United States v. Arellano-Ochoa ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 04-30545
v.  D.C. No.
JOSE LUIS ARELLANO-OCHOA, CR-04-00072-JDS
Defendant-Appellant.

UNITED STATES OF AMERICA,  No. 05-30328
Plaintiff-Appellee,
v.  D.C. No.
CR-04-00164-JDS
JOSE LUIS ARELLANO-OCHOA,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Montana
Jack D. Shanstrom, District Judge, Presiding
Argued and Submitted
January 11, 2006—Portland, Oregon
Filed August 31, 2006
Before: Andrew J. Kleinfeld, Susan P. Graber, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Kleinfeld
10633
10636 UNITED STATES v. ARELLANO-OCHOA
COUNSEL
Jack E. Sands, Attorney at Law, Billings, Montana, for appel-
lant Jose Luis Arellano-Ochoa.
James E. Seykora (argued), Assistant U.S. Attorney, Billings,
Montana, for appellee United States of America.
OPINION
KLEINFELD, Circuit Judge:
We publish to clarify Fourth Amendment law regarding the
police opening a screen door without a search warrant. We
also speak to dismissal without prejudice for a speedy trial
violation.
FACTS
Wyoming police caught an illegal alien headed to Arizona
with $15,000 cash in the car. The car was registered to Daniel
Priego of 640 Birch Lane, Billings, Montana. The driver, an
illegal alien, claimed that he had been hired to drive the car
to Arizona, deliver it to a woman who was going to “do some-
thing” with it, and then drive it to Montana and deliver it to
the address on the car registration. He also said that there was
an illegal alien at the Montana address. The police called U.S.
Border Patrol in Montana to tell them that there was probably
an illegal alien at the address at which the car was registered.
UNITED STATES v. ARELLANO-OCHOA 10637
The Border Patrol agent went to the address for what he
called a “knock and talk.” Because he did not want to be with-
out backup and he thought drugs might be involved,1 he got
a couple of Montana state narcotics investigators to go with
him. All three investigators were in plainclothes and used
unmarked cars. A young woman was sitting on the steps of
the trailer smoking a cigarette and watching her two toddlers
play. The Border Patrol agent identified himself and asked her
if anyone else was there. She called into the trailer for “Dan-
iel” or “Danny.”
The screen door to the trailer was closed, though the solid
door behind it was wide open. The screen door was mesh on
the top half but solid metal on the bottom half, so visibility
was limited to what could be seen through the top half. One
of the narcotics detectives noticed that the usual furniture,
such as a kitchen table, was missing—a fact that he found odd
in a house with toddlers. As the Border Patrol agent went to
knock, a man came toward the door. But instead of talking to
the officers, the man swung the solid door almost shut,
dodged quickly out of sight behind it, and the officers saw the
blinds at the front window shut.
The Border Patrol agent immediately opened the screen
door, pushed open the partially shut solid door, and started in.
One of the narcotics detectives saw a .45 semi-automatic on
the floor at the doorjamb (where the solid bottom half of the
closed screen door had blocked it from view) and said “gun.”
The Border Patrol agent saw the man make a move toward the
gun, and stepped between him and the gun. The agents
quickly entered, subdued the man after a brief scuffle, and
handcuffed him. A protective sweep of the house revealed
evidence of drug dealing, so the officers obtained a search
1
The agent testified that he thought there was an “obvious narcotic con-
nection” because the Wyoming arrest “fit[ ] the typical profile of a
courier-type run.”
10638 UNITED STATES v. ARELLANO-OCHOA
warrant and found cocaine, methamphetamine, a sawed-off
rifle, and $1,000 in small bills.
It turned out that “Daniel Priego” was really appellant Jose
Luis Arrellano-Ochoa, an illegal alien. The border patrol
agent opened the screen door because the man’s “furtive”
movements made the agent concerned for officer safety and
the safety of the woman and toddlers nearby. After the man
was subdued, the border patrol agent asked where he was
born, and Arrellano-Ochoa said “Mexico.” The agent asked
for identification, and Arellano-Ochoa pointed to the counter,
where he had a Mexican driver’s license, a Mexican border
crossing card, and a permit for extension of the border cross-
ing card.2 The border patrol agent then knew that a crime was
probable, because non-immigrant aliens, legal or not, gener-
ally are not permitted to possess firearms.3 Arrellano-Ochoa
had not yet been “Mirandized.” As the officers took
Arrellano-Ochoa away, he told his girlfriend he would need
bail money and she reached into the diaper bag she had next
to her. The officers quickly grabbed it to avoid danger and put
it in the trailer. After they got a search warrant, they found
about $1,000 in small bills in the diaper bag.
ANALYSIS
A. The Search
The district court denied a motion to suppress the fruits of
the search of the residence. The defense’s theory was that the
entry into the trailer was illegal and the search warrant was
2
Arellano-Ochoa had a border crossing card for entering the United
States within 25 miles of the border for a period of less than 72 hours. He
also had an I-94 form, which permitted him to stay longer and go farther
into the United States. All of the documents turned out to be forged,
though the officers did not know that at the time. For purposes of this
appeal, the point is that the documents meant that Arellano-Ochoa had
permission to visit the United States rather than to immigrate here.
