United States v. Omar Arreguin , 735 F.3d 1168 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50484
Plaintiff-Appellee,
D.C. No.
v. 5:08-cr-00161-VAP-1
OMAR ARREGUIN,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Submitted July 23, 2013*
Filed November 22, 2013
Before: Alfred T. Goodwin, Dorothy W. Nelson,
and N. Randy Smith, Circuit Judges.
Opinion by Judge Goodwin
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 UNITED STATES V. ARREGUIN
SUMMARY**
Criminal Law
The panel reversed the district court’s denial of a motion
to suppress the fruits of a home search, and remanded with
instructions, in a case in which the government had the
burden of establishing that a houseguest had apparent
authority to consent to searches of specific areas where DEA
agents found the challenged evidence.
The panel held that the agents knew far too little to hold
an objectively reasonable belief that the houseguest could
consent to a search of the master bedroom and bathroom or
of the area beyond a door inside the master bedroom.
The panel held that the government’s “protective sweep”
fallback argument is waived and that the “plain view”
doctrine does not apply.
The panel instructed the district court to enter an order
granting the defendant’s motion to suppress a shoe box, a
white substance, a Gucci bag, and cash, and to consider
whether the defendant’s inculpatory statements, five packages
of methamphetamine, and any other evidence found after the
unconstitutional searches should be suppressed as fruits of the
poisonous tree.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. ARREGUIN 3
COUNSEL
Nicholas F. Reyes, Fresno, California, for Defendant-
Appellant.
Daniel Ackerman, Assistant United States Attorney, Antoine
F. Raphael, Assistant United States Attorney, Chief,
Riverside Branch Office, André Birotte, Jr., United States
Attorney, for Plaintiff-Appellee.
OPINION
GOODWIN, Circuit Judge:
After the district court denied Omar Arreguin’s motion to
suppress the fruits of a home search, he entered a conditional
guilty plea to charges under 21 U.S.C. § 841, and reserved his
right to appeal the district court’s ruling. We heard his appeal
and affirmed in part, reversed in part, and remanded for
further proceedings. United States v. Arreguin, 453 F. App’x
678 (9th Cir. 2011). On remand, the district court once again
denied the suppression motion, and Arreguin again appeals.
We reverse, remand, and instruct the district court to grant the
motion.
I. BACKGROUND
A. DEA AGENTS CONDUCT A “KNOCK AND TALK”
INVESTIGATION
On August 16, 2008, nine law enforcement officers,
including DEA Agents John Rubio and Paul McQuay,
4 UNITED STATES V. ARREGUIN
conducted a “knock and talk” investigation1 at a Riverside,
California home (the “Residence”). Present inside the home
were its three primary residents, Arreguin, his wife Maria
Ledesma-Olivares, and their baby. One houseguest, Elias
Valencia, Jr., was also on the premises.
B. THE RESIDENCE
1. Floor plan of the Residence
The Residence’s front porch and entry door are located
approximately 20–25 feet from the nearest sidewalk. Just
behind the front door is a foyer that extends seven or eight
feet into the Residence. Just beyond the foyer there are a
living room and a family room. Beyond the foyer and further
into the Residence is a master bedroom.
Inside the master bedroom, there are two additional doors.
Passing through the first of the doors leads, unremarkably,
into the attached master bathroom. But passing through the
second door leads, somewhat surprisingly, into the
Residence’s garage.
2. Agents’ knowledge of the Residence’s floor plan
Nothing in the record suggests that the DEA Agents had
any preexisting knowledge of the Residence’s somewhat
unique floor plan when they began their “knock and talk”
1
In a “knock and talk” investigation, police officers “approach the front
door of” a residence, knock on the door, and seek “to speak to an occupant
for the purpose of gathering evidence.” Florida v. Jardines, ___ U.S. ___,
133 S. Ct. 1409, 1423 (2013) (Alito, J., dissenting); Kentucky v. King,
536 U.S. ___, 131 S. Ct. 1849, 1862 (2011).
UNITED STATES V. ARREGUIN 5
investigation. To the contrary, the record reveals that the
Agents did not know much at all about the premises.
