United States v. Parkins

92 F.4th 882

UNITED STATES of America, Plaintiff-Appellee, v. Brett Wayne PARKINS, Defendant-Appellant.

No. 22-50186

United States Court of Appeals, Ninth Circuit

Argued and Submitted December 11, 2023 Pasadena, California

Filed February 14, 2024

Appeal from the United States District Court for the Central District of California, Fernando L. Aenlle-Rocha, District Judge, Presiding, D.C. No. 8:21-cr-00175-FLA-1

Caroline S. Platt (argued), Assistant Federal Public Defender; Sonam A.H. Henderson, Deputy Federal Public Defender; Cuauhtemoc Ortega, Federal Public Defender; Federal Public Defender's

Office, Los Angeles, California; for Defendant-Appellant.

Kristin N. Spencer (argued) and Melissa S. Rabbani, Assistant United States Attorneys, Office of the United States Attorney, Santa Ana Branch, Santa Ana, California; Bram M. Alden, Assistant United States Attorney, Criminal Appeals Section Chief; E. Martin Estrada, United States Attorney; Office of the United States Attorney, Los Angeles, California; for Plaintiff-Appellee.

Before: Susan P. Graber, Morgan Christen, and John B. Owens, Circuit Judges.

OPINION

OWENS, Circuit Judge:

Brett Wayne Parkins was convicted of aiming a laser pointer at an aircraft, in violation of 18 U.S.C. § 39A. On appeal, he argues that the search of his apartment for the laser pointer violated his Fourth Amendment rights and that his statements made outside his apartment during his detention and in jail following his arrest should be suppressed. While we reject the challenges to his statements, we agree that the search of the apartment was problematic. Having jurisdiction under 28 U.S.C. § 1291, we affirm in part, reverse in part, and remand.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Laser Strikes

On the night of June 25, 2021, a Huntington Beach Police Department helicopter was searching for a vehicle involved in a fatal hit-and-run. Suddenly, a bright green laser, shot from the ground, struck the aircraft. Laser beams pose a serious safety risk, interfering with a pilot's eyesight and ability to fly safely. This was not a first-time event—over the past six months, lasers repeatedly had hit other police helicopters, and commercial aircraft at nearby airports had complained of similar attacks. The helicopter's crew (Officers Garwood and Vella) turned their attention (and their highly sophisticated thermal camera) to a nearby apartment complex. Officer Garwood had, on previous flights, been struck by green lasers originating from this same area.

Another laser hit the helicopter. The thermal camera captured the image of a man with a stocky build and large stomach, wearing shorts and a hat, walking from the area of the laser blast into a nearby breezeway, and then disappearing from view. Yet another laser strike, this time from one of the apartment's walkways, targeted the helicopter. The same man reappeared with what seemed to be a water bottle in his hand, walked toward a parked car, opened and shut the car doors, returned to the breezeway, and again disappeared. Moments later, he reappeared in a different area of the apartment complex, ran up some stairs, and was out of sight once again. A few minutes later, the suspect emerged onto a second-floor apartment balcony with the same water bottle, but wearing different clothes. Officer Garwood, believing this man to be responsible for the laser strikes, directed patrol officers to the apartment to investigate further.

B. The Apartment Encounter

Patrol officers Smith and Rivas arrived at the apartment complex and spotted the suspect (who turned out to be Parkins) standing on the second-floor apartment balcony, as Officer Garwood had described. The officers climbed the stairs and knocked on the door of the apartment, and a woman (Parkins's girlfriend) opened it. She initially denied that her boyfriend (Parkins) was home. But when the officers said that they had just seen him and that they needed to speak with him about shining a laser at the police helicopter, she turned around and walked back into the apartment. The door closed—but did not latch—behind her. The officers pushed the door back open but remained outside on the landing. While waiting for Parkins, the officers noticed a sign by the front door indicating that the apartment's occupants owned firearms. A few moments later, Parkins's girlfriend returned and told the officers that Parkins was getting dressed.

Parkins soon appeared and stepped outside the apartment onto the landing. The officers asked him if he had any weapons, and he said no. But when the officers began to check him for weapons, Parkins resisted, tried to reenter the apartment, and asked if he was under arrest. Officer Smith grabbed Parkins and pulled him away from the door. Officer Smith confirmed that Parkins lacked any weapons and then escorted him downstairs to a nearby bench for "a chat." A third officer (Officer Jamison) arrived on the scene.

