Filed: Sep. 10, 2007
Latest Update: Apr. 11, 2017
Summary: FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 06-30414 Plaintiff-Appellant, v. D.C. No. CR-05-00355-ALH UHURU NAVANDA CREWS, Defendant-Appellee. Appeal from the United States District Court for the District of Oregon Ancer L. Haggerty, Chief Judge, Presiding UNITED STATES OF AMERICA, No. 06-30589 Plaintiff-Appellant, v. D.C. No. CR-05-00400-GMK EBONIQUE MANUS, OPINION Defendant-Appellee. Appeal from the United States District Court
Summary: FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 06-30414 Plaintiff-Appellant, v. D.C. No. CR-05-00355-ALH UHURU NAVANDA CREWS, Defendant-Appellee. Appeal from the United States District Court for the District of Oregon Ancer L. Haggerty, Chief Judge, Presiding UNITED STATES OF AMERICA, No. 06-30589 Plaintiff-Appellant, v. D.C. No. CR-05-00400-GMK EBONIQUE MANUS, OPINION Defendant-Appellee. Appeal from the United States District Court ..
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 06-30414
Plaintiff-Appellant,
v. D.C. No.
CR-05-00355-ALH
UHURU NAVANDA CREWS,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Ancer L. Haggerty, Chief Judge, Presiding
UNITED STATES OF AMERICA, No. 06-30589
Plaintiff-Appellant,
v. D.C. No.
CR-05-00400-GMK
EBONIQUE MANUS,
OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Garr M. King, District Judge, Presiding
Argued and Submitted
July 13, 2007—Portland, Oregon
Filed September 10, 2007
Before: Cynthia Holcomb Hall and Milan D. Smith, Jr.,
Circuit Judges, and Kevin Thomas Duffy,*
Senior District Judge.
*The Honorable Kevin Thomas Duffy, Senior United States District
Judge for the Southern District of New York, sitting by designation.
12045
12046 UNITED STATES v. CREWS
Opinion by Judge Duffy
12048 UNITED STATES v. CREWS
COUNSEL
Stephen F. Peifer, Assistant United States Attorney, for appel-
lant the United States of America.
Lisa Hay, Assistant Federal Public Defender, for defendant
Uhuru Navanda Crews.
Francesca Freccero, Assistant Federal Public Defender, for
defendant Uhuru Navanda Crews.
UNITED STATES v. CREWS 12049
Raivio, Kohlmetz & Steen, P.C., by Andrew Kohlmetz, Esq.,
for defendant Ebonique Manus.
OPINION
DUFFY, Senior District Judge:
Most of the arguments raised in these two cases arise from
the execution of one search warrant at 6731 S.E. 82nd Avenue,
Apartment 3 (“Apartment 3”) in Portland, Oregon. As resi-
dents of Apartment 3, Uhuru Navanda Crews and Ebonique
Manus (“Crews” and “Manus,” or collectively “Defendants”)
continue to attack the validity of the underlying affidavit upon
which the search warrant was based. Defendants argued
below, and continue to argue, that the affidavit is so lacking
in indicia of probable cause that no police officer could have
reasonably relied upon it in good faith. The search warrant
resulted in two indictments—one for each defendant—
separately charging each with being a felon in possession of
a firearm. The case against Crews (05-355-ALH) was
assigned to Chief Judge Haggerty, and that against Manus
(05-400-GMK) was assigned to Judge King. In each case, the
defendant moved to suppress all evidence flowing from the
warrant. Chief Judge Haggerty held a hearing on the motion.
