App. 1 for PUBLICATION UNITED STATES COURT of APPEALS

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FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-10015 Plaintiff-Appellee, D.C. No. v. 1:15-cr-00723- DKW BRYANT KAZUYOSHI IWAI, OPINION Defendant-Appellant.

Appeal from the United States District Court for the District of Hawaii Derrick Kahala Watson, District Judge, Presiding Submitted February 14, 2019* Honolulu, Hawaii Filed July 23, 2019 Before: Richard C. Tallman, Jay S. Bybee, and N. Randy Smith, Circuit Judges. Opinion by Judge Tallman; Dissent by Judge Bybee

COUNSEL Myles S. Breiner, Honolulu, Hawaii, for Defendant- Appellant.

* The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

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Mark A. Inciong, Assistant United States Attorney; Kenji M. Price, United States Attorney; United States Attorney’s Office, Honolulu, Hawaii; for Plaintiff- Appellee.

OPINION TALLMAN, Circuit Judge: Defendant Bryant Iwai appeals the final judgment and sentence in his drug trafficking case and chal- lenges the denial of his motion to suppress evidence. Iwai entered a conditional plea of guilty to prosecute this appeal. The charges arose from a controlled delivery of methamphetamine to his residence conducted by the United States Postal Inspection Service, Drug Enforcement Administration (“DEA”) agents, and local drug task force officers (collectively “agents”). The agents secured a court order authorizing insertion of a tracking device to conduct the controlled delivery, but their subsequent entry into Iwai’s condominium to secure the package was warrantless. Nevertheless, considering the totality of the circumstances, the district court ruled that exigent circumstances existed to justify the agents’ entry. We affirm.

I On August 4, 2015, the United States Postal In- spection Service in Honolulu intercepted a package from Las Vegas, Nevada, that was addressed to Iwai’s condominium. After a narcotic detection dog alerted to the presence of a controlled substance in the package,

App. 3 a search warrant was obtained to open the box. Among other incriminating evidence, the box contained roughly six pounds of methamphetamine. The next day, DEA agents obtained a second judicial authorization to track a controlled delivery of the package to Iwai’s condominium building. Agents removed a majority of the methamphetamine and replaced it with a non-narcotic substitute, leaving behind only a small representative sample of the drug. They also placed in the package a GPS tracking device, which identified the location of the package, and contained a sensor, which would activate a rapid beeping signal on their monitoring equipment when the package was subsequently opened. The agents learned that Iwai’s residence was located in a multi-story condominium building that did not permit direct delivery of packages to a particular unit, but rather utilized a central location to which packages were delivered for its residents. Believing that they did not have the requisite probable cause that the package would actually end up in Iwai’s unit, the agents did not, as they normally would have, seek an anticipatory search warrant to enter his residence in order to secure the box once the beeper was triggered. The agents testified that at this point in the investigation, they had no way of knowing whether the package would be retrieved in the central mail room and removed from the property and taken somewhere else.

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At approximately 11:48 a.m. on August 5, 2015, a United States Postal Inspector posing as a mail carrier went to the condominium building, and from the lobby callbox telephoned Iwai’s unit number to notify him that he had received a package. Iwai answered from his cell phone and requested that the package be left at the front desk with the manager. The Inspector com- plied. When Iwai returned at approximately 12:56 p.m., the agents observed him pick up the package from the manager and bring it up the elevator and into his unit. Agents maintained surveillance outside to see what might transpire. At 3:15 p.m., the beeper activated, signaling the package had been opened inside Iwai’s unit. The agents went to Iwai’s door, and knocked and announced their presence. After no initial response, Agent Richard Jones saw shadowy movements through the peephole, indicating that someone had come to the door, which had yet to open. After announcing their presence again, Agent Jones saw the figure walking away from the door. He knocked and announced again, but received no response. Agent Jones, the only agent directly in front of the door, then heard noises from inside the unit that sounded like plastic and paper rustling. He interpreted these noises to mean that Iwai was destroying evidence, which in his judgment required immediate action to prevent, and the agents forced entry at approximately 3:17 p.m.

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When the agents entered, Iwai was in the kitchen area, and the package was lying on the floor in the living room. Apparently, the signaling device had malfunctioned, because the package was still unopened. While securing the residence, the agents observed in plain view on a table in the living room a gun and zip lock bags containing what appeared to be a powder resembling methamphetamine. After securing the premises, Agent Jones asked Iwai for verbal consent to search the residence; consent was given, and a few minutes later Officer Jennifer Bugarin arrived with a consent-to-search form. Iwai was cooperative and calm, and promptly signed the consent form. After receiving Iwai’s consent, in addition to seizing the weapon, “law enforcement officers searched the apartment and found approximately 14 pounds of crystal methamphetamine, more than $32,000 in United States currency, a digital scale, a ledger, and plastic bags.” Iwai moved to suppress all evidence and statements the government obtained from the controlled delivery operation, and the district court held a multi- day evidentiary hearing on the motion. The court denied Iwai’s motion to suppress, holding, in relevant part, that the agents’ entry was justified to prevent the imminent destruction of evidence, that the subsequent seizure of objects in plain view was lawful, and that Iwai’s consent was voluntary. Following the denial of the suppression motion, Iwai entered a conditional guilty plea to conspiracy to possess and distribute

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methamphetamine, and possession of a firearm in furtherance of a drug trafficking crime.

II We review de novo the denial of a motion to suppress evidence, which presents a mixed question of law and fact. United States v. Crawford, 372 F.3d 1048, 1053 (9th Cir. 2004) (en banc). While “[t]he ultimate issue of whether exigent circumstances justify a warrantless entry and/or search” is reviewed de novo, United States v. Wilson, 865 F.2d 215, 216 (9th Cir. 1989), the district court’s findings of fact are reviewed for clear error. United States v. Washington, 490 F.3d 765, 769 (9th Cir. 2007).

III A warrantless search of a home is “presumptively unreasonable” because “the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” Payton v. New York, 445 U.S. 573, 585–86 (1980) (quotations and citation omitted). This presumption is overcome only “when ‘ “the exigencies of the situation” make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amend- ment.’ ” Kentucky v. King, 563 U.S. 452, 460 (2011) (quoting Mincey v. Arizona, 437 U.S. 385, 394 (1978)). Preventing the imminent destruction of evidence is one such exigency, and exists when “officers, acting on probable cause and in good faith, reasonably believe

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from the totality of the circumstances that [ ] evidence or contraband will imminently be destroyed. . . .” United States v. Ojeda, 276 F.3d 486, 488 (9th Cir. 2002) (per curiam) (quoting United States v. Kunkler, 679 F.2d 187, 191–92 (9th Cir. 1982)). Probable cause exists where, under the totality of the circumstances, there is “a fair probability or substantial chance of criminal activity.” United States v. Alaimalo, 313 F.3d 1188, 1193 (9th Cir. 2002). “The government bears the burden of showing specific and articulable facts to justify the finding of exigent circumstances.”Ojeda , 276 F.3d at 488. It is undisputed here that, although the agents obtained a warrant to open the package and a second judicial authorization to insert a tracking device and alarm, they did not seek a warrant to subsequently enter Iwai’s condominium to retrieve the package. Iwai contends, and the Dissent agrees, that the evidence found in his home should thus be suppressed because the agents could have, and therefore should have, obtained an anticipatory search warrant. See Dissent at 16–26. But this disregards the Supreme Court’s ad- monition that officers haveno constitutional duty to obtain a warrant as soon as they have probable cause. See King, 563 U.S. at 467. Rather, the consequence of failing to obtain a warrant is that any entry into a residence is presumptively unreasonable without an applicable exception. Id. at 459. Thus, whether or not the agents could have obtained an anticipatory search warrant in this case is beside the point: The relevant

App. 8 fact is simply that they did not, and any entry into Iwai’s residence was presumptively unreasonable. Id. Because the agents did not have a warrant to enter and retrieve the package, their entry is lawful only if an exception to the warrant requirement such as exigent circumstances existed. Considering the totality of the circumstances on the evidence presented at the hearing, the district court credited the agents’ testimony and concluded that they reasonably believed that the imminent destruction of evidence existed to justify the agents’ entry. See Ojeda, 276 F.3d at 488. The court’s finding of exigency was based on the following key evidence adduced at the hearing: (1) six pounds of methamphetamine had been intercepted the day before in a package addressed to Iwai; (2) the multi-story condominium complex had a central mail room to which all packages had to be delivered, preventing the agents from sending the package on a sure course to Iwai’s unit; (3) the agents observed Iwai take the package up to his unit; (4) the beeper thereafter signaled that the package had been opened; (5) the agents knew that drugs are easily destroyed or dis- posed of; (6) upon knocking on the door, Agent Jones saw a shadowy figure approach the door and then retreat; and (7) Agent Jones then heard a suspicious rustling noise from inside, which in his experience as a highly trained narcotics investigator, indicated the destruction of evidence was occurring. The district court believed the agents were testifying truthfully. And no evidence refutes the conclusion that the agents were acting in good faith.

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Considering all of these facts together, it was reasonable to conclude that the destruction of incriminating evidence was occurring. Exigency arose at the time Agent Jones heard the suspicious sounds. But to focus on the noises in isolation from all other factors, as the Dissent does, is not a proper “totality of the circumstances” analysis.1 See Dissent at 32–34; Ojeda, 276 F.3d at 488. Agent Jones did not hear “a rustling of papers or plastic or something to that effect” in a vacuum. Six pounds of methamphetamine had been discovered the day before in the package addressed to Iwai. At those quantities, agents were clearly investigating a major drug distributor. The agent heard this noise after the beeper had signaled that the package had been opened, and he knew Iwai was inside. Although the Dissent questions the significance of the noises Agent Jones heard, Dissent at 32–34, conduct meaningless “to the untrained eye of an appellate judge . . . may have an entirely different significance to an experienced narcotics officer” like Agent Jones. United States v. Hicks, 752 F.2d 379, 384 (9th Cir. 1985) (citing Bernard, 623 F.2d at 560), overruled on other grounds by United States v. Ramirez, 523 U.S. 65 (1998). Agent Jones believed that the noise he heard

1 Indeed, our caselaw recognizes that even in situations where “no one event, considered in isolation, would be sufficient, the ‘succession of superficially innocent events [can proceed] to the point where a prudent man could say to himself that an innocent course of conduct was substantially less likely than a criminal one.’ ” United States v. Bernard, 623 F.2d 551, 560 (9th Cir. 1979) (quoting United States v. Patterson, 492 F.2d 995, 997 (9th Cir. 1974)).

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was Iwai destroying evidence, the trial court found his testimony credible, and there is no evidence in the record to suggest otherwise.2 See Ornelas v. United States, 517 U.S. 690, 699 (1996) (“[A] reviewing court should take care . . . to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.”);United States v. Craighead, 539 F.3d 1073, 1082 (9th Cir. 2008) (“Where testimony is taken, we give special deference to the district court’s credibility determinations.”). This situation is distinguishable from United States v. Mendonsa, 989 F.2d 366 (9th Cir. 1993). In Mendonsa, the officers heard only generic nondescript noise and “pointed to no particular type of noise, which would indicate that the occupants were rushing . . . to destroy evidence.” Id. at 371. Here, by contrast, Agent Jones heard a specific noise more incriminating and more suggestive of destruction of evidence than the “soft music” and general living sounds coming from Mendonsa’s apartment.3 Id. at 370–71. See also United

2 To the extent that Iwai suggests that Agent Jones made up the noise, the district court listened to the witnesses and found Agent Jones specifically credible on that point. On this record, that factual finding was not clearly erroneous.See Easley v. Cromartie, 532 U.S. 234, 242 (2001) (noting that clear error requires a “definite and firm conviction that a mistake has been committed” (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948))); Washington, 490 F.3d at 769 (over- turning a factual finding requires clear error). 3 We disagree with the Dissent’s assertion that these noises could not indicate destruction of evidence. See Dissent at 32–34. It would be reasonable to conclude that Iwai was rustling through the package to hastily grab the incriminating evidence and

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States v. Alfonso, 759 F.2d 728, 742–43 (9th Cir. 1985) (holding that “a ‘hurried scuffling noise’ coming from the bathroom” of the defendant’s hotel room could reasonably indicate imminent destruction of evidence); United States v. Almonte-Baez, 857 F.3d 27, 33 (1st Cir. 2017) (holding that exigency due to imminent destruction of evidence existed where “agents knocked on the front door of the apartment and identified themselves, [ ] heard someone inside the apartment running away from the door,” and “noticed that the door was sealed shut”); United States v. Clement, 854 F.2d 1116, 1119– 20 (8th Cir. 1988) (noting that “essential circumstances included the lack of response at the door after knocking, seeing someone approach the door, look through the peephole and retreat, [ ] hearing a scrambling noise,” and “the gravity of the offense”). In sum, the rustling noises, along with all the other factors known to Agent Jones, were sufficient to create exigency under applicable precedent. We do not consider whether the fact that the package was in Iwai’s apartment for two hours before the beeper went off affects our exigent circumstances analysis because Iwai only challenged the district court’s exigent circumstances determination on the ground that the Government should have sought an anticipatory warrant. We do not understand Kentucky v. King to be clearly irreconcilable with considering, in the totality of the exigent circumstances inquiry, whether

destroy it before the agents entered, or that the rustling noises indicated that Iwai was preparing to burn or shred evidence or other incriminating material.

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the police acted in an objectively reasonable manner in the period preceding the exigency. See 563 U.S. at 462 (“[T]he answer to the question before us is that the exigent circumstances rule justifies a warrantless search when the conduct of the police preceding the exigency is reasonable in the same sense.” (emphasis added)); United States v. Good, 780 F.2d 773, 775 (9th Cir. 1986). Finally, the Dissent concludes that any exigency was created by the agents conducting an improper “knock and talk.” Dissent at 36–40. But Iwai did not make this argument in the district court below, nor does he raise it before us now, and we need not address it. See Padgett v. Wright, 587 F.3d 983, 986 n.2 (9th Cir. 2009) (noting that this court need not “consider mat- ters on appeal that are not specifically and distinctly raised in appellant’s opening brief,” nor “review [ ] issue[s] not raised below. . . .” (quoting Int’l Union of Bricklayers & Allied Craftsman Local Union No. 20 v. Martin Jaska, Inc., 752 F.2d 1401, 1404 (9th Cir. 1985))). That ends the inquiry.4

4 Even if we were to reach this issue, Kentucky v. King likely forecloses any argument that the police created the exigency here. 563 U.S. at 469–70 (“When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do. And whether the person who knocks on the door and requests the opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door or to speak.”); id. at 468 (“Police officers may have a very good reason to announce their presence loudly and to knock on the door with some force.”). Agent Jones waited an appropriate amount of time for Iwai to “put some shorts on,” and also testified that had Iwai decided to completely ignore the police at the door, and no other factors triggering an exigency had occurred, he

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Because the agents entered lawfully under circumstances giving rise to an applicable exception to the warrant requirement, Iwai’s subsequent consent to search the unit was not tainted. See United States v. Taheri, 648 F.2d 598, 601 (9th Cir. 1981) (concluding that “unconstitutional conduct [ ] not sufficiently atten- uated” can taint consent (emphasis added)). The evidence supports his plea of guilty.

