DEFENDANT-APPELLANT’S OPENING BRIEF · 2014-09-24 · Defendant-Appellant APPEAL FROM THE UNITED...

C.A. NO. 13-10144

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

LARRY LEE

Defendant-Appellant

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

The Honorable J. Michael Seabright, United States District Judge

District Court Number 12-0133-002 JMS

DEFENDANT-APPELLANT’S OPENING BRIEF

THOMAS M. OTAKE

345 Queen Street, Suite 600

Honolulu, Hawaii 96813

Telephone: (808) 523-3325

Facsimile: (808) 599-1645

Attorney for Defendant-Appellant

LARRY LEE

Case: 13-10144 07/17/2013 ID: 8707870 DktEntry: 5-1 Page: 1 of 31

TABLE OF CONTENTS

TABLE OF AUTHORITIES ……………………………………………….. iii

JURISDICTION …………………………………………………………… 1

BAIL STATUS …………………………………………………………….. 1

ISSUES PRESENTED …………………………………………………….. 1

CASE STATEMENT ……………………………………………………... 2

FACTUAL STATEMENT …………………………………………….…. 4

SUMMARY OF ARGUMENT ……………………………………….….. 10

ARGUMENT ………………………………………………………….…. 11

I. Standard of Review ……………………………………………….. 11

II. The Defendant’s Consent to Search Was Not Voluntary …………. 12

A. HPD’s Initial Contact with the Defendant ………………….. 12

B. The Federal Agents’ Contact with the Defendant ………….. 14

C. The Circumstances Immediately Preceding the

Defendant’s Consent to Search His Van …………………... 15

D. Chong’s Interaction with the Resident Manager ………….... 16

E. The Defendant’s Consent to Search His Van …………..….. 17

F. The Totality of the Circumstances ……………………….... 18

III. The Automobile Exception Does Not Apply In this Case ……….. 21

CONCLUSION …………………………………………………………. 24


ii

STATEMENT OF RELATED CASES

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE


iii

TABLE OF AUTHORITIES

Cases

United States v. Cervantes, 703 F.3d 1135 (9th

Cir. 2012)…………….

11, 12, 21

United States v. Chan-Jiminez, 125 F.3d 1324 (9th Cir. 1997)………...

12

United States v. Cuevas-Ceja, 58 F.Supp.2d 1175 (D. Or. 1999)……..

15

United States v. Hamilton, 792 F.2d 837 (9th

Cir. 1986)………………

22

United States v. Jones, 286 F.3d 1146 (9th

Cir. 2003)………………… 11, 12

Statutory Provisions

18 U.S.C. §641………………………………………………………….

1, 2, 5

18 U.S.C. §922………………………………………………………….

1, 2, 4, 5

18 U.S.C. §924………………………………………………………….

1, 2, 5

18 U.S.C. §1291………………………………………………………..

1

18 U.S.C. §3231………………………………………………………...

1

Rule

Fed. R. App. P. 4(b)……………………………………………………. 1


1

JURISDICTION

The government accused defendant-appellant Larry Lee (“the defendant”) of

violating 18 U.S.C. sections 641, 922(g)(1), 922(j) and 924(e). Defendant-

Appellant’s Excerpts of Record, vol. 2 (“ER”), at 1-4.1 The district court had

jurisdiction under 18 U.S.C. section 3231 in this criminal matter. On March 14,

2013, the district court filed its final, written judgment in this matter. ER at 175-

181. The defendant timely filed a notice of appeal on March 19, 2013. ER at 182-

184; Fed. R. App. P. 4(b). This Court has jurisdiction pursuant to 28 U.S.C.

section 1291.

BAIL STATUS

The defendant is not on bail. He is presently serving his 180 month sentence

in the custody of the Federal Bureau of Prisons. Defendant is currently serving his

sentence at the Lompoc Federal Correctional Complex in Lompoc, California. His

projected release date is February 26, 2025.

ISSUES PRESENTED

1. Whether the district court erred in denying defendant’s motion to

suppress evidence when it found that the defendant provided consent to search his

van intelligently and voluntarily and not as a result of duress or coercion, express

or implied.

