                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           AUG 18 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50278

              Plaintiff - Appellant,             D.C. No. 2:12-cr-01101-MMM-1

 v.
                                                 MEMORANDUM*
EDWARD HUGH ROBINSON,

              Defendant - Appellee.


                   Appeal from the United States District Court
                      for the Central District of California
                  Margaret M. Morrow, District Judge, Presiding

                      Argued and Submitted February 5, 2015
                               Pasadena, California

Before: PREGERSON and NGUYEN, Circuit Judges and CARR,** Senior District
Judge.

      The United States appeals the district court’s order granting Edward

Robinson’s motion to suppress evidence of three firearms found during a search of

Robinson’s residence located in a separate building—a free-standing garage

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable James G. Carr, Senior District Judge for the U.S.
District Court for the Northern District of Ohio, sitting by designation.
converted into a two-bedroom unit with a kitchen and a bathroom. The search of

Robinson’s residence took place after a search warrant was executed on the

separate residence of Abelino Garcia, who owned a unit at the back of a duplex.

The front unit of the duplex is not involved in this matter. We have jurisdiction

under 18 U.S.C. § 3731. We affirm.

      We review the lawfulness of a search and seizure de novo, and the district

court’s findings of fact for clear error. United States v. Deemer, 354 F.3d 1130,

1132 (9th Cir. 2004). We review the scope of a search warrant de novo. United

States v. Hurd, 499 F.3d 963, 965 (9th Cir. 2007).

      “[T]he Fourth Amendment confines an officer executing a search warrant

strictly within the bounds set by the warrant . . . .” Bivens v. Six Unknown Named

Agents, 403 U.S. 388, 407 n.7 (1971). Applying United States v. Hitchcock, we

hold that considering “the circumstances of the search,” the search of Robinson’s

separate residence was beyond the scope of the search warrant. 286 F.3d 1064,

1071 (9th Cir. 2002), as amended, 298 F.3d 1021 (9th Cir. 2002).

      The search of Robinson’s residence is within the scope of the search warrant

only if the separate building falls within one of the three categories explicitly

offered by the search warrant: (1) the “associated garages” of the Garcia residence;




                                           2
(2) the Garcia residence itself; or (3) the Garcia residence’s curtilage.1

A. Robinson’s residence was not a garage

      The government argues that the photographs of the separate building and

officers’ declarations demonstrate that “the garage was a garage” despite the car

door being sealed and the separate building’s interior containing a two-bedroom,

one-bathroom apartment with a kitchen. We agree with the district court that the

“obvious visual signs” demonstrated “immediately upon entry” that the separate

building was not a garage, but a residence.

      A separate garage’s conversion into a living residence is not a novel concept.

See United States v. Cannon, 264 F.3d 875, 878 (9th Cir. 2001). In Cannon, the

court held that a Drug Enforcement Administration search of a separate, converted

garage at the rear of a residence, believed to be a garage when the warrant issued,

was not within the scope of the search warrant concerning the residence described

in that warrant. Id. at 879. The Cannon court found that the appliances associated

with a separate dwelling (i.e., a refrigerator, sink, cooking stove, and woodburning

stove) observed upon entering the converted garage, along with a reasonable



      1
         During oral argument, the government acknowledged that it did not argue
in the district court that the separate building fell within the Garcia’s residence’s
curtilage. We therefore do not address this issue because it is waived. See
Campbell v. Burt, 141 F.3d 927, 931 (9th Cir. 1998).

                                           3
expectation of privacy that stems from renting a converted garage, established that

the converted garage was a separate residence necessitating a separate search

warrant. Id. Cannon is binding precedent and its rationale is persuasive in this

case. See Barapind v. Enomoto, 400 F.3d 744, 750–51 (9th Cir. 2005) (en banc).

      The court “must judge the constitutionality of [an officer’s] conduct in light

of the information available to them at the time they acted.” Maryland v.

