NO. 02-50664

UNITEDSTATESCOURT OF APPEALS

FOR THENINTHCIRCUIT

UNITEDSTATESOF AMERICA,

PLAINTIFF-APPELLEE,

VS.

KEVINJOSEPH BAUTISTA,

DEFENDANT-APPELLANT,

JUN I 6 2O03

CATHY.4.C_,TT_R_0tJ.CLERKU.S.COURTOFAPPEALS

APPEALFROM THEUNITEDSTATESDISTRICTCOURT FORTHESOUTHERNDISTRICTOF CALIFORNIA

HONORABLENAPOLEONA, JONES, DISTRICTJUDGE

APPELLANT'SREPLYBRIEF

TIMOTHYA. SCOTTFEDERALDEFENDERSOFSANDIEGO,INC.225 BROADWAY,SUITE900SANDIEGO,CALIFORNIA92101 -5008

TELEPHONE:(619) 234-8467ATTORNEYSFORDEFENDANT-APPELLANT

-raTABLE OF CONTENTS

AUTHORITIES CITED ............................................................. m

I. INTRODUCTION ........ ...................................................... 1

II. ARGUMENT IN REPLY

A° IT WAS REASONABLE FOR MR. BAUTISTA TO EXPECT PRIVACY IN HIS

RESIDENCE AT THE GOODNITE INN WHEN HOTEL MANAGEMENT CONTINUED

TO DO THE SAME ..................................... - ....................... 2

, Under Minnesota v. Olson and its Progeny, it Was Reasonable to Expect Privacy

Rights in the Room that.Mr. Bautista Occupied for the Preceding Four Days and

Nights When Management Respected His Privacy Rights Even After the ReportAbout the Card Arose ....................................................... 3

. Significant Policy Concerns Suggest that the Court Should Not Adopt the Bright-Line

"No Standing" Rule Proposed by the Government ................................ 6

. The Government Concedes that Mr. Bautista's Tenancy Had Not Been Terminated

and He Had Not Been Evicted, and I(s Speculation as to What Would Have Happened

But-for the Illegal Search of His Motel Room Does Not Change the Fourth

Amendment Violation that Occurred ........................................... 8

B. COMPLIANCE WITH A POLICE DEMAND TO OPEN THE DOOR IS NOT

"VOLUNTARY", POLICE HAD TO CROSS THE THRESHOLD TO KEEP THE DOOR

OPEN, AND DOORWAY ARREST CASES DO NOTHING TO CHANGE THE

AUTHORITY OF UNITED STATES V. WINSOR, THUS THE POLICE ILLEGALLY

ENTERED ROOM 332 .......................................................... 9

. Under United States v. Winsor, "Compliance With a Police Demand is Not Consent,"

Thus the Command "Police. Open the Door" Was a Warrantless Search of the Room .... 11

. As a Purely Factual Matter, Ms. Bautista Did Not "Stand in the Doorway," As

Evidenced by the Fact that the Police Had to Cross the Threshold to Hold the Door

Open and Continue the Encounter ............................................ 13

, "Doorway Arrest" Cases Do Nothing to Change the Fact that Police Conducted a

Warrantless Search by Making Ms. Bautista Open the Door Under Color of Authority... 14

C° THE GOVERNMENT FALLS TO CITE ANY CASE LAW UPHOLDING A

"PROBABLE" CONSENT TO SEARCH, AND ITS ARGUMENT THAT THE

"CONSENT" ITSELF PURGED THE TAINT OF ANY ILLEGALITY BEGS THE

QUESTION AT ISSUE ......................................................... 18

1. The Government Has Provided No Authority Upholding a Finding of"Probable"

Consentto a Search,andCaseLaw Actually Suggeststhat"Probable'SetsForthaLowerStandardThanaPreponderanceof theEvidence ........................... 18

. Because the Law Requires "Significant Intervening Time, Space or Event" to Purge

the Taint of an Illegal Entry, Ms. Bautista Could Not Have Given Legal Consent toSearch the Hotel Room ..................................................... 20

D. INSOFAR AS THE GOVERNMENT REFUSES TO ADDRESS TESTIMONY ELICITED

FROM ITS OWN AGENT AT THE SUPPRESSION HEARING, AND SUGGESTS ONLY

THAT IT SHOULD NOT BE BELIEVED BECAUSE ELICITED THROUGH LEADING

QUESTIONS, THIS COURT SHOULD REVERSE THE DISTRACT COURT'S DENIAL OFHIS MOTION TO SUPPRESS STATEMENTS ...................................... 23

III. CONCLUSION ............................................................... 26

CERTIFICATE OF COMPLIANCE .................................................... 27

PROOF OF SERVICE

TABLE OF AUTHORITIES

FEDERAL CASES

Alabama v. White, 496 U.S. 325 (1990) ..................................................................................... 19

Amos v. United States, 255 U.S. 313 (1921) .............................................................................. 12

Bailey v. Newland, 263 F.3d 1022 (9th Cir.2001) ...................................................................... 12

Bryant v. U.S. Treasury Department, Secret Service, 903 F.2d 717 (1990) ............................... 19

County of Riverside v. LaLonde, 204 F.3d 947 (gth Cir. 2000) ........................................... 15, 16

Illinois v. Wardlow, 528 U.S. 119 (2000) ................................................................................... 19

Johnson v. United States, 333 U.S. 10 (1948) ............................................................................ I I

Minnesota v. Carter, 525 U.S. 83 (1988) ...................................................................................... 3