1 Unless otherwise indicated, citations to the excerpts of record are to the second

volume of excerpts.


2

2. Whether the district court erred in denying defendant’s motion to

suppress evidence when it found the automobile exception to warrantless searches

of a vehicle applicable because law enforcement had probable cause to search the

defendant’s van and that the exigency requirement of the exception was met.

CASE STATEMENT

The government filed a superseding indicted against the defendant on April

18, 2012 accusing him of violating 18 U.S.C. sections 641, 922(g)(1), 922(j) and

924(e). ER at 1-4. On May 7, 2012, Defendant filed a motion to suppress items of

evidence and statements. District Court Docket Number (“DN”) 51. The motion

to suppress sought suppression of all statements made by the defendant to law

enforcement on January 25, 2011, as well as all items seized as a result of such

statements by the defendant. DN 51-1. The basis for the motion to suppress was

that the statements and evidence were obtained as a result of a custodial

interrogation of the defendant without the giving of Miranda rights, and that the

defendant did not give valid consent to search his van. DN 51-1, ER at 5-137. On

May 10, 2012, the defendant filed a supplemental memorandum in support of the

motion to suppress wherein he provided additional argument that he did not

provide valid consent to search his van. DN 56.

On May 21, 2012, the government filed its response to the motion to

suppress evidence, and on May 24, 2012, it filed a supplemental response. DN 60


3

and 61. The government conceded that the defendant was in custody and was not

given Miranda warnings prior to making statements. DN 61 at 2. As such, the

government agreed that it would not offer in its case in chief any statements made

by the defendant to law enforcement personnel on January 25, 2011. DN 61 at 2.

However, the government argued that the defendant’s consent to search his van

was voluntary, therefore his consent was valid, and the items seized from the van

should not be suppressed. DN 60 at 11-15; DN 61 at 2; and ER at 5-137 . The

government also argued that even if the defendant’s consent was not valid, that the

items seized from the van should not be suppressed because the warrantless search

of the van was supported by probable cause under the automobile exception to

warrantless searches. DN 60 at 15; DN 61 at 2; and ER at 5-137.

The district court conducted a hearing on the motion to suppress on May 29,

2012. ER at 5-137. On June 6, 2012, the district court filed a written order

denying the defendant’s motion to suppress. Defendant-Appellant’s Excerpts of

Record, vol. 1 (“ER-1”), at 1-16; and ER at 138-153. The district court ruled that

the search of the defendant’s van was constitutional under two separate exceptions

to the warrant requirement, consent and the automobile exception. ER-1 at 1; and

ER at 138. The district court found that the totality of the circumstances supported

a finding that the defendant provided his consent to search his van intelligently and

voluntarily, and not as a result of duress or coercion, express or implied. ER-1 at


4

12; and ER at 149. Further, the district court found that law enforcement had

probable cause to search the defendant’s van and that there was no evidence in the

record to suggest that the van was immobile. ER-1 at 14-15; and ER at 151-152.

The defendant’s jury trial commenced on November 9, 2012. On November

14, 2012, the second day of trial, in its case in chief, the government submitted

evidence of the search of the defendant’s van and the retrieval of items from the

van, including the firearm which was the subject of the government’s indictment

against the defendant.2 ER at 154-174. On November 16, 2012, the jury found the

defendant guilty of all counts charged against him in the superseding indictment.

ER at 175. The district court sentenced the defendant on March 8, 2013 to a 15

year (180 month) term of imprisonment and to a five year term of supervised

release. ER at 175-181. The district court filed its written judgment on March 14,

2013. ER at 175-181. The defendant timely filed his notice of appeal on March

19, 2013. ER at 182-184.

FACTUAL STATEMENT

In a multiple-count indictment, the government accused the defendant of: (1)

knowingly possessing, receiving, concealing and storing a stolen firearm, in

violation of 18 U.S.C. section 922(j); (2) willfully and knowingly receiving,

concealing, and retaining stolen property of the United States, in violation of 18

2

The government’s Exhibit 37 (a photograph of the subject firearm) was received

in evidence at ER 154a.


