United States v. 2007-01-24 | 05-50270 | USA VHECTOR | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 05-50270
Plaintiff-Appellant, D.C. No.
v.  CR-04-00860-DDP
ALBERT LAMONT HECTOR,
Defendant-Appellee. 
 UNITED STATES OF AMERICA, No. 05-50404
Plaintiff-Appellant, D.C. No.
v.  CR-04-00860-DDP
ALBERT LAMONT HECTOR, OPINION
Defendant-Appellee. 
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Argued and Submitted
September 11, 2006—Pasadena, California
Filed January 25, 2007
Before: Cynthia Holcomb Hall, M. Margaret McKeown, and
Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge McKeown
1007

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COUNSEL
Debra Wong Yang, Thomas P. O’Brien, and Fred A. Rowley,
Jr., United States Attorneys, Los Angeles, California, for the
plaintiff-appellant.
Dean R. Gits and Davina T. Chen, Federal Public Defenders,
Los Angeles, California, for the defendant-appellee.
OPINION
McKEOWN, Circuit Judge:
Unlike many Fourth Amendment cases, here no one dis-
putes that there was a valid search warrant issued by a state
court judge on a showing of probable cause. Instead, the chal-
lenge is focused on whether there is a constitutional right
under the Fourth Amendment to be presented with a copy of
the search warrant at the time of the search, whether a defen-
dant’s probationary status affects this analysis, and whether
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the claimed constitutional violation merits suppression of the
seized evidence.
Albert Lamont Hector was found guilty by a jury of posses-
sion of cocaine base with intent to distribute in violation of 21
U.S.C. § 841 (Count One); possession of a firearm in further-
ance of drug trafficking in violation of 18 U.S.C. § 924(c)
(Count Two); and being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1) (Count Three). Following
the trial, the district court granted Hector’s motion to suppress
drug and firearms evidence seized from his residence, citing
the police’s failure to serve him with a copy of the search
warrant. The district court denied the government’s motion
for reconsideration of the suppression order and granted Hec-
tor a new trial on Counts One and Three based on its suppres-
sion ruling. The district court also granted Hector’s motion for
a judgment of acquittal on Count Two due to insufficient evi-
dence that the gun was used “in furtherance” of drug traffick-
ing. The government appeals the district court’s post-trial
orders.
After the district court’s ruling, the Supreme Court decided
Hudson v. Michigan, 126 S. Ct. 2159 (2006), holding that
suppression of evidence is not an appropriate remedy for a
constitutional violation that was not the “unattenuated but-for
cause” of obtaining the disputed evidence. The rationale of
that decision applies with equal force in this case. Without
deciding whether the failure to provide a copy of the warrant
was a constitutional violation, we conclude that even if it
were, it was not a “but-for cause” of seizure of the evidence.
As to the sufficiency of the evidence challenge, a reasonable
trier of fact could easily find that the gun was used “in fur-
therance” of drug trafficking. Thus, we reverse both the grant
of a new trial on Counts One and Three, and the judgment of
acquittal on Count Two.
BACKGROUND
On May 21, 2004, an officer from the Los Angeles Police
Department (“LAPD”) arranged for an informant to make a
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controlled drug purchase from Hector at his Los Angeles
apartment. Using a pre-identified twenty dollar bill, the infor-
mant went into the apartment and purchased .49 grams of
rock cocaine. Based upon this drug purchase, on May 28,
2004, the officer obtained a state court warrant to search Hec-
tor’s apartment for cocaine and related paraphernalia, includ-
ing currency and firearms. It is undisputed that the warrant
was based on probable cause, supported by a sworn affidavit,
and on its face, sufficiently particular in describing the place
to be searched and the items to be seized.
On June 2, 2004, before the warrant was executed, the
LAPD officers arranged for a second informant to make
another controlled purchase at the same address. The infor-
mant went to the apartment and purchased two pieces of rock
cocaine from a man he later identified as Hector. Soon after,
several LAPD officers and two federal agents knocked on the
apartment door and announced themselves. Believing that
they had exigent circumstances due to concerns about destruc-
tion of evidence, the officers pried open the door. Upon enter-
ing the apartment, they discovered Hector alone in the living
room, lying face-down on the floor.
