USA v. Chaney et al

Filing 56

Initial Report and Recommendation

`

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA
Plaintiff,
vs.
CHARLES CHANEY and
ALEXIE ALFRED,

3:11-cr-010-HRH-JDR
RECOMMENDATION
REGARDING
MOTION TO SUPPRESS
(Docket No. 38)

Defendants.

Defendant Charles Chaney moves to suppress evidence derived from
the warrantless entry to arrest him and search his home including evidence derived
from that entry. Docket 34. The motion is opposed by the government. Docket 43.
An evidentiary hearing was conducted before the magistrate judge on April 14, 2011.
Upon due consideration of the evidence adduced and the arguments of counsel the
magistrate judge recommends that the court adopt findings of fact and conclusions

of law set forth below and that the motion to suppress be GRANTED in part and
DENIED in part.
Findings of Fact
On December 8, 2009, Jerry Herrod a police officer for the City of
Bethel, Alaska, responded to a disturbance call at 543 7th Avenue in Bethel. While
there he observed that his police vehicle was missing. Officer Herrod called the
dispatcher and advised that his vehicle had been stolen. Inside the stolen vehicle
were investigation items including an AR-15 rifle with a 14½ inch barrel. The AR-15
was concealed in a black padded case. The rifle had four 30-round magazines.
Lt. Achee of the Bethel Police picked up Officer Herrod and they began
a search of the city but were unable to locate the vehicle in Bethel. Police officers
in a village down river, Napaskiak, reported to dispatch that they had heard sirens
and gun shots. They reported a four-wheeler following a vehicle. One of the officers
contacted the persons on the four-wheeler and identified Charles Chaney Jr, (the
defendant herein) along with a radar gun from Herrod’s police vehicle. Napaskiak
is about a ten minute drive from Bethel on the river when it is frozen as it was during
this time of year.
Another report received by dispatch identified Chaney on a four-wheeler
at Napakiak, a few minutes drive away from Napaskiak further down the river.
These reports were received about an hour and a half after the vehicle was stolen.

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Officers decided to locate Chaney’s residence. They determined from
APSIN that it was 841 6th Avenue, in Bethel. Chaney’s residence was about one
block away from where the police vehicle had been stolen. Officer Herrod, Officer
Travis Wixom and Officer Anna Geomer went to Chaney’s house. Initially they
observed a red four-wheeler chained to the foundation of 841 6th Avenue and the
engine hood was cold. On the other side of the house there was another red fourwheeler which was wet with water and the engine block was hot. On this fourwheeler the officers observed a radar gun from Herrod’s vehicle strapped to the front
of the four-wheeler.
The officers sat and observed the house for a few minutes. They could
tell there were persons inside. They decided to knock on the door. A female
answered and they announced they were police looking for Charles Chaney. The
female stepped back and pointed into the living room and the officers made entry
with guns drawn. The officers contacted Alexie Alfred in the living room and asked
him where Charles Chaney was. He pointed to a back bedroom.
The officers did not have an arrest warrant or a search warrant. They
decided to go into the house without a warrant because the village police officers
had reported the police car down river along with gun shots, and after observing the
radar gun on the four-wheeler at Chaney’s residence they were concerned that

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someone might have the AR-15 rifle inside. Officer Herrod testified that they were
concerned that a person might use the rifle against them.
An officer knocked on the bedroom door where Alfred had pointed and
announced “police.” They observed Charles Chaney come out. At that time they
detained him and he was handcuffed behind his back. They gave him the Miranda
warnings and Chaney consented to speak with them.1 The officers continued to ask
him questions as they were advising him of his Miranda rights. They began to
question Chaney about the incident. They asked him if they could look around the
house and he gave consent. When the officers began to look around Chaney
retracted his consent and the officers stopped their search.
The officers questioned other persons in the residence and observed
in plain view a pair of police patrol gloves that Officer Herrod recognized as sitting
on the chair. Officer Herrod also recognized some paperwork from his vehicle. The
officers remained in the residence about 45 minutes to an hour.
Sgt. Chris Salyers directed the officers to remove Chaney from the
residence. Chaney was placed in the back of a patrol vehicle and questioned
further. There is no claim or showing that Chaney’s statements made to the police
in the police vehicle were the product of coercion. Chaney was told he was under
arrest.

1

Miranda v. Arizona, 384 U.S. 436 (1966).