IV We conclude the record supports the trial court’s decision that the agents’ warrantless entry was justified by exigent circumstances, Iwai’s subsequent consent for a more thorough search was not therefore tainted by an illegal entry, and the district court did not err by denying Iwai’s motion to suppress. AFFIRMED.

BYBEE, Circuit Judge, dissenting: Bryant Iwai was in big trouble. On August 4, 2015, postal inspectors identified a suspicious package addressed to Iwai, and a narcotics detecting dog alerted on the package. That same day, a postal inspector, working with an interagency task force comprised of

would have retreated and held his position until they obtained a search warrant, as required by caselaw. See Florida v. Jardines, 569 U.S. 1, 8 (2013); United States v. Perea-Rey, 680 F.3d 1179, 1188 (9th Cir. 2012).

App. 14 agents from the Drug Enforcement Agency (“DEA”) and officers from the Honolulu Police Department (“HPD”), obtained a search warrant to open the package. Inside were six pounds of crystal methamphetamine, a substantial haul. The following morning, August 5, HPD officers obtained a second warrant— referred to as a “beeper tracker warrant”—to conduct a controlled delivery to Iwai’s apartment in Pearl City. Officers first removed the six pounds of meth and replaced it with rock salt and one gram of meth. They also added a GPS tracking device and a credit card- sized device that would alert the officers if the box was opened. The officers dusted the contents with a black- light sensitive powder, repacked the box, and arranged for a postal inspector to deliver the box to Iwai’s apartment complex in Pearl City the same day. The task force was well prepared. Two officers dressed in plain clothes were in the manager’s office where they could watch the lobby and the complex’s surveillance cameras, a surveillance team was posted outside the building, another team covered the emergency exits, and a team was posted in the stairwell near the 23rd floor—Iwai’s floor. The entire task force operation was directed by an HPD officer secreted in the stairwell of the 33rd floor. The officers observed Iwai leave the apartment at 11:15am. Then just before noon, the postal inspector took the box to the complex and spoke with the manager. Because the box was too large to fit in a mail slot or a parcel locker, the postal inspector called Iwai’s apartment from the lobby. Iwai picked up the call on his cell phone, told the inspector

App. 15 that he was “on the road” and that his girlfriend would pick it up; after she did not, the inspector called again and offered to leave the package with the manager so that Iwai could pick it up later. Approximately an hour later, Iwai retrieved the box, and the officers observed him take it to his apartment on the 23rd floor. The teams waited patiently for some indication that the box had been opened. At about 3:15 p.m.—more than three hours since they had delivered the box and two hours since Iwai had picked it up—the beeper went off, indicating that the box may have been opened. Some seven officers on the stairwell on the 23rd floor geared up in body armor and, carrying a ballistic shield and a battering ram, went to Iwai’s apartment. The lead officer in the stairwell, DEA Agent Jones, holding the shield and a drawn weapon, knocked on the door, yelled “police,” and demanded that Iwai open the door. He kicked the door another three times and continued to demand that Iwai open the door. At that point, Jones looked through the peephole and saw a shadow moving. He announced several times, “Bryant, I can see you through the peephole. Open the door.” Jones continued to knock and announce. Finally, Jones stopped knocking, and listening, he heard noises “like somebody going through a garbage can . . . like, a rustling of papers or plastic or something to that effect.” Jones testified that he was afraid that Iwai was destroying evidence, so he ordered the officer with the ram to breach the door, and the officers spilled in. Iwai was alone inside, standing in the kitchen. The package containing the meth was in the living room, unopened.

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Over the course of just two days, August 4–5, the task force had obtained two warrants—one to open the package identified by the postal inspectors and one to effect a controlled delivery with a GPS tracker and a beeper. The task force had employed at least a dozen officers at Iwai’s apartment complex for nearly four hours before a team of seven officers, armed, in body armor, and carrying a ballistic shield and a battering ram, breached Iwai’s apartment. Yet at no time did the officers make any effort to obtain a search warrant for Iwai’s apartment. They later testified that they did not think they could obtain an anticipatory warrant because they could not be sure that Iwai would take the package from the mailroom to his apartment. They offered no explanation for why, once they knew that Iwai had retrieved the package and taken it into his apartment, they did not seek a warrant but waited in the stairwell for a beeper that might or might not go off. Once the beeper did go off—a false positive, as it turned out—the officers demanded that Iwai open his door to them, and when he chose not to and instead had the audacity to move about his apartment and “rustle” paper, they broke the door down. The Fourth Amendment does not protect us from searches and seizures in our “persons, houses, papers, and effects.” U.S. Const. amend. IV. Just from “unreasonable” ones. Id. This was an unreasonable search and seizure. The officers had Iwai dead to rights. They knew he was likely a big cog in a meth distribution operation in Honolulu. The care with which they planned and conducted the controlled delivery and the stake

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out at Iwai’s apartment complex is ample evidence of that. What is inexplicable is why the officers failed to make any attempt to secure a warrant before they breached his apartment to secure the “evidence”—the one gram of meth and six pounds of rock salt the officers themselves had placed in the box. This is too much for me. I would suppress the evidence obtained from the search. In Part I, I address why the officers should have obtained an anticipatory warrant. In Part II, I address why they should have sought a warrant once Iwai returned to his apartment with the package. In Part III, in a closer question, I conclude that the officers lacked facts supporting exigent circumstances and, in any event, created the exigent circumstances when they violated the Fourth Amendment in their knock and announce. I respectfully dissent.

I The officers should have sought an anticipatory warrant. Anticipatory warrants are designed for this precise situation—an immediate search upon comple- tion of a controlled delivery. See, e.g., United States v. Penney, 576 F.3d 297, 311 (6th Cir. 2009) (“[A]nticipa- tory search warrants are typically sought to conduct searches triggered by a police-controlled delivery of contraband. . . .”); William E. Ringel, Searches and Seizures, Arrests and Confessions § 4:9 (2d ed. 2019) (collecting cases where anticipatory warrants were obtained for controlled delivery); 67 A.L.R.5th 361

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(same). As the Supreme Court has explained, “[a]n anticipatory warrant is ‘a warrant based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of crime will be located at a specified place.’ ” United States v. Grubbs, 547 U.S. 90, 94 (2006) (quoting 2 W. LaFave, Search and Seizure § 3.7(c) (4th ed. 2004)). In Grubbs, the Court upheld the constitutionality of anticipatory warrants because they are “no different in principle from ordinary warrants. They require the magistrate to determine (1) that it is now probable that (2) contraband, evidence of a crime, or a fugitive will be on the described premises (3) when the warrant is executed.” Id. at 96. Thus, the supporting affidavit from police must show “not only that if the triggering condition occurs there is a fair probability that contraband or evidence of a crime will be found in a particular place, but also that there is probable cause to believe the triggering condition will occur.” Id. at 96–97 (quotation marks and citation omitted); accord United States v. Perkins, 887 F.3d 272, 274 (6th Cir. 2018) (“Anticipatory search warrants, like all search warrants, require probable cause. . . . The triggering event provides that cause.”); United States v. Vesikuru, 314 F.3d 1116, 1119 (9th Cir. 2002) (“The execution of an anticipatory search warrant is conditioned upon the occurrence of a triggering event.”). In a controlled delivery, the triggering event occurs when the package containing contraband is phys- ically taken into the location specified in the warrant. See Grubbs, 547 U.S. at 94; United States v. Becerra, 97

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F.3d 669, 671 (2d Cir. 1996) (“The warrant remains con- tingent until delivery because some uncertainty exists as to whether the suspect will give further credence to that relationship by accepting the package.”). The supporting affidavit must demonstrate probable cause—a “fair probability”—to believe that the package will be taken to the specified location. Grubbs, 547 U.S. at 95. We have held that the affidavit must show that “the property sought is on a sure course to the destination targeted for the search.” United States v. Ruddell, 71 F.3d 331, 333 (9th Cir. 1995) (emphasis added). Here, five officers testified at the suppression hearing that “[they] couldn’t obtain an anticipatory search warrant.” Well-trained, the officers each testified that they could not be certain that the package was on a “sure course” to Iwai’s apartment. Their sole explanation for this belief was that “the parcel would not have been delivered to the exact unit” but rather “to the downstairs office area where residents of that place could actually come and pick up the parcels.” The majority accepts this explanation, concluding that the officers had no way of knowing whether “the package would actually end up in Iwai’s unit” or “whether the package would be retrieved in the central mail room and removed from the property and taken somewhere else.” Maj. Op. at 4. The officers’ explanation for their decision and the majority’s acceptance of that rationale are inconsistent with our cases and contradicted by the officers’ own actions.

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A I am not sure what prompted the officers’ impression about the “sure course” requirement, but they have badly misunderstood the anticipatory warrant cases. Accepting the government’s reasoning would abrogate the need for anticipatory warrants almost entirely. As I discussed above, an anticipatory warrant cannot be executed until a triggering condition occurs, and for a controlled delivery, the triggering condition is when the package enters the place to be searched. See Grubbs, 547 U.S. at 94; United States v. Ricciardelli, 998 F.2d 8, 13 (1st Cir. 1993) (“[T]he event that triggers the search must be the delivery of the contraband to the premises to be searched. . . .”). At the point of delivery to the specified location—not before—there is probable cause. See Vesikuru, 314 F.3d at 1119 (“If the triggering event does not occur, probable cause to search is lacking.”). The fact a package may not enter a residence is precisely why an anticipatory warrant is a conditional warrant: if the condition is not satisfied, there is nothing to execute. The purpose of the “sure course” requirement is to create a nexus between the contraband and the place to be searched. Delivering a package to a residential address creates that nexus.5 See, e.g., Vesikuru, 314

5 The surety of a package’s course is further confirmed when the police are in full control of the delivery. “[A]ll types of government-controlled deliveries are more likely to reach their destina- tions than other types of deliveries and that, consequently, a magistrate may conduct a lesser inquiry into the sure course requirement when a request for an anticipatory warrant is based upon a government-controlled delivery.” Dennis, 115 F.3d at 531;

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F.3d at 1122; United States v. Dennis, 115 F.3d 524, 530–31 (7th Cir. 1997); United States v. Hugoboom, 112 F.3d 1081, 1087 (10th Cir. 1997); United States v. Wylie, 919 F.2d 969, 974–75 (5th Cir. 1990); United States v. Dornhofer, 859 1195, 1198 (4th Cir. 1988); United States v. Goodwin, 854 F.2d 33, 35–36 (4th Cir. 1988). The cases are quite clear that placing a package containing a valid mailing address in the mail establishes probable cause—a “sure course”—to believe that the package will be found at that destination. See Dennis, 115 F.3d at 531 (“[W]here nothing in the record indicates that the contraband might not have been delivered to the residence to be searched, simply discovering the package in the mail stream and placing it back into the mail stream to effect a controlled- delivery should satisfy the sure course requirement.”); Dornhofer, 859 F.2d at 1198 (“When [the officer] placed the contraband in the mail, the requirement . . . that the contraband was on a sure course to its destination was met.”). Here, the fact that a postal inspector was delivering the package directly to Iwai’s apartment complex, where all his mail was delivered, creates a nexus between the contraband and his apartment sufficient to establish probable cause, or a “fair

United States v. Leidner, 99 F.3d 1423, 1429 (7th Cir. 1996) (“[G]overnment-controlled deliveries may be more likely to reach their destination than those deliveries expected within the normal course of a drug organization’s operations.”); United States v. Scheffer, 463 F.2d 567, 575 (5th Cir. 1972) (finding “there [was] simply no plausible explanation as to why customs officials failed to go before a magistrate and obtain a search warrant” when the officials “actually planned the cocaine transfer and could have controlled the time at which it took place”).

App. 22 probability,” that the package would enter his residence. Grubbs, 547 U.S. at 95. This is a sufficient basis for seeking an anticipatory warrant, even though there is a possibility that a package won’t make it onto the premises identified in the warrant. See Ricciardelli, 998 F.2d at 11 (“[S]o long as the requisite probability exists, the possibility that things might go awry does not forestall the issuance of a warrant.”). And if, in the end, the condition does not occur, and the warrant can’t be executed, the police will have to take alternative measures, but at least they will have made a good faith effort to satisfy the Fourth Amendment’s warrant requirement. The “sure course” principle comes from our decision in United States v. Hendricks, 743 F.2d 653, 655 (9th Cir. 1984). The police delivered a package addressed to the defendant at a post office location that required him to come pick it up. Concurrently, the police obtained an anticipatory warrant to search his home. The defendant argued that there was no probable cause to support the warrant, and we agreed. We observed that the package was never on a sure course to the defendant’s house because “the agents had no information giving rise to a belief that the package would ever go to [the defendant’s] home.” Id. at 655. We explained that the defendant’s “business premises were the only place that was linked to past illegal activity, the residence not at all.” Id. at 654. In other words, there was no nexus between the package and the home—only between the package and the business premises. We specifically noted that mail addressed

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and sent to the house, rather than a P.O. Box, would have been sufficient.See id. at 655 (“[U]nless the suit- case were on a sure course to the house, for example, in the mail addressed to the home address, no probable cause would exist to believe it would arrive there.”) (emphasis added) (citations omitted); accord United States v. Rowland, 145 F.3d 1194, 1204–06 (10th Cir. 1998) (finding a package was not on a “sure course” to his residence when defendant was required to pick up the package at the post office);Ricciardelli , 998 F.2d at 12–14 (same). We have elaborated on Hendricks in subsequent cases. In United States v. Hale, for example, the agents obtained an anticipatory warrant to seize obscene material mailed to Hale at his home. 784 F.2d 1465, 1467–68 (9th Cir. 1986), abrogated in part on other grounds by New York v. P.J. Video, Inc., 475 U.S. 868, 875 (1986). The Postal Service actually delivered the envelopes to Hale “in the front yard of his home.” Id. at 1468. We distinguished Hale from Hendricks. “In Hendricks, the evidence was not on a sure and irre- versible course to its destination” because it was headed to the post office—without any nexus to Hen- dricks’ home. Id. By contrast, in Hale “the evidence was in the mail addressed to Hale for home delivery.” Id. at 1468–69 (emphasis added). Similarly, in United States v. Ruddell, the anticipatory warrant was issued for child pornography addressed to Ruddell’s residence. 71 F.3d 331, 332 (9th Cir. 1995). We once again explained that the problem in Hendricks was that the “magistrate judge could not establish a reasonable belief that

App. 24

the defendant would bring the contraband to his home.” Id. at 333. Unlike in Hendricks, in Ruddell, “the evidence was in the control of the Postal Inspector, who had explicitly described her plans to execute a controlled delivery to [the defendant’s] house in her affidavit in support of the warrant.” Id. We applied these principles in United States v. Vesikuru, a case very similar to this one. 314 F.3d at 1122–23. In Vesikuru, a narcotics task force, executing a search warrant, discovered PCP in a package addressed to a residence in Seattle. Id. at 1118. The officers arranged for a controlled delivery and obtained an anticipatory warrant to search the residence. Id. Vesikuru argued that the anticipatory warrant lacked probable cause. We disagreed, emphatically. The fact that the “package was addressed and en route to the West Seattle residence . . . guaranteed that the package was on a ‘sure course’ to the West Seattle residence.” 314 F.3d at 1122 (emphasis added). Here, as in Hale, Ruddell, and Vesikuru, Iwai’s package was fully and properly addressed to him at a residence where he regularly received mail. There was no reason to believe that Iwai would not pick up the package in the usual course and take it to his apartment. This case is unlike Hendricks, where the officers sought to search Hendricks’s house, even though the delivery was to a post office box and the officers knew that Hendricks had been conducting his illegal actions at his office, not his house.