Minnesota v. Olson, 495 U.S. 91 (1990) .............................................................................. 3, 4, 7

United States v. Currency, U.S. $42,500.00, 283 F.3d 977 (9th Cir. 2002) ............................... 19

United States v. Fultz, 146 F.3d 1102 (gth Cir. 1998) ................................................................ 18

United States v. Jones, 286 F.3d 1146 (gth Cir. 2002) ............................................................... 21

United States v. Nerber, 222 F.3d 597 (gth Cir. 2000) ................................................................. 3

United States v. Santana, 427 U.S. 38 (1976) ....................................................................... 14, 15

United States v. Tin_;le, 658 F.2d 1332 (9th Cir. 1981) ................................................................ 2

United States v. Whitten, 706 F.2d 1000 (gth Cir. 1983) ............................................... 15, 16, 17

United States v. Winsor, 846 F.2d 1569 (9th Cir. 1988) ...................................................... 10, 11

FEDERAL STATUTES

Fed. R. App. P. 29 ....................................................................................................................... 29

Fed. R. App. P. 32 ................................................................................................................. 28, 29

Fed. R. Evid. 611 ........................................................................................................................ 25

Ninth Cir. R. 32-1 ....................................................................................................................... 29

iii

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, )

)Plaintiff-Appellee, )

)v. )

)KEVIN BAUTISTA, )

)Defendant-Appellant. )

)

U.S.C.A. No. 02-50664

U.S.D.C. No. 02cr1305-NAJ

Io

INTRODUCTION

In Appellant's Opening Brief, (hereafter "AOB"), Mr. Bautista argued that he

had a reasonable expectation of privacy in the hotel room that had been his residence

for the prior four days and nights; that police officers illegally searched this room;

that any alleged consent to search was tainted by acknowledged police illegality (a

fact not adequately considered by the district court); and that the district court should

have suppressed statements as well. In response, the government argues that Mr.

Bautista automatically lost "standing" the moment a claim arose that the room had

been reserved with a stolen credit card; that no search occurred anyway; that consent

to search was valid; and that this Court should not consider his argument that the

district court should have suppressed statements.

-1-

In reply, Mr. Bautista submits that: 1) it is reasonable to recognize the privacy

interest of a room's registered tenant and occupant -- at least so long as hotel

management continues to respect theseprivacy rights, no private act of repossession

occurs, and no evidence shows knowledge of fraudulent conduct; 2) the police did

effect a search of Room 332 by commanding that the door be opened and crossing the

room's threshold, and "doorway arrest" cases do nothing to change the fact that a

search occurred; 3) the consent allegedly given by Ms. Bautista was tainted by police

officers illegality, and the government's argument that her consent itself purged the

illegality begs the fundamental question of whether it was tainted; and 4) the

government has simply failed to address its own agent's conduct and testimony

demonstrating a violation of Mr. Bautista's rights under . 658

F.2d 1332, 1336 (9th Cir. 1981). For these reasons, the government's arguments fall

short, and this conviction should be reversed.

Ao

II.

ARGUMENT IN REPLY

IT WAS REASONABLE FOR MR. BAUTISTA TO EXPECT PRIVACY

IN HIS RESIDENCE AT THE GOODNITE INN WHEN HOTEL

MANAGEMENT CONTINUED TO DO THE SAME.

In his Opening Brief, Mr. Bautista argued that he retained a legitimate

expectation of privacy in the room he occupied, with management's knowledge and

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consent, for the prior four days and nights. [AOB 16]. He argued that this was true

in part because he retained all indicia of residency, he had maintained unbroken

possession of the room with hotel management's knowledge and permission, he

maintained his belongings there, and he was the registered guest. [AOB at 17]. The

government responds that Mr. Bautista lacks "standing ''_ to challenge any search of

the room. However, hotel management continued to recognize Mr. Bautista's right

to exclude others from the premises, strong policy considerations counsel against the

government's argument that "standing" was lost the moment a dispute arose about

the room, and the government's speculation that Mr. Bautista might have been

evicted in the future does not change the fact that a search occurred before he was

evicted. For these reasons, it was reasonable for Mr. Bautista to expect privacy in

Room 332 at the time that police searched the room.

1. Under Minnesota v. Olson and its Progeny, it Was Reasonable to

Expect Privacy Rights in the Room that Mr. Bautista Occupied for

the Preceding Four Days and Nights When Management Respected

His Privacy Rights Even After the Report About the Card Arose.

In "" 495 U.S. 91 (1990), the Supreme Court granted

certiorari to determine whether an overnight guest in a home enjoyed a legitimate

'Though the government continues to argue a lack of"standing," "the Supreme

Court has repeatedly cautioned against invoking this concept." United States v.

Nerber, 222 F.3d 597, 599 n. 1 (9th Cir. 2000). "The definition of those rights is more

properly placed within the purview of substantive Fourth Amendment law than within

that of standing." Minnesota v. Carter, 525 U.S. 83, 88 (1988).

-3-

expectation of privacy despite having no property rights there. The Court held that

because the touchstone of any Fourth Amendment inquiry is fivp__fiy_E_,an overnight

guest has such a legitimate expectation. Importantly, the Olson decision turned not

on the property rights of the person in the room, but on the fact that other persons

recognized and respected the overnight guest's privacy interests.

The point is that hosts will more likely than not respect the privacy

interests of their guests, who are entitled to a legitimate expectation of

privacy despite the fact that they have no legal interest in the premises

and do not have the legal authority to determine who may or may notenter the household.