Garrison, 480 U.S. 79, 85 (1987). The search warrant’s supporting affidavit

reveals that law enforcement observed Garcia at his residence numerous times

between July 15, 2012 and October 17, 2012. Investigators observed Garcia

“entering/exiting the residence on a regular basis in excess of 10 times.” The

photographs in the record show that the separate building’s front was completely

covered by white siding and that this condition was obvious. Therefore, during

each of law enforcement’s numerous observations of Garcia’s entries and exits into

his residence over three months, the sealed front of the separate building must have

been visible to a reasonably observant officer. The officers could not have

reasonably believed the separate building was a garage without further

investigation.

      Moreover, internal wall partitions, a tile floor, and a small kitchen area were

visible to the officers upon entry into the separate building. At that point, it would


                                           4
have been apparent to a reasonable officer that this building was not an “associated

garage[]” covered by the warrant, but rather was a separate residence. See Cannon,

264 F.3d at 879.

B. Robinson’s residence was not part of Garcia’s main residence

      Considering the government’s argument that the separate building was

within the scope of the search warrant as part of Garcia’s main residence, we

review the facts before the district court to determine if the district court clearly

erred in deciding that the separate building was not part of the main Garcia

residence. Deemer, 354 F.3d at 1132. While some facts support the government’s

assertion that the separate building was part of the main residence, the record

contains evidence that the interior of the separate building was conspicuously

modified to be used as a separate apartment, and Garcia proffered testimony that he

told the officers at the time that the warrant was executed that his “son and tenant

are living in the back unit.” Considering these competing facts, the district court

did not clearly err in finding that the separate building was not part of Garcia’s

residence.

      Our review confirms that the separate building was not part of Garcia’s main

residence but was instead a separate and independent residence and was therefore

not covered by the portion of the warrant authorizing a search of Garcia’s main


                                            5
residence. See Cannon, 264 F.3d at 879 (“The rental unit was clearly a separate

dwelling for which a separate warrant was required. . . . It cannot be viewed as an

extension of the main house.”). The ease with which officers can obtain a search

warrant is also worth noting. Steagald v. United States, 451 U.S. 204, 222 (1981)

(“In routine search cases . . . the short time required to obtain a search warrant

from a magistrate will seldom hinder efforts . . . if a magistrate is not nearby, a

telephonic search warrant can usually be obtained.”).

C. The protective sweep and “single purpose” exception

      In the alternative, the government seeks to admit the firearms into evidence

because law enforcement discovered the firearms during a protective sweep of the

separate building. Though Maryland v. Buie permits a protective sweep of a space

when “articulable facts which, taken together with rational inferences from those

facts, would warrant a reasonably prudent officer in believing that the area to be

swept harbors an individual posing a danger,” the three firearms subject to

suppression in this case were not discovered during the protective sweep. 494 U.S.

325, 334 (1990). Rather, officers discovered two of the firearms after the

protective sweep when conducting the full search of Robinson’s bedroom. The

officers found the third firearm after opening an unmarked black case discovered in

Robinson’s bedroom. We therefore need not address whether these facts permit


                                           6
the admission of evidence found during a protective sweep of the separate building

under Buie because the officers did not find the disputed evidence during the

protective sweep.

      Lastly, we reject the government’s argument that the “single-purpose”

exception applies to law enforcement’s opening of the black case discovered in

Robinson’s bedroom during the protective sweep. See Arkansas v. Sanders, 442

U.S. 753, 764 n.13 (1979), overruled on other grounds by California v. Acevedo,

500 U.S. 565 (1991). The “single-purpose” exception applies to a container when

the government can show that its contents are “susceptible to ready identification

by the general public,” without reliance on the special expertise of law

enforcement officers. United States v. Gust, 405 F.3d 797, 804 (9th Cir. 2005). A

complete examination of the record reveals that the government did not meet that

burden.

      For these reasons, the district court properly suppressed the three firearms.

      AFFIRMED.




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