At some point during the search, the officers presented
Hector with a “Search Warrant Notice of Service.” The
Notice of Service did not list either the address of the prem-
ises to be searched or the items to be seized.1 Hector never
1The Notice of Service stated, in part:
To Whom it may concern:
1. These premises have been searched by the peace officers of
the Los Angeles Police Department pursuant to a search warrant
issued on 5/28/04 by the Honorable Judge Jacob Adajian, Judge
of the Superior Court, Los Angeles Judicial District.
2. The search was conducted on 6/2/04. A list of the property
seized pursuant to the search warrant is provided on the attached
Los Angeles Police Department receipt for property taken into
custody.
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asked to see a copy of the warrant. After he was booked, Hec-
tor received a property receipt indicating the items that had
been seized. The Notice of Service is not a warrant, and the
officers never presented Hector with a warrant during the
search. Police department policy did not require the officers
to serve the actual warrant.2 Hector first received the search
warrant as part of the government’s discovery obligations.
The officers discovered the following items during the
search: a loaded Glock .45 caliber handgun underneath a
futon couch in the living room; a magazine and ammunition
(that matched the Glock) beneath a mattress in the bedroom;
a bag containing approximately 6.46 grams of cocaine base
hidden inside a child’s boxing glove located in a bathroom
drawer; $856 in a kitchen drawer, including the pre-marked
$20 bill that the police had given to one of the informants;
$3,505 in small bills at the bottom of a laundry tub located in
the bedroom; and a gas bill bearing Hector’s name and the
apartment’s address.
At the time of the search, Hector was on state probation
under terms that required him to “submit [his] person and
property to search or seizure at any time of the day of night
by any law enforcement officer or by probation officer with
or without a warrant.” The officers were unaware of Hector’s
probationary status when they searched his apartment.
2The Search Warrant Manual issued by the Office of the District Attor-
ney in the County of Los Angeles states, in relevant part:
After entry is made, the officer should show the original search
warrant to the occupant and give him a copy of the warrant.
However, there is no requirement that the search warrant be
exhibited to the occupant or that a copy of the warrant be given
to the occupant. There is also no requirement that the search war-
rant be present at the location to be searched. . . . If no one is
present at the premises being searched, a copy of the warrant
should be left in a conspicuous place within the location. Alterna-
tively, officers may leave a “SEARCH WARRANT: NOTICE
OF SERVICE” form at the location rather than leave a copy of
the warrant.
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At trial, the government presented the testimony of law
enforcement officers, who described the search, including the
items seized, their locations, and the layout of the apartment.
An officer testified that the loaded handgun was found under-
neath the futon in the living room, about six feet from where
Hector was found lying on the ground, and that the futon had
to be lifted to see the gun; the apartment was less than 700
square feet and contained one bedroom with one bath; the liv-
ing room was only three or four steps away from both the
kitchen and the bathroom; and it would only take four or five
seconds to walk from the front door to the farthest point in the
living room.
After a four-day trial, the jury returned a guilty verdict on
all three counts. Hector renewed his motion to suppress all
evidence gathered as a result of the search. The district court
granted the motion and held that the officers’ failure to serve
Hector with the search warrant violated the Fourth Amend-
ment and required suppression of the evidence.
In its motion for reconsideration of the suppression ruling,
the government argued for the first time that the officers did
not need a search warrant because Hector was on state proba-
tion at the time of the search, and thus he had a diminished
expectation of privacy. The district court denied the motion,
reasoning that the officers’ conduct could not be retroactively
justified by a fact that was unknown to the officers at the time
of the search.
Hector also filed a motion pursuant to Federal Rule of
Criminal Procedure 29(c) for a judgment of acquittal on the
18 U.S.C. § 924(c) conviction (possession of a firearm in fur-
therance of drug trafficking). The district court granted the
motion because, in its view, the government’s evidence at
trial failed to show more than mere presence of a gun at the
scene of drug trafficking activity.