Id____.at 99. 2

The law set forth in Olson, combined with the facts in this case, demonstrate

that it was reasonable for Mr. Bautista to maintain an expectation of privacy in the

room, particularly when the hotel itself continued to do so. The hotel had set aside

Mr. Bautista's room for six nights. [ER 9c]. He checked into the room on April 29,

2002, and retained unbroken control of it for the next four days and nights. [ER 9c].

He had a key to the room, he maintained his possessions there, he slept there, and

indeed, the room was he and his family's abode. [ER 57-61]. No other tenants had

keys to Room 332, and he maintained the right to exclude others from the room.

_Mr. Bautista of course does not concede that he lacked any rights in the

property while police investigated the report about the credit card. He simply

emphasizes that Olson and its progeny teach that privacy expectations are thetouchstone of Fourth Amendment jurisprudence.

-4-

Importantly, hotel management continued to recognize Mr. Bautista's right to

privacy in the room, even after the credit card holder disputed useof the card. When

housekeeping knocked on the door and was told to return later, the hotel respected

the occupant's wishes and did not attempt to force entry. [ER 9c]. At no time did the

hotel attempt to evict Mr. Bautista, even when it asked police to investigate. The

manager asserted only that, "[m]y intent [in notifying the police] was for the police

to find out what was going on with Mr. Bautista and the credit card." [ER 9c]. "If the

police had found Mr. Bautista in the room and he could not explain the credit card

situation, I would have asked the police to evict him unless I could make other

pa),ment arrangements with him. " [ER 9c].

One of the government's main arguments -- that hotel management provided

a key to the police that was not supposed to open Mr. Bautista's door -- actually

strengthens the argument that he retained a privacy interest in the room. 3 According

to the government itself, hotel management recognized Mr. Bautista's right to

exclude others from the room even after the credit card used to reserve it was reported

3As in the district court, the government's response relies heavily on the claim

that the "100 key"supplied to police was supposed to unlock only outer doors to the

buildings. [GRB 23]. As discussed in the opening brief, the only person who used

the key, Officer Novasky, testified unequivocally to simply phrased questions that he

unlocked the door with it. [ER 51-52]. Perhaps management intended to provide a

"100 key," but the key actually provided access to the room instead. Cf. AOB at 5n. 4.

-5-

stolen. Hotel management was prepared to respect Mr. Bautista's residence in the

room until the issue was resolved one way or the other. Moreover, if hotel

management would not provide the police with a key to the door, they obviously did

not intend to terminate the tenancy. By purportedly providing a key to only the outer

door, management helps clarify that they had not evicted Mr. Bautista, and that they

continued to respect his privacy interest in the room. The government's discussion

of the "100 key" actually undermines the argument that no legitimate privacy

expectation existed.

Thus, even if Mr. Bautista had knowingly used a stolen credit card (an

allegation never supported by evidence) he was still a legal tenant as far as the hotel

was concerned -- at least until further notice. His tenancy was never terminated, and

the room had never been privately repossessed. Because Mr. Bautista retained aright

to privacy that was acknowledged by the hotel itself, the government's standing

argument should not be well taken.

2. Significant Policy Concerns Suggest that the Court Should Not Adopt

the Bright-Line "No Standing" Rule Proposed by the Government.

While all of the evidence in this case suggests that officers and hotel

management were "strictly investigating" the report of a stolen credit card when they

responded to the Goodnite Inn, the government argues that Mr. Bautista had already

lost all expectation of privacy by virtue of the allegation of credit card misuse.

-6-

Officer Novasky testified that in responding to the hotel, he had not reached any

conclusions about whether or not credit card fraud had been committed by anyone.

[ER 44]. He testified that he was "strictly investigating" when he responded to the

Goodnite Inn. Id__:Hotel management took a similar posture, and would have allowed

Mr. Bautista to make other arrangements to pay for Room 332, even if the report

about the card was confirmed. [ER 9c]. The government, however, argues that any

"expectation [of privacy] was terminated the moment" they received an assertion that

the credit card had been stolen and "came looking for Bautista for an explanation."

[GRB 21].

The scope and implications of this proposed rule are troubling. A business

traveler's room could be subjected to warrantless search if his or her company

accidentally reserved the room with an expired company card. A vacationer would

lose all Fourth Amendment rights if they transposed digits in reserving

accommodations over the phone. And anyone who used a reservation service would

lack "standing" to challenge a search of lodgings reserved, if the reservation service

happened to make a mistake reserving the room - even if through no fault of the

tenant. The strict standard proposed by the government simply rushes to judgment

and carries with it too many risks to liberty and privacy. It is objectively reasonable

for society to respect a registered resident's privacy until a particular dispute is

resolved and/or private repossession occurs. The privacy risks for innocent occupants

-7-

are too great for it to be otherwise. For these reasons, a legitimate expectation of

privacy existed in Room 332 as long as the hotel allowed Mr. Bautista to remain, and

declined to privately repossess the premises.

. The Government Concedes that Mr. Bautista's Tenancy Had Not

Been Terminated and He Had Not Been Evicted, and Its Speculation

as to What Would Have Happened But-for the Illegal Search of HisMotel Room Does Not Change the Fourth Amendment Violation that

Occurred.

