United States v. Bryant Iwai , 930 F.3d 1141 ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10015
Plaintiff-Appellee,
D.C. No.
v. 1:15-cr-00723-DKW
BRYANT KAZUYOSHI IWAI,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Hawaii
Derrick Kahala Watson, District Judge, Presiding
Submitted February 14, 2019 *
Honolulu, Hawaii
Filed July 23, 2019
Before: Richard C. Tallman, Jay S. Bybee,
and N. Randy Smith, Circuit Judges.
Opinion by Judge Tallman;
Dissent by Judge Bybee
*
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. IWAI
SUMMARY **
Criminal Law
The panel affirmed the district court’s order denying a
motion to suppress evidence seized following law
enforcement agents’ warrantless entry into defendant’s
condominium.
The agents secured a court order authorizing insertion of
a tracking device to conduct a controlled delivery of a
package of methamphetamine, but their subsequent entry
into defendant’s residence to secure the package was
warrantless.
The panel affirmed the district court’s ruling that the
agents’ entry was presumptively unreasonable under the
Fourth Amendment but, considering the totality of the
circumstances, exigent circumstances existed to justify the
entry because it was reasonable to conclude that the
destruction of incriminating evidence was occurring.
Defendant’s subsequent consent for a more thorough search
was not therefore tainted by an illegal entry, and the district
court did not err by denying his motion to suppress.
Dissenting, Judge Bybee wrote that the search and
seizure was unreasonable in violation of the Fourth
Amendment because the officers should have obtained an
anticipatory warrant; the officers should have sought a
warrant once defendant returned to his apartment with the
package; and the officers lacked facts supporting exigent
**
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. IWAI 3
circumstances and, in any event, created the exigent
circumstances when they violated the Fourth Amendment in
their knock and announce at the apartment door.
COUNSEL
Myles S. Breiner, Honolulu, Hawaii, for Defendant-
Appellant.
Mark A. Inciong, Assistant United States Attorney; Kenji M.
Price, United States Attorney; United States Attorney’s
Office, Honolulu, Hawaii; for Plaintiff-Appellee.
OPINION
TALLMAN, Circuit Judge:
Defendant Bryant Iwai appeals the final judgment and
sentence in his drug trafficking case and challenges the
denial of his motion to suppress evidence. Iwai entered a
conditional plea of guilty to prosecute this appeal. The
charges arose from a controlled delivery of
methamphetamine to his residence conducted by the United
States Postal Inspection Service, Drug Enforcement
Administration (“DEA”) agents, and local drug task force
officers (collectively “agents”). The agents secured a court
order authorizing insertion of a tracking device to conduct
the controlled delivery, but their subsequent entry into Iwai’s
condominium to secure the package was warrantless.
Nevertheless, considering the totality of the circumstances,
the district court ruled that exigent circumstances existed to
justify the agents’ entry. We affirm.
4 UNITED STATES V. IWAI
I
On August 4, 2015, the United States Postal Inspection
Service in Honolulu intercepted a package from Las Vegas,
Nevada, that was addressed to Iwai’s condominium. After a
narcotic detection dog alerted to the presence of a controlled
substance in the package, a search warrant was obtained to
open the box. Among other incriminating evidence, the box
contained roughly six pounds of methamphetamine.
The next day, DEA agents obtained a second judicial
authorization to track a controlled delivery of the package to
Iwai’s condominium building. Agents removed a majority
of the methamphetamine and replaced it with a non-narcotic
substitute, leaving behind only a small representative sample
of the drug. They also placed in the package a GPS tracking
device, which identified the location of the package, and
contained a sensor, which would activate a rapid beeping
signal on their monitoring equipment when the package was
subsequently opened.
The agents learned that Iwai’s residence was located in a
multi-story condominium building that did not permit direct
delivery of packages to a particular unit, but rather utilized a
central location to which packages were delivered for its
residents. Believing that they did not have the requisite
probable cause that the package would actually end up in
Iwai’s unit, the agents did not, as they normally would have,
seek an anticipatory search warrant to enter his residence in
order to secure the box once the beeper was triggered. The
agents testified that at this point in the investigation, they had
no way of knowing whether the package would be retrieved
in the central mail room and removed from the property and
taken somewhere else.
UNITED STATES V. IWAI 5
At approximately 11:48 a.m. on August 5, 2015, a
United States Postal Inspector posing as a mail carrier went
to the condominium building, and from the lobby callbox
telephoned Iwai’s unit number to notify him that he had
received a package. Iwai answered from his cell phone and
requested that the package be left at the front desk with the
manager. The Inspector complied.
When Iwai returned at approximately 12:56 p.m., the
agents observed him pick up the package from the manager
and bring it up the elevator and into his unit. Agents
maintained surveillance outside to see what might transpire.
At 3:15 p.m., the beeper activated, signaling the package
had been opened inside Iwai’s unit. The agents went to
Iwai’s door, and knocked and announced their presence.
After no initial response, Agent Richard Jones saw shadowy
movements through the peephole, indicating that someone
had come to the door, which had yet to open. After
announcing their presence again, Agent Jones saw the figure
walking away from the door. He knocked and announced
again, but received no response. Agent Jones, the only agent
directly in front of the door, then heard noises from inside
the unit that sounded like plastic and paper rustling. He
interpreted these noises to mean that Iwai was destroying
evidence, which in his judgment required immediate action
to prevent, and the agents forced entry at approximately
3:17 p.m.
When the agents entered, Iwai was in the kitchen area,
and the package was lying on the floor in the living room.
Apparently, the signaling device had malfunctioned,
because the package was still unopened. While securing the
residence, the agents observed in plain view on a table in the
living room a gun and zip lock bags containing what
appeared to be a powder resembling methamphetamine.
6 UNITED STATES V. IWAI
After securing the premises, Agent Jones asked Iwai for
verbal consent to search the residence; consent was given,
and a few minutes later Officer Jennifer Bugarin arrived with
a consent-to-search form. Iwai was cooperative and calm,
and promptly signed the consent form. After receiving
Iwai’s consent, in addition to seizing the weapon, “law
enforcement officers searched the apartment and found
approximately 14 pounds of crystal methamphetamine, more
than $32,000 in United States currency, a digital scale, a
ledger, and plastic bags.”
Iwai moved to suppress all evidence and statements the
government obtained from the controlled delivery operation,
and the district court held a multi-day evidentiary hearing on
the motion. The court denied Iwai’s motion to suppress,
holding, in relevant part, that the agents’ entry was justified
to prevent the imminent destruction of evidence, that the
subsequent seizure of objects in plain view was lawful, and
that Iwai’s consent was voluntary. Following the denial of
the suppression motion, Iwai entered a conditional guilty
plea to conspiracy to possess and distribute
methamphetamine, and possession of a firearm in
furtherance of a drug trafficking crime.
II
We review de novo the denial of a motion to suppress
evidence, which presents a mixed question of law and fact.
United States v. Crawford, 372 F.3d 1048, 1053 (9th Cir.
2004) (en banc). While “[t]he ultimate issue of whether
exigent circumstances justify a warrantless entry and/or
search” is reviewed de novo, United States v. Wilson,
865 F.2d 215, 216 (9th Cir. 1989), the district court’s
findings of fact are reviewed for clear error. United States
v. Washington, 490 F.3d 765, 769 (9th Cir. 2007).
UNITED STATES V. IWAI 7
III
A warrantless search of a home is “presumptively
unreasonable” because “the physical entry of the home is the
chief evil against which the wording of the Fourth
Amendment is directed.” Payton v. New York, 445 U.S. 573,
585–86 (1980) (quotations and citation omitted). This
presumption is overcome only “when ‘“the exigencies of the
situation” make the needs of law enforcement so compelling
that [a] warrantless search is objectively reasonable under
the Fourth Amendment.’” Kentucky v. King, 563 U.S. 452,
460 (2011) (quoting Mincey v. Arizona, 437 U.S. 385, 394
(1978)). Preventing the imminent destruction of evidence is
one such exigency, and exists when “officers, acting on
probable cause and in good faith, reasonably believe from
the totality of the circumstances that [] evidence or
contraband will imminently be destroyed . . . .” United
States v. Ojeda, 276 F.3d 486, 488 (9th Cir. 2002) (per
curiam) (quoting United States v. Kunkler, 679 F.2d 187,
191–92 (9th Cir. 1982)). Probable cause exists where, under
the totality of the circumstances, there is “a fair probability
or substantial chance of criminal activity.” United States v.
