United States v. Andre Winn ( 2020 )

FILED
NOT FOR PUBLICATION
MAY 1 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10473
Plaintiff-Appellee, D.C. No.
4:16-cr-00516-HSG-1
v.
ANDRE MARTEL WINN, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Haywood S. Gilliam, Jr., District Judge, Presiding
Submitted April 17, 2020**
San Francisco, California
Before: BERZON and IKUTA, Circuit Judges, and LEMELLE,*** District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The case has been submitted on the briefs as of April 17, 2020,
pursuant to FRAP 34(a).
***
The Honorable Ivan L.R. Lemelle, United States District Judge for the
Eastern District of Louisiana, sitting by designation.
Andre Winn appeals the district court’s denial of his motion to suppress and
his conviction for possessing a firearm as a felon under 18 U.S.C. § 922(g). We
have jurisdiction under 28 U.S.C. § 1291.
The district court did not err in upholding the federal search of Winn’s cell
phone pursuant to a search warrant based on evidence that guns purchased by a
suspected Nevada gun dealer had been found in Winn’s residence. Winn argues
that the federal search warrant was invalid both because it was based on evidence
obtained by means of an invalid search of his apartment and because the federal
officers relied on the prior invalid download of information from Winn’s phone by
the San Leandro Police Department (SLPD). We disagree.
First, the SLPD’s initial search of Winn’s apartment was conducted pursuant
to a valid search warrant based on probable cause that evidence relating to a
shooting for which James Williams was the primary suspect would be found in
Winn’s apartment. See United States v. Crews, 502 F.3d 1130, 1136–37 (9th Cir.
2007). The affidavit presented to the magistrate judge established probable cause
that Williams was temporarily residing in the apartment; it recited information
from continuous GPS tracking of Williams’s cell phone that put him in the vicinity
of Winn’s apartment several days after the shooting and stated that police officers
conducting surveillance of Williams observed him entering, exiting, and reentering
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the apartment, securing the door, and exiting the apartment the following morning.
Given these observations, it was reasonable for the officers to infer that Williams
was temporarily residing at the apartment, which distinguishes this case from the
precedent on which Winn relies, where there was either no apparent connection
between the suspect and the searched premises, or the suspect engaged in only
casual daytime visits to the premises. See United States v. Grandberry, 730 F.3d
968, 976–78 (9th Cir. 2013); Greenstreet v. Cty. Of San Bernardino, 41 F.3d 1306,
1309–10 (9th Cir. 1994); United States v. Bailey, 458 F.2d 408, 412 (9th Cir.
1972).
The dissent’s reliance on Bailey is misplaced. Bailey addressed an affidavit
disclosing that the defendant “had been seen at the house and that [a co-defendant]
was arrested there” six weeks after the crime for which evidence was sought. 458
F.2d at 412. The affidavit included “[n]o facts . . . from which it could be inferred”
that the defendant was more than a casual social guest. Id. Here, police officers’
observations led to the reasonable inference that Williams was an overnight guest
mere days after the alleged shooting, which established a significantly stronger
connection between the crime for which Williams was a suspect and Winn’s
apartment.
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Our precedent does not require showing that a suspect permanently lives in a
home to establish probable cause that evidence of a crime will be found in that
home. See Crews, 502 F.3d at 1136–37; cf. Grandberry, 730 F.3d at 973 (holding
that a warrantless search of a house was not permitted under the parolee’s parole
search conditions, which expressly applied only to the parolee’s permanent
residence). Based on the police officers’ training and experience, Williams’s use
of the premises less than a week after the shooting established probable cause that
evidence related to the shooting incident would be found at the premises. See
United States v. Garay, 938 F.3d 1108, 1113 (9th Cir. 2019), cert. denied, 140 S.
Ct. 976 (2020); Crews, 502 F.3d at 1136–37.
Moreover, the warrant did not lack sufficient particularity given that it
sufficiently described the items to be seized, including cell phones, and there was
probable cause that the cell phones would contain evidence relating to the shooting
incident. See Garay, 938 F.3d at 1113.
The affidavit’s omission of information that the apartment belonged to
Winn, and that Williams was Winn’s cousin, did not violate Franks v. Delaware,
438 U.S. 154 (1978). Williams’s status as an overnight guest in the apartment
rather than the apartment’s primary resident was not material to the magistrate
judge’s probable cause finding. See id. at 155–56. Moreover, the district court’s
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determination that the police were not deliberately or recklessly misleading in
omitting this information was not clearly erroneous. Therefore, the district court
did not err in declining to hold a hearing as to whether the search warrant was
supported by probable cause if the omitted evidence had been included.