Thus the evidence is clear that no private act of repossession had occurred, and

Mr. Bautista had not been evicted. The government concedes this in its brief. [GRB

14] ("It is true, that [sic] the motel's policy would give [Mr.] Bautista a chance to

explain the situation as well as an opportunity to make alternative payment

arrangements."). The government attempts to solve this problem by offering its

opinion that Mr. Bautista would have been evicted in the future because he lacked

cash. [GRB 14]. First, by definition this argument is entirely speculative. Second,

it relies upon the premise that other arrangements could not have been made, which

simply cannot be assumed. [GRB 14]. Most importantly however, it misses the point

entirely, as the question remains whether Mr. Bautista had privacy rights when the

police actually entered Room 332. One can only guess what would have occurred

in the future, for the police's illegal search led directly to Mr. Bautista's immediate

arrest. The question is whether he had privacy rights while the hotel continued to

-8-

allow him ill the room -- not whether he would have had such rights after they evicted

him. For these reasons, the government's argument fails, as Mr. Bautista remained

in possession of Room 332, with the knowledge and consent of the hotel.

In conclusion, it was reasonable for Mr. Bautista to expect privacy rights at his

residence when police entered the room. He was established as the resident there,

with all attendant indicia of residency. The report about the credit card and

subsequent investigation simply did not end all expectation of privacy; indeed, hotel

management itself continued to respect Mr. Bautista's privacy interests in the room

up to the time of his arrest. Announcing a broad rule that a report of a stolen credit

card eviscerates all of a possessor's privacy rights would have dramatic consequences

beyond this case -- particularly absent an act of private repossession by the owner.

For all of these reasons, the government's "standing" argument should be rejected,

and this conviction reversed.

B. COMPLIANCE WITH A POLICE DEMAND TO OPEN THE DOOR IS

NOT "VOLUNTARY", POLICE HAD TO CROSS THE THRESHOLD

TO KEEP THE DOOR OPEN, AND DOORWAY ARREST CASES DONOTHING TO CHANGE THE AUTHORITY OF UNITED STATES V.

WINSOR, THUS THE POLICE ILLEGALLY ENTERED ROOM 332.

In his Opening Brief, Mr. Bautista argued that an impermissible warrantless

intrusion occurred in his room. He argued that when police officers commanded

"Police. Open the Door" to gain entry to his room, unlocked the door, crossed the

-9-

door's threshold, and held the door open by placing a boot against it, all without

permission or consent, their conduct violated the Fourth Amendment. [AOB at 26-

30]. The government argues that no Fourth Amendment intrusion occurred at all,

because "once Ms. Bautista voluntarily opened the door to the motel room and stood

in the doorway, she was in a 'public place' and not protected by the Fourth

Amendment." [GRB at 25]. Broken down, this argument has three premises: (1)

"Ms. Bautista voluntarily opened the door"; (2) she "stood in the doorway"; and (3)

"she was in a 'public place.'" Because each of these premises is either factually or

legally faulty, the government's argument fails. The police's actions constituted a

search under the Fourth Amendment.

First, under United States v. Winsor, 846 F.2d 1569 (9th Cir. 1988) (en banc)

Ms. Bautista did not "voluntarily" admit the officers -- she acquiesced to a police

command, under color of law, to "open the door." As a matter of law, these are very

different things. Second, Ms. Bautista did not "stand in the doorway." The evidence

shows the opposite -- that because she was behind the doorway inside the room,

police were forced to cross the threshold in order to keep the door from swinging

shut. See GRB at 25 (arguing that the "officer's placement of his foot in the doorway

[was] only to keep the door from swinging shut"). Third, police did not stumble upon

Ms. Bautista in a public place outside the scope of the Fourth Amendment: the

"doorway arrest" cases cited by the government do nothing to deny that a police

-10-

demand to open the door is a search under Ninth Circuit law. For each of these

reasons, the government's arguments fall short, and it remains clear that police

conducted a warrantless search of Mr. Bautista's room.

1. Under United States v. Winsor, "Compliance With a Police Demand

is Not Consent," Thus the Command "Police. Open the Door"

Was a Warrantless Search of the Room.

The first premise in the government's argument is that Ms. Bautista

"voluntarily opened the door to the motel room." [GRB at 25]. United States v.

Winsor 846 F.2d 1569 (9th Cir. 1988) (en banc), directly contradicts this argument.

In Winsor, this Court, sitting en ban c, rejected the very argument that the government

now makes -- that opening the door in response to a police command is somehow

voluntary. Id____.at 1547. As this Court wrote, "We reject the government's further

argument that any search that may have occurred can be sustained on the basis of

consent because Dennis Winsor 'voluntarily' opened the door." Id____.at 1573 n. 3.

Instead, this Court found it squarely decided that "[c]ompliance with a police demand

is not consent." Id____."In sum, we hold that the police did effect a 'search' when they

gained visual entry into the room through the door that was opened at their

command." Id____.at 1573.

This holding comports with the long-standing law of the land. See Johnson v.

United States, 333 U.S. 10, 12-13 (1948) (search not volunta .ry where police officer

-11-

knocked on door, identified himself, and said "I want to talk to you a little bit");

Amos v. United States, 255 U.S. 313, 315-17, (1921 ) (search not voluntary where law

enforcement officers identified themselves and told occupant that they "had come to

search the premises"). In fact, this Court recently held that the Winsor rule is so well-

recognized that it constitutes "clearly established federal law" for purposes of habeas

corpus review. See Bailey v. Newland, 263 F.3d 1022, 1030 (9th Cir.2001) ("we

hold that the rule in Winsor is clearly established Federal law .... ").