3
See 18 U.S.C. § 922(g)(5)(B).
UNITED STATES v. ARELLANO-OCHOA 10639
the fruit of the illegal entry, so all the evidence found in the
residence should have been suppressed. We review the denial
of the motion to suppress de novo,4 and reach the same con-
clusion as the district court.
Arellano-Ochoa correctly points out that the officers did
not know about the gun until after they opened his screen
door with neither permission nor a warrant. He argues that his
actions were reasonable because, from his point of view,
some unidentified men came to his doorway and he had no
obligation to keep his door open. This argument does not
affect the result because the officer’s entry must be evaluated
objectively from the officer’s point of view.5
[1] We first address whether opening the screen door has
any Fourth Amendment significance. Whether opening a
screen door breaches a reasonable expectation of privacy
depends on the circumstances. During winter in a cold cli-
mate, people ordinarily keep the solid door shut. About the
only way for mail and package delivery people, solicitors,
missionaries, children funding school trips, and neighbors to
knock on the door is to open the screen door and knock on the
solid door. People understand that visitors will need to open
the screen door, and have no expectation to the contrary. The
reason why people do not feel that their privacy is breached
by opening the screen door to knock is that it isn’t; the solid
door protects their privacy.
[2] In the summer, when people leave their solid doors
open for ventilation, the screen door is all that separates the
inside from the outside. People can get a resident’s attention
4
See United States v. Willis, 431 F.3d 709, 713 n.3 (9th Cir. 2005).
5
United States v. McConney, 728 F.2d 1195, 1199 (9th Cir. 1984) (en
banc), abrogated on other grounds as recognized in Estate of Merchant
v. Comm’r, 947 F.2d 1390 (9th Cir. 1991); see also Mason v. Godinez, 47
F.3d 852, 856 (7th Cir. 1995) (“[P]olice officers’ belief that exigent cir-
cumstances existed is reviewed for its objective reasonableness.”).
10640 UNITED STATES v. ARELLANO-OCHOA
by knocking on the screen door without opening it. Where the
solid door is wide open, the screen door is what protects the
privacy of the people inside—not just their visual privacy,
which it protects only partially, but also their privacy from
undesired intrusion. Where the solid door is open so that the
screen door is all that protects the privacy of the residents,
opening the screen door infringes upon a reasonable and legit-
imate expectation of privacy. That is what happened here.
[3] The police cannot breach the reasonable expectation of
privacy that people have in their homes without consent or a
search warrant, unless one of the exceptions to the search
warrant requirement applies.6 Once the screen door was open
and the officers spotted the gun, the legal distance to a justi-
fied entry was short indeed. But the gun was not spotted until
after the agent opened the screen door. Where the screen door
is the only barrier between the inside of the house and the out-
side, the police cannot open the screen door without consent
or some exception. Arrellano-Ochoa did not consent.
[4] We are satisfied, though, that exigent circumstances jus-
tified opening the screen door. Exigent circumstances justify
a warrantless intrusion into a home where a reasonable officer
“would believe that entry . . . was necessary to prevent physi-
cal harm to the officers or other persons.”7 Whether exigent
circumstances exist in a given case is a fact-specific inquiry
that depends on the totality of the circumstances.8 Opening the
screen door, spotting the gun, and rushing in between the gun
and Arrellano-Ochoa was not a “protective sweep,” because
it did not require the officers to search the premises or the
6
See Brigham City v. Stuart, 126 S. Ct. 1943, 1947 (2006) (explaining
principle and listing exceptions).
7
United States v. Gooch, 6 F.3d 673, 679 (9th Cir. 1993); see also
LaLonde v. County of Riverside, 204 F.3d 947, 958 (9th Cir. 2000) (exi-
gency established when facts “present the officers with a threat to their
safety”).
8
See, e.g., United States v. Banks, 540 U.S. 31, 36 (2003).
UNITED STATES v. ARELLANO-OCHOA 10641
area outside Arrellano-Ochoa’s reach after they subdued him.9
The critical warrantless intrusion in this case was opening the
screen door, which occurred before the officers spotted the
gun.
[5] This intrusion was justified by exigency, which was
supplied by the background information on Arellano-Ochoa
and his “furtive” movements. His quick dodge behind the
door and closing of the blinds made it reasonable for the offi-
cers to conclude that there was a likelihood of danger to them-
selves, the woman, and the children. Arrellano-Ochoa did not
say “I prefer not to talk with you” or “You may not come in.”
He acted rather than talking. And he acted in a way that
would suggest, even before they saw the gun, that the officers
faced a risk of bullets flying where officers, a woman, and her
toddlers were all within range.10 Screen doors do not stop bul-
lets.
Arrellano-Ochoa argues for a different result under our
decision in United States v. Gooch.11 That case, though, is not
analogous in the immediacy of the threat. Here, the threat was
imminent. In Gooch, the police received a report about shoot-
ing in a campground at 3:50 a.m, and that there had been
other such behavior between midnight and 2:00 a.m.12 They
assembled a mile away at 5:00 a.m., waited a considerable
time for other officers, and did not approach the campground
9
Maryland v. Buie, 494 U.S. 325, 327 (1990) (“A ‘protective sweep’ is
a quick and limited search of premises, incident to an arrest and conducted
to protect the safety of police officers or others.”).