In his initial live testimony, for example, Rubio stated that
he and his fellow Agents did not even “know exactly who
resided” at the Residence, and that they planned to find out
during the course of the “knock and talk.” He later
acknowledged once again that when he approached the house,
he did not know who was inside. Although the Residence
was searched by local law enforcement “several months
prior,” neither Rubio nor McQuay made any mention of the
DEA’s involvement in that prior search. For his part,
McQuay affirmatively acknowledged that he did not
participate in the prior search.
C. ENCOUNTER AND OBSERVATIONS AT THE RESIDENCE’S
FRONT DOOR
At approximately 11:00 a.m. on August 16, 2008, Agents
Rubio, McQuay, Chad Corbin, and two other officers
approached the Residence from the street. Rubio was one of
the first two or three agents to approach the front porch area,
alongside Group Supervisor Daniel Neill. After Rubio
knocked on the entry door between three and seven times, a
sleepy-looking Valencia opened the door, and the two began
talking.
With the door open, both Rubio and McQuay (who was
standing six feet behind Rubio) could see into and slightly
beyond the entry area. From his vantage point on the porch,
Rubio was able to see Ledesma-Olivares standing just beyond
the foyer, holding an infant, and he was able to see Arreguin
standing several feet inside the Residence, holding a shoe
box. McQuay also noticed Arreguin and the shoe box, and he
6 UNITED STATES V. ARREGUIN
then observed Arreguin disappearing and reappearing from
view “about four times” behind Valencia. Eventually,
Arreguin briefly disappeared from McQuay’s field of vision
while moving to McQuay’s right; when Arreguin reappeared,
McQuay realized that he was no longer holding the shoebox.
Meanwhile, Rubio had a brief conversation with
Valencia, while Ledesma-Olivares and Arreguin looked on.
Rubio explained that “we’re here from the DEA” and “we
know this house. There was drug-related activity before. We
would like to come in and look around. Can we come in[?]”2
Valencia said yes and stepped back towards the rear of the
foyer. Neither Arreguin nor Ledesma-Olivares voiced any
objections.
2
The district court relied on Rubio’s initial written declaration to find
that when he “sought consent from Valencia to search the residence, he
specifically sought consent to search for ‘narcotics and narcotics related
evidence.’” Based on the record before us, we have “a definite and firm
conviction that a mistake has been committed” and we conclude that the
district court’s reliance on the declaration was clearly erroneous. United
States v. Ruiz-Gaxiola, 623 F.3d 684, 693 (9th Cir. 2010).
Rubio’s declaration indicated that he “asked Valencia for consent for
our team to enter the Residence and search it for narcotics and narcotics
related evidence.” But Rubio backpedaled away from his declaration in
open court. In particular, while under cross-examination, Rubio clearly
testified that he used the words we quoted above at the door to the
Residence. No mention was made of “narcotics and narcotics related
evidence,” despite counsel offering Rubio an opportunity to further clarify
the words he used.
It is elementary that “confrontation m[ay] cause a witness to recant
his accusatory statement,” and we conclude that is what happened here.
United States v. Huber, 772 F.2d 585, 589 (9th Cir. 1985). It is therefore
troubling that the district court would rely on Rubio’s declaration when his
live testimony contradicted the declaration’s contents.
UNITED STATES V. ARREGUIN 7
D. AGENTS PROCEED INSIDE THE RESIDENCE
Very quickly thereafter, the Agents made entry into the
Residence. At that time, Rubio observed Arreguin walking
swiftly toward the master bedroom of the Residence, down a
hallway, and out of sight. McQuay and Corbin followed
Arreguin, stopped at the hallway, and called for him to return
to the main entrance area. Within 30 seconds, he did so, and
the Agents followed him back to the foyer.
E. MCQUAY ENTERS THE MASTER BEDROOM AND
ATTACHED MASTER BATHROOM
At that point, Rubio and Arreguin began talking in a
family room, while McQuay and Corbin headed further into
the Residence, ostensibly performing a “cursory safety
sweep.”