Second, the seizure of Winn’s cell phone from his person during the SLPD
officers’ initial search does not require exclusion of evidence obtained from the
cell phone pursuant to the federal officers’ warrant. The SLPD would have
inevitably seized Winn’s cell phone, see Nix v. Williams, 467 U.S. 431, 444 (1984),
because after discovering four firearms, multiple high-capacity firearm magazines,
several rounds of various types of ammunition, and several baggies of cocaine in
his apartment, the police would have arrested Winn and searched him incident to
arrest, see United States v. Hartz, 458 F.3d 1011, 1019 (9th Cir. 2006). And the
SLPD would have been entitled to secure the phone “to prevent destruction of
evidence while seeking a warrant.” Riley v. California, 573 U.S. 373, 388 (2014).
Although the SLPD subsequently downloaded information from Winn’s
phone without a warrant, even assuming this search was unlawful, the federal
officers’ affidavit contained no “tainted evidence” derived from that search.
United States v. Nora, 765 F.3d 1049, 1058 (9th Cir. 2014). And the record
supports the district court’s finding that the federal officers would have sought the
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warrant regardless of the SLPD’s search based on the gun evidence. See Murray v.
United States, 487 U.S. 533, 542 & n.3 (1988). Therefore, the federal warrant was
a “genuinely independent source” of the evidence from Winn’s cell phone. Id. at
542. We conclude that the district court did not err in denying Winn’s motion to
suppress.
We also reject Winn’s argument that there was insufficient evidence
supporting his conviction under 18 U.S.C. § 922(g) because the government did
not present evidence that Winn knew he had been convicted of a crime punishable
by a term of imprisonment exceeding one year at the time he possessed the firearm.
See Rehaif v. United States, 139 S. Ct. 2191, 2194 (2019). Any error in not
adducing evidence on this element of the offense “did not affect [Winn]’s
substantial rights” because Winn’s stipulation to his prior convictions “proved
beyond a reasonable doubt that [he] had the knowledge required by Rehaif.”
United States v. Benamor, 937 F.3d 1182, 1189 (9th Cir. 2019).
AFFIRMED.
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FILED
United States v. Winn, No. 18-10473 MAY 1 2020
BERZON, Circuit Judge, dissenting:
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I respectfully dissent. Contrary to the majority’s holding, the warrant
authorizing the SLPD’s initial search of Winn’s apartment was not
supported by probable cause.
The affidavit underlying the warrant alleged that (1) GPS monitoring
located Williams’s cell phone in the vicinity of the apartment, without
saying how many times that occurred, and (2) SLPD detectives observed
Williams at the apartment twice, once around 9:00 p.m. and once the
following morning, without saying the detectives had continued their
surveillance overnight. Although the affidavit mentioned that Williams
came out of the apartment, looked around, and went back in, that detail
adds nothing to support the supposition that he lived there. Under our
precedent, the information contained in the warrant affidavit was
insufficient to establish that Williams had a sufficient connection to the
apartment to provide probable cause for a broad search of the home to find
items connected to Williams’s recent crime.
In United States v. Bailey, 458 F.2d 408 (9th Cir. 1972), for example, two
suspects in a bank robbery were seen separately at the same house on at
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least four occasions in the weeks following the robbery. We held that
probable cause to search the house for items connected to the robbery was
lacking, because there was insufficient evidence to permit an inference that
the suspects were “other than casual social guests” there. Id. at 412. The
nexus between Williams and Winn’s apartment was weaker, or at least no
stronger, than the nexus in Bailey.
Moreover, the reasons given in the affidavit for expecting to find
evidence of Williams’s crime in Winn’s apartment were tied repeatedly to
the affidavit’s assertions that the apartment was Williams’s “residence,”
and that gang members often keep evidence of gang-related crimes in their
residence. In parolee search cases, we have required much more evidence
than was given here to establish that a dwelling place is a parolee’s
residence. “Even when there is evidence that the parolee has ‘spent the
night there occasionally,’ we have concluded that such evidence is
‘insufficient’ to establish residence.” United States v. Grandberry, 730 F.3d
968, 978 (9th Cir. 2013) (quoting United States v. Howard, 447 F.3d 1257, 1262
(9th Cir. 2006)).
The SLPD’s unlawful search of Winn’s apartment tainted the federal
agents’ later search of Winn’s cell phone and apartment. Absent that
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original search, the state officers would not have had Winn’s cell phone
and been able to hand it over to the federal agents. And the good-faith
exception does not apply because the federal government has not
established that the SLPD officers conducted the initial search in good
faith. See United States v. Artis, 919 F.3d 1123, 1133 (9th Cir. 2019). The SLPD
officers were less than forthcoming in informing the magistrate judge that
the basis for their belief that Williams resided in the apartment to be
searched was tenuous, and the affidavit’s shortcomings in establishing a
connection between Williams and the apartment were readily apparent. See
Greenstreet v. Cty. of San Bernardino, 41 F.3d 1306, 1310 (9th Cir. 1994).
As I would hold that the district court should have granted Winn’s
motion to suppress the evidence from the federal searches, I would reverse
the conviction, and so dissent.
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