At the behest of the parties, Judge King relied upon the hear-
ing before Chief Judge Haggerty. The district courts agreed
with the Defendants’ arguments and in each case ordered sup-
pression of the evidence seized during the search and inculpa-
tory statements made by Defendants as tainted fruits of an
unlawful search. The Government appeals these orders, con-
tending that there was probable cause supporting the search,
and even if there was not, the good faith exception applies
pursuant to United States v. Leon,
468 U.S. 897, 925 (1984).
FACTS
At about 2:00 a.m. on July 2, 2005, a police officer
attempted to pull Crews over for failing to properly signal a
12050 UNITED STATES v. CREWS
turn while driving. Rather than comply, Crews, a convicted
felon, increased his speed and then jumped from the vehicle
in an attempt to elude the police. After a brief chase on foot,
officers arrested Crews for attempting to elude the police pur-
suant to Section 811.540 of the Oregon Revised Statutes and
for other state and city violations. After the officers advised
Crews of his Miranda rights, Crews verbally waived them and
admitted that he fled because of an outstanding arrest warrant
in the state of Washington, a warrant that, unbeknownst to
Crews, was non-extraditable. The officers impounded the car
Crews had been driving, a 1985 Oldsmobile Cutlass regis-
tered to Manus, also a convicted felon, and registered to
Manus’s address at Apartment 3, 6731 S.E. 82nd Avenue, Port-
land, Oregon. Crews’ arrest had taken place only a few blocks
from that location. Neither the Portland Police Data System
nor Crews’s invalid drivers license listed the address of
Manus’s apartment as Crews’s residence.
After conducting a sweep of the area where Crews was
arrested, officers found a .22 caliber revolver under some
shrubbery. As convicted felons, both Crews and Manus were
forbidden from possessing a firearm. See 18 U.S.C. § 922(g)(1).1
Because the car Crews had been driving was registered to
Manus at Apartment 3, police officers focused their surveil-
lance at that address for two days. On the first day, officers
observed Crews walking within the complex where Apart-
ment 3 is located and then leave with an unknown person in
an unknown car that had been parked in the space reserved for
Apartment 3. The next day, officers observed Manus walk
from the area of Apartment 3 and leave in a Pontiac that had
been parked in the space reserved for Apartment 3. Mean-
while, officers observed Crews walking from the complex and
then return. After Manus returned, officers watched as Manus
1
The relevant portions of 18 U.S.C. § 922(g)(1) states that “[i]t shall be
unlawful for any person . . . who has been convicted in any court of, a
crime punishable by imprisonment for a term exceeding one year . . . to
. . . possess in or affecting commerce, any firearm or ammunition . . . .”
UNITED STATES v. CREWS 12051
and Crews emerged together from the area where the doorway
to Apartment 3 was located. They then proceeded to walk
back and forth from Apartment 3 to the Pontiac multiple times
before eventually leaving together in the Pontiac, with Crews
driving.
Based on these observations and his experiences and gen-
eral knowledge of firearm possession, Officer Peter McCon-
nell prepared an eight-page affidavit in support of a search
warrant for Apartment 3, Crews’s person, the Oldsmobile,
and the Pontiac for evidence of the crimes of “attempting to
elude police” and “felon in possession of a firearm.” The war-
rant was issued on July 14, 2005, and permitted police offi-
cers to search Apartment 3 for .22 caliber ammunition,
firearm cleaning kits, magazines, receipts and other evidence
of firearm possession, as well as items of identification that
would show dominion over the places searched.2 Within fif-
teen minutes of receiving the warrant, police officers found
and picked up Crews off the street near Apartment 3 and
advised him of his Miranda rights, which Crews said he
understood. Crews denied living at Apartment 3 and stated
that he did not believe there to be any firearms there. Eventu-
ally, Crews was taken into custody.
The police officers then executed the search at Apartment
3. There, Manus stated that she and Crews had been living
together at Apartment 3 for a month and a half, but that there
were no firearms inside. Manus was then taken into custody.
During the search of Apartment 3, officers discovered a .38
caliber derringer and ammunition inside of a bedroom dresser
drawer containing women’s undergarments. The officers also
found Crews’s wallet on top of that dresser. No evidence was
found on Crews’s person or in the automobiles.
2
In addition to Apartment 3, the affidavit also permitted police officers
to search the Oldsmobile, the Pontiac, and Crews’s person.
12052 UNITED STATES v. CREWS
The officers returned to the precinct and separately inter-
viewed Crews and Manus. Officer McConnell removed
Crews’s handcuffs and reminded him that his Miranda rights
still applied, which Crews acknowledged. Crews proceeded to
admit having previously handled the .38 derringer, but said it
belonged to Manus and that he did not know she still kept it
at Apartment 3. Crews then stated that he did not live at
Apartment 3, but did admit that he stayed there about 70 per-
cent of the time, including the previous night.3 Finally, Crews
confessed that he had possessed the .22 revolver that was pre-
viously found in the bushes. He said he kept it for protection
and that it was the primary reason that he attempted to elude
the police the previous night. As for Manus, after being
advised of her Miranda rights, she confessed to Officer
McConnell that the .38 derringer was hers and that she kept
it for protection.