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While the officers were outside the house they did not hear any
gunshots fired. They did not hear any people arguing or fighting. They heard no
one shouting or calling for help. There was no indication that anyone was hurt nor
did it sound like any property was being destroyed. Instead, they heard music
playing inside and people talking. Officer Herrod characterized this as normal noise
coming from a residence. The officers had received no report that Chaney had been
seen driving the patrol car or that he had been seen possessing a weapon.
The residence had only one door. The residence is elevated on stilts
about 6 to 8 feet high. From where the officers were located they could have seen
anyone jump out a window or leave the residence. Bethel has a magistrate on duty
24-hours a day. Subsequent to the officers entry into the residence of Chaney, the
police vehicle was found down river between Napaskiak and Napakiak.
Discussion
Entry into Residence
Chaney argues that the warrantless non consensual police entry into
his residence violated the Fourth Amendment. The Fourth Amendment to the U.S.
Constitution protects against unreasonable searches and seizures. The government
agrees that a warrantless search of a dwelling must be supported by probable cause
and the existence of exigent circumstances. Docket 43, p.3. See United States v.
Struckman, 603 F.3d 731, 739 (9th Cir. 2010).

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Searches without a valid warrant are unreasonable unless shown to fall
within one of the exceptions to the rule that a search must rest upon a valid warrant.
The burden is on the officer to show that the search comes within an exception.
Stoner v. California, 376 U.S. 483 (1964). A search cannot be justified by what it
produces nor can an arrest be justified by the fruit of an illegal search. Johnson v.
United States, 333 U.S. 10 (1948)(finding opium did not make search good); Wong
Sun v. United States, 371 U.S. 471 (1963)(unlawful arrest not made good by finding
heroin).
The burden of proof on a motion to suppress evidence obtained without
a warrant is on the government. United States v. Jeffers, 342 U.S. 48 (1951). The
government does not contest the defendant’s standing to seek suppression of
evidence obtained from his residence.
The parties dispute whether exigent circumstances existed for the
Bethel police to enter Chaney’s residence on December 8, 2009. To justify the
warrantless entry into the residence the government must demonstrate probable
cause to enter the residence as well as show the existence of exigent circumstances
to excuse the lack of a warrant. The government must also show that a warrant
could not have been obtained in time. United States v. Lindsey, 877 F.2d 777, 780
(9th Cir. 1989).
A.

Probable Cause

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Regardless of whether some exception to the warrant requirement
existed the government must show that the officers had probable cause to enter the
residence. United States v. Howard, 828 F.2d 552, 555 (9th Cir. 1987). Pursuant to
Lindsey, supra, the court must make a “practical, common-sense decision” whether
under the “totality of circumstances” known to the police officers at the time they
entered the residence, there was a “fair probability” that contraband or evidence of
a crime would be found inside. Illinois v. Gates, 462 U.S. 213, 238 (1983), or that
the arrestee would be present to effect his arrest if they had probable cause to arrest
him.
Due to the absence of exigent circumstances as discussed below this
court need not determine whether at the time of their initial entry the police had
probable cause to believe that evidence of stolen property or Chaney himself would
be found at Chaney’s home.
B.

Exigent Circumstances

Under Ninth Circuit law exigent circumstances are defined as:
“those circumstances that would cause a reasonable
person to believe that entry . . . was necessary to prevent
physical harm to the officers or other persons, the
destruction of relevant evidence, the escape of the

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suspect,

or

some

other

consequence

improperly

frustrating legitimate law enforcement efforts.”
Lindsey, 780-781, quoting United States v. McConney, 728 F.2d 1195, 1199 (9th Cir.)
(en banc), cert. denied 469 U.S. 824 (1984). The exigencies are viewed from the
totality of the circumstances known to the officers at the time of the warrantless
intrusion. United States v. Licata, 761 F.2d 537, 543 (9th Cir. 1985).
The government relies upon the following facts known to the Bethel
police to constitute exigent circumstances: The officers knew that a firearm might
be in the defendant’s possession; they were concerned that if the defendant was
inside with a dangerous weapon he could cause physical harm to police officers and
other individuals; the officers had information that after the police vehicle was taken
someone had fired a weapon possibly while driving the vehicle. The presence of a
firearm alone is not an exigent circumstance justifying a warrantless entry into a
person’s home. United States v. Gooch, 6 F.3d 673, 680 (9th Cir. 1993). The
officer’s subjective beliefs are not material to the inquiry. Struckman, supra.
There was no evidence adduced at the hearing about anyone reporting
to police that Chaney was seen driving the police vehicle or possessing a firearm.
There is no evidence that the police knew that Chaney was inside the residence,
until after they knocked on the door and spoke with someone inside. There is no
evidence that Chaney knew the police were outside his residence or was likely to