App. 25

The officers explained that they didn’t think they could obtain an anticipatory warrant because they couldn’t be sure that Iwai would take the package to his apartment. Of course, the officers are correct: Iwai might have taken the package directly to his car. He might have taken it to someone else’s apartment. Or, he might have refused delivery. But the package was delivered by regular mail to an address at his apartment building. People in apartment buildings regularly receive mail; and, like house dwellers, they often take their mail to their apartments. The fact that Iwai lived in an apartment on the 23rd floor and had to retrieve the package from the manager’s office does not diminish the likelihood that Iwai would return to his apartment with the package. See Dennis, 115 F.3d at 527, 530–31 (upholding an anticipatory warrant for a controlled delivery to an apartment; postal inspector actually delivered the package to the defendant seated outside on the porch, who took it inside); Dornhofer, 859 F.2d at 1197–98 (upholding anticipatory warrant for delivery to a mail box outside of the apartment to be searched). The officers’ explanation is thin gruel. When we are dealing with probable cause, we are always playing the percentages. Grubbs, 547 U.S. at 95 (“Because the probable-cause requirement looks to whether evidence will be found when the search is conducted, all warrants are, in a sense, ‘anticipatory.’”). To obtain any warrant, a police affidavit must explain to a magistrate why the police have reason to believe that evidence of a crime will be found in a particular place. It is always a predictive judgment.

App. 26

Short of sliding mail through a slot in the front door, there is no way to ensure that any package will cross the threshold of any particular dwelling. Place it on a porch or put it in a mailbox? Someone can pick it up and carry it off the premises. Knock on the door to hand-deliver? The addressee may refuse the package or take it directly to her car or over to the neighbor’s house or even to the public library. What if a home has a very long driveway, and the owner drives down it to retrieve the mail? What if the mailboxes to homes or condos are at the entrance to a complex or subdivision? Many modern subdivisions have a group mailbox in the neighborhood with a separate parcel locker for oversized packages. Are these homes no longer candi- dates for anticipatory warrants because the owner might not return home with the mail? Are the only persons eligible for an anticipatory warrant those who, for better or worse, still have a mail slot in the door?6 These distinctions seem utterly arbitrary. Since Hendricks, the issue is not whether the package will surely enter a residence, it is whether it is surely headed that way, and Iwai’s package was properly and fully addressed to him, including his apartment number. Upholding the government’s reasoning—that

6 In Hale, “[t]he packages were handed to Hale in the front yard of his home.” 784 F.2d at 1468. If the magistrate had known that Hale would be in his front yard, would he still have issued an anticipatory warrant? What, other than our common experience, tells us that Hale was likely to take the packages into the house? In Hale’s case, fortunately for the police, he did and the police were able to execute the warrant, but the police had no guarantee that he would do so.

App. 27 delivery to a central mailroom in an apartment complex is insufficient to establish probable cause for an anticipatory warrant—substantially reduces Fourth Amendment protection for anyone who lives in an apartment.

B The officers may have testified that they weren’t sure where Iwai would go with the package, but we don’t have to speculate as to where the task force thought Iwai would take it—their actions make it un- mistakably clear: the task force put two officers in the lobby to see if Iwai went upstairs or somewhere else; it located a couple of officers outside, presumably in case he left the building on foot or in his car; and it put at least seven officers in the stairwell on the 23rd floor. The task force knew that Iwai might take the package somewhere else; but their actions reveal that they also knew it is was most likely that Iwai would take it to his apartment. See United States v. Golson, 743 F.3d 44, 54–55 (3d Cir. 2014) (“[W]hile it was possible the occupants of the residence would refuse delivery of the Parcel, or accept delivery but leave the Parcel unopened, it was more probable they would accept and open.”). In sum, the officers behaved precisely as they would have if they had obtained an anticipatory warrant—they dedicated the bulk of their resources to watching his apartment, but covered themselves in case he didn’t. They played the percentages. They watched Iwai take the package into his apartment, waited for the beeper to go off, then immediately sent

App. 28

their team to the apartment. Had they obtained an anticipatory warrant, the condition would have been triggered the moment the package crossed the threshold, and the search would have been valid. The majority excuses the lack of a warrant by pointing out that the police are not required to obtain a warrant “as soon as they have probable cause.” Maj. Op. at 8; see Kentucky v. King, 563 U.S. 452, 466–67 (2011). That is true but irrelevant. As the Supreme Court explained in United States v. Watson, “[t]here is no requirement that a search warrant be obtained the moment police have probable cause to search. The rule is . . . that present probable cause be shown and a warrant obtained before a search is undertaken.” 423 U.S. 411, 449 (1976) (emphasis added). The fact the officers did not have to obtain a warrant the moment they had probable cause is not an excuse for failing to obtain one at all. Moreover, the consequences of the failure to obtain an anticipatory warrant are quite predictable— and those consequences benefit neither the government nor the subject of the search. As the First Circuit anticipated, “[w]ere ‘anticipatory warrants’ unlawful, law enforcement agents would have to wait until the triggering event occurred; then, if time did not permit a warrant application, they would have to forego a legitimate search, or more likely, simply conduct the search (justified by ‘exigent circumstances’) without any warrant at all.” United States v. Gerndon, 18 F.3d 955, 965 (1st Cir. 1994) (Breyer, J.). Thus, the Eleventh Circuit concluded, anticipatory warrants “better serve the objective of the Fourth Amendment by allowing

App. 29 law enforcement agents to obtain a warrant in advance of delivery, rather than forcing them to go to the scene without a warrant and decide for themselves, subject to second-guessing by judicial authorities, whether the facts justify a search.” United States v. Santa, 236 F.3d 662, 673 (11th Cir. 2000). The controlled delivery here was on a sure course to Iwai’s apartment, the officers knew it and acted on it, and they had probable cause—well-established in our cases—to obtain an anticipatory warrant. They should have done so and spared us the task of second- guessing their decision.

II Even if the officers reasonably believed they could not obtain an anticipatory warrant, that does not excuse their failure to seek a warrant once they knew that Iwai had taken the package to his apartment. Ex- igency alone is insufficient to justify the officers’ warrantless entry. Rather, to establish exigency, “the government must also show that a warrant could not have been obtained in time, . . . [and] that a telephonic warrant was unavailable or impractical.” United States v. Good, 780 F.2d 773, 775 (9th Cir. 1986) (internal citation omitted); cf. United States v. Young, 909 F.2d 442, 446 (11th Cir. 1999) (“[T]he appropriate inquiry is whether the facts, as they appeared at the moment of entry, would lead a reasonable, experienced agent to believe that evidence might be destroyed before a warrant could be secured.”) (emphasis added) (quoting

App. 30

United States v. Rivera, 825 F.2d 152, 156 (7th Cir. 1987)). “[I]f the state had time to obtain a warrant, it stands to reason that there can be no ‘exigent circumstance.’ ” Kirkpatrick v. Cty. of Washoe, 843 F.3d 784, 791 (9th Cir. 2016) (en banc). The government made no effort to show that the task force could not have obtained a warrant in time. The officers observed Iwai take the package into his apartment at 12:50 pm. At that point, there was no de- bate that they had probable cause to obtain a warrant to search the apartment. There were a dozen officers on site, and the officers had already obtained two warrants in previous 24 hours—one that very morning at 9 am. Moreover, it would have been easy for the officers to prepare an application in advance (even if they didn’t submit it as an anticipatory warrant), to call in if Iwai took the package into his apartment. Yet they made no effort to do so. Instead, the officers waited “around the apartment building’s perimeter, inside the building manager’s office, and in stairwells near . . . Iwai’s apartment,” for four hours—and during two and a half of those, they were absolutely certain the drugs were inside the apartment. A warrant could have been obtained telephonically within minutes. See Birchfield v. North Dakota, 136 S. Ct. 2160, 2192 (2016) (“ ‘[A]dvances’ in technology . . . now permit ‘the more expeditious processing of warrant applications.’ ”) (So- tomayor, J., concurring in part and dissenting in part) (quoting Missouri v. McNeely, 569 U.S. 141, 154 n.4 (2013)); Leidner, 99 F.3d at 1425 & n.1 (explaining that a judge orally authorized search after delivery was

App. 31 made to the residence); see also Fed. R. Crim. P. 4.1 (de- scribing the procedure for obtaining a warrant by telephone); id. 41(d)(3) (authorizing telephone search warrants); Haw. R. Penal P. 41(h)–(i) (allowing warrants to be obtained over the phone via an oral affidavit). But the officers neither obtained a warrant nor provided any explanation why they failed to do so—or even attempted to. Here, a warrant was available and practical, and thus the officers cannot claim exigency. See United States v. Alvarez, 810 F.2d 879, 884 (9th Cir. 1987) (“The action of the agents and the Assistant United States Attorney in ignoring the telephone warrant procedure totally frustrates the accommodation approved by Congress. It cannot be sanctioned by us.”). It was, of course, possible that Iwai might have opened the package before a warrant could be obtained, triggering the beeper. But at that point, the officers still did not need to rush the apartment. Iwai had no reason to suspect police presence outside his apartment. Thinking that he had received a valuable shipment of meth, Iwai would have no reason to destroy the drugs. King, 563 U.S. at 474 (“[P]ersons in possession of valuable drugs are unlikely to destroy them unless they fear discovery by the police.”); United States v. George, 883 F.2d 1407, 1413 (9th Cir. 1989) (“Suspects who are inside their homes and unaware of their impending arrests generally have no reason [to] immediately . . . destroy the fruits of their crime. . . . Consequently, law enforcement officers confronting this type of situation can, without great difficulty, maintain surveillance of the premises.”) (citations

App. 32 omitted). The officers would have had no difficulty continuing surveillance while they obtained a telephonic warrant, which can be done in as little as fifteen minutes—considering they had already been watching the apartment for four hours. See, e.g., McNeely, 569 U.S. at 173. And, again, if the officers had any reason to believe that Iwai was about to destroy the evidence while they worked to get a warrant, they retained the option of entering under the exigent circumstances doctrine. See Mincey v. Arizona, 437 U.S. 385, 394 (1978) (finding no exigent circumstances when “[t]here was no indication that evidence would be lost, destroyed, or removed during the time required to obtain a search warrant”); United States v. Reid, 226 F.3d 1020, 1028 (9th Cir. 2000) (“[T]he government did not explain why the officers could not have simply staked out the apartment while waiting for a warrant.”); United States v. Impink, 728 F.2d 1228, 1231 (9th Cir. 1984) (“Where the police have ample opportunity to obtain a warrant, we do not look kindly on their failure to do so.”); United States v. Blake, 632 F.2d 731, 734 (9th Cir. 1980) (“[U]nder the circumstances of this case the acquisition of a warrant would not have presented any great difficulty nor would have entailed the loss of any substantial amount of time.”). The officers could have continued to watch the apartment while a warrant was obtained—before or after the beeper went off—or, at least, while they made a good faith effort to obtain one. It was unreasonable for them not to seek a warrant.

App. 33

III Finally, I have at least a nagging feeling that “[t]he agent[s’] actions in this case were . . . fundamentally inconsistent with any true exigency.” Alvarez, 810 F.2d at 882. This is a closer issue for me, but I am deeply concerned that the officers jumped the shark when they claimed they were entitled to enter Iwai’s apartment on the basis of observing furtive movements through a peephole and hearing the rustling of paper and plastic. I have two concerns: First, that the officers lacked reasonable indicia that Iwai was about destroy any evidence and, second, that any exigency here resulted from the officers’ own violations of the Fourth Amendment.

A “[P]hysical entry into the home is the ‘chief evil against which the wording of the Fourth Amendment is directed.’ ” Frunz v. City of Tacoma, 468 F.3d 1141, 1142 (9th Cir. 2006) (quoting United States v. U.S. Dist. Court for E. Dist. of Mich., S. Div., 407 U.S. 297, 313 (1972)). Thus, a person’s home is “given the highest protection against warrantless searches.” United States v. Romero-Bustamente, 337 F.3d 1104, 1107 (9th Cir. 2003) (citation omitted). A warrantless search is presumptively unreasonable, and “the government bears a heavy burden of demonstrating that excep- tional circumstances justified a departure from the normal procedure of obtaining a warrant.” United States v. Driver, 776 F.2d 807, 810 (9th Cir. 1985)

App. 34

(emphasis added). “[E]xceptions to the warrant requirement are ‘narrow and their boundaries are rigor- ously guarded.’ ” Sandoval v. Las Vegas Metro. Police Dep’t, 756 F.3d 1154, 1161 (9th Cir. 2014) (quoting Hopkins v. Bonvicino, 573 F.3d 752, 763 (9th Cir. 2009)).

