United States v. Baker

58 F.4th 1109

UNITED STATES of America, Plaintiff-Appellee,

v.Terrance Douglas BAKER, Defendant-Appellant.

No. 20-50314

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 4, 2022 Pasadena, California

Filed January 30, 2023

Gail Ivens (argued), Gail Ivens Attorney at Law, Monterey, California, for Defendant-Appellant.

Bram M. Alden (argued), Assistant United States Attorney, Criminal Appeals Section Chief; Tracy L. Wilkison, United States Attorney; Joseph D. Axelrad ; Jeffrey M. Chemerinsky, Department of Justice Office of the United States Attorney, Los Angeles, California; Charles E. Fowler Jr., Department of Justice United States Attorney's Office, Austin, Texas; Plaintiff-Appellee.

Before: Danielle J. Forrest and Gabriel P. Sanchez, Circuit Judges, and Nancy D. Freudenthal,^* District Judge.

SANCHEZ, Circuit Judge:

One week after an armed robbery of a Sprint store in Los Angeles, Terrance Baker was stopped and frisked by the Los Angeles Police Department (LAPD). Although no weapons or contraband were found on Baker, an officer removed a car key from his belt loop without his consent and walked to a nearby parking lot in search of the car associated with the key. Baker denied having a car. When officers located a red Buick whose flashing headlights responded to the key fob, Baker fled and was apprehended a short distance away. A handgun was recovered from the car and later introduced at Baker's trial as the weapon used in the Sprint store robbery. Baker was convicted of Hobbs Act robbery and conspiracy to commit robbery in violation of 18 U.S.C. § 1951(a), and brandishing a firearm in violation of 18 U.S.C. § 924(c)(1)(A)(ii).

This appeal presents two principal questions: whether officers violated Baker's Fourth Amendment right to be free from unreasonable searches and seizures by exceeding the scope of their patdown search and seizing the car key, and, if a constitutional violation occurred, whether the handgun evidence was nevertheless admissible because Baker's flight from officers attenuated the discovery of the handgun. We conclude that the handgun evidence was illegally obtained and should have been excluded at trial, and that this error prejudiced Baker as to the brandishing conviction but was harmless as to the convictions for Hobbs Act robbery and conspiracy. We reject Baker's claims of error concerning the district court's evidentiary rulings at trial and its imposition of an obstruction of justice sentencing enhancement. Accordingly, we affirm in part, reverse in part, and remand for further proceedings.

I.

One week after the robbery of a Sprint store in Los Angeles, LAPD Officers Byun and Salas observed a group of individuals congregating at the Nickerson Gardens housing complex. Baker stood among them in front of the complex. According to Officer Byun, officers were aware that Baker was a gang member who did not reside at Nickerson Gardens and Officer Byun suspected that Baker was trespassing.

As the officers approached Baker, he lifted his shirt to demonstrate he was unarmed. Officer Byun conducted a patdown search of Baker that revealed no weapons or contraband. Officer Byun then observed a car key attached to Baker's belt loop, which Officer Byun removed. He directed Baker to hand over his driver's license. Officer Byun walked away with the car key and Baker's driver's license to an adjacent parking lot, where he paused at various parked cars to identify which car matched the key. Officer Salas directed Baker to walk toward the parking lot, then commanded him to stop and put his hands behind his back as Officer Byun continued his search for the car. Officer Salas asked Baker if he had driven a car to the location, and Baker responded "I don't have a car."

When Officer Byun pressed the car lock on the key, he observed flashing headlights from a red Buick parked on the street. "You don't have a car? That's your car right there, it's blinking, man," Officer Byun said to Baker. Officer Byun signaled to Officer Salas to handcuff Baker. Baker took off running. After a brief foot chase during which Officer Byun lost the car key, Baker was apprehended a short distance away. He told police the car belonged to his mother and that "he had run because he was scared."

While Baker was in custody, additional officers arrived to investigate the red Buick identified by Officer Byun. LAPD Officer Ceballos testified at trial that when he peered inside the car, he "was able to see underneath the front seat what appeared to be the butt of a handgun." Another officer used a baton to open the car door, setting off the car alarm, and officers recovered a handgun with a black frame and silver slide. The gun was admitted at trial along with surveillance video of the robbery. Government expert witnesses testified that the gun recovered from the red Buick was a real firearm and that its distinctive black-and-silver color scheme matched the gun used by the robber in the surveillance video.