The government fails to demonstrate that the police conduct in this case differs

appreciably from Winsor; it fails to show how Winsor's en banc holding does not

apply here. 4 As such, their first premise -- that "Ms. Bautista voluntarily opened the

door" -- fails. The police conducted a warrantless search and entry into Room 332.

'To attempt to distinguish Winsor., the government suggests only that this case

is different because police told "Mrs. Bautista to open the door only in response to

her question as to who was there." [GRB 27]. This is a non sequitur. Here, whenMs. Bautista replied, "Who is it?" the officer could have simply answered, "It's the

police," "police, ma'am," or "it's the police, would you be willing to talk with us?"Instead, he commanded "Police. Open the door" -- thus asserting a claim of

authority and issuing an order to open the door. This attempt to distinguish Winsor

fails consequently.

-12-

2. As a Purely Factual Matter, Ms. Bautista Did Not "Stand in the

Doorway," As Evidenced by the Fact that the Police Had to Cross

the Threshold to Hold the Door Open and Continue the Encounter.

The government's second premise -- that Ms. Bautista stood in the doorway

thus exposing herself to the public -- is simply unsupported by the record. The

government itself makes factual statements in its brief contradicting this claim. See

e._g_.,GRB 25 ni 8 ("The door only started to close because it was 'weighted' and is

designed to close automatically unless someone or something holds it open"). More

importantly, however, the police officer himself testified that not Ms. Bautista

remained in the doorway, but that he crossed the threshold of the room to continue

contact with her:

Q: So we are clear, after she backed up, you placed you foot against the door to keep

it from slamming shut?

A: Yes.

Q: So your foot was in the room at that point?

A: I guess, technically, it was.

Q: I mean, obviously, the door would have shut had you not been in the room?

A: True.

[ER 55].

-13-

A review of the record demonstrates that Ms. Bautista simply did not stand in

the doorway during her contact with the police. The police commanded that she

open the door, and shedid. [ER 50]. They asked her a series of questions, and as she

backed away from the door, police crossed the door's threshold to continue the

contact. [ER 54]. Because the facts simply do not support the assertion that Ms.

Bautista stood in the doorway during her contact with the police, the government's

second premise (and thus its argument) fails as well.

3. "Doorway Arrest" Cases Do Nothing to Change the Fact that Police

Conducted a Warrantless Search by Making Ms. Bautista Open the

Door Under Color of Authority.

Finally, the government's last premise, that United States v. Santana., 427 U.S.

38 (1976) and its progeny somehow place the officer's conduct outside the scope of

the Fourth Amendment, is also incorrect. Under Winsor, the police effected a search

when they gained entrance under claim of legal authority. See sup_N at II.B. 1. The

"doorway" cases that the government cites are all arrest cases; they suggest only that

an arrest in a doorway can sometimes be legal if supported by probable cause and/or

exigency. Because this is not an arrest case, this line of cases does nothing to show

that the police did not conduct an illegal search under Winsor. Because the officers

violated the Fourth Amendment as soon as they gained entrance with the words

"Police. Open the door" the search had already occurred. Doorway arrest cases

-14-

simply do not save the police officer's conduct here, as the legality of a doorway

arrest and/or exigency is not at issue. The government's arguments fail as a result.

The government cites three "doorway" cases in support of its argument that

Ms. Bautista was in public, United States v. Santana, 427 U.S. 38 (1976), United

States v. Whitten, 706 F.2d 1000 (9th Cir. 1983), and County of Riverside v.

LaLonde, 204 F.3d 947 (9th Cir. 2000) 5. Each is an arrest case, not a search case.

Each is distinguishable. In Santana, police arrived at a house and discovered the

defendant already standing in the doorway, holding a bag containing drugs. 427 U.S.

at 40. Police confronted her and arrested her in the vestibule of the house. Id.___.The

Supreme Court held that she voluntarily exposed herself to the public, and that

exigency doctrine of "hot pursuit" justified the search. Id.___.at 42. As the Supreme

Court itself wrote, the holding addressed only an arrest initiated by a defendant's

conduct: "We thus conclude that a suspect may not defeat an arrest which has been

set in motion in a public place." Id___.at 43. Courts interpreting Santana recongize this

limited application. See LaLonde v. County of Riverside 204 F.3d 947, 955 (9th Cir.

2000) ("Furthermore, the decision in Santana turned on exigent circumstances related

to Santana's crime--it was a 'hotpursuit'case.") (emphasis provided). Ms. Bautista

was not present in the doorway when police arrived. She did not create probable

5This civil case is accidentally referred to as United States v. LaLonde in the

government's brief.

-15-

cause for arrest, and no exigency existed. She did not open the door until

commanded to do so by law enforcement officers, and she did not create probable

cause for a search or arrest even then.6 Because these facts stand in stark contrast to

_Santana,this case provides little guidance here.

County of Riverside v. LaLonde is distinguishable as well. There, this Court

reversed dismissal of a §1983 civil suit, holding that the case should have been

resolved by a jury. It specifically held that the so-called "doorway exception" did not

affect the case's holding, because the police followed a person across the threshold

of the door, and again emphasized that this doctrine applies only to arrests in any

event. Id..___.at 955 (discussing extent to which "The Fourth Amendment's prohibition

on warrantless entry into an individual's home does not apply to arrests made at the

doorway.") (emphasis provided). LaLonde does not suggest that a search did not

occur here either.