Alaimalo, 313 F.3d 1188, 1193 (9th Cir. 2002). “The
government bears the burden of showing specific and
articulable facts to justify the finding of exigent
circumstances.” Ojeda, 276 F.3d at 488.
It is undisputed here that, although the agents obtained a
warrant to open the package and a second judicial
authorization to insert a tracking device and alarm, they did
not seek a warrant to subsequently enter Iwai’s
condominium to retrieve the package. Iwai contends, and
the Dissent agrees, that the evidence found in his home
should thus be suppressed because the agents could have,
and therefore should have, obtained an anticipatory search
8 UNITED STATES V. IWAI
warrant. See Dissent at 16–26. But this disregards the
Supreme Court’s admonition that officers have no
constitutional duty to obtain a warrant as soon as they have
probable cause. See King, 563 U.S. at 467. Rather, the
consequence of failing to obtain a warrant is that any entry
into a residence is presumptively unreasonable without an
applicable exception. Id. at 459. Thus, whether or not the
agents could have obtained an anticipatory search warrant in
this case is beside the point: The relevant fact is simply that
they did not, and any entry into Iwai’s residence was
presumptively unreasonable. Id.
Because the agents did not have a warrant to enter and
retrieve the package, their entry is lawful only if an
exception to the warrant requirement such as exigent
circumstances existed. Considering the totality of the
circumstances on the evidence presented at the hearing, the
district court credited the agents’ testimony and concluded
that they reasonably believed that the imminent destruction
of evidence existed to justify the agents’ entry. See Ojeda,
276 F.3d at 488.
The court’s finding of exigency was based on the
following key evidence adduced at the hearing: (1) six
pounds of methamphetamine had been intercepted the day
before in a package addressed to Iwai; (2) the multi-story
condominium complex had a central mail room to which all
packages had to be delivered, preventing the agents from
sending the package on a sure course to Iwai’s unit; (3) the
agents observed Iwai take the package up to his unit; (4) the
beeper thereafter signaled that the package had been opened;
(5) the agents knew that drugs are easily destroyed or
disposed of; (6) upon knocking on the door, Agent Jones saw
a shadowy figure approach the door and then retreat; and
(7) Agent Jones then heard a suspicious rustling noise from
UNITED STATES V. IWAI 9
inside, which in his experience as a highly trained narcotics
investigator, indicated the destruction of evidence was
occurring. The district court believed the agents were
testifying truthfully. And no evidence refutes the conclusion
that the agents were acting in good faith.
Considering all of these facts together, it was reasonable
to conclude that the destruction of incriminating evidence
was occurring. Exigency arose at the time Agent Jones
heard the suspicious sounds. But to focus on the noises in
isolation from all other factors, as the Dissent does, is not a
proper “totality of the circumstances” analysis. 1 See Dissent
at 32–34; Ojeda, 276 F.3d at 488. Agent Jones did not hear
“a rustling of papers or plastic or something to that effect” in
a vacuum. Six pounds of methamphetamine had been
discovered the day before in the package addressed to Iwai.
At those quantities, agents were clearly investigating a major
drug distributor. The agent heard this noise after the beeper
had signaled that the package had been opened, and he knew
Iwai was inside.
Although the Dissent questions the significance of the
noises Agent Jones heard, Dissent at 32–34, conduct
meaningless “to the untrained eye of an appellate judge . . .
may have an entirely different significance to an experienced
narcotics officer” like Agent Jones. United States v. Hicks,
752 F.2d 379, 384 (9th Cir. 1985) (citing Bernard, 623 F.2d
1
Indeed, our caselaw recognizes that even in situations where “no
one event, considered in isolation, would be sufficient, the ‘succession
of superficially innocent events [can proceed] to the point where a
prudent man could say to himself that an innocent course of conduct was
substantially less likely than a criminal one.’” United States v. Bernard,
623 F.2d 551, 560 (9th Cir. 1979) (quoting United States v. Patterson,
492 F.2d 995, 997 (9th Cir. 1974)).
10 UNITED STATES V. IWAI
at 560), overruled on other grounds by United States v.
Ramirez, 523 U.S. 65 (1998). Agent Jones believed that the
noise he heard was Iwai destroying evidence, the trial court
found his testimony credible, and there is no evidence in the
record to suggest otherwise. 2 See Ornelas v. United States,
517 U.S. 690, 699 (1996) (“[A] reviewing court should take
care . . . to give due weight to inferences drawn from those
facts by resident judges and local law enforcement
officers.”); United States v. Craighead, 539 F.3d 1073, 1082
(9th Cir. 2008) (“Where testimony is taken, we give special
deference to the district court’s credibility determinations.”).
This situation is distinguishable from United States v.
Mendonsa, 989 F.2d 366 (9th Cir. 1993). In Mendonsa, the
officers heard only generic nondescript noise and “pointed
to no particular type of noise, which would indicate that the
occupants were rushing . . . to destroy evidence.” Id. at 371.
Here, by contrast, Agent Jones heard a specific noise more
incriminating and more suggestive of destruction of
evidence than the “soft music” and general living sounds
coming from Mendonsa’s apartment. 3 Id. at 370–71. See
2
To the extent that Iwai suggests that Agent Jones made up the
noise, the district court listened to the witnesses and found Agent Jones
specifically credible on that point. On this record, that factual finding
was not clearly erroneous. See Easley v. Cromartie, 532 U.S. 234, 242
(2001) (noting that clear error requires a “definite and firm conviction
that a mistake has been committed” (quoting United States v. United
States Gypsum Co., 333 U.S. 364, 395 (1948))); Washington, 490 F.3d
at 769 (overturning a factual finding requires clear error).
3
We disagree with the Dissent’s assertion that these noises could
not indicate destruction of evidence. See Dissent at 32–34. It would be
reasonable to conclude that Iwai was rustling through the package to
hastily grab the incriminating evidence and destroy it before the agents
entered, or that the rustling noises indicated that Iwai was preparing to
burn or shred evidence or other incriminating material.
UNITED STATES V. IWAI 11
also United States v. Alfonso, 759 F.2d 728, 742–43 (9th Cir.
1985) (holding that “a ‘hurried scuffling noise’ coming from
the bathroom” of the defendant’s hotel room could
reasonably indicate imminent destruction of evidence);
United States v. Almonte-Baez, 857 F.3d 27, 33 (1st Cir.
2017) (holding that exigency due to imminent destruction of
evidence existed where “agents knocked on the front door of
the apartment and identified themselves, [] heard someone
inside the apartment running away from the door,” and
“noticed that the door was sealed shut”); United States v.
Clement, 854 F.2d 1116, 1119–20 (8th Cir. 1988) (noting
that “essential circumstances included the lack of response
at the door after knocking, seeing someone approach the
door, look through the peephole and retreat, [] hearing a
scrambling noise,” and “the gravity of the offense”). In sum,
the rustling noises, along with all the other factors known to
Agent Jones, were sufficient to create exigency under
applicable precedent.
We do not consider whether the fact that the package was
in Iwai’s apartment for two hours before the beeper went off
affects our exigent circumstances analysis because Iwai only
challenged the district court’s exigent circumstances
determination on the ground that the Government should
have sought an anticipatory warrant. We do not understand
Kentucky v. King to be clearly irreconcilable with
considering, in the totality of the exigent circumstances
inquiry, whether the police acted in an objectively
reasonable manner in the period preceding the exigency. See
563 U.S. at 462 (“[T]he answer to the question before us is
that the exigent circumstances rule justifies a warrantless
search when the conduct of the police preceding the exigency
is reasonable in the same sense.” (emphasis added)); United
States v. Good, 780 F.2d 773, 775 (9th Cir. 1986).
12 UNITED STATES V. IWAI
Finally, the Dissent concludes that any exigency was
created by the agents conducting an improper “knock and
talk.” Dissent at 36–40. But Iwai did not make this
argument in the district court below, nor does he raise it
before us now, and we need not address it. See Padgett v.