1 The officers claim that their warrantless entry was justified because “acting on probable cause and in good faith, [they] reasonably believe[d] from the totality of the circumstances that . . . evidence or contraband [would] imminently be destroyed.” United States v. Ojeda, 276 F.3d 486, 488 (9th Cir. 2002); see Kirkpat- rick, 843 F.3d at 791; United States v. Struckman, 603 F.3d 731, 738 (9th Cir. 2010). The government did not provide sufficient facts to establish an objectively reasonable belief that Iwai was imminently destroying evidence. “The exigency exception permits warrantless entry where officers ‘have both probable cause to believe that a crime has been or is being committed and a reasonable belief that their entry is necessary to prevent . . . the destruction of relevant evidence.’ ” Sandoval, 756 F.3d at 1161 (citation omitted). The government must provide “specific and articulable facts” to justify the finding of exigent circumstances, id. (citation omitted), and we view the exigencies “from the totality of circumstances known to the officers at the time of the warrantless intrusion,” United States v. Licata, 761 F.2d 537, 543 (9th Cir. 1985).

App. 35

First, the mere fact that agents knew there was meth in Iwai’s apartment is not sufficient. See United States v. Allard, 600 F.2d 1301, 1304 (9th Cir. 1979) (“[T]he search cannot be justified solely because an agent knows that there is contraband on the premises.”); see also Santa, 236 F.3d at 669 (“The mere presence of contraband . . . does not give rise to exigent circumstances.”) (citation omitted); United States v. Kane, 637 F.2d 974, 980 (3d Cir. 1981) (“[C]ourts have . . . refused to find an exception based on the ‘mere presence of drugs’ on the premises.”) (citation omitted). Second, the fact that the beeper went off, signaling that the package likely had been opened, does not mean that drugs would be imminently destroyed. As explained, Iwai had no knowledge of the police presence and surveillance, and thus he would have no reason to destroy valuable drugs. See Santa, 236 F.3d at 670 (“[The defendants], unaware of their impending arrest, had no reason . . . to destroy the valuable drugs they were trying to sell.”); United States v. Tobin, 923 F.2d 1506, 1511 (11th Cir. 1991) (“Circumstances are not normally considered exigent where the suspects are unaware of police surveillance.”); George, 883 F.2d at 1412–15 (collecting cases). Third, the fact that Iwai refused to open the door does not create an exigent circumstance. “Every occupant of the home has a right—protected by the common law for centuries and by the Fourth Amendment since 1791—to refuse entry” to police who do not have a warrant. Georgia v. Randolph, 547 U.S. 103, 123–24 (2006) (Stevens, J., concurring). And police must imply

App. 36

refusal from a resident’s silence because “passive refusal to consent to a warrantless search is privileged conduct which cannot be considered as evidence of criminal wrongdoing.” United States v. Prescott, 581 F.2d 1343, 1351 (9th Cir. 1978); see United States v. Mendonsa, 989 F.2d 366, 370 (9th Cir. 1993) (“A refusal to reply to an officer’s order to ‘open up’ can be implied from silence.”). Iwai’s decision to assert his Fourth Amendment right to refuse entry to the officers cannot be used to justify a finding of exigent circumstances. Fourth, the majority and the district court point to the fact that the lead agent, looking through the peephole, saw a shadowy figure approach the door and then retreat. Maj. Op. at 8. That fact only confirms what the officers knew—that Iwai was in the apartment and now likely knew they were there—but it proves nothing about the exigent nature of the circumstances. He had an absolute right not to open the door. Fifth, and most importantly, the district court credited DEA Agent Jones’s statement that he “heard noises” through the door, like “a rustling of papers or plastic.” By itself, the fact is pedestrian. “Merely hearing some noise inside is not sufficient to justify forcible entry. Some noise is normal to ordinary living. . . .” Mendonsa, 989 F.2d at 370–71. Jones identified no sound of scrambling, running, yelling, running water, flushing, or the opening of doors or windows, as one would expect when a person rushes about to destroy evidence of a crime. Compare United States v. Andino, 768 F.3d 94, 99 (2d Cir. 2014) (finding exigency when the defendant “slammed shut the front door, ran from

App. 37 the door, opened and closed drawers, and turned on the kitchen faucet”), United States v. Etchin, 614 F.3d 726, 734 (7th Cir. 2010) (“The sound of someone walking around, for example, or a voice that announces, ‘The cops are here,’ is not enough by itself. But other sights and sounds—toilets flushing, a door slammed, people running, an obvious lie by the person answering the door, or efforts to remove contraband from the house— may be evidence that there is an emergency that calls for an immediate, warrantless intrusion.”), and United States v. Leveringston, 397 F.3d 1112, 1116 (8th Cir. 2005) (finding exigency whenthere was “water continuing to run and a garbage disposal continuing to grind”) with United States v. Ramirez, 676 F.3d 755, 762 n.5 (8th Cir. 2012) (finding no exigency when the defendant’s reaction was not “the verbal, visual, or aural equivalent of, ‘The police are here, destroy the drugs’ ”). While we certainly give weight to the opinion of experienced narcotics officers, even we know that you cannot destroy drugs by rustling papers, no matter how quickly or urgently you do so. Agent Jones—no other officer heard the noises— testified that he heard a noise “like somebody going through a garbage can. Either, like, a rustling of papers or plastic or something to that effect.” The officer testified that he feared “somebody might be destroying evidence.” But when asked by the government’s counsel “[i]n your experience as a DEA agent” what methods were used to destroy meth, he answered, “[m]ostly through the sewer system, either being in the toilet, shower, a sink, anything like that. Other things have

App. 38 been burning. Those would be the two main ones that would come to mind.” What is the reasonable relationship between “the rustling of papers or plastic” and “the sewer system” or “burning"? There is no evidence—nothing—in the record to suggest that the officers thought Iwai was about to flush or burn the drugs. Agent Jones thought Iwai might be “going through a garbage can.” But evidence isn’t destroyed when you dump it in a trash can. And if he dumped it in the trash, where could he possibly have gone with the garbage bag when he lived on the 23rd floor? Not to a garbage chute in the hall or to a dumpster downstairs—there were seven armed task force officers standing between Iwai and any trash receptacle. And if Iwai could have tossed it from a window, there were officers outside watching the perimeter. These five factors, considered together, are insufficient to establish exigency justifying battering down Iwai’s door. True, the officers knew there was meth in the apartment, believed the package had been opened, and saw Iwai through the peephole. But police nearly always know that drugs are inside before they send a fully armed tactical team to bang on someone’s door, and if a controlled delivery, they will likely always wait until the beeper goes off. Iwai had every right not to not open the door, and the fact he calmly walked away from it hardly supports exigency. The only distinguish- ing factor—the “rustling” of paper and plastic—was not sufficient to justify storming Iwai’s apartment. The record simply doesn’t withstand scrutiny.

App. 39

2 I have two last points on the officers’ claim of exigent circumstances. First, I recognize that I have at- omized the facts, and that the officers were entitled to consider the totality of the circumstances: I have thus previously confessed that this issue is closer for me than the failure to obtain a warrant. However, even taking all of these facts together, they don’t amount to very much. The agents knew there were drugs in Iwai’s apartment (this was obvious, because they had conducted the controlled delivery of a package they had reboxed); they believed the beeper had alerted, indicating the package had been opened (it hadn’t, but that wasn’t the officers’ fault); Iwai refused to open the door in response to their demands (he was privileged to do so); he was moving about his apartment (what do we think people do in their apartments?); and they heard “rustling” noises (something, but not a noise typically associated with destroying drugs). Considered together, I can’t conclude that the officers were excused by the exigencies of the situation from obtaining a warrant to preserve the evidence. And this brings me to my second point. Even if we consider the totality of the circumstances known to the officers at the time, what was the exigency? To preserve evidence of a crime? The officers knew of onlyone gram of meth in the apartment. The task force knew this because the officers had packed the box themselves; they knew what was originally in the box, and they knew what was now in the box. The real evidence was left at headquarters. They also knew that Iwai had

App. 40 retrieved the package and carried it upstairs to his apartment. The officers had stalked Iwai every step of the way, so what was the urgency to establish Iwai’s connection to the meth? We have said that “[e]xigent circumstances are those in which a substantial risk . . . to the law enforcement process would arise if the police were to delay a search [ ] until a warrant could be obtained.” Reid, 226 F.3d at 1027–28 (emphasis added) (quoting United States v. Gooch, 6 F.3d 673, 679 (9th Cir. 1993)); see United States v. Lawson, 499 F. App’x 711, 712 (9th Cir. 2012) (“No facts indicated that essential evidence would imminently be destroyed. Most of the drugs that had been in the box had been removed by police and replaced with sham substances before the box was delivered.”). The government has not shown that the possible loss of one gram of meth out of six pounds “ma[de] the needs of law enforcement so compelling that the warrantless search [was] objectively reasonable.” Struckman, 603 F.3d at 743. To assert otherwise stretches reason. “[I]n the absence of any ‘immediate and serious consequences’ resulting from the commis- sion of a crime, the ‘overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic,’ militates against warrantless entry.” Id. at 746 (emphasis added) (first quoting McDonald v. United States, 335 U.S. 451, 460 (1948) (Jackson, J., concurring), then quoting Payton v. New York, 445 U.S. 573, 601 (1980)). The government did not meet its “heavy burden” to “justif[y] a

App. 41 departure from the normal procedure of obtaining a warrant.” Driver, 776 F.2d at 810. For me, the facts supporting the finding of exigency just don’t add up.

B Finally, even if there was an exigency in this case, “[e]xigent circumstances created by improper conduct by the police may not be used to justify a warrantless search.” Ojeda, 276 F.3d at 488. In Kentucky v. King, the Supreme Court addressed the question of when police, because of their own conduct, may not rely on the exigent circumstances doctrine. The Court’s short answer: where police “create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment.” 563 U.S. at 462. The Supreme Court in King was particularly fo- cused on the knock and announce procedure. The Court made quite clear that officers who knock on a door and announce their presence do not “cause” the exigent circumstances, even if the residents—now alerted to police presence—respond by attempting to destroy incriminating evidence. These persons “have only themselves to blame for the warrantless exigent- circumstances search that may ensue.” Id. at 470. This is because “[w]hen law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do,” even if they had to “knock on the door with some force” and “announce their presence loudly.” Id. at 468–69. There are

App. 42

good reasons for officers to knock and announce, such as to “obviate the need to apply for and execute a warrant” or to seek consent to search, or to obtain additional evidence before applying for a warrant. Id. at 466–67. So “[u]nder what circumstances do police impermissibly create an exigency?” Id. at 471. The Court declined to answer this question with specifics, but it offered some general guidelines: when “the officers either violated the Fourth Amendment or threatened to do so prior to the point when they entered the apartment.” Id. The Court suggested by way of example that police would act improperly if they “demanded” that the resident open the door or if they threatened the resident “by announcing that they would break down the door if the occupants did not open the door voluntarily.” Id. at 471–72. In the wake of King, we and other courts have struggled to define the contours of an appropriate knock and announce. In United States v. Perea Rey, we held that “it remains permissible for officers to approach a home to contact the inhabitants,” but that “[t]he constitutionality of such entries . . . hinges on whether the officer’sactions are consistent with an attempt to initiate consensual contact with the occupants of the home.” 680 F.3d 1179, 1187–88 (9th Cir. 2012) (emphasis added). When considering those actions, we explained in United States v. Lundin that “if the police do not have a warrant they may ‘approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to

App. 43

linger longer) leave.’ ” 817 F.3d at 1159 (quoting Flor- ida v. Jardines, 569 U.S. 1, 8 (2013)). The Second Cir- cuit, applying King, elaborated further: “Although law enforcement officers, like any other citizens, have an implied license to approach a home, knock on the door, and try to speak with the occupants,” this license “is limited . . . to a specific purpose.”United States v. Allen, 813 F.3d 76, 85 (2d Cir. 2016) (quoting Jardines, 569 U.S. at 8). And this purpose “generally does not include conducting a warrantless search” id.; instead, the police have the right to knock on someone’s door “for the purpose of asking questions of the occupants.” Lundin, 817 F.3d at 1158 (quoting Perea-Rey, 680 F.3d at 1187). In my view, the task force’s knock and announce went well beyond the conduct that “any private citizen might do.” King, 563 U.S. at 469. Private citizens do not bring seven armed people in full battle regalia, with weapons drawn and a ballistic shield and a battering ram, to knock on the neighbor’s door for a “consensual” conversation.7 At no time did the officers ask Iwai to open the door so they could talk with him. They did not “knock promptly” and “wait briefly to be received.” To the contrary, Agent Jones testified candidly that he repeatedly “yelled out ‘Police,’ in a loud manner and told the occupants to open the door.” He then kicked the door while “announc[ing], ‘Police. Open the door.’ ” Once he looked through the peephole, he began calling “ ‘Bryant, I can see you through the peephole. Open the

7 Agent Jones conceded that their equipment was that “commonly used for entry purposes during search warrants.”

App. 44

door.’ ”8 The demand to open the door, accompanied by an armed team with a ram, is almost precisely the scenario the Court hypothesized in King: a demand for entry accompanied by an “announce[ment] that they would break down the door if the occupants did not open the door voluntarily.” Id. at 471; see United States v. Spotted Elk, 548 F.3d 641, 655 (8th Cir. 2008) (“[A] police attempt to ‘knock and talk’ can become coercive if the police assert their authority, refuse to leave, or otherwise make the people inside feel they cannot refuse to open up. . . .”). “[O]nce an attempt to initiate a consensual encounter with the occupants of a home fails, ‘the officers should end the knock and talk and change their strategy by retreating cautiously, seeking a search warrant, or conducting further surveillance.’ ” Perea-Rey, 680 F.3d at 1188 (citing United States v. Troop, 514 F.3d 405, 410 (5th Cir. 2008)); see King, 563 U.S. at 469–70 (“[An] occupant has no obligation to open the door or to speak.”). Thus, when Iwai did not open the door, “the consensual encounter . . . fail[ed],” and the officers were required to leave promptly and “change their strategy.” Perea-Rey, 680 F.3d at 1188; see Andino, 768 F.3d at 101 n.7 (“[A]s a general matter, once a resident refuses to consent to a search, officers must leave the property shortly thereafter.”) (citing Jardines, 569 U.S. at 7–10).

8 The officer also testified that, notwithstanding the drawn weapons, ballistics, shield, and battering ram, they “did [not] in- tend to enter the unit.” The facts speak for themselves.