5

U.S.C. section 641; and (3) having previously been convicted in the State of

Hawaii of a crime punishable by imprisonment for a term exceeding one year,

knowingly possessing a firearm, in violation of 18 U.S.C. sections 922(g)(1) and

924(e). ER at 1-5. The government obtained the superseding indictment on April

18, 2012. ER at 1-5.

The subject firearm was stolen from Special Agent Ivan Young’s (“Agent

Young”) work vehicle on December 27, 2010. DN 60, at 1. In the course of law

enforcement’s investigation of the stolen firearm, the government learned that the

defendant may be in possession of the firearm. Special Agent Jason Pa (“Agent

Pa:”) with United States Immigration and Customs Enforcement (“ICE”) and

Agent Young investigated the theft of the firearm. ER at 10-11. In the course of

his investigation they learned that Joshua Bagayas-Cabalar and Kevin Agno (the

co-defendant in the underlying district court case) stole the firearm from Agent

Young’s vehicle. ER at 12. Mr. Bagayas-Cabalar then claimed that he and Mr.

Agno sold the firearm to the defendant on December 27, 2010. ER at 12.

On January 25, 2011, the Honolulu Police Department (“HPD”) informed

Agent Pa and Agent Young that they had made contact with the defendant at his

apartment in Waikiki. ER at 13-14. According to HPD Corporal Anthony Chong

(“Chong”) of the HPD Crime Reduction Unit (“CRU”), he and five other members

of his CRU made contact with the defendant to confirm his location for ICE and to


6

arrest him on outstanding warrants. ER at 53-55. When Chong met with the

defendant he informed him about the warrants and that there were agents that

wanted to speak with him. ER at 55.

When Chong and his unit knocked on the defendant’s apartment door, the

defendant’s son who also lived at the apartment, Kainoa Haas, looked out the

window and saw only one person standing there. ER at 91. As Mr. Haas opened

the door, five to six men rushed through the door yelling put your hands in the air,

one of the men held a gun to Mr. Haas’ face. ER at 91-92. One of the men pulled

Mr. Haas out of the apartment and sat him down on the stairwell. ER at 92. A few

minutes later he saw the officers take the defendant out of the apartment and sit

him down on the ground. ER at 92. He testified that the defendant was being held

by his arm when the officers pulled the defendant out of the apartment and sat him

on the ground. ER at 93.

Mr. Haas testified he saw that a few of the officers had their guns in their

holsters. ER at 99. Chong testified that some of the officers may have been

wearing bullet proof vests. ER at 54. Chong further testified that when they

knocked on the defendant’s apartment door, there were two officers in the back of

the apartment, two or three officers at the front door, and two officers farther back.

ER at 76.


7

Mr. Haas further testified that while sitting in the stairwell there were one or

two officers watching him. ER at 93. While sitting in the stairwell, an HPD

officer approached Mr. Haas and told him that his father was going to be arrested

and that Mr. Haas would not want to be around for that, so he gave permission for

Mr. Haas to leave. ER at 93-94. Mr. Haas left the apartment, but returned later to

see what was going on. ER 94-95. When he returned he saw approximately eight

blue and white police cars and white vans that were now lining the driveway of the

apartment building. ER 95. Mr. Haas also testified that prior to the encounter with

the police, the apartment was organized and neat. ER at 94.

At the hearing on the motion to suppress Agent Pa and Chong testified to a

different scenario at the apartment. Chong testified that no guns were drawn and

that he remained outside of the apartment when he made contact with the

defendant and that the defendant remained inside of the apartment. ER 55-57.

Agent Pa testified that when he arrived at the defendant’s apartment HPD officers

were outside of the apartment and the defendant was standing out front by the door

area to his apartment. ER at 13. Agent Pa also testified that he did not see any

HPD officers with weapons. ER at 14.