The government lastly cites to United States v. Whitten., 706 F.2d 1000, 1015

(9th Cir. 1983) to argue that the police did not effect a search. Whitten actually

contradicts the government's position. Whitten highlights the difference between an

6Taking its arguments together, the government would have this Court hold that

police officers (without probable cause, warrant or exigency) may command a person

to open the front door of their home and confront them there, then assert that they

encountered the person in a public place. Surely the Fourth Amendment does not

permit such a result.

-16-

arrest and a search under the Fourth Amendment. Like Santana and LaLonde,

Whitten noted that an arrest can be affected in a doorway if supported by probable

cause. 706 F.2d at 10 ! 5. Because the officers in Whitten also entered the room and

conducted a search without a warrant, however, this Court held that the Fourth

Amendment had been violated. Id___.It reversed the defendant's convictions for the

same error that the government now makes. An arrest in a doorway, supported by

probable cause and exigency, is much different than commanding someone to open

the door (without a warrant, probable cause, or exigency) and crossing the doorway

to keep the door open. The arrest cases simply do not save this illegal conduct, and

do nothing to disturb the authority of Winsor, which squarely holds that this conduct

constitutes an illegal search. Because this is simply not a doorway arrest case, and

police had already began a search of the room under Winsor, the so-called "doorway

exception" does nothing to change proper analysis of this case.

For each of these reasons, the officer's conduct in this case must be considered

a search as a matter of law.

-17-

Co THE GOVERNMENT FAILS TO CITE ANY CASE LAW UPHOLDING

A "PROBABLE" CONSENT TO SEARCH, AND ITS ARGUMENT

THAT THE "CONSENT" ITSELF PURGED THE TAINT OF ANY

ILLEGALITY BEGS THE QUESTION AT ISSUE.

. The Government Has Provided No Authority Upholding a Finding

of"Probable" Consent to a Search, and Case Law Actually Suggests

that"Probable"Sets Forth a Lower Standard Than a Preponderance

of the Evidence.

Mr. Bautista argued that the district court committed legal error by deciding

only that "it was probable" that Ms. Bautista consented to a search of Room 332.

[AOB at 31]. The government responds that the district court complied with the

appropriate legal test, and "determined that voluntary consent was probable, a

threshold equal to, if not higher than, a preponderance of the evidence." [GRB 31 ].

The government cites no authority for this proposition, however, and case law

suggests that "probable," while higher than the level of reasonable suspicion, is still

lower than a preponderance of the evidence. Because the district court apparently

required a showing lower than that required by law, and in fact never mentioned the

preponderance of the evidence standard at all, this case should be reversed for, at a

minimum, application of the correct legal standard. 7

7Again, whether or not "standing" exists in Room 332,. police required validconsent to search the individual bags and bins stored there. See e.g. United States v.

Fultz, 146 F.3d 1102, 1105 (9th Cir. 1998) ("A person has an expectation of privacy

in his or her private, closed containers" and "does not forfeit that expectation of

-18-

Under the law, "probable" is simply a less demanding standard than a

preponderance of the evidence. As the Supreme Court stated in Illinois v. Wardlow,

528 U.S. 119, 123 (2000) probable cause is less demanding than a preponderance of

the evidence, though more demanding than reasonable suspicion. See Id.

("'reasonable suspicion' is a less demanding standard than probable cause and

requires a showing considerably less than preponderance of the evidence"). The

Supreme Court in Alabama v. White, 496 U.S. 325,330 (1990) made clear that to

justify warrantless seizures, both reasonable suspicion and probable cause is a

substantially less demanding standard than a preponderance of the evidence:

That level of suspicion is considerably less than proof of wrongdoing by

a preponderance of the evidence. We have held that probable cause

means 'a fair probability that contraband or evidence of a crime will be

found, and the level of suspicion required for a Terry stop is obviously

less demanding than for probable cause.

Id___:.at 330. This Court is in accord. See United States v. Currency, U.S. $42,500.00

283 F.3d 977, 984 n.l (9th Cir. 2002) (addressing factor that arguably "raised the

government's burden of proof from probable cause to a preponderance of the

evidence"); Bryant v. U.S. Treasury Dept., Secret Service 903 F.2d 717, 728 (Trott,

privacy merely because the container is located in a place that is not controlled

exclusively by the container's owner"). As Officer Novasky testified, no contraband

appeared in plain view after entering the room; evidence was discovered only after

obtaining "consent" to search further. [ER 57, 61.] If no valid consent existed, thefruits of this search must be suppressed, whether or not there was "standing" to

challenge the police's conduct in entering the room.

-19-

J., disseting) (9th Cir. 1990) ("Under the law, they did not have to be certain or even

have proof by a preponderance of the evidence,just probable cause.").

It is unclear whether the district knew that a preponderance of the evidence was

required, what it meant by "probable," or why it believed that this standard sufficed

to show consent. Whether or not "standing" existed to challenge entry to Room 332,

this case turned on Ms. Bautista's consent to search the Bautista's personal items

inside .the room. Because the district court employed an incorrect legal standard to

find supposed consent, this conviction must be reversed.

2. Because the Law Requires "Significant Intervening Time, Space or

Event" to Purge the Taint of an Illegal Entry, Ms. Bautista Could

Not Have Given Legal Consent to Search the Hotel Room.