App. 45

The officers had no intention of leaving the property “absent invitation to linger longer.” The lead agent testified that once Iwai did not respond to his demand to open the door, Iwai would have been treated “as a barricaded subject” and they would have “held the location until [they] got a search warrant to be able to go in and get him.” In other words, not only did the officers treat the warrant as the last resort instead of the first, but not one of the options under consideration involved anything other than arresting Iwai in his apartment. See Linicomn v. Hill, 902 F.3d 529, 536 (5th Cir. 2018) (“In assessing whether the officers created the exigency, we focus on the ‘reasonableness of [their] inves- tigative tactics leading up to the warrantless entry.’”) (citation omitted). Any alleged exigency was one of the officers’ making.

IV This case is very troubling. But as the Second Cir- cuit observed, “[a]ny problems in effecting the arrest were . . . the result of [the officers’] decision to forgo seeking a warrant, and instead go to [the defendant’s] home with the pre-formed plan to arrest him without a warrant.” Allen, 813 F.3d at 87 (internal quotation marks and alterations omitted). These problems were easily solved by obtaining a warrant. I respectfully dissent.

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United States District Court District of Hawaii UNITED STATES JUDGMENT IN A OF AMERICA CRIMINAL CASE

v. (Filed Jan. 10, 2018)

BRYANT KAZUYOSHI Case Number: IWAI 1:15CR00723-001 USM Number: 07832-122

Myles S. Breiner Defendant’s Attorney

THE DEFENDANT: [🗸] pleaded guilty to count(s) 1 and 4 of the First Su- perseding Indictment. [ ] pleaded nolo contendere to count(s) which was accepted

by the court. [ ] was found guilty on count(s) after a plea of

not guilty.

The defendants adjudicated guilty of these offenses: Title & Nature of Offense Section Offense Ended Count See next page

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The defendant is sentenced as provided in pages 2 through 7 of this judgment. The sentence is imposed pursuant to the Sentencing Reform Act of 1984. [ ] The defendant has been found not guilty on count(s) ___ and is discharged as to such count(s). [ ] Count(s) ___ (is (are) dismissed on the motion of the United States. It is further ordered that the defendant must notify the United States attorney for this district within 30 days of any change of name, residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. If ordered to pay restitution, the defendant must notify the court and United States attorney of material changes in economic circumstances.

January 9, 2018 Date of Imposition of Judgment

Derrick K. Watson Signature of Judicial Officer DERRICK K. WATSON, United States District Judge Name and Title of Judicial Officer

1/10/18 Date

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ADDITIONAL COUNTS OF CONVICTION Title & Nature of Offense Section Offense Ended Count 21 U.S.C. Conspiracy to Distribute 08/05/2015 1 §§ 841(a)(1), and Possess With Intent 841(b)(1)(a) to Distribute 50 Grams and 846 or More of Methamphet- amine 18 U.S.C. Possession of a Firearm 08/05/2015 4 §§ 924(c)(1) in Furtherance of a (A), and Drug Trafficking Crime 924(c)(2)

IMPRISONMENT The defendant is hereby committed to the custody of the United States Bureau of Prisons to be im- prisoned for a total term of: ONE HUNDRED NINETY-SIX (196) MONTHS. This term consists of ONE HUNDRED THIRTY-SIX (13) Months as to Count 1 and SIXTY (60) Months as to Count 4, to run consecutively to Count 1, for a total sentence of ONE HUNDRED NINETY-SIX (196) Months. [🗸] The court makes the following recommendations to the Bureau of Prisons: 1. Defendant to be placed at Terminal Island PCI (1st choice) or Rochester PMC (2nd choice); 2. Defendant to receive Vocational and Educa- tional Training;

App. 49

3. Defendant to be placed in RDAP – 500 Hour Comprehensive Drug Program and Substance Abuse Treatment Program; and 4. Defendant to participate in a mental health assessment and treatment. [🗸] The defendant is remanded to the custody of the United States Marshal. [ ] The defendant shall surrender to the United States Marshal for this district. [ ] at ___ on ___. [ ] as notified by the United States Marshal. [ ] The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons: [ ] before ___ on ___. [ ] as notified by the United States Marshal. [ ] as notified by the Probation or Pretrial Services Officer.

RETURN I have executed this judgment as follows:

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Defendant delivered on to a , with a certified copy of this judgment.

UNITED STATES MARSHAL By DEPUTY UNITED STATES MARSHAL

SUPERVISED RELEASE Upon release from imprisonment, the defendant shall be on supervised release for a term of: FIVE (5) Years. This term consists of FIVE (5) Years as to each of Counts 1 and 4, with both terms to run concurrently. The defendant shall not commit another federal, state or local crime. That the defendant shall not unlawfully possess a controlled substance. The defendant shall refrain from any unlawful use of a controlled substance. The defendant shall submit to one drug test within 15 days of commencement on supervision and at least two peri- odic drug tests thereafter, but not more than 8 valid drug tests per month during the term of supervised release. [ ] The above drug testing condition is suspended, based on the court’s determination that the defendant poses a low risk of future substance abuse. (Check, if applicable.)

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[🗸] The defendant shall cooperate in the collection of DNA as directed by the probation officer. (Check, if applicable.) [ ] The defendant shall comply with the require- ments of the Sex Offender Registration and Noti- fication Act (42 U.S.C. § 16901, et seq.) as directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in which he or she resides, works, is a student, or was convicted of a qualifying offense. (Check, if applicable.) [ ] The defendant shall participate in an approved program for domestic violence. (Check, if applicable.) If this judgment imposes a fine or restitution, it is a condition of supervised release that the defendant pay in accordance with the Schedule of Payments sheet of this judgment. The defendant must comply with the standard conditions that have been adopted by this court as well as with any additional conditions on the attached page.

STANDARD CONDITIONS OF SUPERVISION 1) You must report to the probation office in the federal judicial district where you are authorized to reside within 72 hours of the time you are re- leased, unless the probation officer instructs you to report to a different probation office or within a different time frame. 2) After initially reporting to the probation office, you will receive instructions from the court or the

App. 52

probation officer about how and when to report to the probation officer, and you must report to the probation officer as instructed. 3) You must not knowingly leave the federal judicial district where you are authorized to reside without first getting permission from the court or the probation officer. 4) You must answer truthfully the questions asked by the probation officer. Your legitimate invocation of the Fifth Amendment privilege against self-in- crimination in response to a probation officer’s question shall not be considered a violation of this condition. 5) You must live at a place approved by the probation officer. If you plan to change where you live or who lives with you, you must notify the probation officer at least 10 days before the change. If notifying the probation officer at least 10 days in advance is not possible due to unanticipated circumstances, you must notify the probation officer within 72 hours of becoming aware of a change or expected change. 6) You must allow the probation officer to visit you at any time reasonable under the circumstances at your home or elsewhere, and you must permit, to the extent you are able or authorized to do so, the probation officer to take any items prohibited by the conditions of your supervision that the officer observes in plain view. 7) You must work full time (at least 30 hours per week) at a lawful type of employment, unless the probation officer excuses you from doing so. If you

App. 53

do not have full-time employment, you must try to find full-time employment, unless the probation officer excuses you from doing so. If you plan to change where you work or if there are substantial changes to your job responsibilities, you must notify the probation officer at least 10 days before the change. If notifying the probation officer at least 10 days in advance is not possible due to unanticipated circumstances, you must notify the probation officer within 72 hours of becoming aware of a change or expected change. 8) Unless you have received advance permission from the probation officer or the association is required by supervision conditions, you must not voluntarily and intentionally associate with any person you know is engaged in committing a federal, state, or local crime, not including traffic offenses, whether the crime is being committed in or outside of your presence. If you know someone has been convicted of a felony, you must not knowingly communicate or interact with that person without first getting the permission of the probation officer. 9) If you are arrested or questioned by a law enforcement officer, you must notify the probation officer within 72 hours. 10) You must not own, possess, or have access to a firearm, ammunition, destructive device, as defined In 18 U.S.C. § 921(a)(4), or dangerous weapon (that is, anything that was designed or was modified for the specific purpose of causing bodily injury or death to another person, such as nunchakus or tasers).

App. 54

11) You must not act or make any agreement with a law enforcement agency to act as a confidential human source or informant without first getting the permission of the court. 12) If the probation officer determines that you pose a risk to an organization or a person relating to your criminal record or personal history or characteris- tics, the probation officer may require, with the court’s approval, that you notify that organization or person (or that person’s parent, guardian, care- taker, or other individual responsible for the person’s welfare) about the risk, and you must comply with that instruction. The probation officer may contact the organization or person that you were directed to notify and confirm that you notified that organization or person about the risk. 13) You must follow the instructions of the probation officer related to the conditions of supervision.

SPECIAL CONDITIONS OF SUPERVISION 1. You must participate in and comply with substance abuse treatment program and follow the rules and regulations of that program. The probation officer, in consultation with the treatment provider, will supervise your participation in the program (such as provider, location, modality, duration, and intensity). 2. As part of the substance abuse treatment regimen and monitoring, you must submit to substance abuse testing to determine if you have used a prohibited substance. You must not attempt to ob- struct or tamper with the testing methods.

App. 55

3. You are prohibited from using marijuana, syn- thetic marijuana, any products containing tetra- hydrocannabinol, or any other products derived from a marijuana plant, including for medicinal or business purposes, without the prior approval of the Court. 4. You must provide the probation officer access to any requested financial information and authorize the release of any financial information. The probation office may share financial information with the U.S. Attorney’s Office. 5. You must participate in a mental health treatment program and follow the rules and regulations of that program. The probation officer, in consultation with the treatment provider, will supervise your participation in the program (such as provider, location, modality, duration, and intensity). 6. You must not engage in any form of gambling (including, but not limited to, lotteries, on-line wager- ing, sports betting) and shall not enter any casino or other establishment where gambling is the pri- mary purpose (such as horse race tracks, off-track betting establishment, cock fights). 7. You must submit your person, property, house, residence, vehicle, papers, or office, to a search conducted by a United States Probation Officer. Failure to submit to a search may be grounds for revocation of release. You must warn any other occupants that the premises may be subject to searches pursuant to this condition. An officer may conduct a search pursuant to this condition only when reasonable suspicion exists that you have violated a condition of supervision and that the

App. 56

areas to be searched contain evidence of this violation. Any search must be conducted at a reasonable time and in a reasonable manner.

CRIMINAL MONETARY PENALTIES The defendant must pay the total criminal monetary penalties under the schedule of payments on Sheet 6. Assessment Fine Restitution TOTALS $ 200.00 $ $ [ ] The determination of restitution is deferred until . An Amended Judgment in a Criminal Case (AO 245C) will be entered after such determination. [ ] The defendant must make restitution (including community restitution) to the following payees in the amount listed below. If the defendant makes a partial payment, each payee shall receive an approximately proportioned payment, unless specified otherwise in the priority order or percentage payment column below. How- ever, pursuant to 18 U.S.C. § 3664(i), all nonfed- eral victims must be paid before the United States is paid. Total Restitution Priority or Name of Payee Loss* Ordered Percentage

TOTALS $ ___ $ ___ [ ] Restitution amount ordered pursuant to plea agreement $ ___

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[ ] The defendant must pay interest on restitution and a fine of more than $2,500, unless the restitution or fine is paid in full before the fifteenth day after the date of the judgment, pursuant to 18 U.S.C. § 3612(f). All of the payment options on Sheet 6 may be subject to penalties for delinquency and de- fault, pursuant to 18 U.S.C. § 3612(g). [ ] The court determined that the defendant does not have the ability to pay interest and it is ordered that: [ ] the interest requirement is waived for the [ ] fine [ ] restitution. [ ] the interest requirement for the [ ] fine [ ] restitution is modified as follows: *Findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18 for offenses committed on or after September 13, 1994, but before April 23, 1996.

SCHEDULE OF PAYMENTS Having assessed the defendant’s ability to pay, payment of the total criminal monetary penalties are due as follows: A [ ] Lump sum payment of $ ___ due immediately, balance due [ ] not later than ___, or [ ] in accordance [ ] C, [ ] D, [ ] E, or [ ] F below; or

App. 58

B [🗸] Payment to begin immediately (may be com- bined with [ ] C, [ ] D or, [ ] F below); or C [ ] Payment in equal ___ (e.g., weekly, monthly, quarterly) installments of $ ___ over a period of (e.g., months or years), to commence ___ (e.g., 30 or 60 days) after the date of this judgment; or D [ ] Payment in equal ___ (e.g., weekly, monthly, quarterly) installments of $ ___ over a period of (e.g., months or years), to commence ___ (e.g., 30 or 60 days) after release from imprisonment to a term of supervision; or E [ ] Payment during the term of supervised release will commence within ___ (e.g., 30 or 60 days) after release from imprisonment. The court will set the payment plan based on an assessment of the defendant’s ability to pay at that time; or F [ ] Special instructions regarding the payment of criminal monetary penalties:

If this judgment imposes imprisonment, payment of criminal monetary penalties is not due during imprisonment, unless specifically required by this judgment. However, this order does not preclude a defendant from making voluntary payments towards any criminal monetary penalties. All criminal monetary penalties, except those payments made through the Federal Bureau of Prisons’ Inmate Financial Responsibility Program, are made to the Clerk of the Court. The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.

App. 59

[ ] Joint and Several Defendant and Co-Defendant Names and Case Numbers (including defendant number. Total Amount, Joint and Several Amount, and corre- sponding pay, if appropriate. [ ] The defendant shall pay the cost of prosecution. [ ] The defendant shall pay the following court cost(s): [🗸] The defendant shall forfeit the defendant’s interest in the following property to the United States: See ECF No. [148] Final Order of Forfeiture filed March 10, 2017, which is incorporated hereby be reference and lists the following items of specific property: (a) $32,240.00 in U.S. currency seized on August 5, 2015 from Iwai’s residence in Aiea, Hawaii; and (b) One Smith & Wesson .38 caliber revolver (several number J281406) and five rounds of W-W brand .38 caliber ammunition seized on August 5, 2015 from Iwai’s residence in Aiea, Hawaii. Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4) fine principal, (5) fine interest, (6) community restitution, (7) penalties, and (8) costs, including cost of prosecution and court costs.