When Agent Pa and Agent Young made contact with the defendant they

showed him their credentials and explained that they were with ICE, Homeland

Security. ER at 14. They further explained that they believed he might be in


8

possession of property stolen from a government vehicle. ER at 14-15. Agent Pa

then asked the defendant if he could ask him some questions and search his

apartment and truck. ER at 15. Agent Pa said that the defendant agreed to answer

questions and to have his apartment and truck searched. ER at 15. Agent Pa

testified that he explained to the defendant that he did not have to give consent to

search and could end the questioning at anytime, however failed to write a report

stating these important facts. ER at 29. As well, Agent Pa did not present a

consent form to the defendant. ER at 35. Agent Pa then asked if they could talk to

the defendant in his apartment and the defendant agreed. ER at 16. Once in the

living room of the apartment Agent Pa asked if there were somewhere else they

could talk and sit down, and the defendant led them to the bedroom. ER at 17.

While Agent Pa and Agent Young questioned the defendant in the bedroom, the

HPD officers searched the defendant’s apartment and truck. ER at 57-58. At the

end of Agent Pa and Agent Young’s interview with the defendant they noticed that

there were more “blue and whites” outside. ER at 47.

At some point after the federal agents’ interview with the defendant, Chong

informed the defendant that he needed to take care of the warrants and that he was

being placed under arrest for the warrants. ER at 58. Chong then proceeded to call

for the “blue and white” to transport the defendant. ER at 58-59. At that time,

Chong testified that the resident manager of the apartment complex motioned him


9

over and informed him that the defendant has a white van in the parking lot. ER at

59. However, the resident manager testified that he did not summon the police to

him, but that the police approached him. ER at 106. The resident manager told

Chong that the defendant used the van for storage. ER at 85-86. Chong then asked

the defendant if he could search the van and the defendant agreed. ER at 60. The

defendant was calm and did not seem nervous when he gave consent to search his

van. ER at 63. Chong also testified that the defendant said he does not want to be

responsible for anything they find in the van and that “Kevin” might have put

things in the van. ER at 60. Chong then informed the federal agents that the

defendant consented to the search of the van. ER at 60. The agents confirmed

with the defendant that they could search the van. ER at 60.

Prior to asking for consent to search the van, Chong told the defendant that

the word on the street was that the defendant was in possession of the stolen

firearm they were looking for. ER at 61. At no time did Chong ever give the

defendant his Miranda warnings. ER at 61.

Chong asked the defendant if he had keys to the van, and he said that there

were no keys. ER at 63. The defendant explained that the only way to get into the

van was to push the sliding window open, reach in and unlock the van from the

inside. ER at 63. The van was cluttered with surfboards, furniture, rims and tires.

ER at 63. Chong first described the van as “beat-up” then later described it as


10

“pristine.” ER at 60, 64. He had no idea whether the van was operable. ER at 64.

Chong found the stolen firearm when he searched the van.

SUMMARY OF ARGUMENT

The district court erred when it denied the defendant’s motion to suppress.

Specifically, the district court erred in two respects: (1) when it found that the

defendant’s consent to search his van was voluntary, and (2) when it found that the

automobile exception to warrantless searches was applicable in this case.

Based on the totality of the circumstances, including, but not limited to, the

Jones’ factors, the defendant’s consent to search his van was not voluntary. The

government conceded that the defendant was in custody and that he had not been

given Miranda warnings. There was conflicting testimony about whether guns

were drawn when initial contact was made at the defendant’s apartment, however

based on other undisputed testimony it seems clear that the environment was

hostile and intimidating (e.g., there was a large police presence, the defendant was

told that he would be arrested on outstanding warrants, the defendant’s apartment

was ransacked by the police). Although the defendant was not told that a search

warrant could be obtained if he did consent, other statements made by Chong to the

defendant had the effect of indicating that law enforcement knew he was in

possession of the stolen firearm and had enough information to obtain a search


11

warrant. Moreover, Agent Pa claimed he told the defendant that he did not have to

consent to the search of this van, however Chong, who testified he heard Agent Pa

obtain consent from the defendant, did not testify that he heard Agent Pa advise the

defendant of his right to refuse consent. As discussed in more detail below, there

were a number of factors present on the day in question which would indicate that

the defendant’s consent to search his van was not voluntary, but was a result of

duress or coercion.

