Wednesday, March 23, 2016

US v. Lundin, No. 14-10365 (3-22-16)(Fletcher with Berzon and Bea).  If you hear a rapping, softly on the door, at 4:00 a.m., you can be assured that the police will not be trying to "knock and question" as a result of this opinion.  In an important extension of Jardines, the 9th affirmed suppression of weapons found after a search conducted for exigent circumstances when the police created the circumstances.
The defendant allegedly committed offenses earlier in the evening (not helped when he supposedly kidnapped and threatened a victim known as "Granny", took her in a ride, threatened her with the wrath of the Mongols motorcycle gang, and smashed her television set to boot -- all over her son's unpaid marijuana transaction).  The police had probable cause to arrest to him, and fully intended to do so when they went to his home and knocked on the door.  It was 4:00 am.  The officers heard a crash and a clanging in the back, and so the police rushed in.  They arrested the defendant, and found weapons in plain view, inevitably, and as part of a sweep.  The district court suppressed.

The 9th affirmed.  The 9th reasoned that a "knock and question" was a legitimate police entry into the curtilage, but not, here, at 4:00 am and not with the clear intent to arrest.  The police had probable cause, but chose not to get a warrant.  Their unconstitutional actions created the exigency, and having probable cause does not make the finding of the weapons inevitable.  The panel did a nice survey of the law of "knock and question" and Jardines, the leading Supreme Court case, and called into question some old 9th precedent.

Congrats to Geoff Hansen, AFPD in Cal N, for the great win.
The decision is here:



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