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IN THE UNITED STATES DISTRICT COURT IN THE DISTRICT OF HAWAII

UNITED STATES ) Criminal No. OF AMERICA, ) 15-00723 HG ) Plaintiff, ) vs. ) BRYANT KAZUYOSHI IWAI, ) ) Defendant. )

ORDER DENYING DEFENDANT BRYANT KAZUYOSHI IWAI’S MOTION TO SUPPRESS EVIDENCE AND STATEMENTS (ECF NO. 24) (Filed May 13, 2016) Defendant Bryant Kazuyoshi Iwai moves to suppress all evidence and statements the Government obtained from a controlled narcotics delivery operation that occurred on August 5, 2015. The Court finds that (1) the law enforcement officers’ entry into Defendant’s apartment to prevent the imminent destruction of evidence was lawful; (2) The officers’ seizure of the objects in plain view: a handgun, substances resembling methamphetamine, and drug paraphernalia, was lawful; (3) Defendant voluntarily consented to a search of his apartment; (4) Defendant waived his right to counsel by initiating conversation about his conduct with the officers during his transit to the Honolulu Bureau of Alcohol, Tobacco, and

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Firearms Office; (5) Defendant confessed voluntarily; and (6) Defendant consented voluntarily to a search of his cellular telephone. Defendant Iwai’s Motion to Suppress Evidence and Statements (ECF No. 24) is DENIED.

PROCEDURAL HISTORY Defendant Bryant Kazuyoshi Iwai (“Defendant” or “Defendant Iwai”) is charged in the Indictment filed on September 17, 2015 (ECF No. 18) as follows: Count 1 – conspiracy to distribute and possess with intent to distribute approximately 9,479.3 grams of methamphetamine, its salts, isomers, and salts of isomers, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Count 2 – attempt to possess, with intent to distribute approximately 2,778.6 grams of methamphetamine, its salts, isomers, and salts of isomers, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Count 3 – possession with intent to distribute approximately 6,700.7 grams of methamphetamine, its salts, isomers, and salts of isomers, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). Count 4 – possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. §§ 924(c)(1)(A) and 924(c)(2). In addition to the four enumerated counts, the In- dictment contained a forfeiture allegation for $32,240

App. 62 in United States currency, a Smith & Wesson .38 caliber revolver, and five rounds of W-W brand .38 caliber ammunition, all of which were seized from Defendant’s apartment at 98-288 Kaonohi Street, Unit 2303, Aiea, Hawaii. On October 13, 2015, Defendant filed DEFEND- ANT’S MOTION TO SUPPRESS EVIDENCE AND STATEMENTS (“Defendant’s Motion”). (ECF No. 24). On October 27, 2015, the United States filed its Opposition to Defendant’s Motion. (ECF No. 28). On January 6, 7, and 12, 2016, the Court held hearings on Defendant’s Motion. (ECF Nos. 38; 39; 41). On January 12, 2016, the Court ordered Defend- ant to undergo a mental competency evaluation. (ECF No. 41). On April 8, 2016, a report from a psychiatrist regarding Defendant’s mental competency was filed under seal. (ECF No. 70). At the hearing on April 12, 2016, the Court found Defendant competent to stand trial. The Court then held the final hearing on the Defendant’s Motion. (ECF No. 72).

ANALYSIS Defendant Bryant Kazuyoshi Iwai (“Defendant” or “Defendant Iwai”) moves to suppress all evidence and statements the Government obtained from a controlled

App. 63

narcotics delivery operation that occurred on August 5, 2015. Honolulu Police Officers Joshua Correa (“Officer Correa”), Kyle Echiberi (“Officer Echiberi”), Brian Whipple (“Officer Whipple”), Persian Lardizibal (“Of- ficer Lardizibal”), Jennifer Bugarin (“Officer Buga- rin”), and Matthew Liana (“Officer Liana”) testified at the hearings on Defendant Iwai’s Motion to Suppress.1 United States Postal Inspector Jensen Rodrigues (“Postal Inspector Rodrigues”) and Drug Enforcement Agency (“DEA”) Special Agent Richard Jones (“Agent Jones”) also testified at the hearings on Defendant Iwai’s Motion. Defendant did not put forward any evidence con- troverting the witnesses’ testimony. The Court finds the witnesses’ testimony credible.

I. EVIDENCE SEIZED FROM DEFENDANT IWAI’S APARTMENT A. The Officers’ Entry into Defendant’s Apartment The Fourth Amendment of the United States Con- stitution generally requires law enforcement officers to obtain a warrant before entering a home uninvited. United States v. Stafford, 416 F.3d 1068, 1073 (9th Cir. 2005). Warrantless entries are permitted only under

1 The Honolulu Police officers were also cross-designated as Drug Enforcement Agency Task Force Officers.

App. 64 limited exigent circumstances. Kentucky v. King, 131 S. Ct. 1849, 1856 (2011) (identifying various situations that permit warrantless searches). A recognized exigent circumstance arises when law enforcement officers enter a residence to prevent the imminent destruction of evidence. King, 131 S. Ct. at 1856; Dixon v. Wallowa Cnty., 336 F.3d 1013, 1018 (9th Cir. 2003). The Government has the burden of demonstrating the reasonableness of a warrantless entry. United States v. Carbajal, 956 F.2d 924, 930 (9th Cir. 1992). A warrantless entry conducted to prevent the imminent destruction of evidence may be constitutional if supported by probable cause. United States v. Alaimalo, 313 F.3d 1188, 1193 (9th Cir. 2002). Probable cause exists where, under the totality of circumstances, there is a fair probability or substantial chance that the evidence faces imminent destruction. United States v. Brooks, 367 F.3d 1128, 1134 (9th Cir. 2004); Dixon, 336 F.3d at 1018.

Defendant was Suspected of Drug Distribution On August 4, 2015, the United States Postal In- spection Service intercepted a package en route from Las Vegas, Nevada, to Defendant Iwai’s residence at 98-288 Kaonohi Street, Apartment 2303, Aiea, Hawaii. (Motion to Suppress Hearing Exs. 11; 12). A search warrant was obtained, and the package was opened in the presence of Officers Bugarin and Echiberi. The package contained approximately six pounds of methamphetamine. Officer Bugarin testified that a typical

App. 65 drug parcel contains between one and two pounds of methamphetamine. As a result of discovering the large quantity of methamphetamine in the package, the United States Postal Inspection Service and DEA planned a controlled delivery of the package to the destination address, Defendant’s apartment.

Installation of a GPS Tracking Device and Beeper In the morning of August 5, 2015, Officer Correa obtained a warrant to place a GPS tracker and beeper inside the package. (Hearing Exs. 9; 10). A beeper is a credit card-sized device that is designed to alert law enforcement when a parcel is opened. The beeper is triggered when one of its hair- thin wires, which are attached to all sides of the box, is severed. In most cases, the beeper alerts because the parcel has been opened. On rare occasion, however, some force striking the parcel or the dropping of the parcel may sever the delicate wire and trigger the beeper’s signal. Officer Bugarin tested the beeper and installed it inside the package. She then resealed the package and tested the beeper again. The beeper passed both tests. Defendant does not challenge the validity of the Government’s interception and search of the package, nor does he dispute the legality of the Government’s

App. 66 installation of a GPS tracker and beeper in the package.

The Officers Could Not Obtain an Anticipatory Search Warrant for Defendant’s Apartment In preparation for the controlled delivery, Officers Correa and Echiberi surveilled Defendant’s apartment building and learned that the postal service does not deliver parcels to individual apartment units. Resi- dents pick up packages from either a communal mailbox or the building manager’s office. The officers chose to deliver the package to the manager’s office, so as to prevent the arousal of De- fendant’s suspicion. The typical delivery procedure, however, precluded the officers from obtaining an anticipatory search warrant for Defendant’s apartment. The officers had no ability to know where the package would be taken or opened. See United States v. Grubbs, 547 U.S. 90, 94 (2006) (holding that an anticipatory warrant is “based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of crime will be located at a specified place”) (internal quotations and citation omitted).

The Controlled Delivery At approximately 11:48am, a group of law enforcement officers comprised of DEA agents, DEA task force officers, and Postal Inspector Rodrigues, initiated the controlled delivery operation. Officer Bugarin was the

App. 67 lead case agent and the only female law enforcement officer involved with the operation. The officers positioned themselves around the apartment building’s perimeter, inside the building manager’s office, and in stairwells near Defendant Iwai’s apartment. At around noon, Postal Inspector Rodrigues posed as a mail carrier and used the apartment building’s callbox to contact apartment 2303. A male answered the call, and Postal Inspector Rodrigues informed him that a package would be left with the building manager. At approximately 12:50pm, Officers Correa and Echiberi, who were positioned as undercover officers in the building manager’s office, observed Defendant Iwai pick up the package and head toward the building’s el- evators. Defendant entered an elevator with the package and proceeded to the 23rd floor. Officer Echiberi observed Defendant through a video monitor that displayed a live feed from the elevator’s security camera. Officer Echiberi updated the other law enforcement units of Defendant’s movements. Defendant Iwai pushed the package out of the elevator with his feet. He then entered apartment 2303 with the package. The officers held their respective positions and awaited the beeper’s signal.

The Officers’ Entry into Defendant’s Apartment At approximately 3:15pm, the beeper signaled that the package had been opened inside Defendant’s

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apartment. Agent Jones led an entry team of around a half-dozen officers to Defendant’s apartment. Agent Jones knocked on the apartment’s front door and identified himself as police at a volume loud enough to cause a neighboring unit’s residents to open their door. Agent Jones did not hear a response, but saw, through the front door’s peephole, the figure of a person stand up and walk towards the front door. Agent Jones responded by continuing to knock and ask that the door be opened. The person in the apartment stepped away from the door and left Agent Jones’ view. Agent Jones testified that he then heard what sounded like “somebody going through a garbage can[,] like a rustling of papers or plastic.” He concluded that evidence in the apartment was in danger of being destroyed, and ordered the team to enter the unit. The officers breached the front door and entered the apartment. They immediately saw Defendant Iwai near the kitchen area. He was the only occupant of the unit. The officers also saw the package. It was unopened.

1. The Officers Entered Defendant’s Apartment Under Exigent Circum- stances to Prevent the Imminent De- struction of Evidence The totality of the circumstances establishes that the officers had probable cause to believe that evidence faced the threat of imminent destruction, and that they entered Defendant Iwai’s apartment to prevent

App. 69 such an event from occurring. See United States v. McCabe, 582 F. App’x 680, 682 (9th Cir. 2014) (stating that “exigencies must be viewed from the totality of circumstances known to the officers at the time of the warrantless intrusion”) (quoting United States v. Li- cata, 761 F.2d 537, 543 (9th Cir. 1985)). The events culminating in the entry into Defend- ant’s apartment demonstrate that the officers’ actions comport with the Fourth Amendment. Defendant, and his apartment, were under investigation as part of a drug trafficking interdiction. The United States Postal Inspection Service had intercepted a package addressed to Defendant and found it carried six pounds of methamphetamine. Agent Jones, a highly experienced narcotics investigator, knew that Defendant picked up the package from the building manager’s office and brought it into his apartment. See United States v. Hicks, 752 F.2d 379, 383-84 (9th Cir. 1985) (overruled on other grounds) (“In assessing the existence of probable cause to enter or to search a residence, this court has held that direct observation of contraband in a particular location is not required. A court may also consider ‘the type of crime, nature of the items, and normal inferences where a criminal will likely hide contraband.’ ”) (quoting United States v. Dubrofsky, 581 F.2d 208, 213 (9th Cir. 1978)). Despite identifying himself as a law enforcement officer and repeatedly asking the door be opened, Agent Jones saw the figure of a person stand up, walk towards the front door, and then retreat to the interior of the apartment. See Dualeh v. United States, 466 F. App’x 621, 622 (9th

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Cir. 2012) (holding that a person watching police officers from the second floor of a home they were about to enter to serve drug-related warrants supported a finding that exigent circumstances to prevent the destruction of evidence existed). The significance of the figure’s suspicious behavior was compounded by the rustling noises Agent Jones heard immediately after seeing the then-unidentified figure back away from the door. The circumstances of these events “would cause a reasonable person to believe that entry . . . was necessary to prevent . . . the destruction of relevant evidence.” Brooks, 367 F.3d at 1135 (internal quotations and citations omitted); United States v. Clement, 854 F.2d 1116, 1119 (8th Cir. 1988) (officers were permitted to enter after seeing someone look through the front door’s peephole and retreat, and hearing a “scrambling” noise); United States v. Ashbourne, 571 F. App’x 422, 424-25 (6th Cir. 2014) (allowing warrantless entry in a situation where officers heard unexplained noises from inside an apartment and received no response after shouting at the resident to come to the door).

2. The Beeper’s Errant Signal did not Render the Officers’ Entry Illegal Defendant places great weight on the beeper’s apparent false alert. The fact that the beeper’s signal pre- cipitated a chain of events that led to a forced entry into the apartment is not dispositive. The officers ap- proached the door because the beeper signal indicated to them the package had been opened. The exigent circumstances in this case arose when the officers heard

App. 71 what sounded like the rustling of paper and plastic. See United States v. Banks, 540 U.S. 31, 38 (2003) (rec- ognizing that the destruction of drugs can occur in less than 20 seconds). Once they heard the rustling noises, “the exigency had matured, [and] the officers were not bound to learn anything more or wait any longer before going in.” Id. at 40. The officers relied on the efficacy of the beeper in good faith. The beeper passed both of Officer Bugarin’s pre- and post-installation tests. There is no evidence that the beeper routinely malfunctioned, or was unre- liable. Testimony introduced at the hearings indicated that while the beeper’s wires were delicate, false sig- nals occurred on rare occasion. In this case, the De- fendant had been observed kicking the parcel prior to taking it into his apartment. The totality of circumstances resulted in an ap- pearance that the package and its contents were in imminent danger of destruction. Brooks, 367 F.3d at 1134. The law enforcement officers’ warrantless entry into Defendant’s apartment complies with the Fourth Amendment.

B. The Officers’ Seizure of Items in Plain View In limited situations, the Fourth Amendment permits the government to seize, without a warrant, evidence laying in plain view. Horton v. California, 496 U.S. 128, 133-35 (1990). For the plain view exception to apply, (1) “the officers must be lawfully searching the

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area where the evidence is found”; and (2) “the incrim- inatory nature of the evidence must be immediately apparent.” Stafford, 416 F.3d at 1076 (internal quotations and citations omitted).

The Officers’ Discovery of Drugs, Drug Para- phernalia, and a Firearm in Defendant’s Apart- ment After the officers breached defendant’s front door, they entered the apartment and conducted a security sweep. The officers saw a handgun in plain view on the living room table. They observed six clear plastic bags containing a white powdery substance resembling methamphetamine on the kitchen stove and on a table in the left-side of the apartment. (See Ex. A of Def. Mo- tion at ¶ 27, ECF No. 24). The officers also observed drug paraphernalia commonly used to smoke methamphetamine in the apartment.