McQuay and Corbin moved past Valencia through the
entry area of the home and proceeded to their right, because
that was where McQuay had last seen Arreguin moving with
the box. Within a matter of 30 seconds, McQuay proceeded
further into the Residence, turned left, and found himself in
the master bedroom area. The door to the attached master
bathroom was open, and McQuay was able to observe the
cabinet underneath the bathroom sink. He saw a blue
shoebox in the cabinet, with its cover removed, and noticed
a white powdery substance inside the box. The box and the
white substance were seized.
F. MCQUAY ENTERS THE GARAGE
After finding the shoebox, McQuay entered the garage
through the second door in the master suite. Inside the
8 UNITED STATES V. ARREGUIN
garage, McQuay observed a parked Toyota Corolla and
approached the window. From that vantage point, McQuay
explained, he could see multiple bundles of cash in a Gucci
bag. The bag and the cash were seized, and Agents
subsequently discovered that the cash amounted to $176,990.
G. RUBIO DETERMINES THAT ARREGUIN IS A PRIMARY
RESIDENT
As McQuay proceeded through the master bedroom and
garage, Rubio started to speak with Arreguin in Spanish
inside the Residence’s family room. Arreguin informed Rubio
that he and his wife and infant lived at the Residence, and that
Ledesma-Olivares was an illegal alien in the United States.
But a minute into this conversation, McQuay interrupted
Rubio and told him that the shoebox, the Gucci bag, and the
cash had been found.
Rubio and the other Agents switched gears.
H. ARREGUIN SIGNS CONSENT FORM AND REVEALS HIDDEN
METHAMPHETAMINE
Soon, Agents isolated Arreguin in a rear bedroom and
informed him that it would be beneficial to him if he
cooperated with them. Rubio also informed Arreguin that he
“would not refer [Ledesma-Olivares’s] case to Immigration”
if Arreguin cooperated. When Agents presented a written
consent-to-search form, Arreguin signed it and led them to
the garage, where he opened a secret compartment inside the
Corolla and revealed five individual duct-tape-wrapped bricks
of suspected methamphetamine. The methamphetamine
packages were seized.
UNITED STATES V. ARREGUIN 9
I. RUBIO DETERMINES THAT VALENCIA IS A MERE GUEST
After he had finished his conversation with Arreguin,
Rubio interviewed Valencia again in the Residence’s kitchen
area, approximately five minutes after his first conversation
with Valencia in the entry area. Valencia presented
identification from Atlanta, Georgia, and Rubio then learned
that Valencia was a mere guest at the Residence.
II. PROCEDURAL HISTORY
After Arreguin was indicted under 21 U.S.C. § 841, he
moved to suppress the shoebox, the white substance, the
Gucci bag, and the cash, claiming the Agents lacked consent
for their warrantless search of the Residence. After the
district court heard and denied the motion, Arreguin entered
a conditional guilty plea and appealed.
We affirmed in part, reversed in part, and remanded,
noting that: (1) the government had to show Valencia’s
consent to the Agents’ searches, through the actual or
apparent authority doctrines; and (2) in the “apparent
authority” context, the government had “the burden of
establishing that Valencia had apparent authority to consent
to the specific areas” where the Agents found the challenged
evidence. Arreguin, 453 F. App’x at 681 (citing United
States v. Dearing, 9 F.3d 1428, 1430 (9th Cir. 1993);3 United
States v. Davis, 332 F.3d 1163, 1170 (9th Cir. 2003); United
3
Dearing was overruled on other grounds in United States v. Kim,
105 F.3d 1579 (9th Cir. 1997).
10 UNITED STATES V. ARREGUIN
States v. Fultz, 146 F.3d 1102, 1106 (9th Cir. 1998); United
States v. Welch, 4 F.3d 761, 765 (9th Cir. 1993)4).
On remand, Arreguin renewed his suppression motion.
The district court received additional documentary evidence,
heard additional testimony, and once again denied the motion.
Arreguin timely appeals.