Wright, 587 F.3d 983, 986 n.2 (9th Cir. 2009) (noting that
this court need not “consider matters on appeal that are not
specifically and distinctly raised in appellant’s opening
brief,” nor “review [] issue[s] not raised below . . . .”
(quoting Int’l Union of Bricklayers & Allied Craftsman
Local Union No. 20 v. Martin Jaska, Inc., 752 F.2d 1401,
1404 (9th Cir. 1985))). That ends the inquiry. 4
Because the agents entered lawfully under circumstances
giving rise to an applicable exception to the warrant
requirement, Iwai’s subsequent consent to search the unit
was not tainted. See United States v. Taheri, 648 F.2d 598,
601 (9th Cir. 1981) (concluding that “unconstitutional
conduct [] not sufficiently attenuated” can taint consent
(emphasis added)). The evidence supports his plea of guilty.
4
Even if we were to reach this issue, Kentucky v. King likely
forecloses any argument that the police created the exigency here.
563 U.S. at 469–70 (“When law enforcement officers who are not armed
with a warrant knock on a door, they do no more than any private citizen
might do. And whether the person who knocks on the door and requests
the opportunity to speak is a police officer or a private citizen, the
occupant has no obligation to open the door or to speak.”); id. at 468
(“Police officers may have a very good reason to announce their presence
loudly and to knock on the door with some force.”). Agent Jones waited
an appropriate amount of time for Iwai to “put some shorts on,” and also
testified that had Iwai decided to completely ignore the police at the door,
and no other factors triggering an exigency had occurred, he would have
retreated and held his position until they obtained a search warrant, as
required by caselaw. See Florida v. Jardines, 569 U.S. 1, 8 (2013);
United States v. Perea-Rey, 680 F.3d 1179, 1188 (9th Cir. 2012).
UNITED STATES V. IWAI 13
IV
We conclude the record supports the trial court’s
decision that the agents’ warrantless entry was justified by
exigent circumstances, Iwai’s subsequent consent for a more
thorough search was not therefore tainted by an illegal entry,
and the district court did not err by denying Iwai’s motion to
suppress.
AFFIRMED.
BYBEE, Circuit Judge, dissenting:
Bryant Iwai was in big trouble. On August 4, 2015,
postal inspectors identified a suspicious package addressed
to Iwai, and a narcotics detecting dog alerted on the package.
That same day, a postal inspector, working with an
interagency task force comprised of agents from the Drug
Enforcement Agency (“DEA”) and officers from the
Honolulu Police Department (“HPD”), obtained a search
warrant to open the package. Inside were six pounds of
crystal methamphetamine, a substantial haul. The following
morning, August 5, HPD officers obtained a second
warrant—referred to as a “beeper tracker warrant”—to
conduct a controlled delivery to Iwai’s apartment in Pearl
City. Officers first removed the six pounds of meth and
replaced it with rock salt and one gram of meth. They also
added a GPS tracking device and a credit card-sized device
that would alert the officers if the box was opened. The
officers dusted the contents with a black-light sensitive
powder, repacked the box, and arranged for a postal
inspector to deliver the box to Iwai’s apartment complex in
Pearl City the same day.
14 UNITED STATES V. IWAI
The task force was well prepared. Two officers dressed
in plain clothes were in the manager’s office where they
could watch the lobby and the complex’s surveillance
cameras, a surveillance team was posted outside the
building, another team covered the emergency exits, and a
team was posted in the stairwell near the 23rd floor—Iwai’s
floor. The entire task force operation was directed by an
HPD officer secreted in the stairwell of the 33rd floor. The
officers observed Iwai leave the apartment at 11:15am. Then
just before noon, the postal inspector took the box to the
complex and spoke with the manager. Because the box was
too large to fit in a mail slot or a parcel locker, the postal
inspector called Iwai’s apartment from the lobby. Iwai
picked up the call on his cell phone, told the inspector that
he was “on the road” and that his girlfriend would pick it up;
after she did not, the inspector called again and offered to
leave the package with the manager so that Iwai could pick
it up later. Approximately an hour later, Iwai retrieved the
box, and the officers observed him take it to his apartment
on the 23rd floor. The teams waited patiently for some
indication that the box had been opened. At about
3:15 p.m.—more than three hours since they had delivered
the box and two hours since Iwai had picked it up—the
beeper went off, indicating that the box may have been
opened. Some seven officers on the stairwell on the 23rd
floor geared up in body armor and, carrying a ballistic shield
and a battering ram, went to Iwai’s apartment. The lead
officer in the stairwell, DEA Agent Jones, holding the shield
and a drawn weapon, knocked on the door, yelled “police,”
and demanded that Iwai open the door. He kicked the door
another three times and continued to demand that Iwai open
the door. At that point, Jones looked through the peephole
and saw a shadow moving. He announced several times,
“Bryant, I can see you through the peephole. Open the
door.” Jones continued to knock and announce. Finally,
UNITED STATES V. IWAI 15
Jones stopped knocking, and listening, he heard noises “like
somebody going through a garbage can . . . like, a rustling of
papers or plastic or something to that effect.” Jones testified
that he was afraid that Iwai was destroying evidence, so he
ordered the officer with the ram to breach the door, and the
officers spilled in. Iwai was alone inside, standing in the
kitchen. The package containing the meth was in the living
room, unopened.
Over the course of just two days, August 4–5, the task
force had obtained two warrants—one to open the package
identified by the postal inspectors and one to effect a
controlled delivery with a GPS tracker and a beeper. The
task force had employed at least a dozen officers at Iwai’s
apartment complex for nearly four hours before a team of
seven officers, armed, in body armor, and carrying a ballistic
shield and a battering ram, breached Iwai’s apartment. Yet
at no time did the officers make any effort to obtain a search
warrant for Iwai’s apartment. They later testified that they
did not think they could obtain an anticipatory warrant
because they could not be sure that Iwai would take the
package from the mailroom to his apartment. They offered
no explanation for why, once they knew that Iwai had
retrieved the package and taken it into his apartment, they
did not seek a warrant but waited in the stairwell for a beeper
that might or might not go off. Once the beeper did go off—
a false positive, as it turned out—the officers demanded that
Iwai open his door to them, and when he chose not to and
instead had the audacity to move about his apartment and
“rustle” paper, they broke the door down.
The Fourth Amendment does not protect us from
searches and seizures in our “persons, houses, papers, and
effects.” U.S. Const. amend. IV. Just from “unreasonable”
ones. Id. This was an unreasonable search and seizure. The
16 UNITED STATES V. IWAI
officers had Iwai dead to rights. They knew he was likely a
big cog in a meth distribution operation in Honolulu. The
care with which they planned and conducted the controlled
delivery and the stake out at Iwai’s apartment complex is
ample evidence of that. What is inexplicable is why the
officers failed to make any attempt to secure a warrant before
they breached his apartment to secure the “evidence”—the
one gram of meth and six pounds of rock salt the officers
themselves had placed in the box. This is too much for me.
I would suppress the evidence obtained from the search.
In Part I, I address why the officers should have obtained
an anticipatory warrant. In Part II, I address why they should
have sought a warrant once Iwai returned to his apartment
with the package. In Part III, in a closer question, I conclude
that the officers lacked facts supporting exigent
circumstances and, in any event, created the exigent
circumstances when they violated the Fourth Amendment in
their knock and announce. I respectfully dissent.
I
The officers should have sought an anticipatory warrant.
