                                                                               FILED
                            NOT FOR PUBLICATION
                                                                               SEP 25 2018
                    UNITED STATES COURT OF APPEALS                         MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.    16-10545

              Plaintiff-Appellee,                D.C. No.
                                                 3:15-cr-00122-EMC-2
 v.

KEVIN BAIRES-REYES,                              MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Northern District of California
                    Edward M. Chen, District Judge, Presiding

                        Argued and Submitted July 13, 2018
                            San Francisco, California

Before: HAWKINS, BEA, and HURWITZ, Circuit Judges.

      Kevin Baires-Reyes was convicted and sentenced in federal court for robbery

and firearms crimes after he was arrested as one of two suspects who robbed a Quick

Pick Market in Daly City. He appeals his judgment and sentence. Because we

determine that the district court plainly erred by admitting certain evidence obtained



      *
        This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
in violation of Baires-Reyes’s Fourth Amendment rights, we reverse his conviction

and remand.

      As Baires-Reyes argued below, the officers here exceeded the scope of the

customary license to “encroach upon the curtilage of a home for the purpose of asking

questions of the occupants,” United States v. Perea-Rey, 680 F.3d 1179, 1187 (9th

Cir. 2012) (internal citation and quotation marks omitted), by knocking on the door

at 4:00 a.m. without a warrant, and thus the “knock and talk” exception to the warrant

requirement did not apply, United States v. Lundin, 817 F.3d 1151, 1158-60 (9th Cir.

2016) (“[U]nexpected visitors are customarily expected to knock on the front door of

a home only during normal waking hours.”). As such, even if the owner of the home

consented to the officers’ entry, this consent was wrongfully obtained, as was any

evidence viewed by the officers while in the home without a warrant.

      The district court, however, denied Baires-Reyes’s motion to exclude all

evidence obtained from the home, concluding that the evidence was lawfully obtained

through an independent source when the officers left, obtained a warrant, and returned

to the home around noon. On appeal, Baires-Reyes concedes that many of the items

so obtained, such as the handgun, bottle of Hennessy, and Cincinnati Reds cap, were

properly admitted pursuant to this doctrine. However, because he was no longer

present on the property when the officers returned with the warrant (having been


                                          2
arrested and taken to the police station by that point), he contends that four critical

pieces of evidence linking him to the crime were no longer available or observable by

officers executing the warrant and thus could not be justified by the independent

source doctrine:

      (1)    the observation of the three suspects asleep in the room together;
      (2)    the observation of the clothes Baires-Reyes was wearing when
             arrested;
      (3)    the seizure of those clothes; and
      (4)    the DNA swab taken upon his arrest.

      Baires-Reyes did not make this argument in response to the government’s

independent source argument below,1 and he conceded at oral argument that it should

be reviewed for plain error.2 But, we find that the Fourth Amendment violation is

clear under Lundin. Further, the independent source doctrine permits only the

introduction of evidence actually acquired through a separate and lawful means, see


      1
        Because Baires-Reyes’s motion to suppress presented the district court with
the overarching issue of whether all the seized evidence was admissible through
independent source, Baires-Reyes preserved this issue for appeal; his failure to rebut
the government’s independent source argument below, with respect to this narrower
subset of evidence, does not forfeit objection on appeal.
      2
          Under plain error review, the defendant must establish that “(1) there is an
error; (2) the error is clear or obvious, rather than subject to reasonable dispute; (3)
the error affected [defendant's] substantial rights, which in the ordinary case means
it affected the outcome of the district-court proceedings; and (4) the error seriously
affected the fairness, integrity, or public reputation of judicial proceedings.” United
States v. Walter-Eze, 869 F.3d 891, 911 (9th Cir. 2017) (internal quotation and citation
omitted and alteration in original).

                                           3
Murray v. United States, 487 U.S. 533, 537–38 (1988). It is also apparent that the

specific items or observations now objected to by Baires-Reyes were obtained through

the officers’ unlawful presence in the home without a warrant, and not from the later-

executed warrant.

      The government argues that this evidence could still be admitted under the

inevitable discovery doctrine. However, as we held in Lundin, “[t]he inevitable

discovery exception does not apply when officers have probable cause to apply for a

warrant but simply fail to do so.” 817 F.3d at 1161. The district court here found that

even without the additional evidence obtained through entry into the home, the

officers had probable cause for a warrant for suspect Flores-Ayar. However, they

intentionally chose not to obtain one: “We would have to wake up the on-call judge

after writing the warrant, driving to wherever they’re located—which could be

somewhere in the southern part of San Mateo County to get the order signed—and

then returning.” “[T]o excuse the failure to obtain a warrant merely because the

officers had probable cause and could have inevitably obtained a warrant would

completely obviate the warrant requirement of the fourth amendment.” United States




                                          4
v. Young, 573 F.3d 711, 723 (9th Cir. 2009) (quoting United States v. Echegoyen, 799

F.2d 1271, 1280 n.7 (9th Cir. 1986)). 3

      Admission of the officers’ observations of Baires-Reyes asleep in the room with

the other robbery suspect and near the spoils of the robbery, wearing clothes identical

to those worn by the second robber in the surveillance tape, was undoubtedly

prejudicial and affected his substantial rights. Indeed, the police had no means of

even identifying Baires-Reyes as the second suspect until they entered the home and

found him sleeping there; thus they would have had no reason to arrest him or obtain

the DNA swab from him without this improperly-obtained evidence.                  The

observations made by the police at the time of the warrantless entry were repeatedly

referred to and emphasized throughout the trial and affected the fundamental fairness

of the proceeding.



      3
          In any event, it is not “inevitable” that the officers would have found the
same evidence and made the same incriminating observations of Baires-Reyes that
they did during the unlawful entry at 4:00 a.m. It is certainly not inevitable that
Baires-Reyes would have been wearing the same clothes as the suspect in the robbery
and sleeping near the spoils of the robbery if the officers obtained a warrant and
returned later in the day. By daylight or before leaving the apartment, Baires-Reyes
could have awoken, changed clothes, or even disposed of clothing or other evidence
from the robbery. See Young, 573 F.3d at 722-23 (noting that “nothing more than
speculation . . . support[ed] the discovery of the challenged evidence outside the
improper search”); see also United States v. Boatwright, 822 F.2d 862, 865 (9th Cir.
1987) (“[Defendant] would not have waited patiently beside his weapons for an agent
to arrive with a warrant.”).

                                          5
For these reasons, we reverse Baires-Reyes’s conviction and remand.

REVERSED AND REMANDED.




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