III. DISCUSSION
A. LEGAL STANDARDS
1. Standards of Review
We review the district court’s denial of a motion to
suppress de novo. United States v. Diaz, 491 F.3d 1074, 1077
(9th Cir. 2007). We review the district court’s factual
findings underlying the denial for clear error, and where, as
here, testimony is taken, the district court’s credibility
determinations are given “special deference.” United States
v. Craighead, 539 F.3d 1073, 1082 (9th Cir. 2008). The issue
of whether a person has actual or apparent authority to
consent to a search is a mixed question of law and fact
reviewed de novo. United States v. Kim, 105 F.3d 1579,
1581–82 (9th Cir. 1997).
2. Fourth Amendment Standard
The Fourth Amendment provides that the “right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not
4
Welch was overruled on other grounds in United States v. Kim,
105 F.3d 1579 (9th Cir. 1997).
UNITED STATES V. ARREGUIN 11
be violated.” U.S. CONST. amend. IV. Therefore, it is “a
basic principle of Fourth Amendment law that searches and
seizures inside a home without a warrant are presumptively
unreasonable.” LaLonde v. Cnty. of Riverside, 204 F.3d 947,
954 (9th Cir. 2000) (quoting Payton v. New York, 445 U.S.
573, 586 (1980)) (internal quotation marks omitted).
“Evidence recovered following an illegal entry of the home
is inadmissible and must be suppressed.” United States v.
Shaibu, 920 F.2d 1423, 1425 (9th Cir. 1990).
3. Consent Doctrines
Although “consent is a recognized exception to the Fourth
Amendment’s protection,” United States v. Russell, 664 F.3d
1279, 1281 (9th Cir. 2012), the government has the burden of
establishing the effectiveness of a third party’s consent to a
search of a defendant’s property. Welch, 4 F.3d at 764. “The
existence of consent to a search is not lightly to be
inferred. . . .” United States v. Reid, 226 F.3d 1020, 1025
(9th Cir. 2000).
The government may meet its burden to show consent by
demonstrating that: (1) a third party had “shared use and joint
access to or control over a searched area”; or (2) “the owner
of the property to be searched has expressly authorized a third
party to give consent to the search.” Welch, 4 F.3d at 764.
Or, if the government cannot present proof of a party’s
12 UNITED STATES V. ARREGUIN
“actual authority,”5 the government “may establish consent
by means of the ‘apparent authority doctrine.’” Id.
4. Apparent Authority Doctrine
“Under the apparent authority doctrine, a search is valid
if the government proves that the officers who conducted it
reasonably believed that the person from whom they obtained
consent had the actual authority to grant that consent.” Id.6
“Apparent authority is measured by an objective standard of
reasonableness, and requires an examination of the actual
consent as well as the surrounding circumstances.” United
States v. Ruiz, 428 F.3d 877, 881 (9th Cir. 2005). Thus, in
assessing whether an officer’s belief was objectively
reasonable, the court considers “the facts available to the
officer at the moment.” Illinois v. Rodriguez, 497 U.S. 177,
188 (1990) (emphasis added).
As we previously explained, the government “has the
burden of establishing” apparent authority “to consent to
5
During Arreguin’s first appeal, the government never “argued . . . that
Valencia possessed actual or any express authority to consent to a search.”
Arreguin, 453 F. App’x at 680. And the government’s current answering
brief also omits an actual-authority argument. The issue is waived. See
McKay v. Ingleson, 558 F.3d 888, 891 n.5 (9th Cir. 2009); Munoz v.
Imperial Cnty., 667 F.2d 811, 817 (9th Cir. 1982).
6
Dearing approached the apparent-authority doctrine by employing a
three-part test. 9 F.3d at 1429–30; see also United States v. Tosti, No. 12-
10067, — F.3d —, 2013 WL 5433756, *6 (9th Cir. Oct. 1, 2013); United
States v. Ruiz, 428 F.3d 877, 880–81 (9th Cir. 2005). But Dearing’s three-
part test was merely a restatement of the rules in Welch and Illinois v.
Rodriguez, 497 U.S. 177, 188 (1990). See Dearing, 9 F.3d at 1429–30.
In this case, using Welch’s simpler formulation of the apparent-authority
doctrine clarifies our analysis.
UNITED STATES V. ARREGUIN 13
[each] specific area[] searched, not just authority to consent
to a generalized search of [a] residence.” Arreguin, 453 F.