At trial, the prosecution also introduced testimony by Baker's co-defendant Walter Collin Beatty, who described in detail how he and Baker planned and committed the robbery of the Sprint store where Beatty worked. Another store employee testified that a handgun was pointed at his head and he was forced on the ground and held in the back room while Beatty took iPhones from the Sprint safe. The jury was shown Facebook photos of Baker in clothing appearing to match the clothing worn by the robber in the surveillance video of the robbery. Cell phone evidence introduced against Baker included toll records showing seven calls between Baker and Beatty on the evening of the robbery, as well as cell site location information ("CSLI") admitted to show Baker's movement toward the Sprint store before the robbery and away from the store afterward.

The district court denied Baker's motions to suppress the evidence of the handgun and to exclude the testimony of Jeffrey Bennett, the Government's cell data mapping expert. The district court also sustained the Government's objection to the introduction of a 2014 publication by the United States Department of Commerce, which defense counsel sought to introduce during Bennett's cross-examination.

The jury found Baker guilty of the three counts arising from the Sprint store robbery. Based on Beatty's testimony that Baker had threatened him prior to Beatty's trial testimony, the district court applied an obstruction of justice sentencing enhancement. Baker was sentenced to 125 months on each of the two Hobbs Act counts, to be served concurrently, and a consecutive 84-month term for the § 924(c) count. He timely appealed.

II.

Baker contends that the evidence of the handgun resulted from an illegal search and seizure and should have been suppressed at trial. We review the denial of a motion to suppress de novo and the district court's underlying factual findings for clear error, including the finding that property has been abandoned for purposes of the Fourth Amendment. United States v. Magdirila , 962 F.3d 1152, 1156 (9th Cir. 2020) ; United States v. Stephens , 206 F.3d 914, 916–17 (9th Cir. 2000).

A.

The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. A "search" involves governmental infringement on "an expectation of privacy that society is prepared to consider reasonable," while a "seizure" of property involves "some meaningful interference [by the government] with an individual's possessory interests in that property." United States v. Jacobsen , 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). Fourth Amendment rights are personal rights that "may not be vicariously asserted." Alderman v. United States , 394 U.S. 165, 174, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). To establish standing to challenge governmental intrusions under the Fourth Amendment, an individual must demonstrate their reasonable expectation of privacy in a place searched, or meaningful interference with their possessory interest in property seized. See United States v. Singleton , 987 F.2d 1444, 1447 (9th Cir. 1993) (citing United States v. Salvucci , 448 U.S. 83, 95, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980) ); Lavan v. City of Los Angeles , 693 F.3d 1022, 1027–29 (9th Cir. 2012).¹ "Because warrantless searches or seizures of abandoned property do not violate the [F]ourth [A]mendment, persons who voluntarily abandon property lack standing to complain of its search or seizure."

United States v. Nordling , 804 F.2d 1466, 1469 (9th Cir. 1986).

We begin with the bedrock principle that warrantless searches and seizures "are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well delineated exceptions." Minnesota v. Dickerson , 508 U.S. 366, 372, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) (quoting Thompson v. Louisiana , 469 U.S. 17, 19–20, 105 S.Ct. 409, 83 L.Ed.2d 246 (1984) ). One of these exceptions is the Terry stop, which permits an officer with reasonable suspicion that an individual is engaged in a crime to briefly detain the individual and make " ‘reasonable inquiries’ aimed at confirming or dispelling [the officer's] suspicions." Dickerson , 508 U.S. at 373, 113 S.Ct. 2130 (quoting Terry v. Ohio , 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ). If the officer has reasonable suspicion that the detained individual is "armed and presently dangerous," the officer may conduct a frisk, a protective patdown search of the individual for weapons. Terry , 392 U.S. at 30, 88 S.Ct. 1868.

The Government contends that the stop-and-frisk was lawful because it was supported by the officers' reasonable suspicion that Baker was trespassing in front of the Nickerson Gardens housing complex. Baker disputes that the officers had reasonable grounds to initiate a stop-and-frisk and argues that he was effectively arrested without probable cause. We need not...