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ANALYSIS
I. SUPPRESSION OF EVIDENCE
[1] In granting Hector’s motion to suppress, the district
court concluded that Hector’s Fourth Amendment rights were
violated because the police officers failed to provide him with
a copy of the search warrant. On its face, the Fourth Amend-
ment does not require that a copy of the warrant be served on
the person whose premises are being searched.3 United States
v. Banks, 540 U.S. 31, 35 (2003) (“The Fourth Amendment
says nothing specific about formalities in exercising a war-
rant’s authorization.”).4
The district court relied on the then newly-issued decision
in United States v. Martinez-Garcia, 397 F.3d 1205, 1212 n.3
(9th Cir. 2005) (noting that a search “may be presumptively
unreasonable if officers fail entirely to serve a sufficient war-
rant at any time before, during or immediately after a search
of a home.”). The key premise underlying the presentation
requirement is that “[a]bsent such presentation, individuals
would stand [no] real chance of policing the officers’ con-
duct.” United States v. Grubbs, 377 F.3d 1072, 1079 (9th Cir.
2004) (Grubbs I)) (internal quotation marks and citation omit-
ted). However, after the district court granted Hector’s motion
to suppress, the Supreme Court decided United States v.
Grubbs, 126 S. Ct. 1494 (2006) (Grubbs II), which specifi-
3The Fourth Amendment states:
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrant shall issue, but upon proba-
ble cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to
be seized. U.S. Const. amend. IV.
4Neither party challenges the district court’s conclusion that Federal
Rule of Criminal Procedure Rule 41, governing service of warrants, is
inapplicable in this case because the search was not “federal in character.”
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cally rejected the policing rationale. It is not clear whether
Grubbs II overrules the Ninth Circuit’s precedent on the
requirement to present a copy of the warrant to the owner of
the premises at the time of the search. But we need not
resolve this issue here, as we rely on Hudson to hold that
regardless of whether the failure to serve a copy of the war-
rant was a violation of the Fourth Amendment, the exclusion-
ary rule should not be applied in this case.5
[2] In Hudson, the police officers had a valid search war-
rant for drugs and firearms, but entered Hudson’s home in
violation of the Fourth Amendment’s knock-and-announce
rule. According to the Supreme Court, the violation did not
warrant suppression of the evidence obtained from the search
because the knock-and-announce violation was not the unat-
tenuated but-for cause of obtaining the evidence. In articulat-
ing this principle, the Supreme Court first explained:
“Whether [the violation] had occurred or not, the police
would have executed the warrant they had obtained, and
would have discovered the gun and drugs inside the house.”
Hudson, 126 S. Ct. at 2164 (emphasis in original).
The Court went on to observe that even if the constitutional
violation “could be characterized as a but-for cause of discov-
ering what was inside,” the exclusionary rule would not apply
if the causal connection was “attenuated”—i.e., if the causal
connection was remote or if “the interest protected by the con-
stitutional guarantee that has been violated would not be
served by suppression of the evidence obtained.” Id. The
Court concluded that the exclusionary rule was inapplicable
because the knock-and-announce requirement is aimed at pro-
5Given our holding with respect to the exclusionary rule, we also need
not reach the question of whether the failure to serve the warrant was con-
stitutional in light of Hector’s probation status. See Moreno v. Baca, 431
F.3d 633, 641 (9th Cir. 2005) (holding that “police officers cannot retroac-
tively justify a suspicionless search and arrest on the basis of an after-the-
fact discovery of an arrest warrant or a parole condition”).
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tection of human life and limb, property, and privacy, not “the
shielding of potential evidence from the government’s eyes.”
Id. at 2165.
Finally, the Court noted that “[q]uite apart from the require-
ment of unattenuated causation, the exclusionary rule has
never been applied except where its deterrence benefits out-
weigh its substantial social costs.” Id. at 2165 (internal quota-
tion marks and citation omitted). The Court deemed the
deterrence benefit insignificant because the police had little
incentive to commit the forbidden act: “[I]gnoring knock-and-
announce can realistically be expected to achieve absolutely
nothing except the prevention of destruction of evidence and
the avoidance of life-threatening resistance by occupants of
the premises—dangers which, if there is even ‘reasonable sus-
picion’ of their existence, suspend the knock-and-announce
requirement anyway.” Id. at 2166 (emphasis in original).