App’x at 681; see Dearing, 9 F.3d at 1430; Davis, 332 F.3d
at 1170 (third party sharing apartment with defendant did not
have actual or apparent authority to consent to search of
defendant’s belongings, located inside apartment); Fultz,
146 F.3d at 1106 (homeowner did not have apparent authority
to consent to search of appellant’s boxes, located inside
home); Welch, 4 F.3d at 765 (third party who consented to
search of car did not have apparent authority to consent to
search of purse, located in trunk of car).
In addition, the Supreme Court teaches that a mere
invitation to enter a particular premises is not itself adequate
for apparent-authority purposes. “Even when the invitation
[to search] is accompanied by an explicit assertion that the
person lives there, the surrounding circumstances could
conceivably be such that a reasonable person would doubt its
truth and not act upon it without further inquiry.” Rodriguez,
497 U.S. at 188 (emphasis added). Similarly, Ninth Circuit
law provides that the “mere fact of” a third party’s access to
an area, “without more, does not indicate that the access was
authorized” and that the third party had authority to consent
to a search of the area. Reid, 226 F.3d at 1025.
B. APPLICATION
When the Agents obtained Valencia’s consent to “look
around” the Residence, they knew virtually nothing about:
(1) him; (2) the various separate rooms and areas inside the
Residence; or (3) the nature and extent of Valencia’s
connection to those separate areas. And the Agents did not
ask Valencia any additional questions at that time. Instead,
Agents McQuay and Corbin quickly rushed past him and
14 UNITED STATES V. ARREGUIN
started “rummaging around [the Arreguins’] home,”
inspecting various rooms, and satisfying “the curiosity police
always have about what they might find.” United States v.
Lemus, 596 F.3d 512, 513 (9th Cir. 2010) (Kozinski, C.J.,
dissenting from denial of rehearing en banc).
The “police are not allowed to proceed on the theory that
ignorance is bliss.” Dearing, 9 F.3d at 1430 (internal
quotation marks omitted). And the Agents were proceeding
in a state of near-ignorance when they searched both the
master suite and the area behind the second door in the master
suite. They knew far too little to hold an objectively
reasonable belief that Valencia could consent to a search of
those areas.7
1. It was not objectively reasonable for the Agents to
conclude that Valencia had authority to consent to
a search of the master bedroom and bathroom.
At “the moment” when McQuay first entered the master
suite, Rodriguez, 497 U.S. at 188, he knew that:
• Valencia had access to the Residence and was present
near the foyer area;
• Arreguin, Ledesma-Olivares, and their infant had
access to the Residence and were initially present near
the foyer area;
• Valencia had answered the door at 11:00 a.m.;
7
We need not—and do not—decide whether the Agents could have
reasonably believed Valencia had authority to consent to their initial entry
into the Residence.
UNITED STATES V. ARREGUIN 15
• Valencia had a sleepy appearance;
• Arreguin had possessed a shoebox;
• Arreguin had placed the shoebox in some other
portion of the Residence, to the right of the foyer;
• Neither Arreguin nor Ledesma-Olivares had objected
to Valencia’s consent to the Agents’ entry;
• Arreguin had moved rapidly away from the foyer
towards the master bedroom;
• McQuay and Agent Corbin had followed in
Arreguin’s direction, stopped at the hallway, called
for him to return to the main entrance area, and
followed him back; and
• The master bathroom was adjacent to the master
bedroom.
Valencia’s answering of the Residence door is not, in and
of itself, adequate to justify a reasonable belief that he had
authority to consent to a search of the master suite. See
Dearing, 9 F.3d at 1429 (third party has authority to consent
if he has “mutual use of the property [and] joint access or
control for most purposes”); Watts v. Cnty. of Sacramento,
256 F.3d 886, 890 (9th Cir. 2001) (in § 1983 suit alleging
Fourth Amendment violations, the “mere fact that [plaintiff]
answered the door of [a] home in his boxer shorts did not
establish a reasonable belief that he lived there”).
