Unpublished Disposition, 885 F.2d 876 (9th Cir. 1989)

MEMORANDUM

Wise appeals from his conviction, after entering a conditional plea of guilty, of being an unlawful user of a controlled substance in possession of a firearm in violation of 18 U.S.C. § 922(g) (3). Wise alleges that he was unconstitutionally seized by the officers, and the search of his residence violated his constitutional rights; thus, he contends, all statements made and evidence seized should have been suppressed. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We reverse and remand.

Our review of the issues before us is essentially independent (de novo). United States v. Howard, 828 F.2d 552, 554 (9th Cir. 1987).

The officers did not have a warrant either to arrest Wise or to search the premises. However, because the officers did have a warrant to arrest the house's other occupant, Thomason, their entry was legal. In connection with that legal entry, the officers had reasonable, articulable suspicion to detain Wise and search the immediate premises in a protective sweep for any drugs in plain view and for weapons or other persons that might cause the officers harm. United States v. Hoyos, 868 F.2d 1131, 1138 (9th Cir. 1989).

In the process of conducting their protective sweep of the apartment, and while Thomason was being arrested, the officers asked Wise if there were any firearms or explosives on the premises. We accept this question as permitted in the interest of protecting the officers' safety. See Michigan v. Summers, 452 U.S. 692, 702 (1981). Wise responded affirmatively that there were several firearms in the den, including a loaded gun in the desk. The officers could retrieve the loaded gun if exigent circumstances existed.

Exigent circumstances are defined as reasonable, articulable facts known to the officers at the time, which would cause the officers reasonably to believe that other persons were present who could pose some danger to their safety. United States v. Castillo, 866 F.2d 1071, 1079 (9th Cir. 1988). However, even with deference given to the officers' contemporaneous judgments, the government failed in its burden to point to any facts that would permit the officers to search for and secure the loaded gun from behind the locked door of the den. The officers asked Thomason if she had access to the den. She said no. The officers asked Wise for the key to the den, indicating that they would forcibly enter if not given the key. There was no evidence that the officers reasonably believed that there were persons present other than Wise and Thomason, both of whom were under police control. The government cannot point to any reasonable, articulable facts to permit their warrantless search of the locked den; therefore, the search was illegal.

The government argues that Wise voluntarily consented to the search. The district judge did not address this issue and neither will we.

Finally, we address the question whether the information known to the officers before securing the gun provided an independent source for the warrant. See United States v. Boatwright, 822 F.2d 862, 865 (9th Cir. 1987). If the government could have obtained the warrant without using the tainted evidence, then the secured gun and evidence of drugs in the den would be admissible as independently discoverable evidence absent any constitutional violation. Nix v. Williams, 467 U.S. 431, 443 (1984). This is not the case here. To obtain the warrant to search the apartment, the officers used the following evidence: the secured gun, Wise's admission to being a drug user, and evidence of drugs found in plain view while searching the den for the gun. The government has not demonstrated that there was sufficient probable cause, without the tainted evidence, to obtain the warrant.

Obviously, we "must be careful not to use hindsight in limiting the ability of police officers to protect themselves as they carry out missions which routinely incorporate danger." United States v. Astorga-Torres, 682 F.2d 1331, 1335 (9th Cir. 1982), cert. denied, 459 U.S. 1040 (1983), quoting United States v. Coates, 495 F.2d 160, 166 (D.C. Cir. 1974). Here, however, we are compelled to conclude that the officers went too far in searching Wise's locked den without a warrant. Exigent circumstances could provide a reasonable alternative if the delay required to obtain a warrant might result in danger to the officers. But the government bears a heavy burden to prove exigent circumstances that justify this exception to the warrant procedure. United States v. Alvarez, 810 F.2d 879, 881 (9th Cir. 1987). In the present case, the government failed to carry this burden. We therefore reverse and remand to the district court. We do not decide whether there is another basis for validating this search.

REVERSED AND REMANDED.