United States v. Payne

99 F.4th 495

UNITED STATES of America, Plaintiff-Appellee, v. Jeremy Travis PAYNE, aka Jeramey Travis Payne, Defendant-Appellant.

No. 22-50262

United States Court of Appeals, Ninth Circuit

Argued and Submitted February 14, 2024 Pasadena, California

Filed April 17, 2024

Appeal from the United States District Court for the Central District of California, Percy Anderson, District Judge, Presiding, D.C. No. 5:22-cr-00054-PA-1

Caroline S. Platt (argued), Assistant Federal Public Defender; Cuauhtemoc Ortega, Federal Public Defender; Federal Public Defender's Office, Los Angeles, for Defendant-Appellant.

Haoxiaohan H. Cai (argued), Assistant United States Attorney, General Crimes Section; Bram M. Alden, Assistant United States Attorney, Chief, Criminal Appeals Section; E. Martin Estrada, United States Attorney; United States Department of Justice, Office of the United States Attorney, Los Angeles, California, for Plaintiff-Appellee.

Before: Richard C. Tallman and Consuelo M. Callahan, Circuit Judges, and Robert S. Lasnik,^* District Judge.

OPINION

TALLMAN, Circuit Judge:

Appellant Jeremy Travis Payne was a California parolee when he was arrested and charged with three counts of possession with intent to distribute fentanyl, fluorofentanyl, and cocaine. After the district court denied Payne's motion to suppress evidence of these crimes recovered from a home in Palm Desert, California, Payne entered a conditional guilty plea to possession of fentanyl with intent to distribute at least 40 grams in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(vi). On appeal, Payne challenges the district court's denial of his motion to suppress, arguing that California Highway Patrol ("CHP") officers violated his Fourth and Fifth Amendment rights.

I

In November 2018, Payne was arrested for assault with a deadly weapon on a peace officer, in violation of Cal. Penal Code § 245(c). He was sentenced to three years imprisonment and later released on parole. On September 23, 2020, Payne signed a one-page "Notice and Conditions of Parole" document and a separate, three-page "Special Conditions of Parole" document. Pursuant to Cal. Penal Code § 3067(b)(3) and 15 Cal. Code Regs. § 2511(b)(4), Payne's Notice and Conditions of Parole included the following condition ("general search condition")¹:

You, your residence, and any property under your control are subject to search or seizure by a probation officer, an agent or officer of the California Department of Corrections and Rehabilitation, or any other peace officer, at any time of the day or night, with or without a search warrant, with or without cause.

Payne's Special Conditions of Parole included a more detailed condition ("special search condition") concerning electronic devices:

You shall surrender any digital/electronic device and provide a pass key/code to unlock the device to any law enforcement officer for inspection other than what is visible on the display screen. This includes any digital/electronic device in your vicinity. Failure to comply can result in your arrest pending further investigation and/or confiscation of any device pending investigation.

On November 3, 2021, CHP officers Coddington and Garcia—who were both assigned to the Coachella Valley Violent Crime Gang Taskforce—were patrolling an area in Desert Hot Springs, California. They saw a gold Nissan with what they perceived to be unlawfully tinted front windows and initiated a traffic stop for a suspected violation of Cal. Veh. Code § 26708. Officer Coddington approached the vehicle and asked the driver, Payne, to provide his driver's license, vehicle registration, and proof of insurance. Officer Coddington later reported that Payne was "extremely nervous," "trembling as he fumbled for the documents," "sweating profusely," and "stammering when he spoke." Payne informed the officers that he was on California parole. After confirming Payne's California parole status with Riverside County Sheriff's Dispatch, Officer Coddington asked Payne and his female passenger to get out of the car. Payne was handcuffed and eventually detained in the back of a squad car.

Officers searched Payne's person pursuant to his parole conditions and found in his pockets $1,270 cash and a key ring with several keys, including a key to a BMW. After searching the vehicle, Officer Coddington asked Payne if he had a phone. Payne responded that "his phone was in the driver's door panel and was green in color." The phone was where Payne said it would be. Officer Coddington retrieved it and asked Payne to provide the passcode. Despite confirming that he had a phone, and informing officers of its location and color, Payne changed his story and began denying ownership, stating "the phone was not his and he did not have the password."

