United States v. Traci Burleigh , 414 F. App'x 77 ( 2011 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT FEB 09 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 10-50033
Plaintiff - Appellee, D.C. No. 2:09-cr-00166-PA-3
v.
MEMORANDUM*
TRACI BURLEIGH,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Argued and Submitted January 11, 2011
Pasadena, California
Before: McKEOWN, W. FLETCHER, and CLIFTON, Circuit Judges.
Traci Burleigh was arrested when the police seized the warehouse where she
was assisting with a marijuana growing operation. The police initially seized the
warehouse without a warrant. They later obtained a warrant and searched the
warehouse. Burleigh appeals the district court’s denial of her motion to suppress
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
all evidence gathered during the warrantless seizure and the later search pursuant to
the warrant. Burleigh also appeals the district court’s imposition of three special
conditions on her supervised release, specifically that Burleigh must abstain from
alcohol use, participate in outpatient substance abuse treatment program, and
participate in a mental health treatment program. We have jurisdiction under 28
U.S.C. § 1291, and we reverse in part, affirm in part, and remand.
To the extent that the district court denied Burleigh's motion to suppress the
evidence because it determined that the warrantless seizure was constitutional, this
was error. The warrantless entry and seizure were unconstitutional because they
were not justified by exigent circumstances. See United States v. Struckman, 603
F.3d 731, 739 (9th Cir. 2010) (“It is clearly established Federal law that the
warrantless search of a dwelling must be supported by probable cause and the
existence of exigent circumstances.”) (internal quotation and citation omitted). On
the factors of this case, the police officers’s speculations that there were
individuals inside the warehouse who might destroy evidence and that these
individuals knew or might be alerted that the warehouse was under surveillance are
insufficient to meet the government’s burden of proving exigent circumstances.
See United States v. Driver, 776 F.2d 807, 810 (9th Cir. 1985) (the government’s
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“burden is not satisfied by leading a court to speculate on what may or might have
been the circumstances” requiring the warrantless entry).
Although the warrantless seizure was unjustified, there was no undue delay
in obtaining the warrant. The police officers diligently prepared the warrant
application and obtained the warrant within two hours of the seizure. See Segura
United States, 468 U.S. 796, 812 (1984) (holding that nineteen-hour delay in
obtaining warrant did not constitute undue delay where there was no evidence that
“officers, in bad faith, purposely delayed obtaining the warrant”). Further, the
warrant was based on probable cause. The alleged falsities in the warrant do not
render it invalid because they are not necessary to the finding of probable cause.
See Franks v. Delaware, 438 U.S. 154, 171-72 (1978). We remand to the district
court to determine whether any evidence obtained during the warrantless seizure or
the subsequent search pursuant to the valid warrant should be suppressed as "fruit"
of the warrantless seizure, see United States v. Ramirez-Sandoval, 872 F.2d 1392,
1395-96 (9th Cir. 1989), or whether it is admissible pursuant to a warrant
exception such as the "inevitable discovery" or "independent source" exceptions,
see Nix v. Williams, 467 U.S. 431, 444 (1984); Segura v. United States, 468 U.S.
796, 805 (1984).
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The district court abused its discretion by imposing on Burleigh supervised
release conditions relating to alcohol use and participation in a substance abuse
treatment program. There is no evidence that at the time of sentencing Burleigh
had an alcohol or substance abuse problem. See United States v. Betts, 511 F.3d
872, 877-78 (9th Cir. 2007). The district court did not abuse its discretion by
requiring Burleigh to participate in a mental health treatment program. Burleigh
stated that she is attending therapy to cope with the stress of her arrest and plans to
continue attending therapy, and thus the district court was justified in finding that
she is in need of psychological treatment. See U.S. Sentencing Guidelines Manual
§ 5D1.3(d)(5).
Finally, we remand to the district court to correct a clerical error in the
judgment and conviction order. Burleigh pled guilty to one count of
manufacturing a controlled substance in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(B)(vii). The judgment and conviction order, however, state that she also
was convicted of possession with intent to distribute a controlled substance. On
remand, the district court should enter a corrected judgment and conviction order
properly listing Burleigh’s conviction offense.
REVERSED IN PART, AFFIRMED IN PART, AND REMANDED.
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