Failure to Obtain Anticipatory Search Warrant Does Not Invalidate Search Under Exigent Circumstances, Ninth Circuit Finds

On August 4, 2015, the United States Postal Inspection Service in Honolulu executed a search warrant and found approximately six pounds of methamphetamine in a package from Las Vegas, addressed to Bryant Kazuyoshi Iwai’s condominium. The next day DEA agents obtained a second warrant to track a controlled delivery of the package to Iwai’s building, with a GPS tracking device that would activate a rapid beeping signal when the package was opened.

Agents learned that Iwai’s residence was located in a multi-unit building the did not permit direct delivery of packages. Believing they lacked probable cause that the package would end up in Iwai’s unit, they did not seek an anticipatory search warrant to enter his residence in order to secure the box once the beeper was triggered.

On August 5, 2015, an agent posing as a mail carrier went to Iwai’s building and telephoned Iwai’s unit number to notify him of the delivery. Iwai answered and requested the package be left at the front desk with the manager. The agent complied. Agents then observed Iwai one hour later pick up the package from the manager and bring it up the elevator and into his unit.

The beeper activated two hours after Iwai took the package into his unit. Agents then went to Iwai’s door, and knocked and announced their presence. After no initial response, Agent Richard Jones saw shadowy movements through the peephole. After announcing their presence again, Agent Jones saw a figure walking away from the door. After knocking and announcing a third time, Agent Jones heard noises from inside the unit that sounded like plastic and paper rustling. He interpreted those noises to mean Iwai was destroying evidence.

Acting on the belief that Iwai was destroying evidence, agents forced entry into Iwai’s unit approximately two minutes after they first knocked and announced their presence. When they entered, agents observed the package on the floor of the living room unopened. The beeping device had apparently malfunctioned.

While securing the unit, agents observed in plain view a gun and zip lock bags containing what appeared to be methamphetamine. Agents subsequently obtained Iwai’s verbal and written consent to search the residence, and they found approximately 14 pounds of crystal methamphetamine, more than $32,000 in U.S. currency, a digital scale, a ledger, and plastic bags.

Iwai was subsequently charged with federal drug crimes. In District Court, Iwai entered a conditional guilty plea after the court denied his motion to suppress all evidence and statements the government obtained from the controlled delivery operation. Iwai then appealed his conviction to the U.S. Court of Appeals for the Ninth Circuit.

Iwai argued on appeal that because agents could have requested, but did not obtain, an anticipatory search warrant to retrieve the package, the evidence found inside his home should have been suppressed. The Ninth Circuit disagreed with Iwai’s framing of the issue, stating “whether or not the agents could have obtained an anticipatory search warrant in this case is beside the point: The relevant fact is simply that they did not, and entry into Iwai’s residence was presumptively unreasonable.”

The Court then turned to “the totality of the circumstances” in Iwai’s case. Considering together that agents had intercepted 6 pounds of methamphetamine addressed to Iwai, the delivery system in Iwai’s building and agents’ observation that Iwai took the packaged into his unit, the beeper signal, and Agent Jones’s peephole observations combined with the “suspicious rustling noise,” the Ninth Circuit held “it was reasonable to conclude that the destruction of incriminating evidence was occurring”

The Court emphasized that focusing on the rustling noises “in isolation” was improper, as it was only because Agent Jones heard those noises in the aforementioned context that created the exigency permitting agents to warrantlessly enter Iwai’s residence. Moreover, the Court distinguished Iwai’s case from its holding in U.S. v. Mendonsa, regarding noises within a residence. The Court held that the specifically incriminating noise that Agent Jones heard was more suggestive of evidence destruction than the “soft music” and general living sounds at issue in Mendonsa.

The Court thus held that agents entered Iwai’s residence lawfully under circumstances giving rise to an applicable exception to the warrant requirement. The Ninth Circuit accordingly affirmed the District Court’s denial of Iwai’s motion to suppress. Iwai’s guilty plea therefore still stands.

The Ninth Circuit’s full opinion in U.S. v. Iwai may be read here.


This case law update was written by James P. Garay Heelan, Associate Attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

Posted in Case Law Update

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