In addition, the district court wrongly found that the automobile exception

was applicable in this case. First, the exigency requirement of the automobile

exception was not present in this case as there was no indication that the van would

or could be quickly moved outside of the jurisdiction. Moreover, at the time law

enforcement obtained consent to search the van, there was no probable cause to

justify the warrantless search of the van.

ARGUMENT

I. Standard of Review

This Court reviews de novo the district court’s denial of a suppression

motion. United States v. Jones, 286 F.3d 1146, 1150 (9th Cir. 2003) (citation

omitted). “Underlying factual issues are reviewed for clear error.” United States

v. Cervantes, 703 F.3d 1135, 1138 (9th Cir. 2012) (citation omitted). The district

court’s “determination that a person voluntarily consented to a search” is reviewed


12

under a clearly erroneous standard, and the district court’s factual findings are

reviewed for clear error. Id.

II. The Defendant’s Consent to Search Was Not Voluntary

The government bears the heavy burden of demonstrating that an

individual’s consent to search was freely and voluntarily given. United States v.

Chan-Jiminez, 125 F.3d 1324 (9th

Cir. 1997). As well, whether consent was

voluntarily given must be determined from the totality of all the circumstances. Id.

Although not an exhaustive list,

The factors considered in determining the voluntariness of the search

are: (1) whether the defendant was in custody; (2) whether the

arresting officers had their guns drawn; (3) whether Miranda warnings

were given; (4) whether the defendant was notified that she had a right

not to consent; and (5) whether the defendant had been told a search

warrant could be obtained.

Jones, 286 F.3d at 1152.

A review of the totality of the circumstances demonstrates that the

defendant’s consent to search his van was not voluntary. The Jones’ factors should

be considered and will be discussed in further detail. However, in this case, as

discussed below, there are a number of other factors that call into serious question

whether the defendant’s consent was voluntary.

A. HPD’s Initial Contact with the Defendant

There is conflicting testimony about whether guns were drawn when HPD

made initial contact with the defendant. Chong’s report is completely void of any


13

information about the facts and circumstances of HPD making initial contact at the

defendant’s apartment. ER at 83. However, he testified that there were six plain

clothes officers on scene surrounding the apartment (two in the back, two-three in

the front, and two farther back), and that some of the officers may have been

wearing bullet-proof vests. ER at 54, 76. Whereas, Mr. Haas, the individual who

answered the door, testified that when he opened the door, the officers rushed into

the apartment, yelled at him to raise his hands and pointed a gun at him. ER at 91-

92. Even though the defendant was not in the room to witness this incident, he was

in the bathroom and surely could have heard the commotion. ER at 90.

In this case, the district court needed to make a credibility determination as

to who to believe, Chong or Mr. Haas. The district court found that Chong was

more credible than Mr. Haas. ER-1 at 9-10; ER at 146-147. However, this

credibility determination is seriously questioned by the fact that Chong failed to

mention any facts of his initial encounter with the defendant in his report. ER at

83. As will be discussed further below, there are several instances where Chong

leaves out critical information, information that would support the defendant’s

position, from his report. Although he left out critical information from his report,

Chong was able to testify at length and in significant detail to these facts at the

hearing on the motion to suppress. Moreover, the district court’s finding of Mr.


14

Haas as not credible was supported only by a finding that the district court believed

Mr. Haas was “testifying in a manner that [he] believed would be most beneficial

to Defendant.” ER-1 at 10; ER at 147. The district court failed to give any reason

for this finding.

B. The Federal Agents’ Contact with the Defendant

Prior to the arrival of the federal agents, Chong informed the defendant that

there were outstanding warrants for his arrest and that federal agents wanted to

speak with him and were on their way. Agent Pa testified in detail that he

explained to the defendant that he did not have to consent to anything, however he

failed to write a report to document that the defendant consented to a warrantless

search of his apartment, truck, and van. ER at 29.