[3] Here, as in Hudson, given that a valid search warrant
entitled the officers to retrieve drugs and firearms in the apart-
ment, “[r]esort to the massive remedy of suppressing evidence
of guilt is unjustified.” Id. at 2168; see also Stenfonek, 179
F.3d 1030, 1035 (7th Cir. 1999) (“The idea that sanctions
should be proportioned to the gravity of the wrong is funda-
mental, and it has become an important element of the juris-
prudence of the Fourth Amendment.”). Regardless of whether
the police officers had actually shown Hector the search war-
rant, they would have executed it and recovered the drugs and
firearms inside his apartment. Thus, the acquisition of the evi-
dence can hardly be characterized as a “fruit of the fact” that
the officers failed to present the warrant. See Hudson, 126
S. Ct. at 2169.
The causal connection between the failure to serve the war-
rant and the evidence seized is highly attenuated, indeed non-
existent, in this case. After the decision in Grubbs II, the only
legitimate interest served by the presentation of a warrant
appears to be the one we adopted in United States v. Gantt,
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194 F.3d 987, 1004 (1999): “The purpose of handing the
occupant . . . the warrant [under Rule 41(d)], like that of the
‘knock and announce’ rule is to head off breaches of the
peace by dispelling any suspicion that the search is illegiti-
mate” (quoting Stefonek, 179 F.3d at 1035) (internal quotation
marks omitted). This interest does not implicate the seizure of
evidence described in the search warrant nor would it be vin-
dicated by suppression of the evidence seized.
Finally, the social costs of excluding relevant evidence
obtained pursuant to a valid search warrant are considerable.
In contrast, the deterrent benefit associated with suppressing
the evidence is relatively small in the case of failure to present
a copy of the warrant. As noted in Hudson, “[t]he value of
deterrence depends upon the strength of the incentive to com-
mit the forbidden act.” 126 S. Ct. at 2166. Assuming, as here,
that a valid warrant has been obtained, the decision to present
or not present the warrant bears little on the validity of the
search. Indeed, the officers’ failure to present the warrant to
Hector was not unreasonable in light of the department policy
that explicitly stated that no presentation of the warrant was
required. See supra note 2.
[4] In light of the rationale of the exclusionary rule and the
considerations set out by the Supreme Court in Hudson, we
conclude that suppression was not an appropriate remedy in
this case, and that the district court should have granted the
government’s motion for reconsideration. The district court’s
order for a new trial on Counts One and Three should be
reversed.
II. JUDGMENT OF ACQUITTAL ON COUNT TWO
We review de novo the district court’s grant of Hector’s
motion to acquit under Rule 29(c) to determine whether
“viewing the evidence in the light most favorable to the gov-
ernment, a rational trier of fact could have found the defen-
dant guilty beyond a reasonable doubt.” United States v.
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Ching Tang Lo, 447 F.3d 1212, 1221 (9th Cir. 2006) (internal
quotation marks and citation omitted); see also Jackson v.
Virginia, 443 U.S. 307, 319 (1979).
[5] The government contends that there was sufficient evi-
dence to support Hector’s conviction for violation of 18
U.S.C. § 924(c), which provides, in relevant part:
[A]ny person who, during and in relation to any
crime of violence or drug trafficking crime . . . uses
or carries a firearm, or who, in furtherance of any
such crime, possesses a firearm, shall, in addition to
the punishment provided for such crime . . . be sen-
tenced to a term of imprisonment of not less than 5
years.
18 U.S.C. § 924(c) (emphasis added). To prove this offense,
the government must show that (1) Hector participated in a
drug trafficking crime, (2) Hector possessed the firearm, and
(3) Hector’s possession of the firearm was “in furtherance” of
the drug crime. See United States v. Rios, 449 F.3d 1009,
1012 (9th Cir. 2006). Hector contests only the third element—
whether the government had established that his possession of
the firearm was “in furtherance” of the drug crime.
Interpretation of the “in furtherance” requirement has
spawned considerable case law. The bottom line is that it is
a fact-based inquiry into the nexus between the possession of
the firearm and the drug crime.