Defendants were each indicted and charged with being a
felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1). Through counsel, Defendants both pled not
guilty. Crews moved to suppress his inculpatory admission of
possession of the .22 revolver and Manus moved to suppress
the .38 derringer seized as well as her admission of ownership
of the firearm. Defendants both argued that there was no
probable cause to search Apartment 3 and that the good faith
reliance exception did not apply. The district courts below
agreed and suppressed the .38 derringer and Defendants’
admissions as tainted fruit of an unlawful search. Addition-
ally, the district court in Crews’s case found that the waiver
of his Miranda rights was not knowing and voluntary because
he was detained and interrogated in conjunction with an
3
It was eventually revealed that both Crews and Manus were listed on
the lease agreement as co-lessees of Apartment 3. During oral argument,
Crews’s counsel alluded to the fact that Crews, in fact, may not have been
a resident of Apartment 3. Such an argument does not help Crews, for if
it were true, Crews would be confronted with problems of standing to pur-
sue this appeal. However, as an undisputed resident of Apartment 3,
Manus does have standing to challenge the search and seizure.
UNITED STATES v. CREWS 12053
invalid warrant. The Government now appeals these suppres-
sion orders, contending that there was probable cause to
search Apartment 3, and that even if there was not, the “good
faith reliance” exception applies, and that Crews’s waiver was
knowing and voluntary.
STANDARDS OF REVIEW
We review the district courts’ rulings on the motions to
suppress and the validity of a search warrant de novo. United
States v. Adjani, 452 F.3d 1140, 1143 (9th Cir. 2006), cert.
denied, Reinhold v. United States,
127 S. Ct. 568 (2006). “A
magistrate judge’s finding of probable cause is entitled to
great deference and this court will not find a search warrant
invalid if the magistrate judge had a ‘substantial basis’ for
concluding that the supporting affidavit established probable
cause.” United States v. Clark,
31 F.3d 831, 834 (9th Cir.
1994), cert. denied,
513 U.S. 1119 (1995). Furthermore, “[i]n
borderline cases, preference will be accorded to warrants and
to the decision of the magistrate issuing it.” United States v.
Terry,
911 F.2d 272, 275 (9th Cir. 1990) (citation omitted).
We also review de novo the district courts’ application of the
good faith reliance exception. United States v. Kurt,
986 F.2d
309, 311 (9th Cir. 1993). Finally, we review for clear error a
district court’s finding of whether a defendant has made a
knowing and intelligent waiver of his Miranda rights. United
States v. Garibay,
143 F.3d 534, 536 (9th Cir. 1998).
DISCUSSION
I. The Affidavit Was Not So Lacking in Indicia of Probable
Cause as to Render Reliance Objectively Unreasonable
[1] It is well settled that evidence seized during an unlawful
search cannot constitute proof against the victim of the search.
Wong Sun v. United States, 371 U.S. 471, 484 (1963). This
“exclusionary rule” extends to both direct and indirect prod-
ucts of such unlawful searches. Id. Therefore, the Supreme
12054 UNITED STATES v. CREWS
Court has held that “verbal evidence which derives so imme-
diately from an unlawful entry . . . is no less the ‘fruit’ of offi-
cial illegality than the more common tangible fruits of the
unwarranted intrusion.” Id. at 485. The Government has con-
ceded that Defendants’ statements and the discovery of the
.38 derringer derived from the search warrant and its execu-
tion. Thus, if the search was unlawful, the Government con-
cedes that Defendants’ statements and the firearm should be
suppressed. However, in United States v. Leon, the Supreme
Court set out an exception to the exclusionary rule for a
search conducted in good faith reliance upon an objectively
reasonable search warrant.