When the officers and Parkins spoke at the bench, Parkins repeatedly denied owning a laser or pointing one at the helicopter. He asked if he could see his girlfriend or return to the apartment, but the officers told him that he was detained. When Parkins asked the same question roughly ten minutes later, the officers again told him that he was detained. At Parkins's request, the officers moved him to a set of mailboxes bordering the parking lot roughly twenty feet from his apartment so he would be less exposed to his neighbors. From this position, Parkins was located down one flight of stairs and one short walkway from the entrance to his unit.

While Officers Rivas and Jamison remained with Parkins, Officer Smith returned to the apartment and asked Parkins's girlfriend if the police could search for the laser pointer. She agreed, and Officer Smith left the apartment to obtain a written consent-to-search form from his car. Officer Smith returned and, as Parkins's girlfriend was executing the consent form, Parkins yelled to her, "Don't let the cops in, and don't talk to them." Both Officer Smith and Parkins's girlfriend heard Parkins loud and clear—the body camera shows both turning their heads toward Parkins's voice. About a minute later, Parkins yelled, "Don't talk to them, talk to them outside." He then followed up with, "Don't tell them anything." Officer Smith returned downstairs and ordered Parkins removed from the mailbox area in handcuffs and placed in a squad car because he was "running [his] mouth" and "obstruct[ing]" the investigation. Up to this point, Parkins had been detained outside for roughly twenty minutes.

With Parkins secured in the squad car, where he would sit for another half hour, officers searched the nearby area, including his girlfriend's vehicle. (Officer Smith had determined that this vehicle was the same one that Officer Garwood had observed Parkins open.) During the search, Officer Rivas encountered two men who resided in the same complex. One of them referred to Parkins as "the laser pointer guy." The officers then proceeded to search the apartment. After about twenty minutes, they found a laser pointer with the name "Brett" etched on it.

According to their report, the police now believed that they had probable cause to arrest Parkins based on Officer Garwood's observations and the discovery of the laser pointer. The officers thus arrested Parkins and drove him to the Huntington Beach Police Department jail. At no time did Parkins consent to the officers' entry into the apartment, and the officers never obtained a search warrant.¹

C. The Interrogation

At the jail, the helicopter crew (Officers Garwood and Vella) obtained an oral Miranda waiver from Parkins and questioned him. The interrogation was recorded on Officer Garwood's body-worn camera. After initially denying that he owned a laser pointer, Parkins eventually admitted to having a green one but claimed that he never aimed it at any aircraft. During the interrogation, the officers never displayed the laser pointer or mentioned having found it in Parkins's apartment.

D. The Indictment, Suppression Motions, and Conditional Plea

A grand jury indicted Parkins with one count of aiming a laser pointer at an aircraft, in violation of 18 U.S.C. § 39A. Parkins moved to suppress the laser pointer and the post-arrest jailhouse statements as fruits of the warrantless search and/or seizure. He filed a second motion to suppress the statements made during his detention outside the apartment. Neither party requested a hearing.

The challenged search of the apartment required the district court to harmonize a series of Supreme Court cases, including Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006), and Fernandez v. California, 571 U.S. 292, 134 S.Ct. 1126, 188 L.Ed.2d 25 (2014), regarding warrantless searches involving the consent of a co-tenant. Believing that those cases did not squarely answer the question in this case—whether a defendant must be standing at the doorway to object to a warrantless search to which his co-tenant consents—the district court looked to out-of-circuit precedent, United States v. Jones, 861 F.3d 638 (7th Cir. 2017), and concluded that a defendant can validly object to a search of his residence only if he is "standing at the door and expressly refusing consent." Id. at 643. Because the officers lawfully removed Parkins from the doorway and escorted him downstairs, the district court concluded that he was not "physically present" to object successfully to the search. And, the district court held, Parkins did not "expressly" refuse consent to search the apartment, as he merely instructed his girlfriend not to admit the officers. The district court reasoned that Parkins never told the officers "directly" that he did not want them in the apartment and Parkins's pleas that the officers not enter the apartment were "[a]t best . . . an implicit refusal" to consent to the search. As Parkins failed to satisfy both requirements of the co-tenant consent search...