The “in furtherance” language stems from a 1998 amend-
ment to § 924(c). The Sixth Circuit in United States v.
Mackey offered a helpful summary of the legislative history:
The provision of § 924(c) that criminalizes “posses-
sion” of a gun “in furtherance of” certain crimes was
added by Congress in 1998 in response to the
Supreme Court’s decision in Bailey [v. United
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States, 516 U.S. 137 (1995)]. That case concerned
the prior version of the statute, which did not men-
tion possession but criminalized using and carrying
a firearm “during and in relation to” crimes of vio-
lence or drug offenses. 18 U.S.C. § 924(c)(1) (1994).
The Court of Appeals for the District of Columbia
Circuit had affirmed a conviction for “use” of a
weapon “during and in relation to” a drug crime
based on a gun locked in the trunk of defendant’s car
at the time of his arrest. The Supreme Court rejected
such a broad interpretation of “use” and held that
“use” required some active employment.
The legislative history of Congress’ response to this
decision indicates that Congress intended the “in fur-
therance of” limitation to be a higher standard than
“during and in relation to,” which continues to mod-
ify the use and carry prongs of the statute.
265 F.3d 457, 461 (6th Cir. 2001) (internal citations omitted).
The court in Mackey went on to quote the following lan-
guage from the Judiciary Committee Report:
The Committee recognizes that the distinction
between “in furtherance of” and “during and in rela-
tion to” is a subtle one, and may initially prove trou-
blesome for prosecutors. Nevertheless, the
Committee believes that “in furtherance of” is a
slightly higher standard, and encompasses the “dur-
ing and in relation to” language. . . .
The government must clearly show that a firearm
was possessed to advance or promote the commis-
sion of the underlying offense. The mere presence of
a firearm in an area where a criminal act occurs is
not a sufficient basis for imposing this particular
mandatory sentence. Rather, the government must
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illustrate, through specific facts, which tie the defen-
dant to the firearm, that the firearm was possessed to
advance or promote the criminal activity.
Id.
Following the amendment, scores of § 924(c) cases have
been decided in every circuit. As the Seventh Circuit summa-
rized in United States v. Castillo, 406 F.3d 806, 813 (7th Cir.
2005), “our sister circuits have reviewed this language and
have come to fundamentally the same conclusion”:
As the circuits note, the natural meaning of “in fur-
therance of” is “furthering, advancing or helping for-
ward.” The negative implication of this definition is
that the mere presence of a weapon at the scene of
a drug crime, without more, is insufficient to prove
that the gun was possessed “in furtherance of” the
drug crime.
Id. at 814 (internal citations omitted) (emphasis in original).
[6] Thus, the courts generally look to see if the government
has shown a specific “nexus” between the particular firearm
and the particular drug crime at issue. In practical terms, this
means the government must “present a viable theory as to
how the gun furthered the drug possession or distribution.” Id.
at 815.
Although the Fifth Circuit has developed a non-exclusive
list of factors in United States v. Ceballos-Torres, 218 F.3d
409, 414-15 (5th Cir. 2000), we have concluded that this
approach is not particularly helpful in close cases. See, e.g.,
United States v. Krouse, 370 F.3d 965, 968 (9th Cir. 2004).
[7] In Krouse, we held that “sufficient evidence supports a
conviction under § 924(c) when facts in evidence reveal a
nexus between the guns discovered and the underlying
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offense.” Id. at 968. Referencing Krouse, we explained in
Rios that, “[w]hether the requisite nexus is present may be
determined by examining, inter alia, the proximity, accessibil-
ity, and strategic location of the firearms in relation to the
locus of drug activities.” 449 F.3d at 1012 (citing Krouse, 465
F.3d at 968). In our most recent case addressing the “in fur-
therance” question, United States v. Mosley, 465 F.3d 412
(9th Cir. 2006), we reiterated the importance of the factual
inquiry. We “decline[d] once again to adopt a checklist
approach” to deciding this issue and held that “it is the totality
of the circumstances, coupled with a healthy dose of a jury’s
common sense when evaluating the facts in evidence, which
will determine whether the evidence suffices to support a con-
viction.” Id. at 418.