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flee before the officers could apply for a search warrant. There is no evidence that
anyone was attempting to destroy evidence. The officers at the house did not hear
any shots fired, fighting, arguments, call for help or any indication that someone was
hurt. Instead, they heard music playing, talking and normal noise coming from the
residence.
The officers had observed the residence for a few minutes before
deciding what action to take. The residence was built on stilts about six to eight feet
off the ground. Thus, the officers could have seen anyone attempting to leave the
building.
Other police officers were available to surveil the residence while an
application for a search warrant was made. Bethel had a state magistrate on duty
twenty-four hours a day. The magistrate was available to issue a search warrant.
I determine that the government has not shown that a warrant could not have been
obtained in time.
To succeed in invoking the exigency or emergency exceptions to the
warrant requirement, the government must show that a warrant could not have been
obtained in time. Struckman, supra at 738. I conclude that the government has not
shown the presence of a consequence that would improperly frustrate legitimate law
enforcement efforts and justify an immediate warrantless entry. The government

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has failed to meet its burden of demonstrating the presence of exigent or emergency
circumstances for the warrantless entry.
The facts in Lindsey, supra, cited by the government, were significantly
different. There, the court found that the police had reason to believe that if the cooperating source failed to return to the premise within a reasonable time those inside
would be alerted to police intervention. The source had made a statement about
guns and bombs inside and the police reasonably believed his statements. 877 F.2d
at 781. Under the facts in Lindsey the Court of Appeals found that the possession
of dangerous explosives and the likelihood of the suspects becoming increasingly
suspicious justified the initial entry based on exigent circumstances. Lindsey, supra
at 782.
C.

Consequences of Unlawful Entry into Chaney’s Residence

The fruits of the unlawful entry must be suppressed. Wong Sun v.
United States, 371 U.S. 471 (1963). This includes what was observed in the
residence in plain view. The police may not enter a suspect’s home without a
warrant to arrest absence exigent circumstances. Payton v. New York, 445 U.S. 573
(1980). Under the circumstances in this case evidence in plain view may not be
seized. Id. The warrantless entry leads to the suppression of any evidence found,
or statements taken, inside the home. Similarly, the officers’ observations in the
constitutionally protected area of the home may not be used to furnish probable

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cause to obtain a warrant since the evidence was observed by officers who were not
lawfully in that protected area. McDonald v. United States, 335 U.S. 451 (1948).
The mere giving of Miranda warnings did not dissipate the taint of the
illegal entry and arrest so as to make the statements made during Chaney’s
detention inside the residence admissible. Brown v. Illinois, 422 U.S. 590 (1975).
An arrest based on probable cause but without a warrant or exigent
circumstances made in a person’s home, although a violation of the Fourth
Amendment, does not require the suppression of statements made outside the home
after compliance with Miranda. New York v. Harris, 495 U.S. 14 (1990). Harris
explains that the rule of Payton v. New York, supra was designed to protect the
physical integrity of the home not to protect against statements made outside the
home.
D.

Search Warrant for 4BE 09-117 SW

Chaney argues state court Search Warrant 4BE09-117SW is fatally
tainted by the use of evidence obtained from the earlier unlawful search of his
Chaney’s residence. The exclusionary rule reaches evidence later discovered and
found to be derivative of an illegality or the “fruit of the poisonous tree.” Nordone v.
United States, 308 U.S. 338, 341 (1939). The question is whether the evidence
subsequently obtained is the “fruit” of the prior illegality, namely whether the
challenged evidence was obtained by exploitation of the initial illegality or instead by

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means sufficiently distinguishable to be purged of the primary taint. Segura v.
United States, 468 U.S. 796 (1984).