1. The Officers were Lawfully Present in the Apartment Law enforcement officers are lawfully present in a particular area if they either act in accordance with a valid warrant or satisfy one of the Fourth Amend- ment’s recognized exceptions. Soldal v. Cook Cnty., Ill., 506 U.S. 56, 66 (1992). The Court finds that theofficers conducted a valid entry into Defendant’s apartment to prevent the imminent destruction of relevant evidence. The officers’

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presence in Defendant’s apartment was lawful. See Dixon, 336 F.3d at 1018.

2. The Incriminating Nature of the Seized Evidence was Immediately Ap- parent An item’s incriminating character is determined in the context of surrounding circumstances. United States v. Brinkerhoff, 404 Fed. Appx. 147, 149 (9th Cir. 2010). The incriminating nature of an item is immediately apparent if there is probable cause to believe that the item is illegal or associated with criminal activity. Stafford, 416 F.3d at 1076. Probable cause exists “when the available facts would warrant a reasonably cau- tious person’s belief that the items in plain view are useful as evidence of a crime.” United States v. Miller, 769 F.2d 554, 557 (9th Cir. 1985). The handgun, bags containing a substance resembling methamphetamine, and drug paraphernalia were immediately suspected to be incriminating evidence. When the law enforcement officers entered De- fendant’s apartment, it was in the context of a drug trafficking interdiction. The presence of a white powdery substance provided probable cause to believe that the bags could contain drugs. Id. The drug paraphernalia also provided probable cause to believe it could be associated with the drug trade. United States v. Hudson, 100 F.3d 1409, 1420 (9th Cir. 1996). Similarly, a handgun found during a drug raid’s incriminating nature is immediately apparent. The possession of a

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firearm in furtherance of a drug trafficking crime is per se illegal. United States v. Armstrong, 554 F.3d 1159, 1163 (8th Cir. 2009) (citing 18 U.S.C. § 924(c)(1)(A)); see also United States v. Kia, 170 F. App’x 457, 461 (9th Cir. 2006). The law enforcement officers’ seizure of the handgun, bags containing a substance resembling methamphetamine, and drug paraphernalia was permissible under the plain view exception.

C. Evidence Seized Pursuant to a Consent Search A valid consent to search eliminates the need to obtain a warrant or show that police conduct con- formed to a recognized warrant exception. Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973). An individual’s consent to search his residence is valid if it is voluntary. United States v. Kaplan, 895 F.2d 618, 622 (9th Cir. 1990). The Government bears the burden of proving by a preponderance of the evidence that consent was voluntary. Carbajal, 956 F.2d at 930. Determining the voluntariness of a consent requires an examination of the totality of circumstances. Kaplan, 895 F.2d at 622. No single criterion is dispositive. Id. The Ninth Circuit Court of Appeals has identified five factors that indicate whether an individual voluntarily consented to a search:

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(1) Whether the defendant was in custody; (2) Whether the arresting officers had their guns drawn or otherwise overmastered the suspect; (3) Whether Miranda warnings were given prior to the search; (4) Whether the defendant was told he had a right to withhold his consent; and (5) Whether the officers claimed that they could obtain a search warrant. United States v. Patayan Soriano, 361 F.3d 494, 502 (9th Cir. 2004). The five factors serve as a guidepost, not as a me- chanical checklist. A court may review other relevant facts in its examination of whether the defendant’s consent was voluntary. Id. at 502-05 (reviewing the customary five factors while also considering whether police officers impermissibly threatened the defendant).

Defendant’s Interactions with the Officers in his Apartment As Agent Jones and his team entered the apartment, they saw Defendant come out of the kitchen. De- fendant was then handcuffed and seated on the living room floor. At the January 6, 2016 Motion to Suppress Hear- ing, Drug Enforcement Agency Special Agent Richard Jones’ Testified as follows:

App. 76

Q All right. After the apartment was deemed safe, did you have any direct contact with Mr. Iwai at that point? A Yes, sir Q What was the purpose of that contact? A I wanted to explain to Mr. Iwai what was going on, and I wanted to get his cooperation. Q Was Mr. Iwai handcuffed at that point? A Yes, sir. Q This occurred in what part of the apartment? A He was still sitting in the same position. He was seated on the floor in the same spot where we had detained him. Q And you were still in your raid gear, tactical gear, I assume? A Yes, sir; but however, I put the shield away. Q I guess in summary, what did you tell Mr. Iwai as to what was happening or what was going on at that point? A I advised him that we did not have a search warrant for his apartment, and that he wanted – that I wanted him to be able to coorperate with us so that we can get the guys that were on the mainland, and he agreed to coorperate with us. Q Okay. Did you seek any specific type of cooperation at that time, other than the general notion of cooperation?

App. 77

A Well, I told him as the part of the cooperation thing that we needed to get all the drugs out of the apartment there were already there, and so I needed his consent to be able to search the apartment. He’d also asked me what he wanted me to do – or what he would have to do for cooperation. Q So you made clear that you were seeking his consent to search the apartment? A Yes, sir. Q Did Mr. Iwai indicate to you that he was okay with that? A Yes, sir. Q Was this done in writing or verbally? A That was done verbally. And then once he advised that he would consent to the apartment, I asked TFO Burgarin to get the consent to search form. Agent Jones testified that he did not seek to interrogate Defendant as to the circumstances of his arrest; he was merely looking to obtain Defendant’s consent to search the apartment. See Knope, 655 F.3d at 654 (rec- ognizing that “a consent to search is not an interrogation within the meaning of Miranda”) (internal quotations and citations omitted).

App. 78

Defendant Iwai Signs a Consent-to-Search Form A few minutes after Defendant verbally agreed to a search of his apartment, Officer Jennifer Bugarin arrived with a consent-to-search form. Officer Bugarin met with Defendant Iwai and Of- ficer Lardizibal in an area between the living room and bedroom. Both officers were visibly armed and were wearing their tactical gear with police markings. Of- ficer Lardizibal removed Defendant’s handcuffs, and Officer Bugarin explained the contents of the consent form to Defendant. Officer Bugarin also wrote the apartment address on the form. At 3:25pm, Defendant Iwai initialed and signed the consent form inside his apartment, unit 2303. (Hearing Ex. 1). Officer Bugarin had mistakenly writ- ten 2302 instead of 2303. The Defendent did not notice the error.

Additional Evidence is Found as a Result of the Consent Search After receiving Defendant’s signed consent form, law enforcement officers searched the apartment and found approximately 14 pounds of crystal methamphetamine, more than $32,000 in United States currency, a digital scale, a ledger, and plastic bags. (Ex. A of Def. Motion at ¶¶ 27-28, ECF No. 24).

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(1) Custody A person is considered to be in custody when his freedom to move is curtailed in a similar degree to that of a formal arrest. Berkemer v. McCarty, 468 U.S. 420, 440 (1984). To determine whether a person was in custody, courts look to the totality of circumstances and ask whether a reasonable person in the same situation would have felt at liberty to terminate any interrogation and leave. United States v. Craighead, 539 F.3d 1073, 1082 (9th Cir. 2008). The totality of circumstances establishes that De- fendant was in custody when he permitted the officers to search his apartment. Defendant was surrounded by multiple officers. The officers had handcuffed Defend- ant soon after they entered the apartment, and De- fendant was seated on the living room floor when Agent Jones asked him to consent to a search. It was clear that Defendant was not free to leave.

(2) No Weapons Drawn The officers who were in the apartment at the time, including Agent Jones and Officer Bugarin, did not have their firearms drawn.

(3) Miranda Warning Defendant was not apprised of his Miranda rights before Agent Jones asked him to consent to a search of the apartment. The lack of a lack of a Miranda warning, however, does not preclude a finding of

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voluntariness. Knope, 655 F.3d at 654; United States v. Lara, 932 F.2d 973 (9th Cir. 1991) (unpublished op.). The Ninth Circuit Court of Appeals has questioned “the relevance of Miranda warnings to whether a consent to search was voluntary[,]” and suggested that such an inquiry provides no insight into the voluntariness of a consent. United States v. Perez-Lopez, 348 F.3d 839, 846-47 (9th Cir. 2003). The Supreme Court has also indicated that the failure to provide Miranda warnings has no effect on the voluntariness of an individual’s consent. See generally United States v. Patane, 542 U.S. 630 (2004). The failure to provide a Miranda warning, however, remains as one factor to consider pursuant to binding law in the Ninth Circuit. United States v. Basher, 629 F.3d 1161, 1168 (9th Cir. 2011) (applying the Miranda warning factor); United States v. Poom-Medina, 606 F. App’x 354, 355 (9th Cir. 2015) (same).

(4) Right of Refusal There is no evidence as to whether Defendant was told he had a right to withhold or retract his consent. Defendant was very cooperative and calm throughout his interactions with the officers. He did not hesitate in providing his consent.

(5) Threat of a Search Warrant There is no evidence indicating that the officers told Defendant that they could obtain a search warrant if he did not consent to a search. The officers did not

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offer any promises to Defendant in exchange for his consent, nor did they threaten him or force him to sign the consent form. Two of the five factors(no weapons drawn; no threats) favor a finding of voluntary consent. One factor (custody) favors a finding of involuntary consent. The remaining two factors (lack of Miranda warning; and right to refuse consent) yield a neutral result, and do not favor either conclusion. United States v. Vongxay, 594 F.3d 1111, 1120 n. 6 (9th Cir. 2010) (“An officer is not required to inform the person being searched that he has a right to refuse consent; doing so simply weighs in favor of finding consent”) (emphasis in original); Perez-Lopez, 348 F.3d at 846. Since the five-factor inquiry is not dispositive, the Court consid- ers other relevant facts regarding Defendant’s consent to determine its voluntariness. Patayan Soriano, 361 F.3d at 502 (“It is not necessary to check off all five factors, but many of this court’s decisions upholding consent as voluntary are supported by at least several of the factors. . . . Nevertheless, these factors are only guideposts, not a mechanized formula to resolve the voluntariness inquiry”) (internal quotations and citations omitted).

a. Other Relevant Facts Support a Finding of Voluntary Consent Defendant’s physical and mental condition at the time of his consent appeared normal. Testimony introduced at the hearings demonstrated that Defendant

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was not intoxicated, fatigued, or under the influence of drugs. He was coherent and did not indicate any hesi- tation or misunderstanding. The officers’ treatment of Defendant Iwai was similarly ordinary. Defendant was not handcuffed when he signed the consent form. There is no evidence that any law enforcement officer threatened or otherwise co- erced him into agreeing to a search. Officer Bugarin carefully explained the contents of the form to Defen- dant. In addition, the Ninth Circuit Court of Appeals has held that the existence of a signed consent form is an indication of voluntary consent. United States v. Castillo, 866 F.2d 1071, 1082 (9th Cir. 1988) (“Execu- tion of a consent form is one factor that indicates that consent was voluntary”). The Court finds Defendant’s consent to search his apartment was voluntary under the totality of the circumstances.

b. The Consent Form is Sufficiently Accurate Defendant now argues that his consent is invalid, as the consent form he signed had an error in the apartment number. When the officers and Defendant discussed the search of his apartment, they were in unit 2303, where Defendant signed the consent form. At no point was apartment 2302 involved in the investigation. See United States v. Knope, 655 F.3d 647, 654 (7th Cir. 2011).

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A consent form, like a search warrant, is valid if it sufficiently describes the place to be searched. See United States v. Mann, 389 F.3d 869, 876-77 (9th Cir. 2004) (upholding the validity of a search warrant that named an incorrect address). Suppression is not appropriate because the consent form must be “interpreted in a common sense and realistic, rather than a hyper- technical, manner.” United States v. Turner, 770 F.2d 1508, 1511 (9th Cir. 1985). The error of one digit did not override the fact that Defendant knew that he was consenting to search of his own apartment.

II. DEFENDANT’S STATEMENTS TO LAW ENFORCEMENT OFFICERS A. Defendant’s Statements During his Transit to the Honolulu ATF Office Law enforcement may not use a suspect’s statements that were elicited from custodial interrogation unless they inform him of the right to remain silent and of his right to the presence of an attorney. Miranda v. Arizona, 384 U.S. 436, 444 (1966). Once a suspect subjected to custodial interrogation requests the presence of counsel, any government interrogation of that person must cease until (1) an attorney is present or (2) the suspect reinitiates conversation with the officers and waives his right to counsel. Davis v. United States, 512 U.S. 452, 458 (1994) (citing Edwards v. Arizona, 451 U.S. 477, 484-85 (1981)).

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Defendant’s Arrest After Defendant signed the consent-to-search form in the apartment, Officers Echiberi and Bugarin brought him to the bedroom. Officer Echiberi informed Defendant that he was under arrest for possession of methamphetamine. Officer Bugarin testified that she took out her police credentials and badge, identified herself as a police officer, and read a card that had a Miranda warning to Defendant. She stated: Before we ask you any questions, you must understand you have the right to remain silent, anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions and to have a lawyer with you during questioning. If you cannot afford a lawyer one will be appointed for you before any questioning if you wish. Do you understand? Officer Bugarin testified that Defendant Iwai answered, “yes.” Officer Bugarin responded by asking him if he was willing to answer some questions. De- fendant Iwai then stated he wanted a lawyer. Officers Echiberi and Bugarin immediately ceased any questioning and prepared Defendant for transport to the Honolulu Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) Office to be processed for booking.

Defendant’s Transit to the ATF Office Officers Bugarin and Liana escorted Defendant Iwai, who was in handcuffs, to a police car. Defendant

App. 85 was placed in the front passenger seat, Officer Bugarin got into the driver’s seat, and Officer Liana sat in the rear passenger seat behind Defendant. During the 15-20 minute transit to the ATF Office, Defendant Iwai began speaking to Officers Bugarin and Liana. At the January 6, 2016 Motion to Suppress Hear- ing Police Officer Jennifer Bugarin testified as follows: Q En route to the airport task force office from the Pearl Ridge Square, was there any conversation between you or Officer Liana and Mr. Iwai? A There was some talking, but we never discussed the case. It was more of a personal nature on Mr. Iwai’s side. Q So who initiated this conversation? A Mr. Iwai. Q Okay. We don’t need to know the details, but what sorts of things were discussed? A I know he was really thankful about his dog because we – I guess this lady that was working with us, she’s an agent, she helped him like put the dog somewhere safe because he didn’t want to leave the dog at home. And then he spoke about his girlfriend that was supposed to be coming because he was really wor- ried about her. I guess she was supposed to come from Vegas that night that he arrested him. And then he started saying, “You know what, I just want to cooperate. What do you

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guys have for me? Like what kind of questions? I just want to help.” Q How did you respond, if at all, to that question? A At that point, I just said, “Okay, well when we go back to the office we’ll talk about it, and I’ll read you your rights again.” Q Okay. So was there any questioning of Mr. Iwai in anything at all with regard to do with the investigation during the transport? A No. Q Once you got to the office, where was Mr. Iwai taken? A He was taken to the interview room at our office at the airport. Neither officer questioned Defendant about the case during the transit to the ATF Office. Officer Liana testified that Defendant Iwai was talkative throughout the transit.