When the federal agents arrived, HPD officers remained on the scene. After

asking for permission to search the defendant’s apartment and truck, and relocating

to a bedroom in the apartment to continue their interview of the defendant, HPD

proceeded to search the apartment and the defendant’s truck. Mr. Haas testified

that when he left the apartment it was organized and neat (“all the items were in

their drawers”). ER at 94. However, when he returned to the apartment it was

quite a different scene. Mr. Haas testified that the apartment was completely

“trashed.” “Everything thrown all over the place, everything that was in the


15

drawers was emptied onto the floor, all the drawers of the dressers and tool boxes

were all opened.” ER at 96. He also stated that his room was searched as well.

ER at 96.

Assuming, arguendo, that Agent Pa informed the defendant he could refuse

to consent to a search of his apartment, truck and van, such statement by Agent Pa

does not alone prove that the defendant’s consent was voluntary. This is especially

true taking into account the totality of the circumstances from the time of Chong’s

initial encounter with the defendant, up until the time Agent Pa asked for consent

to search the defendant’s van. For example, see United States v. Cuevas-Ceja, 58

F.Supp.2d 1175, 1190 (D. Or. 1999) (where the court stated “Even though Lugo

informed the passengers that they could refuse to consent, for all the reasons

explained above, the conduct of the officers negated that advisement and conveyed

the message that consent was required. As a result, Cueva’s consent to search her

baggage was involuntary.”).

C. The Circumstances Immediately Preceding the Defendant’s

Consent to Search His Van

After the search of the defendant’s apartment and truck, he is informed by

Chong that he is being arrested on outstanding warrants. Chong escorts him

outside into the parking lot and calls for a police vehicle to transport the defendant

to the police station. When the defendant is escorted outside of his apartment there

is an even bigger police presence than there was at the time of Chong’s initial


16

encounter with the defendant. Agent Pa testified that when they concluded their

interview and were leaving, there were “blue and whites” outside and he was not

sure who called them to the scene. ER at 47. As well, Mr. Haas testified that

when he returned to the apartment to see what was going on that there were

approximately eight police cars and vans lining the driveway. ER at 95.

In addition, while escorting the defendant outside Chong tells the defendant

that the “word on the street” is that the defendant is in possession of the stolen

firearm. ER at 61. As such, when the defendant is arrested and escorted outside

Chong made a point of letting the defendant know that law enforcement knows he

is in possession of the stolen firearm. This statement by Chong while placing the

defendant under arrest, along with a very large police presence makes for a very

coercive and intimidating environment for the defendant. In essence, this

statement to the defendant is tantamount to saying that law enforcement has

enough information to obtain a search warrant. The statement is so powerful that

Chong’s attempt to temper the statement by saying that “sometimes information

gets exaggerated and crossed” does not mitigate the powerful effect of the first half

of his statement to the defendant. ER at 61.

D. Chong’s Interaction with the Resident Manager

Chong testified that the resident manager motioned for him to come over

and told him that the defendant also had a van in the parking lot that the defendant


17

used for storage. ER at 59. The resident manager testified that he was afraid and

did not approach the police officer, but that the police officer came to his door and

asked about whether the defendant had vehicles and storage space. ER at 105-106.

The district court did not find the resident manager credible, but found Chong to be

credible. ER-1 at 10; ER at 147. Again, the district court gave no basis for its

credibility determination concerning the resident manager other than that the

resident manager appeared to be testifying in a manner that would be most

beneficial to the defendant. ER-1 at 10; ER at 147. However, this is the second

time that the truthfulness of Chong’s testimony about his statements/actions were

called into question. Chong’s credibility is further called into question by the fact

that he testified at the hearing about very important information that he left out of

his report.

E. The Defendant’s Consent to Search His Van

After learning about the van, Chong approached the defendant to ask for his

consent to search the van. It is imperative to keep in mind that when defendant is

asked to consent: (1) he is already under arrest, (2) he has not received Miranda

warnings; (3) his apartment has just been ransacked by police officers, (4) he has

received a clear message from Chong that law enforcement knows the defendant

has the stolen firearm, (5) he sees a very large police presence (officers and


18

vehicles) outside his apartment, and (6) he has just been interrogated by two

federal agents about the stolen firearm. Taking these circumstances into account, it

is difficult to imagine that the defendant felt he had free will to decline law

enforcement’s request to search his van.