In reviewing the sufficiency of the challenged

search warrant this court must strike the unlawfully obtained facts from the
application and examine whether the remaining facts still provide a substantial basis
for a probable cause determination. United States v. Bishop, 264 F.3d 919, 924 (9th
Cir. 2001).
The search warrant authorized a search of 841 C 6th Avenue, Bethel,
Alaska, for a DPMS Ar15 semi-automatic rifle, serial number FE011645 with a 14½
inch barrel with four (30 round) magazines, black gloves, police department
paperwork and items listed in an inventory list of Officer Harrod’s items in the patrol
vehicle as evidence of the crime of vehicle theft first degree (Alaska Statute
11.46.360(a)(1)(3). The warrant was issued on December 9, 2009 at 2:10AM by a
Bethel Magistrate based upon the affidavit of Sgt. Chris Salyers. The search warrant
was issued about eight hours after Officer Herrod reported his patrol vehicle missing.
The affidavit in support of the search warrant purged of the illegal facts
stated the following grounds for issuance of the warrant:
On December 8, 2009, about 5:56 PM Officer Jerry Herrod
responded to a call for services located at 543 7th Avenue
in Bethel. About 6:18 PM he noticed that his patrol car
was missing.

He reported this to dispatch and also

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reported that equipment in his stolen vehicle included an
AR15 semi-automatic assault rifle with a 14½ inch barrel
and four (30 round) magazines. Herrod advised dispatch
to notify the surrounding villages in case the stolen patrol
vehicle ended up there.
Dispatch advised that VPSO Larson called to report
a vehicle on the river and that he was able to hear gun
shots. VPSO Larson also reported to dispatch that the
vehicle was heading towards Napakiak being followed by
a four-wheeler.
Other officers contacted a red Honda Rancher fourwheeler in Napakiak. The driver of the four-wheeler was
identified as Charles Chaney Jr.

During the contact

Chaney asked VPSO Dull if they were there to arrest
them. There was another male on the back of the fourwheeler who was not identified. The four-wheeler had a
hand held radar unit on the front of it. VPSO Dull advised
dispatch that the individuals were heading for Bethel.
Officer Herrod learned through the records
management (APSIN) that Chaney had a current address

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of 841 C 6th Avenue in Bethel, Alaska. Officers responded
to that location and then observed a red Honda fourwheeler that was warm to the touch parked at the
residence. They also observed Officer Herrod’s radar unit
attached to the front rack of the ATV. The affiant had
asked Officer Herrod if he had a radar unit in his vehicle
and he confirmed that he did. Officer Herrod described
the radar unit as a grey hand-held unit with a cigarette
lighter plug in.
Unexplained possession of recently stolen property may support an
inference that the possessor knew of its stolen nature. See Federal Jury Practice
and Instructions Sixth Ed (2010) Sec. 59:16. See also Jones v. United States, 378
F.2d 340, 341 (9th Cir. 1967). There was sufficient probable cause for officers to
believe that there might be recently stolen property at Chaney’s residence. The term
“recently” is a relative term with no fixed mean. An issuing magistrate could
reasonably conclude that Chaney had been seen driving his four-wheeler with the
radar unit attached “recently” after the theft of Officer Herrod’s vehicle.

Summary

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The government relies upon an exception to the requirement for a
search warrant based upon the presence of probable cause to search with exigent
circumstances.
The warrantless entry into Chaney’s residence was unlawful.
Observations made by the officers in the residence including statements made by
Chaney and others to the police must be suppressed. To that extent the motion to
suppress should be granted. The search warrant affidavit, purged of information the
officers learned upon their illegal entry, although bare bones, is sufficient for a
finding of probable cause to support the search warrant. Statements made by
Chaney outside the home need not be suppressed. New York v. Harris, supra. The
Motion to Suppress should be denied as to evidence obtained under the search
warrant and statements by the defendant after his removal from the residence. IT IS
SO RECOMMENDED.
DATED this 19th day of April, 2011, at Anchorage, Alaska.

/s/ John D. Roberts
JOHN D. ROBERTS
United States Magistrate Judge
This recommendation is issued as a final report and recommendation.
Pursuant to Rule 59(b)(3), Federal Rules of Criminal Procedure, any objections will
be considered by the District Court Judge who will accept, reject, or modify the

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recommendation, or resubmit the matter to the Magistrate Judge for additional
consideration and recommendation. Failure to object in accordance with this rule
waives a party's right to review.
Objections to this report and recommendation shall be served and filed
no later than CLOSE OF BUSINESS, April 29, 2011. Responses to objections are
due by 3:00 p.m. on the second business day following entry of the objections.
Objections and responses shall not exceed 5 pages in length, and shall not merely
reargue positions presented in motion papers. Rather, objections and responses
shall specifically designate the findings or recommendations objected to, the basis
of the objection, and the points and authorities in support.

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