In the Opening Brief, Mr. Bautista argued that the district court erred in finding

Ms. Bautista's consent to search Room 332 legal, without considering the taint of

what the court itself considered an "arguable" illegal search conducted seconds before

by police officers. [AOB 33-34]. The government replies that even if there was an

illegal search of the motel room, "any minimal taint from Mrs. Bautista's opening the

door to police was completely purged by her invitation for police to enter the room

along with her subsequent consent to search." [GRB 27]. _ The government's

8The government first argued, of course, that no illegal search had occurred

in the first instance. See infra.

-20-

argument misses the mark, because its reasoning is circular, and would eviscerate the

entire doctrine of tainted consent.

"Dissipation of the taint resulting from an illegal entry ordinarily involves

showing that there was some significant intervening time, space, or event. United

States v. Jones, 286 F.3d 1146, 1152 (9 th Cir. 2002) (emphasis provided). Because

the law generally requires an intervening time, space, or event, it stands to reason that

the alleged consent itself cannot be said to have dissipated the taint. Something else

(whether time, space, or an event) must occur in between the illegality and the alleged

consent to make it voluntary and legal. The consent cannot purge its own tainted

nature; consent does not purge itself. Indeed, were this not so, the idea of tainted

consent would not exist: consent would be "self-cleaning" and would always serve

to purge an illegal search.

Here, the police entered the room by ordering "Police. Open the door" after

unlocking it without permission. [ER 53-56]. Ms. Bautista (who stands 5'2" and it

petite of build) stood on the other side, and appeared "frozen" when asked what her

name was. [ER 53]. She did not invite officers in. [54]. The officers persisted, telling

her that they needed to know who was in the room. [ER 54]. Ms. Bautista backed

away, and the officer crossed the threshold of the room. [ER 55]. Two toddlers sat

in the background. [ER 56]. The two officers were in full uniform, with guns visible

-21-

on their hips. [ER 56]. Immediately after officers already had a foot in the door, she

allegedly said "come in," consenting to entry of the room.

This alleged consent was tainted by the police's illegality, and no intervening

event can be said to have purged the taint. The only events occurring between the

illegality and the alleged consent - appearing frozen, being nonresponsive, and

backing away from the door without holding it open for officers - only suggest lack

of consent and fear, not the opposite. And again her supposed statement, "come in"

did not help purge the consent of its tainted nature, as the government suggests,

because it is the alleged consent itself. Because a consent itself cannot be an

intervening event, and no other time, space, or event occurred, the taint did not

dissipate here. This "consent" was tainted. All fruit of it must be suppressed.

In sum, the district court erred in finding a lawful consent under these

circumstances, and the government's arguments to the contrary should not be well

taken. The goverment fails to provide legal support for the district court's finding of

"probable" consent. Case law suggests that if anything, "probable" is lower than the

necessary preponderance of the evidence standard. Moreover, the government's

argument that Ms. Bautista "purged the taint" of illegal entry by consenting to a

search begs the question. For both reasons, the government's argument that the

-22-

district court properly found a consensual search should not be well taken by this

Court.

Do INSOFAR AS THE GOVERNMENT REFUSES TO ADDRESS

TESTIMONY ELICITED FROM ITS OWN AGENT AT THE

SUPPRESSION HEARING, AND SUGGESTS ONLY THAT IT

SHOULD NOT BE BELIEVED BECAUSE ELICITED THROUGH

LEADING QUESTIONS, THIS COURT SHOULD REVERSE THEDISTRICT COURT'S DENIAL OF HIS MOTION TO SUPPRESS

STATEMENTS.

Mr. Bautista argued in his opening brief that agents obtained an involuntary

confession by, inter alia, discussing the fact that his wife was found at the crime

scene and was in custody [ER 74]; telling Mr. Bautista that the interview was "his

opportunity to tell us whether or not your wife is involved in this," [ER 75]; by

discussing the "Polinsky" institution for children with Mr. Bautista because his

wife was a suspect [ER 76]; and by telling Mr. Bautista that "this was his

opportunity to clear his wife." [ER 77]. While Mr. Bautista also testified about

the agents' conduct during his interrogation, each of the facts listed above was

elicited directly from Secret Service Agent Thomas Edwards..See AOB at 10-12. 9

In response, the government simply refuses to address the statements that its

own agent made. It argues only 1) that Mr. Bautista was lying, - a separate question

9The other agent present claimed a lack of memory as to whether these issues

were discussed; he would not testify under oath that they did not. [ER 122-124].

-23-

from its own agent's testimony and a finding of fact that the district court did not

make in denying Mr. Bautista's motion to suppress; and 2) that defense counsel asked

leading questions to elicit facts from the agents, thus "attempt[ing] to put words in

the agents mouths." [GRB 33].

The government's first argument ignores the fact that Agent Edward's

testimony alone raises grave concern about the voluntariness of any statements. See

AOB 10-12. It also relies on a factual finding that the district court did not make in

denying the defense motion. [ER 149]. When, at sentencing, Mr. Bautista reiterated

the disturbing facts elicited from Agent Thomas to argue that an obstruction

adjustment was not appropriate, the district court for the :first time j° offered an

opinion about Mr. Bautista's credibility -- that it "doesn't make sense" that it would

have believed Mr. Bautista's testimony and not suppressed the statement. [ER 178].

Like the government here, the district court simply never addressed Agent Edwards'

testimony nor evaluated its effect on Mr. Bautista's statement. His testimony alone

raises grave doubts that the statement was voluntary. It shows that a violation

occurred under _ and its progeny. The statement should have been suppressed.