468 U.S. 897, 925 (1984).4 Before
embarking on the exercise of determining whether the affida-
vit supported probable cause, we may proceed directly to the
issue of whether there was good faith reliance. See id. at 923-
25 (recognizing that courts have discretion in deciding
whether to address the issue of probable cause before turning
to the issue of good faith reliance). For the reasons below, we
find the good faith reliance exception applicable and therefore
need not address whether the affidavit demonstrated that
Crews was anything but a casual social guest.
[2] For the good faith reliance exception to apply, the offi-
cers must have relied on the search warrant in an objectively
reasonable manner. United States v. Clark,
31 F.3d 831, 835
(9th Cir. 1994). The affidavit “must establish at least a color-
4
Search and seizure laws are designed to punish police for improperly
compromising defendants’ rights for the sake of investigatory economy.
The Supreme Court has stated that the exclusionary rule’s “prime purpose
is to deter future unlawful police conduct and thereby effectuate the guar-
antee of the Fourth Amendment against unreasonable searches and sei-
zures.” United States v. Calandra, 414 U.S. 338, 347 (1974). The good
faith reliance exception recognizes that if “the officer is acting as a reason-
able officer would and should act in similar circumstances[,] [e]xcluding
the evidence can in no way affect his future conduct unless it is to make
him less willing to do his duty.” United States v. Leon,
468 U.S. 897, 920
(1984) (citation omitted). Therefore, punishment is unwarranted where
there can be no deterrent effect.
UNITED STATES v. CREWS 12055
able argument for probable cause” for the exception to apply.
United States v. Luong, 470 F.3d 898, 903 (9th Cir. 2006).
Therefore, if there is a colorable argument that the search of
Apartment 3 was supported by probable cause, the officer’s
reliance on the search warrant was objectively reasonable.
This ends the inquiry without having to belabor the issue of
whether the affidavit stated probable cause.
There are four circumstances in which the good faith
exception does not apply because reliance is per se unreason-
able: (i) where an affiant misleads the issuing magistrate or
judge by making a false statement or recklessly disregarding
the truth in making a statement; (ii) where the magistrate or
judge wholly abandons her judicial role in approving the war-
rant, acting only as a “rubber stamp” to the warrant applica-
tion rather than as a neutral and detached official; (iii) where
the warrant is facially deficient in detail as to the place to be
searched or the things to be found that the officers could not
reasonably presume it to be valid; or (iv) where the affidavit
upon which the warrant is based is so lacking in indicia of
probable cause that no reasonable officer could rely upon it in
good faith. Leon, 468 U.S. at 923-26.
The district courts below found that the good faith reliance
exception was inapplicable because the affidavit was so lack-
ing in indicia of probable cause that the police officers should
have known that the search was illegal and because the offi-
cer’s affidavit misled the issuing state judge. Specifically, the
courts found that the officers were objectively unreasonable
in believing they would find additional evidence of the crime
of “felon in possession of a firearm” because the affidavit did
not sufficiently link Crews to Apartment 3. We disagree. For
the following reasons, the district courts erred in failing to
apply the good faith reliance exception.
[3] On its face, the affidavit was not so lacking in indicia
of probable cause as to render reliance upon it objectively
unreasonable. For probable cause, an affidavit must establish
12056 UNITED STATES v. CREWS
a reasonable nexus between the crime or evidence and the
location to be searched. United States v. Chavez-Miranda,
306 F.3d 973, 978 (9th Cir. 2002). It need only be reasonable
to seek the evidence at the location indicated in the affidavit.
United States v. Pitts,
6 F.3d 1366, 1369 (9th Cir. 1993). The
affidavit showed indicia of such a reasonable nexus between
the crime of “felon in possession of a firearm” and Apartment
3 by demonstrating a sufficient link between Crews, Manus,
firearm evidence, and Apartment 3 such that an officer could
have reasonably relied upon it in good faith.