After the defendant agreed to allow Chong to search the van, Chong

approached the federal agents and informed them of the same. Chong testified that

he heard the defendant give consent to Agent Pa to search the van as well. ER at

60. However, he did not testify that he heard Agent Pa inform the defendant that

he did not have to give such consent, even though Agent Pa testified that he did in

fact state this to the defendant.

F. The Totality of the Circumstances

The following facts are not in dispute: (1) the defendant is informed by

Chong, who is present at his apartment with five other officers, that there are

outstanding warrants for his arrest, (2) the defendant is told that federal agents

want to speak with him and that they are on their way; (3) two federal agents

explain to defendant that they believe he is in possession of a firearm stolen from a

federal agent and ask to speak with him in his apartment; (4) while federal agents

are questioning the defendant, six police officers are searching the defendant’s

apartment (including the room he is being interviewed in) and his truck; (5) the


19

manner in which the apartment is searched was very invasive and apparently

without any attempt to respect the property of the defendant as the apartment was

left with drawers open and the contents of the drawers all over the floor; and (6)

the front door of the apartment was left wide open when law enforcement left the

premises. ER at 95, 109. Taking all these facts into consideration, Agent Pa and

Chong’s attempt to paint a picture of a very friendly, cooperative environment

must be questioned. The physical condition of the apartment after law

enforcement left, which is undisputed, is a clear indication that law enforcement’s

interaction with the defendant was not as friendly and non-confrontational as they

made it seem.

The totality of the circumstances indicates that the defendant’s consent to

search his van was not voluntary. Analyzing the facts of this case with the Jones’

factors weighs in favor of a finding that the defendant’s consent was not voluntary.

It is undisputed that the defendant was in custody from his initial encounter with

Chong and was not given his Miranda warnings. As such, the government

conceded that it would not use the defendant’s statements in its case in chief.

There is a dispute as to whether guns were drawn when HPD initially entered the

defendant’s apartment. However, even if guns were not drawn, this factor alone

does not make the defendant’s consent voluntary. The district court found that


20

Agent Pa explained to the defendant that he did not have to consent to the searches.

However, Chong did not testify that he heard these statements when heard Agent

Pa asking the defendant for consent to search the van. Although law enforcement

did not tell the defendant that they could obtain a search warrant, Chong’s

statement to the defendant about the “word on the street” had the same effect that a

statement about obtaining a search warrant would have. Basically, the statement

by Chong would have made the defendant believe that they were going to get

search warrants anyway, so he should just go ahead and consent now.

In addition to the Jones’ factors, the other circumstances present in this case

clearly indicate that the defendant’s consent was not voluntary. Mr. Haas testified

that the police aggressively entered the apartment with their guns drawn. The

resident manager, who was in his own apartment also testified that he was scared

by what was happening. The manner in which the apartment was searched by the

police, in the presence of the defendant, was aggressive and hostile as items in

drawers were emptied on the floor and the apartment was “trashed”.

The district court found that the defendant’s substantial criminal history

increased the likelihood that he was already aware of his legal rights. ER-1 at 12;

ER at 149. However, there was no evidence that the defendant had any prior

experience with a warrantless search. Simply because the defendant had numerous


21

encounters with law enforcement, does not automatically establish that he has

knowledge of all of his constitutional rights and understands how and when to

invoke the same. Most adults likely understand they have a right to an attorney

and a right to remain silent, as these are rights that members of the public are

generally familiar with regardless of whether they have a criminal history.

However, to say that the presence of a criminal history alone makes it more likely

that the defendant in this case understood his rights with regard to a warrantless

search is not supported by the record.

III. The Automobile Exception Does Not Apply In this Case

A warrantless search by law enforcement is per se unreasonable under the

Fourth Amendment. Cervantes, 703 F.3d at 1138. However, there are a few

“specifically established and well-delineated exceptions” to a warrantless search.