The fact of Valencia’s presence inside the Residence at
11 a.m. is similarly unhelpful to the government. It is “hardly
16 UNITED STATES V. ARREGUIN
unusual to have” three or four “visitors at one’s home,” or
guests who might visit “late at night” and then perhaps spend
a late morning sleeping in one’s home. United States v. Rios,
449 F.3d 1009, 1015 (9th Cir. 2006). Individual schedules for
working, visiting friends, receiving guests, and sleeping vary
tremendously.
Valencia’s apparently sleepy appearance also fails to
support a reasonable belief that he had authority to consent to
a search of the master suite. A sleepy demeanor might
potentially suggest some tenuous connection with a bedroom
area, but not necessarily with the particular bedroom area that
McQuay searched.
The government points to Arreguin and Ledesma-
Olivares’s presence and failure to object when Valencia
consented to the Agents’ entry as additional factors
supporting his apparent authority. However, at the moment
Valencia gave his consent, the Agents still did not know
anything about him or the other two adults near the foyer,
including which, if any of the them, lived in the Residence.
“[W]ithout further inquiry,” Rodriguez, 497 U.S. at 189,
Valencia and Ledesma-Olivares’s silence was insufficient for
the Agents to reasonably believe Valencia had authority to
consent to a search of the master bedroom.8
The remaining pieces of information known to the
Agents, although very limited, do not further suggest that
Valencia had “mutual use of the” master bedroom area or
8
The government’s reliance on Georgia v. Randolph, 547 U.S. 103
(2006), is unavailing. Randolph did not consider these circumstances,
where the officers simply do not know which of the individuals present in
a residence is a primary resident.
UNITED STATES V. ARREGUIN 17
“joint access or control for most purposes.” Dearing, 9 F.3d
at 1429. Arreguin’s decision to place his personal property
in another portion of the Residence is, if anything, consistent
with his occupancy of that portion of the premises.
Arreguin’s sudden departure from the foyer into the master
suite is more consistent with his occupancy of that area. And
Arreguin’s reluctant re-emergence from the master suite,
which occurred only upon the Agents’ verbal directions and
under their watchful eyes, also points to his occupancy of the
area. But none of these events speaks to the level of
Valencia’s control over the master suite.
With this very limited set of facts available, “a reasonable
person would not presume, without further inquiry, that”
Valencia had joint use, access, or control over the master
bedroom and master bathroom area. Reid, 226 F.3d at 1025.
The failure to inquire properly weighs against the
government, not Arreguin, because the police are simply “not
allowed to proceed on the theory that ignorance is bliss.”
Dearing, 9 F.3d at 1430 (internal quotation marks omitted).9
9
We distinguish this case from United States v. Enslin, 327 F.3d 788
(9th Cir. 2003). In Enslin, the officers “knew that John and Shannon
Palacios resided at [a] house,” came to the door of the house, and
encountered Shannon Palacios, who identified herself to the officers and
“gave them unlimited permission to search.” 327 F.3d at 791 n.3, 794.
The court concluded that under those circumstances, Palacios had
apparent authority to consent to a search of the back bedroom of the
house. Id. at 794.
At the time of the Agents’ entry, by contrast, they did not know the
legal occupants of the Residence; they did not ask for or receive
identifying information from Valencia; they did not ask for or receive
information about Valencia’s control or authority over the Residence; and
they did not specifically obtain permission from Valencia to search the
entire premises. In brief, the situation confronting the Agents here is a far
18 UNITED STATES V. ARREGUIN
2. It was not objectively reasonable for the Agents to
conclude that Valencia had authority to consent to
a search of the area beyond the door inside the
master bedroom.
After viewing Arreguin’s shoebox and its contents,
McQuay went “through the [second] door in the master
bedroom” and found himself in the garage area. At the time
he went through the second door, McQuay knew that:
• Valencia had access to the Residence and was present
near the foyer area;
• Arreguin, Ledesma-Olivares, and their infant had
access to the Residence and were initially present near
the foyer area;
• Valencia had answered the door at 11:00 a.m.;
• Valencia had a sleepy appearance;
• Arreguin had possessed a shoebox;
• Arreguin had placed the shoebox in some other
portion of the Residence, to the right of the foyer;
• Neither Arreguin nor Ledesma-Olivares objected to
Valencia’s consent to the Agents’ entry;
• Arreguin had moved rapidly away from the foyer
towards the master bedroom;
cry from the situation in Enslin, where numerous indicia of authority
supported the officers’ acceptance of consent to search.