Anticipatory warrants are designed for this precise
situation—an immediate search upon completion of a
controlled delivery. See, e.g., United States v. Penney,
576 F.3d 297, 311 (6th Cir. 2009) (“[A]nticipatory search
warrants are typically sought to conduct searches triggered
by a police-controlled delivery of contraband . . . .”);
William E. Ringel, Searches and Seizures, Arrests and
Confessions § 4:9 (2d ed. 2019) (collecting cases where
anticipatory warrants were obtained for controlled delivery);
67 A.L.R. 5th 361 (same). As the Supreme Court has
explained, “[a]n anticipatory warrant is ‘a warrant based
upon an affidavit showing probable cause that at some future
time (but not presently) certain evidence of crime will be
UNITED STATES V. IWAI 17
located at a specified place.’” United States v. Grubbs,
547 U.S. 90, 94 (2006) (quoting 2 W. LaFave, Search and
Seizure § 3.7(c) (4th ed. 2004)). In Grubbs, the Court upheld
the constitutionality of anticipatory warrants because they
are “no different in principle from ordinary warrants. They
require the magistrate to determine (1) that it is now
probable that (2) contraband, evidence of a crime, or a
fugitive will be on the described premises (3) when the
warrant is executed.” Id. at 96. Thus, the supporting
affidavit from police must show “not only that if the
triggering condition occurs there is a fair probability that
contraband or evidence of a crime will be found in a
particular place, but also that there is probable cause to
believe the triggering condition will occur.” Id. at 96–97
(quotation marks and citation omitted); accord United States
v. Perkins, 887 F.3d 272, 274 (6th Cir. 2018) (“Anticipatory
search warrants, like all search warrants, require probable
cause. . . . The triggering event provides that cause.”);
United States v. Vesikuru, 314 F.3d 1116, 1119 (9th Cir.
2002) (“The execution of an anticipatory search warrant is
conditioned upon the occurrence of a triggering event.”).
In a controlled delivery, the triggering event occurs when
the package containing contraband is physically taken into
the location specified in the warrant. See Grubbs, 547 U.S.
at 94; United States v. Becerra, 97 F.3d 669, 671 (2d Cir.
1996) (“The warrant remains contingent until delivery
because some uncertainty exists as to whether the suspect
will give further credence to that relationship by accepting
the package.”). The supporting affidavit must demonstrate
probable cause—a “fair probability”—to believe that the
package will be taken to the specified location. Grubbs,
547 U.S. at 95. We have held that the affidavit must show
that “the property sought is on a sure course to the
18 UNITED STATES V. IWAI
destination targeted for the search.” United States v.
Ruddell, 71 F.3d 331, 333 (9th Cir. 1995) (emphasis added).
Here, five officers testified at the suppression hearing
that “[they] couldn’t obtain an anticipatory search warrant.”
Well-trained, the officers each testified that they could not
be certain that the package was on a “sure course” to Iwai’s
apartment. Their sole explanation for this belief was that
“the parcel would not have been delivered to the exact unit”
but rather “to the downstairs office area where residents of
that place could actually come and pick up the parcels.” The
majority accepts this explanation, concluding that the
officers had no way of knowing whether “the package would
actually end up in Iwai’s unit” or “whether the package
would be retrieved in the central mail room and removed
from the property and taken somewhere else.” Maj. Op. at 4.
The officers’ explanation for their decision and the
majority’s acceptance of that rationale are inconsistent with
our cases and contradicted by the officers’ own actions.
A
I am not sure what prompted the officers’ impression
about the “sure course” requirement, but they have badly
misunderstood the anticipatory warrant cases. Accepting the
government’s reasoning would abrogate the need for
anticipatory warrants almost entirely. As I discussed above,
an anticipatory warrant cannot be executed until a triggering
condition occurs, and for a controlled delivery, the triggering
condition is when the package enters the place to be
searched. See Grubbs, 547 U.S. at 94; United States v.
Ricciardelli, 998 F.2d 8, 13 (1st Cir. 1993) (“[T]he event that
triggers the search must be the delivery of the contraband to
the premises to be searched . . . .”). At the point of delivery
to the specified location—not before—there is probable
cause. See Vesikuru, 314 F.3d at 1119 (“If the triggering
UNITED STATES V. IWAI 19
event does not occur, probable cause to search is lacking.”).
The fact a package may not enter a residence is precisely
why an anticipatory warrant is a conditional warrant: if the
condition is not satisfied, there is nothing to execute.
The purpose of the “sure course” requirement is to create
a nexus between the contraband and the place to be searched.
Delivering a package to a residential address creates that
nexus.1 See, e.g., Vesikuru, 314 F.3d at 1122; United States
v. Dennis, 115 F.3d 524, 530–31 (7th Cir. 1997); United
States v. Hugoboom, 112 F.3d 1081, 1087 (10th Cir. 1997);
United States v. Wylie, 919 F.2d 969, 974–75 (5th Cir.
1990); United States v. Dornhofer, 859 1195, 1198 (4th Cir.
1988); United States v. Goodwin, 854 F.2d 33, 35–36 (4th
Cir. 1988). The cases are quite clear that placing a package
containing a valid mailing address in the mail establishes
probable cause—a “sure course”—to believe that the
package will be found at that destination. See Dennis,
115 F.3d at 531 (“[W]here nothing in the record indicates
that the contraband might not have been delivered to the
residence to be searched, simply discovering the package in
1
The surety of a package’s course is further confirmed when the
police are in full control of the delivery. “[A]ll types of government-
controlled deliveries are more likely to reach their destinations than other
types of deliveries and that, consequently, a magistrate may conduct a
lesser inquiry into the sure course requirement when a request for an
anticipatory warrant is based upon a government-controlled delivery.”
Dennis, 115 F.3d at 531; United States v. Leidner, 99 F.3d 1423, 1429
(7th Cir. 1996) (“[G]overnment-controlled deliveries may be more likely
to reach their destination than those deliveries expected within the
normal course of a drug organization’s operations.”); United States v.
Scheffer, 463 F.2d 567, 575 (5th Cir. 1972) (finding “there [was] simply
no plausible explanation as to why customs officials failed to go before
a magistrate and obtain a search warrant” when the officials “actually
planned the cocaine transfer and could have controlled the time at which
it took place”).
20 UNITED STATES V. IWAI
the mail stream and placing it back into the mail stream to
effect a controlled-delivery should satisfy the sure course
requirement.”); Dornhofer, 859 F.2d at 1198 (“When [the
officer] placed the contraband in the mail, the requirement
. . . that the contraband was on a sure course to its destination
was met.”). Here, the fact that a postal inspector was
delivering the package directly to Iwai’s apartment complex,
where all his mail was delivered, creates a nexus between the
contraband and his apartment sufficient to establish probable
cause, or a “fair probability,” that the package would enter
his residence. Grubbs, 547 U.S. at 95. This is a sufficient
basis for seeking an anticipatory warrant, even though there
is a possibility that a package won’t make it onto the
premises identified in the warrant. See Ricciardelli,
998 F.2d at 11 (“[S]o long as the requisite probability exists,
the possibility that things might go awry does not forestall
the issuance of a warrant.”). And if, in the end, the condition
does not occur, and the warrant can’t be executed, the police
will have to take alternative measures, but at least they will
have made a good faith effort to satisfy the Fourth
Amendment’s warrant requirement.
The “sure course” principle comes from our decision in
United States v. Hendricks, 743 F.2d 653, 655 (9th Cir.
1984). The police delivered a package addressed to the
defendant at a post office location that required him to come
pick it up. Concurrently, the police obtained an anticipatory
warrant to search his home. The defendant argued that there
was no probable cause to support the warrant, and we agreed.
We observed that the package was never on a sure course to
the defendant’s house because “the agents had no
information giving rise to a belief that the package would
ever go to [the defendant’s] home.” Id. at 655. We
explained that the defendant’s “business premises were the
only place that was linked to past illegal activity, the
UNITED STATES V. IWAI 21
residence not at all.” Id. at 654. In other words, there was
no nexus between the package and the home—only between
the package and the business premises. We specifically
noted that mail addressed and sent to the house, rather than
a P.O. Box, would have been sufficient. See id. at 655
(“[U]nless the suitcase were on a sure course to the house,
for example, in the mail addressed to the home address, no
probable cause would exist to believe it would arrive there.”)
(emphasis added) (citations omitted); accord United States
v. Rowland, 145 F.3d 1194, 1204–06 (10th Cir. 1998)
(finding a package was not on a “sure course” to his
residence when defendant was required to pick up the
package at the post office); Ricciardelli, 998 F.2d at 12–14
(same).
We have elaborated on Hendricks in subsequent cases.
In United States v. Hale, for example, the agents obtained an
anticipatory warrant to seize obscene material mailed to Hale
at his home. 784 F.2d 1465, 1467–68 (9th Cir. 1986),
abrogated in part on other grounds by New York v. P.J.