Id. at 1338-39. One such exception is the automobile exception. Under the

automobile exception “‘[t]he police may search an automobile and the containers

within it where they have probable cause to believe contraband or evidence is

contained.’ An officer will have probable cause to search if ‘there is a fair

probability that contraband or evidence of a crime will be found in a particular

place, ‘based on the totality of the circumstances.’’” Cervantes, 703 F.3d at 1139

(internal and external citations omitted). The defendant respectfully submits that


22

the government did not meet its burden of proving that the automobile exception

applied in this case.

First, it is important to keep in mind that one of the principle justifications

for the automobile exception is that automobiles “can be moved quickly outside

the jurisdiction of the magistrate from whom the warrant must be sought.” United

States v. Hamilton, 792 F.2d 837, 842 (citation omitted). In this case, the vehicle

was located in Honolulu, Hawaii. The only means by which the vehicle could

have been removed from the jurisdiction of the magistrate in Hawaii would be for

it to be placed on a cargo ship. Shipping a vehicle off the island of Oahu is not a

simple task that can be accomplished quickly. As well, the defendant stated that he

did not have keys for the van. ER at 63. Moreover, the defendant was in custody

at the time of the warrantless search, as such he was incapable of moving the van

in the near future. Further, the van appears to have been used for storage purposes,

as opposed to transportation. The resident manager specifically stated that the

defendant used the van for storage. ER 85-86. The fact that the van was used for

storage is supported by Chong’s testimony that when he searched the van he noted

that it was cluttered with surfboards, furniture, rims and tires. ER at 63.

In sum, there was no danger of the van being moved in the near future. As

there were numerous officers on scene, law enforcement clearly could have


23

assigned an officer to watch the van while other officers obtained a search warrant

for the van.

In addition, the defendant submits that there was no probable cause to justify

the warrantless search of his van. The district court relied on Agent Pa’s testimony

that he was informed that on December 27, 2010, the defendant purchased the

firearm from the individual who stole the firearm. There is no evidence anyone

suggested that the firearm may be in the defendant’s van. The search of the

defendant’s van occurred one month after the defendant allegedly purchased the

firearm. In addition to there being no indicia that the firearm was ever in the

defendant’s van, the defendant submits that the length of time between the alleged

purchase of the firearm and the warrantless search of the van made it less probable

that the firearm would be in the van. As such, there was no probable cause to

search the van.

The district court also relied heavily on the defendant’s statement that he

does not want to be responsible for what they find in the van. ER-1 at 14-15; ER at

151-152. However, the defendant never specifically mentioned the firearm. Such

a generalized statement by the defendant does not make it more probable that the

firearm, the subject of the search, would be found in the van. Moreover, this

statement by the defendant was in violation of the defendant’s Miranda rights,


24

which the government did not dispute, and the government agreed to not use such

statements by the defendant because of the obvious constitutional violations.

CONCLUSION

For the foregoing reasons, Appellant respectfully requests this Honorable

Court reverse the district court’s rulings regarding the motion to suppress, vacate

the district court’s judgment, and remand for further proceedings.

DATED: Honolulu, Hawaii, July 17, 2013.

/s/ Thomas M. Otake

THOMAS M. OTAKE


LARRY LEE


Certificate of Related Cases

Counsel is unaware of any cases pending in this Court that are related to the

present matter.


/s/ Thomas M. Otake


LARRY LEE


Certificate of Compliance

Pursuant to Fed. R. App. P. 32(a)(7)(C), I hereby certify that this principal

brief complies with Fed. R. App. P. 32(a)(7)(B)(i); it is proportionately spaced in

14-point Times New Roman typeface and contains less than 14,000 words;

specifically, it contains 5,806 words.


/s/ Thomas M. Otake


LARRY LEE


CERTIFICATE OF SERVICE

I hereby certify that on July 17, 2013, I electronically filed the foregoing

with the Clerk of Court for the United States Court of Appeals for the Ninth Circuit

by using the appellate CM/ECF system.

I certify that all participants in this case are registered CM/ECF users and

that service will be accomplished by the appellate CM/ECF system.


/s/ Thomas M. Otake


LARRY LEE


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