The government's second argument, that asking leading questions of an

adverse witness is somehow improper, is contradicted by the Federal Rules of

t°This statement occurred in December, approximately six months after the

June statements hearing.

-24-

Evidence. Fed. R. Evid. 611 states in pertinent part: "When a party calls a hostile

witness, an adverse party, or a witness identified with an adverse party, interrogation

may be by leading questions." The district court properly overruled each

governmental objection of leading accordingly. Reviving this argument on appeal

does not alter the agent's testimony.

Tellingly, the government never attempts to argue that the agents' own words

do not violate United States v. Tingle. It elects not to address the propriety or legality

of these statements at all. Instead, it simply responds that Mr. Bautista should not be

believed - ignoring its own agents' testimony. Under United States v. Tingle, the

agent's testimony alone establishes that any statements could not have been

voluntary. This evidence should have been suppressed. Mr. Bautista asks that this

conviction be reversed accordingly.

-25-

III.

CONCLUSION

For these reasons, and those stated in the Opening Brief, Mr. Bautista

respectfully requests that this Court reverse the district court decision denying Mr.

Bautista's Fourth and Fifth Amendment motions.

Dated: June 13 2003

Respectfully submitted,

TIMOTHY A. SCOTT

Federal Defenders of San Diego, Inc.

225 Broadway, Suite 900

San Diego, California 92101-5008

Telephone: (619) 234-8467

Attorneys for Defendant-Appellant

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CERTIFICATE OF COMPLIANCE PURSUANT TO FED. R. APP. 32(A)(7)(C) AND

CIRCUIT RULE 32-1 FOR CASE NUMBER 02-50664

X_X1.

I certify that: (check appropriate options(s))

Pursuant to Fed. R. App. P. 32(a)(7)(C) and Ninth Circuit Rule 32-1, the attached

opening/answering/reply/cross appeal brief is

X Proportionately spaced, has a typeface of 14 points or more and contains 6.065 words

(opening, answering, and the second and third briefs filed in cross-appeals must NOT

exceed 14,000 words; reply briefs must NOT exceed 7,000 words),

or is

O Monospaced, have 10.5 or fewer characters per inch and contain words or

__ lines of text (opening, answering, and second and third briefs filed in cross-

appeals must NOT exceed 14,000 words, or 1,300 lines of text; reply briefs must

NOT exceed 7,000 words or 650 lines of text).

2. The attached brief is NOT subject to the type-volume limitations of Fed. R. App. P.

32(a)(7)(B) because

D This brief complies with Fed. R. App. P. 32(a)(1)-(7) and is a principal brief of no

more than 30 pages or a reply brief of no more than 15 pages;

Q This brief complies with a page or size-volume limitation established by separatecourt order date and is

21 Proportionately spaced, has a typeface of 14 points or more and contains

words,

or is

_1 Monospaced, has 10.5 or fewer characters per inch and contains__ pagesor words or lines of text.

-27-

O This brief is being filed in a capital case pursuant tot he type-volume limitations set fourth

a Circuit Rule 32-4 and is

21 Proportionately spaced, has a typeface of 14 points or more and contains words

(opening, answering, and the second and third briefs filed in cross-appeals must NOT exceed

21,000 words; reply briefs must not exceed 9,800 words)

El Monospaced, have 10.5 or fewer characters per inch and contain words or

lines of text (opening, answering, and the second and third briefs filed in cross-

appeals must NOT exceed 75 pages or 1,950 lines of text; reply briefs must NOT exceed 35

pages or 910 lines of text).

4. Amicus Btqefs

0 Pursuant to Fed. R. App. P. 29(d) and 9th Cir. R. 3:2-1, the attached amicus brief is

proportionally spaced, has a typeface of 14 points or more and contains 7,000 words or less.

or is

El Monospaced, has 10.5 or fewer characters per inch and contains not more than either 7,000

words or 650 lines of text.

or is

0 NOT subject to the type-volume limitation because it is an amicus brief of no more than 15

pages and complies with Fed. R. App. P. 32(a)(1)(5).

June 13, 2003

Date Signature of Attorney or

Unrepresented Litigant

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, ) U.S.C.A. No. 02-50664

)Plaintiff-Appellee, ) U.S.D.C. No. 02crl305-NAJ

)v. ) PROOF OF SERVICE

)KEVIN JOSEPH BAUTISTA, )

)Defendant-Appellant. )

)

I, the undersigned, say:

1) That I am over eighteen years of age, a resident of the County of San Diego, State of

California, and not a party in the within action and that my business address is 225 Broadway, Suite 900,

San Diego, California, 92101-5'()08;

2) That I mailed an original and fifteen (15) copies of the DEFENDANT-

APPELLANT REPLY BRIEF to the United States Court of Appeals for the Ninth Circuit_ at 95

Seventh Street, P.O. Box 193939, San Francisco, California, 94119-3939;

3) That I served the within Brief for Appellant and Excerpt of Record on counsel for

Plaintiff-Appellee by mailing a copy to:

CAROL C. LAM, U.S. AttorneyAttention: MARK A. INCIONG

Assistant U.S. Attorney880 Front Street

San Diego, California 92101

4) That I mailed an additional copy to: Defendant-Appellant and the same were delivered

and deposited in the U.S. mails, first class postage prepaid, at San Diego, California, on June 13, 2003.

I certify that the foregoing is true and correct.

Executed on June 13, 2003, at San ..-Dieg//_/7C__////_ 7_