Video, Inc., 475 U.S. 868, 875 (1986). The Postal Service
actually delivered the envelopes to Hale “in the front yard of
his home.” Id. at 1468. We distinguished Hale from
Hendricks. “In Hendricks, the evidence was not on a sure
and irreversible course to its destination” because it was
headed to the post office—without any nexus to Hendricks’
home. Id. By contrast, in Hale “the evidence was in the mail
addressed to Hale for home delivery.” Id. at 1468–69
(emphasis added). Similarly, in United States v. Ruddell, the
anticipatory warrant was issued for child pornography
addressed to Ruddell’s residence. 71 F.3d 331, 332 (9th Cir.
1995). We once again explained that the problem in
Hendricks was that the “magistrate judge could not establish
a reasonable belief that the defendant would bring the
contraband to his home.” Id. at 333. Unlike in Hendricks,
22 UNITED STATES V. IWAI
in Ruddell, “the evidence was in the control of the Postal
Inspector, who had explicitly described her plans to execute
a controlled delivery to [the defendant’s] house in her
affidavit in support of the warrant.” Id.
We applied these principles in United States v. Vesikuru,
a case very similar to this one. 314 F.3d at 1122–23. In
Vesikuru, a narcotics task force, executing a search warrant,
discovered PCP in a package addressed to a residence in
Seattle. Id. at 1118. The officers arranged for a controlled
delivery and obtained an anticipatory warrant to search the
residence. Id. Vesikuru argued that the anticipatory warrant
lacked probable cause. We disagreed, emphatically. The
fact that the “package was addressed and en route to the West
Seattle residence . . . guaranteed that the package was on a
‘sure course’ to the West Seattle residence.” 314 F.3d
at 1122 (emphasis added).
Here, as in Hale, Ruddell, and Vesikuru, Iwai’s package
was fully and properly addressed to him at a residence where
he regularly received mail. There was no reason to believe
that Iwai would not pick up the package in the usual course
and take it to his apartment. This case is unlike Hendricks,
where the officers sought to search Hendricks’s house, even
though the delivery was to a post office box and the officers
knew that Hendricks had been conducting his illegal actions
at his office, not his house.
The officers explained that they didn’t think they could
obtain an anticipatory warrant because they couldn’t be sure
that Iwai would take the package to his apartment. Of
course, the officers are correct: Iwai might have taken the
package directly to his car. He might have taken it to
someone else’s apartment. Or, he might have refused
delivery. But the package was delivered by regular mail to
an address at his apartment building. People in apartment
UNITED STATES V. IWAI 23
buildings regularly receive mail; and, like house dwellers,
they often take their mail to their apartments. The fact that
Iwai lived in an apartment on the 23rd floor and had to
retrieve the package from the manager’s office does not
diminish the likelihood that Iwai would return to his
apartment with the package. See Dennis, 115 F.3d at 527,
530–31 (upholding an anticipatory warrant for a controlled
delivery to an apartment; postal inspector actually delivered
the package to the defendant seated outside on the porch,
who took it inside); Dornhofer, 859 F.2d at 1197–98
(upholding anticipatory warrant for delivery to a mail box
outside of the apartment to be searched). The officers’
explanation is thin gruel. When we are dealing with
probable cause, we are always playing the percentages.
Grubbs, 547 U.S. at 95 (“Because the probable-cause
requirement looks to whether evidence will be found when
the search is conducted, all warrants are, in a sense,
‘anticipatory.’”). To obtain any warrant, a police affidavit
must explain to a magistrate why the police have reason to
believe that evidence of a crime will be found in a particular
place. It is always a predictive judgment.
Short of sliding mail through a slot in the front door,
there is no way to ensure that any package will cross the
threshold of any particular dwelling. Place it on a porch or
put it in a mailbox? Someone can pick it up and carry it off
the premises. Knock on the door to hand-deliver? The
addressee may refuse the package or take it directly to her
car or over to the neighbor’s house or even to the public
library. What if a home has a very long driveway, and the
owner drives down it to retrieve the mail? What if the
mailboxes to homes or condos are at the entrance to a
complex or subdivision? Many modern subdivisions have a
group mailbox in the neighborhood with a separate parcel
locker for oversized packages. Are these homes no longer
24 UNITED STATES V. IWAI
candidates for anticipatory warrants because the owner
might not return home with the mail? Are the only persons
eligible for an anticipatory warrant those who, for better or
worse, still have a mail slot in the door? 2
These distinctions seem utterly arbitrary. Since
Hendricks, the issue is not whether the package will surely
enter a residence, it is whether it is surely headed that way,
and Iwai’s package was properly and fully addressed to him,
including his apartment number. Upholding the
government’s reasoning—that delivery to a central
mailroom in an apartment complex is insufficient to
establish probable cause for an anticipatory warrant—
substantially reduces Fourth Amendment protection for
anyone who lives in an apartment.
B
The officers may have testified that they weren’t sure
where Iwai would go with the package, but we don’t have to
speculate as to where the task force thought Iwai would take
it—their actions make it unmistakably clear: the task force
put two officers in the lobby to see if Iwai went upstairs or
somewhere else; it located a couple of officers outside,
presumably in case he left the building on foot or in his car;
and it put at least seven officers in the stairwell on the 23rd
floor. The task force knew that Iwai might take the package
somewhere else; but their actions reveal that they also knew
2
In Hale, “[t]he packages were handed to Hale in the front yard of
his home.” 784 F.2d at 1468. If the magistrate had known that Hale
would be in his front yard, would he still have issued an anticipatory
warrant? What, other than our common experience, tells us that Hale
was likely to take the packages into the house? In Hale’s case,
fortunately for the police, he did and the police were able to execute the
warrant, but the police had no guarantee that he would do so.
UNITED STATES V. IWAI 25
it is was most likely that Iwai would take it to his apartment.
See United States v. Golson, 743 F.3d 44, 54–55 (3d Cir.
2014) (“[W]hile it was possible the occupants of the
residence would refuse delivery of the Parcel, or accept
delivery but leave the Parcel unopened, it was more probable
they would accept and open.”). In sum, the officers behaved
precisely as they would have if they had obtained an
anticipatory warrant—they dedicated the bulk of their
resources to watching his apartment, but covered themselves
in case he didn’t. They played the percentages. They
watched Iwai take the package into his apartment, waited for
the beeper to go off, then immediately sent their team to the
apartment. Had they obtained an anticipatory warrant, the
condition would have been triggered the moment the
package crossed the threshold, and the search would have
been valid.
The majority excuses the lack of a warrant by pointing
out that the police are not required to obtain a warrant “as
soon as they have probable cause.” Maj. Op. at 8; see
Kentucky v. King, 563 U.S. 452, 466–67 (2011). That is true
but irrelevant. As the Supreme Court explained in United
States v. Watson, “[t]here is no requirement that a search
warrant be obtained the moment police have probable cause
to search. The rule is . . . that present probable cause be
shown and a warrant obtained before a search is
undertaken.” 423 U.S. 411, 449 (1976) (emphasis added).
The fact the officers did not have to obtain a warrant the
moment they had probable cause is not an excuse for failing
to obtain one at all. Moreover, the consequences of the
failure to obtain an anticipatory warrant are quite
predictable—and those consequences benefit neither the
government nor the subject of the search. As the First
Circuit anticipated, “[w]ere ‘anticipatory warrants’
unlawful, law enforcement agents would have to wait until
26 UNITED STATES V. IWAI
the triggering event occurred; then, if time did not permit a
warrant application, they would have to forego a legitimate
search, or more likely, simply conduct the search (justified
by ‘exigent circumstances’) without any warrant at all.”
United States v. Gerndon, 18 F.3d 955, 965 (1st Cir. 1994)
(Breyer, J.). Thus, the Eleventh Circuit concluded,
anticipatory warrants “better serve the objective of the
Fourth Amendment by allowing law enforcement agents to
obtain a warrant in advance of delivery, rather than forcing
them to go to the scene without a warrant and decide for
themselves, subject to second-guessing by judicial
authorities, whether the facts justify a search.” United States
v. Santa, 236 F.3d 662, 673 (11th Cir. 2000).