10
See United States v. Salvador, 740 F.2d 752, 756 (9th Cir. 1984) (exi-
gency established where “window curtains rapidly close[d]” upon seeing
police and officer believed “the occupants were getting ready to ‘do bat-
tle’ ”); see also Hegarty v. Somerset County, 53 F.3d 1367, 1375 (1st Cir.
1995) (woman shooting rifle at campers and threatening police justified
entry into home).
11
United States v. Gooch, 6 F.3d 673 (9th Cir. 1993).
12
See id. at 676.
10642 UNITED STATES v. ARELLANO-OCHOA
until daylight, when the suspect was asleep in his tent.13 After
they had safely arrested the shooter and locked him in a patrol
car 20 yards away from his tent, the officers searched the tent
without a warrant.14 We held that any exigency was gone
because by the time the officers entered the tent, “there was
no actual ongoing threat.”15
In this case, a reasonable officer could have concluded (and
did) that Arellano-Ochoa was a threat to them, the woman,
and the toddlers out front. Their entry was therefore justified
by exigency.
B. Other Suppression Issues
[6] Arrellano-Ochoa argues that his statements before he
was given a Miranda warning should have been suppressed.
But the only pre-Miranda information the police got and used
was where Arellano-Ochoa’s identification was and where
and when was he born. These are normal questions “attendant
to arrest and custody,” so Miranda is not implicated.16 And
“nothing in our case law prohibits officers from asking for, or
even demanding, a suspect’s identification.”17
Arellano-Ochoa also argues that a protective sweep of the
trailer after he was arrested and handcuffed was impermissi-
ble, and that any discoveries made during the sweep should
have been suppressed. But the sweep was permissible under
Maryland v. Buie18 and our decision in United States v. Alfonso.19
13
See id.14
See id.15
Id. at 679.
16
Rhode Island v. Innis, 446 U.S. 291, 301 (1980) (excepting questions
“normally attendant to arrest and custody”).
17
United States v. Christian, 356 F.3d 1103, 1106 (9th Cir. 2004).
18
Maryland v. Buie, 494 U.S. 325, 334 (1990).
19
United States v. Alfonso, 759 F.2d 728, 742-43 (9th Cir. 1985).
UNITED STATES v. ARELLANO-OCHOA 10643
C. The Speedy Trial Act
Arrellano-Ochoa was not indicted until 38 days after his
arrest. He should have been indicted within 30 days under the
Speedy Trial Act.20 The district court accordingly granted
Arrellano-Ochoa’s motion to dismiss the indictment.
The argument arises because the dismissal was without
prejudice. All the court said to justify allowing re-indictment
instead of dismissing with prejudice was that, “although the
Government violated the Speedy Trial Act by two days,21 it
was not egregious enough to order dismissal with prejudice.”
[7] In United States v. Pena-Carillo,22 we said that the dis-
trict court must apply the three statutory factors and make fac-
tual findings when determining whether a Speedy Trial Act
dismissal should be with or without prejudice.23 The statute
requires the district court to consider, “among others,” the fol-
lowing factors: seriousness of the offense, circumstances lead-
ing to the dismissal, and impact of reprosecution on
administration of the Speedy Trial Act and of justice.24 In
Pena-Carrillo, the district court erred by making no findings
at all.25 We nevertheless affirmed because the record sufficed
for us to conclude that the district court’s dismissal without
prejudice was not an abuse of discretion.26 Here, the district
20
18 U.S.C. § 3161(b).
21
Like most 18 U.S.C. § 3161 calculations, there is some complexity
involved, and it appears that the government was eight days late rather
than two days late. Arrellano-Ochoa concedes that the difference between
eight and two days was immaterial.
22
United States v. Pena-Carrillo, 46 F.3d 879 (9th Cir. 1995).
23
See id. at 882.
24
18 U.S.C. § 3162(a)(1).
25
See Pena-Carrillo, 46 F.3d at 882.
26
See id. (“Although the district court failed to make factual findings”
the record was “complete” and allowed the panel “to make the necessary
findings.”).
10644 UNITED STATES v. ARELLANO-OCHOA
court did make a finding, though cursory. In the circum-
stances of this case—a brief and accidental delay by the pros-
ecution in a case involving serious crimes—anything more
would have been gilding the lily. The statute requires the
judge to “consider” various factors, and the court’s terse
explanation that the violation was “not egregious enough”
meant that the delay was neither lengthy nor flagrant, showing
that it did consider the factors. Neither the statute nor any case
requires written findings or a precise script when the court
determines whether a speedy trial dismissal should be with or
without prejudice. Though the district court must “consider”
various factors, express discussion of each factor may be
otious in circumstances such as this case. Here, it would not
have added anything to have the judge going on in detail
about whether possession with intent to distribute cocaine and
methamphetamine, possession of firearms by an illegal alien,
uttering a forged immigration document, and illegal reentry
were serious crimes.
AFFIRMED.