[4] The affidavit stated that police officers sought evidence
of the crime of “felon in possession of a firearm” and that
Crews and Manus were convicted felons forbidden from pos-
sessing firearms. The affidavit also stated that Crews and
Manus had convictions for delivering and manufacturing con-
trolled substances and that Officer McConnell’s training and
experience has shown that persons that sell controlled sub-
stances often possess firearms for protection. It further
explained that on the night Crews was arrested for attempting
to elude police, he had been driving Manus’s car which was
registered to Apartment 3. It stated that the police had reason
to believe that the .22 revolver discovered where Crews had
been arrested had been discarded by Crews during the foot
chase and that they had reason to believe that Crews carried
the .22 revolver out of Manus’s car when he attempted to
elude police. The facts in the affidavit allowed the reasonable
inference that the .22 revolver belonged to Crews (because he
carried it) or Manus (because it was in her car). If Crews or
Manus kept a firearm in the car, it is reasonable to believe
perhaps that they also kept evidence of possession of a fire-
arm at Apartment 3, the registered address of the car and the
residence where Crews was frequently seen shortly after
police discovered the .22 revolver.
[5] The affidavit further showed that Crews and Manus
were closely associated with each other at Apartment 3.
Crews was arrested for attempting to elude the police mere
UNITED STATES v. CREWS 12057
blocks from Apartment 3. That night, Crews had been driving
Manus’s Oldsmobile registered to that same address. During
surveillance, Crews was seen driving away from Apartment
3’s complex in a car parked in the space reserved for Apart-
ment 3. He and Manus were observed together walking back
and forth from Apartment 3 to a Pontiac parked in the space
reserved for Apartment 3. These facts, combined with Officer
McConnell’s statements that his experience has shown him
that further evidence of possession of firearms is often found
at a suspect’s residence, provide a sufficient link between
Crews, Manus, firearms evidence, and Apartment 3 to find
that there is a colorable argument for probable cause in this
case. “[W]hile the affidavit supporting the . . . search warrant
may not have been the model of thoroughness, it cannot be
said that the document ‘d[id] not link this location to the
defendant.’ ” United States v. Ramos, 923 F.2d 1346, 1354
(9th Cir. 1991) (quoting United States v. Hove,
848 F.2d 137,
140 (9th Cir. 1988). Therefore, we find that the officers were
objectively reasonable in their reliance on the warrant and
affidavit in executing their search of Apartment 3 for evi-
dence of possession of firearms.
The district courts also found that the officers were objec-
tively unreasonable in searching Apartment 3 for evidence of
the crime of “attempting to elude police” because they had
already obtained sufficient evidence to convict Crews of that
crime. We need not delve into whether the officers reasonably
believed they would discover additional evidence of attempt-
ing to elude police because we have already found that the
affidavit did contain indicia of probable cause to search
Apartment 3 for evidence of felon in possession of a firearm.
Therefore, the officers’ reliance on the warrant was not objec-
tively unreasonable for lack of indicia of probable cause.
12058 UNITED STATES v. CREWS
II. The Affidavit Was Not Misleading as to Material Facts
and Omissions
The district court in Crews’s case found that the good faith
reliance exception was not available as to the crime of felon
in possession because the affidavit contained superfluous
information that was misleading to the state judge.5 Defen-
dants and the district court cited United States v. Sartin for the
proposition that including a “forest of irrelevant and some-
times misleading information” precludes good faith. See
United States v. Sartin, 262 F. Supp. 2d 1154, 1160 (D. Or.
2003). In Sartin, the search warrants were procured by (i) a
misrepresentation “which police knew was almost certainly
not true;” (ii) a misrepresentation that the suspect’s brother
had not reported his change of address, when he had; and (iii)
a pretext whereby police stated that the search was for proof
of violating sex offender registration laws, when they really
only wanted to search for drugs. 262 F. Supp. 2d at 1160.
Such clear indicia of bad faith are not present in this case.
[6] First, Defendants argue that Officer McConnell misled
the state judge by claiming there was probable cause for the
searches. There is no indication that the state judge wholly
abandoned her judicial role and simply adopted Officer
McConnell’s opinions and beliefs or authorized the search in
a “rubber stamp” manner. This contention is without merit.
[7] Next, Defendants argue that Officer McConnell made
material omissions by stating that his experience has shown
that felons often flee because of possession of a firearm, but
did not mention that felons may also flee because of an out-
standing warrant. This contention is also without merit as
5
In United States v. Leon, the Court acknowledged that the good faith
reliance exception would not be available where the affiant officer misled
the magistrate by including information in the affidavit that the officer
knows is false or would know is false but for his reckless disregard of the
truth. 468 U.S. 897, 923 (1984).