The controlled delivery here was on a sure course to
Iwai’s apartment, the officers knew it and acted on it, and
they had probable cause—well-established in our cases—to
obtain an anticipatory warrant. They should have done so
and spared us the task of second-guessing their decision.
II
Even if the officers reasonably believed they could not
obtain an anticipatory warrant, that does not excuse their
failure to seek a warrant once they knew that Iwai had taken
the package to his apartment. Exigency alone is insufficient
to justify the officers’ warrantless entry. Rather, to establish
exigency, “the government must also show that a warrant
could not have been obtained in time, . . . [and] that a
telephonic warrant was unavailable or impractical.” United
States v. Good, 780 F.2d 773, 775 (9th Cir. 1986) (internal
citation omitted); cf. United States v. Young, 909 F.2d 442,
446 (11th Cir. 1999) (“[T]he appropriate inquiry is whether
the facts, as they appeared at the moment of entry, would
lead a reasonable, experienced agent to believe that evidence
might be destroyed before a warrant could be secured.”)
UNITED STATES V. IWAI 27
(emphasis added) (quoting United States v. Rivera, 825 F.2d
152, 156 (7th Cir. 1987)). “[I]f the state had time to obtain
a warrant, it stands to reason that there can be no ‘exigent
circumstance.’” Kirkpatrick v. Cty. of Washoe, 843 F.3d
784, 791 (9th Cir. 2016) (en banc).
The government made no effort to show that the task
force could not have obtained a warrant in time. The officers
observed Iwai take the package into his apartment at
12:50 pm. At that point, there was no debate that they had
probable cause to obtain a warrant to search the apartment.
There were a dozen officers on site, and the officers had
already obtained two warrants in previous 24 hours—one
that very morning at 9 am. Moreover, it would have been
easy for the officers to prepare an application in advance
(even if they didn’t submit it as an anticipatory warrant), to
call in if Iwai took the package into his apartment. Yet they
made no effort to do so. Instead, the officers waited “around
the apartment building’s perimeter, inside the building
manager’s office, and in stairwells near . . . Iwai’s
apartment,” for four hours—and during two and a half of
those, they were absolutely certain the drugs were inside the
apartment. A warrant could have been obtained
telephonically within minutes. See Birchfield v. North
Dakota, 136 S. Ct. 2160, 2192 (2016) (“‘[A]dvances’ in
technology . . . now permit ‘the more expeditious processing
of warrant applications.’”) (Sotomayor, J., concurring in part
and dissenting in part) (quoting Missouri v. McNeely,
569 U.S. 141, 154 n.4 (2013)); Leidner, 99 F.3d at 1425 &
n.1 (explaining that a judge orally authorized search after
delivery was made to the residence); see also Fed. R. Crim.
P. 4.1 (describing the procedure for obtaining a warrant by
telephone); id. 41(d)(3) (authorizing telephone search
warrants); Haw. R. Penal P. 41(h)–(i) (allowing warrants to
be obtained over the phone via an oral affidavit). But the
28 UNITED STATES V. IWAI
officers neither obtained a warrant nor provided any
explanation why they failed to do so—or even attempted to.
Here, a warrant was available and practical, and thus the
officers cannot claim exigency. See United States v. Alvarez,
810 F.2d 879, 884 (9th Cir. 1987) (“The action of the agents
and the Assistant United States Attorney in ignoring the
telephone warrant procedure totally frustrates the
accommodation approved by Congress. It cannot be
sanctioned by us.”).
It was, of course, possible that Iwai might have opened
the package before a warrant could be obtained, triggering
the beeper. But at that point, the officers still did not need to
rush the apartment. Iwai had no reason to suspect police
presence outside his apartment. Thinking that he had
received a valuable shipment of meth, Iwai would have no
reason to destroy the drugs. King, 563 U.S. at 474
(“[P]ersons in possession of valuable drugs are unlikely to
destroy them unless they fear discovery by the police.”);
United States v. George, 883 F.2d 1407, 1413 (9th Cir. 1989)
(“Suspects who are inside their homes and unaware of their
impending arrests generally have no reason [to] immediately
. . . destroy the fruits of their crime . . . . Consequently, law
enforcement officers confronting this type of situation can,
without great difficulty, maintain surveillance of the
premises.”) (citations omitted). The officers would have had
no difficulty continuing surveillance while they obtained a
telephonic warrant, which can be done in as little as fifteen
minutes—considering they had already been watching the
apartment for four hours. See, e.g., McNeely, 569 U.S. at
173. And, again, if the officers had any reason to believe
that Iwai was about to destroy the evidence while they
worked to get a warrant, they retained the option of entering
under the exigent circumstances doctrine. See Mincey v.
Arizona, 437 U.S. 385, 394 (1978) (finding no exigent
UNITED STATES V. IWAI 29
circumstances when “[t]here was no indication that evidence
would be lost, destroyed, or removed during the time
required to obtain a search warrant”); United States v. Reid,
226 F.3d 1020, 1028 (9th Cir. 2000) (“[T]he government did
not explain why the officers could not have simply staked
out the apartment while waiting for a warrant.”); United
States v. Impink, 728 F.2d 1228, 1231 (9th Cir. 1984)
(“Where the police have ample opportunity to obtain a
warrant, we do not look kindly on their failure to do so.”);
United States v. Blake, 632 F.2d 731, 734 (9th Cir. 1980)
(“[U]nder the circumstances of this case the acquisition of a
warrant would not have presented any great difficulty nor
would have entailed the loss of any substantial amount of
time.”). The officers could have continued to watch the
apartment while a warrant was obtained—before or after the
beeper went off—or, at least, while they made a good faith
effort to obtain one. It was unreasonable for them not to seek
a warrant.
III
Finally, I have at least a nagging feeling that “[t]he
agent[s’] actions in this case were . . . fundamentally
inconsistent with any true exigency.” Alvarez, 810 F.2d
at 882. This is a closer issue for me, but I am deeply
concerned that the officers jumped the shark when they
claimed they were entitled to enter Iwai’s apartment on the
basis of observing furtive movements through a peephole
and hearing the rustling of paper and plastic. I have two
concerns: First, that the officers lacked reasonable indicia
that Iwai was about destroy any evidence and, second, that
any exigency here resulted from the officers’ own violations
of the Fourth Amendment.
30 UNITED STATES V. IWAI
A
“[P]hysical entry into the home is the ‘chief evil against
which the wording of the Fourth Amendment is directed.’”
Frunz v. City of Tacoma, 468 F.3d 1141, 1142 (9th Cir.
2006) (quoting United States v. U.S. Dist. Court for E. Dist.
of Mich., S. Div., 407 U.S. 297, 313 (1972)). Thus, a
person’s home is “given the highest protection against
warrantless searches.” United States v. Romero-Bustamente,
337 F.3d 1104, 1107 (9th Cir. 2003) (citation omitted). A
warrantless search is presumptively unreasonable, and “the
government bears a heavy burden of demonstrating that
exceptional circumstances justified a departure from the
normal procedure of obtaining a warrant.” United States v.
Driver, 776 F.2d 807, 810 (9th Cir. 1985) (emphasis added).
“[E]xceptions to the warrant requirement are ‘narrow and
their boundaries are rigorously guarded.’” Sandoval v. Las
Vegas Metro. Police Dep’t, 756 F.3d 1154, 1161 (9th Cir.
2014) (quoting Hopkins v. Bonvicino, 573 F.3d 752, 763 (9th
Cir. 2009)).
1
The officers claim that their warrantless entry was
justified because “acting on probable cause and in good
faith, [they] reasonably believe[d] from the totality of the
circumstances that . . . evidence or contraband [would]
imminently be destroyed.” United States v. Ojeda, 276 F.3d
486, 488 (9th Cir. 2002); see Kirkpatrick, 843 F.3d at 791;
United States v. Struckman, 603 F.3d 731, 738 (9th Cir.
2010). The government did not provide sufficient facts to
establish an objectively reasonable belief that Iwai was
imminently destroying evidence. “The exigency exception
permits warrantless entry where officers ‘have both probable
cause to believe that a crime has been or is being committed
and a reasonable belief that their entry is necessary to
UNITED STATES V. IWAI 31
prevent . . . the destruction of relevant evidence.’”
