of probable

cause without the allegedly false information.”).

AFFIRMED.