UNITED STATES v. CREWS 12059
Officer McConnell candidly acknowledged in the affidavit
that Crews said he fled because of the arrest warrant. Officer
McConnell reasonably included possession of a firearm as
another driving force for why felons flee, as his experience
has shown.
[8] Defendants further argue that the affidavit was mislead-
ing because it omitted the fact that no officer actually saw
Crews enter or exit Apartment 3 and omitted the number of
apartments that were in the same complex as Apartment 3.
The affidavit makes several references to seeing Crews by
“the area of” Apartment 3, and stated that Crews had been in
a car parked in the space reserved for Apartment 3 on two
separate occasions. Although “the area of” Apartment 3 does
not necessarily mean Crews actually entered or exited Apart-
ment 3 rather than another apartment within the complex, the
reasonable inference can be made that it was in fact Apart-
ment 3, considering Crews’s undisputed connection to the
Oldsmobile registered to Apartment 3, Crews’s use of the
parking space reserved for Apartment 3, and Crews’s docu-
mented presence at the complex with Manus, the undisputed
tenant of Apartment 3. Therefore, Defendants’ contention is
without merit.
[9] Defendants also argue that the affidavit was misleading
as it suggested that Apartment 3 was Crews’s residence, while
Officer McConnell was aware that Crews had a different
address listed as his residence on his driver’s license and in
the Portland Police Data System. This argument is also with-
out merit. The affidavit included the fact that Crews’s license
and the Data System stated a different address for Crews’s
residence. The state judge had all the facts before her and rea-
sonably concluded that Apartment 3 could possibly be an
additional or new residence, or at least a reasonable location
to search for evidence. See Martinez v. Bynum, 461 U.S. 321,
339 (1983) (recognizing that a person can have one domicile,
but several residences).
12060 UNITED STATES v. CREWS
[10] Defendants also argue that the affidavit contained
superfluous information that misled the state judge. The affi-
davit requested authority to search for “magazines” which
were not applicable to the .22 revolver discovered in the
bushes. While magazines would not indicate possession of a
.22 revolver, it does not seem materially misleading to include
one inapplicable item amongst many other items that would
specifically apply to possession of a .22 revolver such as
ammunition, cleaning kits, holsters, shell casings, firearm
cases, laser sights, trigger locks, a safe, and receipts. Addi-
tionally, Defendants argue that the inclusion of their felony
records created the false impression of probable cause. We
find that such information was not misleading, but was of par-
ticular relevance since the police officers were seeking evi-
dence of the crime of “felon in possession of a firearm.”
[11] Lastly, Defendants argue that including requests to
search for paperwork to link the Oldsmobile to Crews, a
search that would not yield any necessary evidence for a con-
viction of attempting to elude police, merely padded the affi-
davit and misled the state judge. In the absence of a pretext
or other outright lies, merely requesting authority to seek
additional—albeit unnecessary—evidence of a crime is not
misleading. See Sartin, 262 F. Supp. 2d at 1158 (holding it
was misleading to request a search for additional evidence of
one crime as a pretext for searching evidence of another
offense). Defendants’ contentions are without merit.
III. Crews Knowingly and Voluntarily Waived his Miranda
Rights
Regarding Crews, the district court held that:
because the police advised defendant that his deten-
tion that day was due to the warrant, and then inter-
rogated defendant exclusively in conjunction with
the improper execution of that warrant, defendant’s
waiver of his constitutional rights that day cannot be
UNITED STATES v. CREWS 12061
construed fairly as sufficiently knowing and volun-
tary . . . Because that warrant was invalid and no
good faith exception is applicable to excuse its exe-
cution, defendant’s statements made during his
detention and interrogation . . . are inadmissible.
United States v. Crews, No. 05-355-HA, 2006 U.S. Dist.