Sandoval, 756 F.3d at 1161 (citation omitted). The
government must provide “specific and articulable facts” to
justify the finding of exigent circumstances, id. (citation
omitted), and we view the exigencies “from the totality of
circumstances known to the officers at the time of the
warrantless intrusion,” United States v. Licata, 761 F.2d 537,
543 (9th Cir. 1985).
First, the mere fact that agents knew there was meth in
Iwai’s apartment is not sufficient. See United States v.
Allard, 600 F.2d 1301, 1304 (9th Cir. 1979) (“[T]he search
cannot be justified solely because an agent knows that there
is contraband on the premises.”); see also Santa, 236 F.3d at
669 (“The mere presence of contraband . . . does not give
rise to exigent circumstances.”) (citation omitted); United
States v. Kane, 637 F.2d 974, 980 (3d Cir. 1981) (“[C]ourts
have . . . refused to find an exception based on the ‘mere
presence of drugs’ on the premises.”) (citation omitted).
Second, the fact that the beeper went off, signaling that
the package likely had been opened, does not mean that
drugs would be imminently destroyed. As explained, Iwai
had no knowledge of the police presence and surveillance,
and thus he would have no reason to destroy valuable drugs.
See Santa, 236 F.3d at 670 (“[The defendants], unaware of
their impending arrest, had no reason . . . to destroy the
valuable drugs they were trying to sell.”); United States v.
Tobin, 923 F.2d 1506, 1511 (11th Cir. 1991)
(“Circumstances are not normally considered exigent where
the suspects are unaware of police surveillance.”); George,
883 F.2d at 1412–15 (collecting cases).
Third, the fact that Iwai refused to open the door does
not create an exigent circumstance. “Every occupant of the
home has a right—protected by the common law for
32 UNITED STATES V. IWAI
centuries and by the Fourth Amendment since 1791—to
refuse entry” to police who do not have a warrant. Georgia
v. Randolph, 547 U.S. 103, 123–24 (2006) (Stevens, J.,
concurring). And police must imply refusal from a
resident’s silence because “passive refusal to consent to a
warrantless search is privileged conduct which cannot be
considered as evidence of criminal wrongdoing.” United
States v. Prescott, 581 F.2d 1343, 1351 (9th Cir. 1978); see
United States v. Mendonsa, 989 F.2d 366, 370 (9th Cir.
1993) (“A refusal to reply to an officer’s order to ‘open up’
can be implied from silence.”). Iwai’s decision to assert his
Fourth Amendment right to refuse entry to the officers
cannot be used to justify a finding of exigent circumstances.
Fourth, the majority and the district court point to the fact
that the lead agent, looking through the peephole, saw a
shadowy figure approach the door and then retreat. Maj. Op.
at 8. That fact only confirms what the officers knew—that
Iwai was in the apartment and now likely knew they were
there—but it proves nothing about the exigent nature of the
circumstances. He had an absolute right not to open the
door.
Fifth, and most importantly, the district court credited
DEA Agent Jones’s statement that he “heard noises” through
the door, like “a rustling of papers or plastic.” By itself, the
fact is pedestrian. “Merely hearing some noise inside is not
sufficient to justify forcible entry. Some noise is normal to
ordinary living . . . .” Mendonsa, 989 F.2d at 370–71. Jones
identified no sound of scrambling, running, yelling, running
water, flushing, or the opening of doors or windows, as one
would expect when a person rushes about to destroy
evidence of a crime. Compare United States v. Andino,
768 F.3d 94, 99 (2d Cir. 2014) (finding exigency when the
defendant “slammed shut the front door, ran from the door,
UNITED STATES V. IWAI 33
opened and closed drawers, and turned on the kitchen
faucet”), United States v. Etchin, 614 F.3d 726, 734 (7th Cir.
2010) (“The sound of someone walking around, for example,
or a voice that announces, ‘The cops are here,’ is not enough
by itself. But other sights and sounds—toilets flushing, a
door slammed, people running, an obvious lie by the person
answering the door, or efforts to remove contraband from the
house—may be evidence that there is an emergency that
calls for an immediate, warrantless intrusion.”), and United
States v. Leveringston, 397 F.3d 1112, 1116 (8th Cir. 2005)
(finding exigency when there was “water continuing to run
and a garbage disposal continuing to grind”) with United
States v. Ramirez, 676 F.3d 755, 762 n.5 (8th Cir. 2012)
(finding no exigency when the defendant’s reaction was not
“the verbal, visual, or aural equivalent of, ‘The police are
here, destroy the drugs’”). While we certainly give weight
to the opinion of experienced narcotics officers, even we
know that you cannot destroy drugs by rustling papers, no
matter how quickly or urgently you do so.
Agent Jones—no other officer heard the noises—
testified that he heard a noise “like somebody going through
a garbage can. Either, like, a rustling of papers or plastic or
something to that effect.” The officer testified that he feared
“somebody might be destroying evidence.” But when asked
by the government’s counsel “[i]n your experience as a DEA
agent” what methods were used to destroy meth, he
answered, “[m]ostly through the sewer system, either being
in the toilet, shower, a sink, anything like that. Other things
have been burning. Those would be the two main ones that
would come to mind.” What is the reasonable relationship
between “the rustling of papers or plastic” and “the sewer
system” or “burning”? There is no evidence—nothing—in
the record to suggest that the officers thought Iwai was about
to flush or burn the drugs. Agent Jones thought Iwai might
34 UNITED STATES V. IWAI
be “going through a garbage can.” But evidence isn’t
destroyed when you dump it in a trash can. And if he
dumped it in the trash, where could he possibly have gone
with the garbage bag when he lived on the 23rd floor? Not
to a garbage chute in the hall or to a dumpster downstairs—
there were seven armed task force officers standing between
Iwai and any trash receptacle. And if Iwai could have tossed
it from a window, there were officers outside watching the
perimeter.
These five factors, considered together, are insufficient
to establish exigency justifying battering down Iwai’s door.
True, the officers knew there was meth in the apartment,
believed the package had been opened, and saw Iwai through
the peephole. But police nearly always know that drugs are
inside before they send a fully armed tactical team to bang
on someone’s door, and if a controlled delivery, they will
likely always wait until the beeper goes off. Iwai had every
right not to not open the door, and the fact he calmly walked
away from it hardly supports exigency. The only
distinguishing factor—the “rustling” of paper and plastic—
was not sufficient to justify storming Iwai’s apartment. The
record simply doesn’t withstand scrutiny.
2
I have two last points on the officers’ claim of exigent
circumstances. First, I recognize that I have atomized the
facts, and that the officers were entitled to consider the
totality of the circumstances: I have thus previously
confessed that this issue is closer for me than the failure to
obtain a warrant. However, even taking all of these facts
together, they don’t amount to very much. The agents knew
there were drugs in Iwai’s apartment (this was obvious,
because they had conducted the controlled delivery of a
package they had reboxed); they believed the beeper had
UNITED STATES V. IWAI 35
alerted, indicating the package had been opened (it hadn’t,
but that wasn’t the officers’ fault); Iwai refused to open the
door in response to their demands (he was privileged to do
so); he was moving about his apartment (what do we think
people do in their apartments?); and they heard “rustling”
noises (something, but not a noise typically associated with
destroying drugs). Considered together, I can’t conclude
that the officers were excused by the exigencies of the
situation from obtaining a warrant to preserve the evidence.
And this brings me to my second point. Even if we
consider the totality of the circumstances known to the
officers at the time, what was the exigency? To preserve
evidence of a crime? The officers knew of only one gram of
meth in the apartment. The task force knew this because the
officers had packed the box themselves; they knew what was
originally in the box, and they knew what was now in the
box. The real evidence was left at headquarters. They also
knew that Iwai had retrieved the package and carried it
upstairs to his apartment. The officers had stalked Iwai
every step of the way, so what was the urgency to establish
Iwai’s connection to the meth?