UNITED STATES V. ARREGUIN 19
• McQuay and Agent Corbin had followed in
Arreguin’s direction, stopped at the hallway, called
for him to return to the main entrance area, and
followed him back;
• The master bathroom was adjacent to the master
bedroom; and
• Arreguin’s shoebox was located inside the master
bathroom.
The occupants’ mere presence at the front of the
Residence would not, by itself, support a conclusion that they
had specific access to or control over the area behind the
second door. Arreguin’s movements toward the master suite
would suggest, if anything, that he, not Valencia, had access
to or control over that area.
And, by the time McQuay went through the second door,
he had found Arreguin’s shoebox in the master bathroom.
Finding Arreguin’s shoebox is a limited point of knowledge,
but it even more closely ties Arreguin, not Valencia, with the
area, and points to Arreguin’s access and control in that
portion of the Residence.
Faced with this information, a “reasonable person would
not presume, without further inquiry, that” Valencia had any
access, control, or authority over additional areas adjacent to
the master suite. Reid, 226 F.3d at 1025. From McQuay’s
perspective, the door could have led to a second master
bathroom; the door could have led to an adjacent nursery area
for the infant in the home; the door could have led to a
standard closet; the door could have led to a walk-in closet;
the door could have led to some other private portion of the
20 UNITED STATES V. ARREGUIN
Residence; or the door could have led to a common area (as,
in fact, it did). But the limited information available to
McQuay at the time he went through that door did not tie
Valencia to the area adjacent to the door.
C. FALLBACK ARGUMENTS
With the “apparent authority” issue resolved, we turn to
the government’s fallback arguments.
1. The government’s “protective sweep” fallback
argument is waived.
The government now attempts to fall back on the
“protective sweep” doctrine. But the record is clear that the
government never raised a “protective sweep” claim during
the initial district court proceedings, nor in its brief on the
first appeal. See Arreguin, 453 F. App’x at 681 (protective
sweep “discussed at oral argument” only); Trigueros v.
Adams, 658 F.3d 983, 988 (9th Cir. 2009) (generally,
“arguments not raised before the district court are waived”);
McKay v. Ingleson, 558 F.3d 888, 891 n.5 (9th Cir. 2009)
(issue raised “[a]t oral argument” but not “raised clearly and
distinctly in the opening brief” was waived). The argument
is therefore doomed by the rule of Munoz v. Imperial County,
667 F.2d 811 (9th Cir. 1982), under which “[w]e need not and
do not consider a new contention that could have been but
was not raised on the prior appeal.” 667 F.2d at 817.
2. The “plain view” doctrine does not apply.
The government seeks to cleanse its warrantless search by
citing the “plain view” doctrine. But the “plain view”
doctrine does not apply unless the initial entry is lawful,
UNITED STATES V. ARREGUIN 21
either pursuant to a warrant or under a recognized exception
to the warrant requirement. United States v. Hotal, 143 F.3d
1223, 1228 (9th Cir. 1998). Here, the government has no
warrant, the government cannot rely on a consent exception
due to Valencia’s lack of apparent authority, and the
government has waived the “protective sweep” exception.
With nothing left to support the “initial entry” into each of the
challenged areas, the plain view doctrine fails. Id.
IV. CONCLUSION
We reverse, remand, and instruct the district court to enter
an order granting Arreguin’s motion to suppress the shoe box,
the white substance, the Gucci bag, and the cash. Upon
remand, the district court shall also consider whether
Arreguin’s inculpatory statements, the five packages of
methamphetamine, and any other evidence found after the
unconstitutional searches should be suppressed as “fruits of
the poisonous tree.” See United States v. Redlightning,
624 F.3d 1090, 1102 (9th Cir. 2010) (“[E]vidence obtained
subsequent to a violation of the Fourth Amendment is tainted
by the illegality and is inadmissible, despite a person’s
voluntary consent, unless the evidence obtained was purged
of the primary taint.”) (internal quotation marks omitted).
REVERSED and REMANDED with instructions.