LEXIS 47409, at *14-15 (D. Or. July 10, 2006). The Govern-
ment argues that the district court suppressed Crews’s state-
ments solely as tainted fruit of an unlawful search, and not
because of any Miranda defects. Crews argues that the district
court suppressed his statements as tainted fruit and on the sep-
arate grounds that the record shows that, under the totality of
the circumstances, he did not knowingly and voluntarily
waive his Miranda rights. It seems that the district court con-
cluded that the waiver was not knowing and voluntary solely
because police “interrogated [him] exclusively in conjunction
with the improper execution of [the] warrant” as the opinion
makes no mention of any typical Miranda defects. However,
having found that the search was objectively reasonable, we
will address whether Crews’s waiver was sufficiently know-
ing and voluntary.
[12] There is a presumption against waiver, of which the
Government bears the burden of overcoming by a preponder-
ance of the evidence. United States v. Garibay, 143 F.3d 534,
536 (9th Cir. 1998). To meet this burden, generally, the Gov-
ernment must prove that, under the totality of the circum-
stances, the defendant was aware of the nature of the right
being abandoned and the consequences of such abandonment.
Id. Several factors to consider are (i) the defendant’s mental
capacity; (ii) whether the defendant signed a written waiver;
(iii) whether the defendant was advised in his native tongue
or had a translator; (iv) whether the defendant appeared to
understand his rights; (v) whether the defendant’s rights were
individually and repeatedly explained to him; and (vi)
whether the defendant had prior experience with the criminal
justice system. Id. at 537-39.
12062 UNITED STATES v. CREWS
[13] Although there was no written waiver, the totality of
the circumstances show that Crews did, in fact, knowingly
and voluntarily waive his rights. There is nothing in the
record to suggest that Crews was of any diminished mental
capacity that prevented him from understanding the nature of
his rights or the consequences of abandoning them. Upon
detaining Crews, Officer McConnell read him his Miranda
rights in English, a language Crews fluently spoke and under-
stood without the need of a translator. Crews stated that he
understood his rights.6 Officer McConnell read Crews his
rights individually as Crews was the sole detainee present.
Later at the precinct, Officer McConnell again reminded, and
Crews acknowledged, that his constitutional rights still
applied. Therefore, under the totality of the circumstances,
Crews’s waiver of his constitutional Miranda rights was suffi-
ciently knowing and voluntary.
IV. The Information in the Affidavit Was Not Stale by the
Time the Warrant Was Executed
[14] Finally, Manus argues that the information regarding
Crews’s alleged possession of the .22 revolver on July 2, 2005
was rendered “stale” by the time police executed the search
warrant on July 14, 2005. “Staleness must be evaluated in
light of the particular facts of the case and the nature of the
criminal activity and property sought.” United States v.
Greany, 929 F.2d 523, 525 (9th Cir. 1991). The total elapsed
time from the foot chase until the execution of the search war-
rant at Apartment 3 was only twelve days. Neither the Gov-
ernment or Manus cites a case where staleness was found in
such a short period of time. Moreover, it is reasonable to
believe that ammunition, cleaning kits, cases, and other evi-
6
The record shows that upon being read his Miranda rights, Crews first
nodded, then said he did not understand, but then said he did. In fact,
Crews told Officer McConnell that it was not his rights that he did not
understand, but rather what was happening. At that point, Officer McCon-
nell explained the search warrant to Crews.
UNITED STATES v. CREWS 12063
dence of firearm possession would have still been present at
Apartment 3 after only twelve days even if the .22 revolver
was discarded. “One may infer that equipment acquired to
accomplish a crime will be kept for some period of time.”
United States v. Hernandez, 80 F.3d 1253, 1259 (9th Cir.
1991), overruled on other grounds Muscarello v. United
States,
524 U.S. 125 (1998). Therefore, Manus’s staleness
claim is without merit.
CONCLUSION
While this case is not a model of flawless procedure, it does
demonstrate objective reasonableness. The amount of work
that went into the police investigation, surveillance, and exe-
cution of the search warrant further demonstrates the good
faith efforts of the police officers in this case. Pursuant to
United States v. Leon, 468 U.S. 897 (1984), it is abundantly
clear that the police officers were deserving of the good faith
reliance exception to the exclusionary rule. We therefore
REVERSE the suppression orders as to both Crews and
Manus and REMAND to the district courts for further pro-
ceedings.