We have said that “[e]xigent circumstances are those in
which a substantial risk . . . to the law enforcement process
would arise if the police were to delay a search [ ] until a
warrant could be obtained.” Reid, 226 F.3d at 1027–28
(emphasis added) (quoting United States v. Gooch, 6 F.3d
673, 679 (9th Cir. 1993)); see United States v. Lawson,
499 F. App’x 711, 712 (9th Cir. 2012) (“No facts indicated
that essential evidence would imminently be destroyed.
Most of the drugs that had been in the box had been removed
by police and replaced with sham substances before the box
was delivered.”). The government has not shown that the
possible loss of one gram of meth out of six pounds “ma[de]
36 UNITED STATES V. IWAI
the needs of law enforcement so compelling that the
warrantless search [was] objectively reasonable.”
Struckman, 603 F.3d at 743. To assert otherwise stretches
reason. “[I]n the absence of any ‘immediate and serious
consequences’ resulting from the commission of a crime, the
‘overriding respect for the sanctity of the home that has been
embedded in our traditions since the origins of the Republic,’
militates against warrantless entry.” Id. at 746 (emphasis
added) (first quoting McDonald v. United States, 335 U.S.
451, 460 (1948) (Jackson, J., concurring), then quoting
Payton v. New York, 445 U.S. 573, 601 (1980)). The
government did not meet its “heavy burden” to “justif[y] a
departure from the normal procedure of obtaining a
warrant.” Driver, 776 F.2d at 810.
For me, the facts supporting the finding of exigency just
don’t add up.
B
Finally, even if there was an exigency in this case,
“[e]xigent circumstances created by improper conduct by the
police may not be used to justify a warrantless search.”
Ojeda, 276 F.3d at 488. In Kentucky v. King, the Supreme
Court addressed the question of when police, because of
their own conduct, may not rely on the exigent
circumstances doctrine. The Court’s short answer: where
police “create the exigency by engaging or threatening to
engage in conduct that violates the Fourth Amendment.”
563 U.S. at 462.
The Supreme Court in King was particularly focused on
the knock and announce procedure. The Court made quite
clear that officers who knock on a door and announce their
presence do not “cause” the exigent circumstances, even if
the residents—now alerted to police presence—respond by
UNITED STATES V. IWAI 37
attempting to destroy incriminating evidence. These persons
“have only themselves to blame for the warrantless exigent-
circumstances search that may ensue.” Id. at 470. This is
because “[w]hen law enforcement officers who are not
armed with a warrant knock on a door, they do no more than
any private citizen might do,” even if they had to “knock on
the door with some force” and “announce their presence
loudly.” Id. at 468–69. There are good reasons for officers
to knock and announce, such as to “obviate the need to apply
for and execute a warrant” or to seek consent to search, or to
obtain additional evidence before applying for a warrant. Id.
at 466–67.
So “[u]nder what circumstances do police impermissibly
create an exigency?” Id. at 471. The Court declined to
answer this question with specifics, but it offered some
general guidelines: when “the officers either violated the
Fourth Amendment or threatened to do so prior to the point
when they entered the apartment.” Id. The Court suggested
by way of example that police would act improperly if they
“demanded” that the resident open the door or if they
threatened the resident “by announcing that they would
break down the door if the occupants did not open the door
voluntarily.” Id. at 471–72.
In the wake of King, we and other courts have struggled
to define the contours of an appropriate knock and announce.
In United States v. Perea Rey, we held that “it remains
permissible for officers to approach a home to contact the
inhabitants,” but that “[t]he constitutionality of such entries
. . . hinges on whether the officer’s actions are consistent
with an attempt to initiate consensual contact with the
occupants of the home.” 680 F.3d 1179, 1187–88 (9th Cir.
2012) (emphasis added). When considering those actions,
we explained in United States v. Lundin that “if the police do
38 UNITED STATES V. IWAI
not have a warrant they may ‘approach the home by the front
path, knock promptly, wait briefly to be received, and then
(absent invitation to linger longer) leave.’” 817 F.3d at 1159
(quoting Florida v. Jardines, 569 U.S. 1, 8 (2013)). The
Second Circuit, applying King, elaborated further:
“Although law enforcement officers, like any other citizens,
have an implied license to approach a home, knock on the
door, and try to speak with the occupants,” this license “is
limited . . . to a specific purpose.” United States v. Allen,
813 F.3d 76, 85 (2d Cir. 2016) (quoting Jardines, 569 U.S.
at 8). And this purpose “generally does not include
conducting a warrantless search” id.; instead, the police have
the right to knock on someone’s door “for the purpose of
asking questions of the occupants.” Lundin, 817 F.3d
at 1158 (quoting Perea-Rey, 680 F.3d at 1187).
In my view, the task force’s knock and announce went
well beyond the conduct that “any private citizen might do.”
King, 563 U.S. at 469. Private citizens do not bring seven
armed people in full battle regalia, with weapons drawn and
a ballistic shield and a battering ram, to knock on the
neighbor’s door for a “consensual” conversation. 3 At no
time did the officers ask Iwai to open the door so they could
talk with him. They did not “knock promptly” and “wait
briefly to be received.” To the contrary, Agent Jones
testified candidly that he repeatedly “yelled out ‘Police,’ in
a loud manner and told the occupants to open the door.” He
then kicked the door while “announc[ing], ‘Police. Open the
door.’” Once he looked through the peephole, he began
calling “‘Bryant, I can see you through the peephole. Open
3
Agent Jones conceded that their equipment was that “commonly
used for entry purposes during search warrants.”
UNITED STATES V. IWAI 39
the door.’” 4 The demand to open the door, accompanied by
an armed team with a ram, is almost precisely the scenario
the Court hypothesized in King: a demand for entry
accompanied by an “announce[ment] that they would break
down the door if the occupants did not open the door
voluntarily.” Id. at 471; see United States v. Spotted Elk,
548 F.3d 641, 655 (8th Cir. 2008) (“[A] police attempt to
‘knock and talk’ can become coercive if the police assert
their authority, refuse to leave, or otherwise make the people
inside feel they cannot refuse to open up . . . .”).
“[O]nce an attempt to initiate a consensual encounter
with the occupants of a home fails, ‘the officers should end
the knock and talk and change their strategy by retreating
cautiously, seeking a search warrant, or conducting further
surveillance.’” Perea-Rey, 680 F.3d at 1188 (citing United
States v. Troop, 514 F.3d 405, 410 (5th Cir. 2008)); see King,
563 U.S. at 469–70 (“[An] occupant has no obligation to
open the door or to speak.”). Thus, when Iwai did not open
the door, “the consensual encounter . . . fail[ed],” and the
officers were required to leave promptly and “change their
strategy.” Perea-Rey, 680 F.3d at 1188; see Andino,
768 F.3d at 101 n.7 (“[A]s a general matter, once a resident
refuses to consent to a search, officers must leave the
property shortly thereafter.”) (citing Jardines, 569 U.S. at 7–
10).
The officers had no intention of leaving the property
“absent invitation to linger longer.” The lead agent testified
that once Iwai did not respond to his demand to open the
door, Iwai would have been treated “as a barricaded subject”
4
The officer also testified that, notwithstanding the drawn weapons,
ballistics, shield, and battering ram, they “did [not] intend to enter the
unit.” The facts speak for themselves.
40 UNITED STATES V. IWAI
and they would have “held the location until [they] got a
search warrant to be able to go in and get him.” In other
words, not only did the officers treat the warrant as the last
resort instead of the first, but not one of the options under
consideration involved anything other than arresting Iwai in
his apartment. See Linicomn v. Hill, 902 F.3d 529, 536 (5th
Cir. 2018) (“In assessing whether the officers created the
exigency, we focus on the ‘reasonableness of [their]
investigative tactics leading up to the warrantless entry.’”)
(citation omitted). Any alleged exigency was one of the
officers’ making.
IV
This case is very troubling. But as the Second Circuit
observed, “[a]ny problems in effecting the arrest were . . .
the result of [the officers’] decision to forgo seeking a
warrant, and instead go to [the defendant’s] home with the
pre-formed plan to arrest him without a warrant.” Allen,
813 F.3d at 87 (internal quotation marks and alterations
omitted). These problems were easily solved by obtaining a
warrant.
I respectfully dissent.