1. Defendant Reinitiated Conversa- tion with the Officers Defendant’s unsolicited statements during the drive to the ATF Office demonstrated his willingness and “desire to open up a more generalized discussion relating . . . to the investigation.” Mickey v. Ayers, 606 F.3d 1223, 1235 (9th Cir. 2010) (internal quotations omitted) (quoting Oregon v. Bradshaw, 462 U.S. 1039, 1045 (1983)). His statement, “you know what, I just

App. 87 want to cooperate,” fits within the type of comments the appellate and district courts in the Ninth Circuit have found to qualify as reinitiations. See, e.g., United States v. Floyd, 77 F.3d 491 (9th Cir. 1996) (unpublished); United States v. Camacho, 930 F.2d 29 (9th Cir. 1991) (unpublished); United States v. Mason, 993 F.Supp.2d 1308, 1313-14 (D. Or. 2014).

2. Defendant’s Unsolicited Offer to Co- operate was a Voluntary, Knowing, and Intelligent Waiver of his Miranda Rights A suspect’s waiver of his right to an attorney is valid if made voluntarily, knowingly, and intelligently. Edwards, 451 U.S. at 482. There is no requirement that a waiver be express; a suspect’s words or conduct may provide a valid implied Miranda waiver. Berghuis v. Thompkins, 560 U.S. 370, 384 (2010). In determining whether an accused person has made a valid waiver, courts review the totality of the circumstances surrounding the waiver, including the background, experience, and conduct of the suspect. United States v. Rodriguez-Preciado, 399 F.3d 1118, 1127 (9th Cir.) amended, 416 F.3d 939 (9th Cir. 2005). The government has the burden of showing, by a preponderance of evidence, that Defendant Iwai waived his Miranda rights. Berghuis, 560 U.S. at 383-84.

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a. Voluntary Under the totality of circumstances analysis, a waiver is voluntary if the statement “was the product of a free and deliberate choice rather than coercion or improper inducement.” Rodriguez-Preciado, 399 F.3d at 1128 (internal quotations and citation omitted). The focus of a voluntariness assessment is on police behavior. United States v. Younger, 398 F.3d 1179, 1185 (9th Cir. 2005). During the car ride to the ATF Office, Defendant spontaneously spoke to Officers Bugarin and Liana. The officers did not interrogate him at any point during the transit, nor did they substantively followup on his offer to cooperate. The testimony introduced at the suppression hearings established that Defendant’s offer to cooperate was of his own free will. There is no evidence of any coercive behavior on the part of the officers. Defendant’s waiver of Miranda was voluntary. Younger, 398 F.3d at 1185.

b. Knowing & Intelligent A waiver is knowing and intelligent if “it is made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” Rodriguez-Preciado, 399 F.3d at 1127 (internal quotations and citations omitted). Officer Bugarin testified that she informed De- fendant of his Miranda rights, including his right to counsel, and warned him that anything he said could

App. 89 be used against him. Defendant began speaking to Of- ficers Bugarin and Liana while being transported. He informed the officers that he was willing to talk about his role in the case. In the period of time after he was first advised of his Miranda rights and transported to the ATF Office, Defendant changed his mind and offered to cooperate with the officers. The totality of the circumstances surrounding De- fendant’s offer of cooperation establishes that Defen- dant Iwai reinitiated conversation with Officers Bugarin and Liana, and that he voluntarily, knowingly, and intelligently waived his Miranda rights.

B. Defendant’s Confession at the ATF Of- fice A confession is valid if made voluntarily. United States v. Haswood, 350 F.3d 1024, 1027 (9th Cir. 2003). The voluntariness analysis is designed to exclude statements obtained by physical or psychological coercion, or by any other improper inducement that causes a suspect’s will to become overborne. United States v. Harrison, 34 F.3d 886, 890 (9th Cir. 1994).

Defendant Iwai’s Arrival at the ATF Office Upon arrival at the ATF Office, Defendant Iwai was taken to an interview room. The interview room was small, square-shaped, and had three chairs and a table. Defendant sat in a chair. Officer Bugarin took off

App. 90 his handcuffs, gave him some water, told him that she would return, and left the room.

Defendant’s Consent to Search his Cellular Tel- ephone Agent Jones and Officer Correa briefly entered the interview room. The officers asked Defendant to consent to a search of his cellular telephone. Officer Cor- rea provided a consent form to Defendant and explained it to him. Defendant Iwai indicated that he understood Officer Correa, and signed it. (Hearing Ex. 3). The officers did not question Defendant about the case. Defendant did not have trouble communicating with Officer Correa, nor did he appear intoxicated or fatigued.

Officer Bugarin Informed Defendant of his Mi- randa Rights for a Second Time Approximately 15 minutes after Officer Bugarin left, she and Officer Echiberi entered the interview room. The two officers were in plainclothes and were not visibly armed. They sat across from Defendant Iwai. Officer Bugarin presented Defendant with an “Ad- vice of Rights” form. (Hearing Ex. 2). She told Defen- dant that the form had the same line of questioning that she previously presented to him in the apartment. Officer Bugarin read each line to Defendant and told him to initial each sentence that he understood.

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Defendant Signed a Waiver of Rights Form At 4:30pm, Defendant signed and initialed the “Advice of Rights” form. He wrote “yes” next to the questions asking, “Do you understand your rights?” and “Are you willing to answer some questions?” (Hear- ing Ex. 2). Defendant Iwai did not ask for an attorney. He did not appear fatigued. Officers Bugarin and Echi- beri signed the form as witnesses.

Defendant’s Confession After Defendant signed the “Advice of Rights” form, Officer Bugarin asked him if he wanted the interview to be recorded. Defendant declined. Officer Echiberi proceeded to question him as Officer Bugarin took notes. Defendant was very cooperative during the interview, and did not appear fatigued or sleepy. The interview lasted between one and one-and-a-half hours. Once Officer Echiberi completed his questioning, Officer Bugarin left the interview room and prepared a typewritten confession for Defendant. (Hearing Ex. 4). Officer Bugarin returned with Officer Liana. Officer Bugarin asked Defendant Iwai to read the confession and initial next to each paragraph that was correct. At 7:52pm, Defendant Iwai initialed next to each paragraph, and signed and dated the confession. (Hearing Ex. 4). Defendant did not object to any part of the confession. He did not indicate that any part of the confession was incorrect. Officer Bugarin testified that she

App. 92 did not pose as a lawyer, nor did she provide legal advice to Defendant.

Defendant Assisted the Officers’ Investigation Officer Bugarin then asked Defendant to make a recorded telephone call to the sender of the package. Defendant agreed. After the call, Officer Bugarin showed a still image of security camera footage from a Las Vegas post office. (Hearing Ex. 5). Defendant Iwai identified a person in the picture as the sender of the package.

1. Defendant Voluntarily Confessed The totality of the circumstances regarding De- fendant’s confession demonstrates that it was made voluntarily. The Supreme Court and the Ninth Circuit Court of Appeals have both held that confessions made after advisement and waiver of Miranda warnings are “generally [given] a virtual ticket of admissibility.” Missouri v. Seibert, 542 U.S. 600, 608-09 (2004); DeWeaver v. Runnels, 556 F.3d 995, 1003 (9th Cir. 2009). Defendant agreed to speak to Officers Echiberi and Bugarin after receiving a Miranda warning at the ATF interview room. Defendant did not ask for an attorney. The conditions in which Defendant confessed support a conclusion that his confession was voluntary. The interview at the ATF Office lasted between one and one-and-a-half hours, well within the accepted

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bounds of an interrogation’s duration. United States v. Crawford, 372 F.3d 1048, 1061 (9th Cir. 2004). There is no evidence that the interview room was in poor condition or otherwise unacceptable. Defendant was provided with water. He was not handcuffed. Officers Bugarin and Echiberi were not visibly armed or wearing tactical gear in the room. Defendant’s mental and physical states were ordinary. Defendant was very cooperative during his interview with Officers Bugarin and Echiberi. He did not appear fatigued or sleepy. Testimony introduced at the suppression hearings indicated that Defendant never displayed any signs of drug or alcohol intoxication. There is no evidence that Defendant was subjected to undue coercion or inducement, so as to cause his will to become overborne. Harrison, 34 F.3d at 890.

a. Defendant’s Perception of Of- ficer Bugarin Defendant argues that his confession is invalid, as he signed it under the impression that Officer Bugarin was acting as his attorney. No evidence was presented to support Defendant’s argument. Defendant Iwai first came into contact with Officer Bugarin during the controlled delivery operation. Of- ficer Bugarin joined the entry team in Defendant Iwai’s apartment and was one of the officers who arrested Defendant. Throughout their entire interaction in the apartment, Officer Bugarin was visibly armed and wore tactical gear that had police markings on it.

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She was the only female law enforcement officer involved with the operation. Officer Bugarin identified herself as a police officer by showing her credentials to Defendant. She explained to Defendant the contents of a consent-to-search form for his apartment. She also apprised Defendant of his Miranda rights, to which he responded by asking for a lawyer. After arresting Defendant, Officer Bugarin drove him to the ATF Office in a police car. Defendant was handcuffed throughout the entire journey. In response to the statements Defendant initiated in the car, Of- ficer Bugarin specifically told him that they could talk about the case when they arrive at the ATF Office, and that she would inform him of his rights again. In the interview room, Officer Bugarin informed Defendant Iwai of his Miranda rights for a second time, reminding him that the “Advice of Rights” form she presented contained the same content as in his apartment. She sat across from Defendant while Officer Echiberi interviewed him. Officer Bugarin took notes of Defendant’s statements and drafted a typed confession. She thoroughly reviewed each part of the confession with Defendant Iwai to ensure it was accurate. The facts regarding Defendant’s interactions with Officer Bugarin overwhelmingly establishes that no reasonable person would mistake Officer Bugarin as his attorney. Officer Bugarin did not attempt to deceive Defendant into believing she was an attorney. The evidence presented establishes that Defen- dant’s confession was voluntary.

App. 95

III. DEFENDANT CONSENTED TO A SEARCH OF HIS CELLULAR TELEPHONE The Fourth Amendment generally requires the government to obtain a warrant or consent before searching the contents of a cellular telephone. See Riley v. California, 134 S. Ct. 2473, 2493 (2014). If consent is provided, the scope of a search “is limited by the extent of the consent given for the search by the individual.” United States v. Lopez-Cruz, 730 F.3d 803, 810 (9th Cir. 2013). The government bears the burden of proving by a preponderance of the evidence that the consent was voluntary. Carbajal, 956 F.2d at 930. Determining the voluntariness of a consent requires an examination of the totality of circumstances. Kaplan, 895 F.2d at 622. No single criterion is dispositive. Id. As previously stated, The Ninth Circuit Court of Appeals has identified five factors that indicate whether an individual voluntarily consented to a search: (1) Whether the defendant was in custody; (2) Whether the arresting officers had their guns drawn or otherwise overmastered the suspect; (3) Whether Miranda warnings were given prior to the search; (4) Whether the defendant was told he had a right to withhold his consent; and (5) Whether the officers claimed that they could obtain a search warrant. Patayan Soriano, 361 F.3d at 502.

App. 96

Defendant’s Consent to Search his Cellular Tel- ephone Shortly after he arrived at the ATF Office interview room, but before he was questioned by Officers Bugarin and Echiberi, Defendant was asked by Agent Jones and Officer Correa to consent to a search of his cellular telephone. Officer Correa provided a consent form and explained its contents to Defendant Iwai. De- fendant indicated that he understood the form, and signed it. (Hearing Ex. 3).

A. Analysis of the Five Factors A review of the five factors supports a finding that Defendant voluntarily consented to a search of his cellular telephone. Officer Bugarin had administered a Miranda warning to him upon his arrest at the apartment. At the time he signed the consent form at the ATF Office, Defendant Iwai was in custody. Agent Jones and Officer Correa were not visibly armed. They did not threaten or force him to sign the form.

B. Other Evidence Supports a Finding of Voluntariness In addition to the five factors, other evidence presented demonstrates that Defendant consented voluntarily. Officer Correa provided a consent form to Defendant and explained it to him. Defendant Iwai indicated that he understood the form and signed it. (Hearing Ex. 3). The fact that Defendant signed a consent form favors a finding of voluntary consent.

App. 97

Castillo, 866 F.2d at 1082. Defendant did not have trouble communicating with Officer Correa, nor did he appear intoxicated or fatigued. Defendant voluntarily consented to a search of his cellular telephone.

CONCLUSION (1) The law enforcement officers’ warrantless entry into Defendant’s apartment was lawful. (2) The officers’ seizure of the objects in plain view, a handgun, substances resembling methamphetamine, and drug paraphernalia, was lawful. (3) Defendant’s consent to search his apartment was voluntary. (4) Defendant waived his right to counsel by initiating conversation about his conduct during his transit to the ATF Office. (5) Defendant voluntarily confessed. (6) Defendant consented voluntarily to a search of his cellular telephone. Defendant Bryant Kazuyoshi Iwai’s Motion to Suppress Evidence and Statements (ECF No. 24) is DENIED.

App. 98

IT IS SO ORDERED. DATED: Honolulu, Hawaii, May 13, 2016. /s/ Helen Gillmor Helen Gillmor United States District Judge [SEAL]

App. 99

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-10015 Plaintiff-Appellee, D.C. No. v. 1:15-cr-00723- DKW-1 BRYANT KAZUYOSHI IWAI, ORDER Defendant-Appellant.

Filed March 4, 2020 Before: Richard C. Tallman, Jay S. Bybee, and N. Randy Smith, Circuit Judges. Order

ORDER Judge Tallman and Judge N.R. Smith have voted to deny the petition for rehearing and recommend denying the petition for rehearing en banc. Judge Bybee has voted to grant the petition for rehearing and recommends granting the petition for rehearing en banc. The full court was advised of the petition for rehearing and petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the

App. 100 votes of nonrecused active judges in favor of en banc consideration. Fed. R. App. 35. The petition for rehearing and rehearing en banc are DENIED.