[8] The lenient standard of review influences our evaluation
of the “in furtherance” requirement. In view of the totality of
the circumstances presented at Hector’s trial, a rational trier
of fact could have found that the gun seized from Hector’s
apartment was used in furtherance of his drug trafficking
crime. The apartment, with its closely circumscribed spaces,
was the focal point for the sale of drugs. The drugs were
found in a bathroom drawer and the loaded Glock .45 caliber
handgun was found underneath a futon in the living room.
During the controlled drug purchase, Hector went to the rear
of the apartment and then brought the drugs to the front door
where the sale was conducted. Hector’s apartment was small
—less than 700 square feet. The law enforcement officer who
searched the apartment testified that it would take only four
or five seconds to walk from the front door to the farthest
point in the living room, the room where Hector kept the gun.
In short, the loaded firearm was located directly on the path
Hector traveled in conducting the drug transactions.
In granting Hector’s motion for acquittal, the district court
noted the fact that the gun was not discovered in the same
room as the drugs. However, having the firearms and drugs
located in the same room is not the bellwether for sufficiency
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of evidence. See id. (“[W]e have never held that the drugs and
guns must be in the same room.”).
The district court was also unpersuaded by “[t]he govern-
ment’s argument that the small size of the apartment render-
[ed] the gun in close proximity to the drugs.” The court
explained, “If that were the case, then the mere presence of
a gun in a small apartment would always be enough to sustain
a § 924(c) violation.” There is no denying that by virtue of the
small size of Hector’s apartment, everything in the apartment
could be characterized as in close proximity to everything
else. Close proximity in an enclosed setting, however, is not
sufficient by itself to sustain a conviction, nor is it the only
relevant consideration here. It is possible for a firearm to be
proximate yet not easily accessible or strategically placed
even in a small apartment. For example, if the gun were not
loaded, or if it were locked in a safe with the key kept in a
separate location, or if the gun were in a difficult-to-access
attic or storage room of the apartment, the importance of
proximity would be dissipated. Such circumstances would
bring this case closer to United States v. Mann, 389 F.3d 869
(9th Cir. 2004). In Mann, we held that the relevant nexus was
not present:
The only evidence adduced at trial showed that the
guns were not at hand . . . but locked in a safe in a
truck, the key was kept in the area of the campsite
[where the defendants] slept, and the guns were not
easily accessible in an area where drugs were manu-
factured and stored.
Id. at 880. See also Rios, 449 F.3d at 1015-16 (holding that
any inference of nexus was weakened by the fact that the gun
was “hidden and unloaded and no ammunition was found”).
Nor could Hector argue here that the gun was secured in a
locked place to protect his daughter. See United States v.
Palmer, 456 F.3d 484 (5th Cir. 2006) (reversing the convic-
tion where Palmer claimed the gun was locked in a safe to
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protect the children and ammunition did not match the gun).
Ironically, Hector placed the drugs in a boxing glove belong-
ing to his daughter.
[9] In this case, as in Krouse and Mosley, the gun was
loaded, within Hector’s easy reach, near the entryway where
the drugs were sold, and on the path to where the drugs were
stored. The fact that the gun was underneath a futon does not
make it any less accessible than the firearms found in the
defendant’s dresser in Krouse or the closet in Mosley. In
Krouse and Mosley, we held that the firearms were suffi-
ciently accessible to satisfy the “in furtherance” requirement,
notwithstanding that they were not in plain view. In light of
the evidence, the jury could have concluded that Hector was
a drug dealer who sold drugs out of his apartment where the
drugs and proceeds were kept in close proximity to a gun. It
would not have been unreasonable for a rational juror to have
concluded that the gun was easily accessible and “possessed
to further the possession and future distribution of . . . narcot-
ics by being available to protect [Hector], his drugs and his
drug trafficking business.” Castillo, 406 F.3d at 817.
[10] Viewing all of the evidence in the light most favorable
to the government, we cannot say, as we did in Mann and
Rios, that “no rational trier of fact” could find the “in further-
ance of” element to be satisfied beyond a reasonable doubt.
REVERSED.
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