At this juncture, CHP officers would have been justified under Payne's special search condition in either "confiscati[ng] . . . [the] device" or "arrest[ing] Payne pending further investigation." Instead, Officer Coddington forcibly grabbed Payne's thumb and used it to unlock the phone via a built-in biometric unlocking feature.² Once unlocked, Officer Coddington opened the phone's settings and confirmed that Payne's full name was listed in the owner's information section. Next, he began looking through the device's stored media and found two important videos.

The first video was recorded on the phone the same day, November 3, 2021, just three hours before the traffic stop. It showed the inside of a room with what Officer Coddington believed to be "a large amount of U.S. currency, several bags of blue pills (suspected to be fentanyl), and a gold-colored money counting machine." An individual, who Officer Coddington presumed was Payne, could be heard on the video referring to the room as his "office." The second video was taken outside of a residence with a gray-brick wall around the front. Again, an individual, who Officer Coddington presumed was Payne, could be heard saying "life is good in Palm Desert" and "I got the Beamer out front," referring to a parked BMW vehicle shown in the video.

Finally, Officer Coddington opened the maps application on Payne's cell phone, which showed a pin dropped to a parked vehicle on a street called El Cortez Way in Palm Desert, California, about twenty-five miles away. Despite what Officer Coddington found on the phone concerning the parked car in Palm Desert, Payne insisted that he resided with his mother at her home in Indio, California; Payne's female passenger told officers the same thing in a later interview. Based on what CHP officers found on Payne's person and phone, they drove Payne to the location of the parked car on El Cortez Way.

When the officers arrived, they saw a silver BMW parked in front of a house. The car was registered to Payne and the BMW key recovered from Payne's person unlocked it. Before obtaining a warrant, Officer Coddington walked to the front door of what was marked Unit B and unlocked the door with one of the keys from Payne's keyring. Officers entered the home and conducted what they reported as a "security sweep" to "make sure there was no one inside the residence who could possibly come out of the residence and harm [the officers]." During this initial search of the home, officers observed in plain sight several bags of blue pills they suspected of being fentanyl and a money-counting machine, consistent with what they had earlier observed in the first video on Payne's cell phone.

Officer Coddington then wrote a search warrant application for the house on El Cortez Way. The application listed all the information that Officer Coddington had learned from his search of Payne's cell phone. The application also attested that Officer Coddington: (1) observed a BMW outside of Payne's residence that the key recovered from Payne's person unlocked; (2) confirmed the BMW was registered to Payne; (3) accessed Unit B with another key on Payne's keyring; and (4) saw several bags of blue pills (suspected to be fentanyl) and a gold money-counting machine during the initial sweep of the residence. Two hours later, a Riverside County Superior Court judge authorized the search warrant.

The search of El Cortez Way under the authority of that warrant was more thorough. Officers found several documents, including pieces of mail, bearing Payne's full name. They also discovered a "white powdery substance" throughout the home and a total of 104.3 grams of blue pills marked "M/30." The pills and powder were later confirmed to be fentanyl, fluorofentanyl, and cocaine. In addition to the drugs, officers recovered a total of $13,992 in cash, a digital scale, the gold money-counting machine, and six cell phones. Payne was arrested following the second search.

On February 23, 2022, a federal grand jury returned an indictment charging Payne with: (1) possession with intent to distribute a mixture and substance containing fentanyl in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(vi); (2) possession with intent to distribute fluorofentanyl in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C); and (3) possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C). Payne filed a motion to suppress the evidence seized from the house on El Cortez Way on April 25, 2022. He primarily argued that the searches of his phone and the house on El Cortez Way violated his Fourth and Fifth Amendment rights.

The district court denied Payne's motion in an oral ruling on May 24, 2022. The court found that the search of Payne's cell phone was reasonable under the Fourth Amendment given that Payne was on parole in California and subject to California's standard search conditions that covered his electronic devices. Further, the court determined that the compelled use of Payne's thumb to access the phone was a nontestimonial act, placing it outside of Payne's Fifth Amendment privilege against self-incrimination. The court found no separate Fourth Amendment violation for the first, warrantless...