                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 28 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-10000

                Plaintiff-Appellee,             D.C. No.
                                                2:14-cr-00262-JCM-GWF-1
 v.

PATRICK LYNN WASHINGTON,                        MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Nevada
                    James C. Mahan, District Judge, Presiding

                       Argued and Submitted April 21, 2017
                            San Francisco, California

Before: THOMAS, Chief Judge, MURGUIA, Circuit Judge, and BAYLSON,**
District Judge.

      Appellant Patrick Lynn Washington pled guilty to being a felon in

possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and

924(a)(2), after the district court denied his motion to suppress two firearms



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Michael M. Baylson, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
discovered in the course of a warrantless search of his home. During

Washington’s change-of-plea colloquy, the district court informed him that he

retained his right to appeal the motion’s denial, and he does so here.

      We review the district court’s decision to deny a motion to suppress, and

whether the exclusionary rule applies to a given case, de novo. United States v.

Perea-Rey, 680 F.3d 1179, 1183 (9th Cir. 2012) (quoting United States v.

Crawford, 372 F.3d 1048, 1053 (9th Cir. 2004) (en banc)). We review the

underlying factual findings for clear error. Id. The clearly erroneous standard

requires a “significantly deferential” review and will only result in reversal when

the reviewing court has “a definite and firm conviction that a mistake has been

committed.” United States v. Elliott, 322 F.3d 710, 714 (9th Cir. 2003) (quoting

United States v. Maldonado, 215 F.3d 1046, 1050 (9th Cir. 2000)). Even if we

determine that the grounds on which the district court denied Washington’s motion

are incorrect, we may affirm the motion’s denial if we find another permissible

basis for doing so. See United States v. Washington, 641 F.2d 1368, 1371 (9th Cir.

1981).

      The Fourth Amendment protects “[t]he right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and

seizures.” U.S. CONST. amend. IV. Because “the right of a man to retreat into his

own home and there be free from unreasonable governmental intrusion” stands at


                                          2
the core of the Fourth Amendment, “searches and seizures inside a home without a

warrant are presumptively unreasonable.” Payton v. New York, 445 U.S. 573,

586, 590 (1980) (quoting Silverman v. United States, 365 U.S. 505, 511 (1961)).

The exclusionary rule “make[s] effective the fundamental constitutional guarantees

of sanctity of the home and inviolability of the person” by forbidding “evidence

seized during an unlawful search . . . [to] constitute proof against the victim of the

search.” Wong Sung v. United States, 371 U.S. 471, 484 (1963) (first citing Boyd

v. United States, 116 U.S. 616 (1886), then citing Weeks v. United States, 232 U.S.

383 (1914)).

      This case stems from a July 5, 2014 encounter between Washington and

various officers of the Las Vegas Metropolitan Police Department. On that day,

Washington’s wife called 911 and stated that Washington was holding her and her

child against their will, that she feared for her life, and that Washington had two

firearms in his possession. Officers Justin Spurling and Traves Humpherys

responded to the call and arrived at Washington’s apartment, where they kicked in

the door, arrested Washington, and took him into custody. Officer Humpherys

patted Washington down and discovered four bullets in his pocket.

Simultaneously, Officer Spurling conducted a protective sweep of the apartment,

including the patio area where there was a set of four stacked tires. He shined his

flashlight into the tires and discovered two firearms hidden in the stack. At some


                                           3
point throughout this chain of events, the officers learned that Washington was a

felon. Following discovery of the firearms, the officers “froze the premises” and

requested their sergeant to send detectives from the Firearms Investigation Unit

(“FIU”) to the scene. FIU Detectives Lawrence Rinetti and Breck Hodson arrived

at the residence and Detective Rinetti applied for and received a telephonic search

warrant to search the residence for firearms, citing in the warrant application the

details of the 911 call, the fact that Washington was a felon, the ammunition

discovered in Washington’s pocket, and the firearms found in the tire stack.

      It is undisputed that the two firearms at issue were seized during a

warrantless search of Washington’s home, and that they were not discovered

pursuant to a lawful protective sweep. Therefore, they are the product of a

presumptively unreasonable search and must be suppressed unless an exception to

the exclusionary rule applies. Because we find that the independent source

doctrine applies to the discovery of the firearms, we affirm the district court’s

denial of Washington’s motion to suppress.

      The independent source doctrine permits the admission of evidence obtained

via an illegal search where “the challenged evidence has an independent source.”

Nix v. Williams, 467 U.S. 431, 443 (1984). The exception represents an effort to

balance society’s interest “in deterring unlawful police conduct and the public

interest in having juries receive all probative evidence of a crime.” Id. It


                                          4
endeavors to place the police in the same position that they would have been in had

no illegal behavior occurred. Id. To apply the doctrine in the context of a warrant

issued based on illegally obtained information, the court must ask: (1) whether

there was probable cause without the tainted evidence, and (2) whether the officers

would have sought a warrant without having seen the tainted evidence. United

States v. Duran-Orozco, 192 F.3d 1277, 1281 (9th Cir. 1999).

      In this case, the magistrate judge and the district court properly found that

probable cause existed to search Washington’s residence even if the firearms had

not been seized. If we excise the tainted evidence from the warrant application, the

following facts still support the warrant’s issuance: (1) the 911 call in which

Washington’s wife stated she was being held against her will by Washington and

that he was threatening her with two firearms; (2) Washington’s status as a felon;

and (3) Washington’s possession of four bullets, discovered during Officer

Humpherys’ lawful pat down, incident to arrest. This would have been sufficient

evidence on which to obtain the warrant to search Washington’s residence for

firearms.

      Washington’s main argument on appeal is that the magistrate judge, whose

Findings and Recommendations were adopted by the district court in full, made an

improper inferential leap by concluding that the firearms detectives who sought the

warrant would have come to Washington’s residence had the police officers not


                                          5
discovered the guns. He contends that there is a missing link in the evidence

because, although the officers testified that they would still have contacted their

sergeant to request firearms detectives to come to the home regardless of the guns’

seizure, there was no proof that the sergeant would have heeded that request in this

alternate scenario. Therefore, according to Washington, the government failed to

show that the detectives would have been present on the scene and able to request a

warrant absent the guns’ discovery.

      Contrary to Washington’s arguments, the magistrate judge’s and the district

court’s finding on this factual issue was not clearly erroneous. The magistrate

judge credited the officers’ testimony that “they would have still contacted their

superiors and requested that detectives respond to the scene to investigate and

possibly seek a search warrant for firearms.” He further credited the detectives’

testimony that “absent the information that firearms had been discovered in the

apartment, they would have still gone to the apartment and would have applied for

a warrant to search the apartment for firearms.” The magistrate judge’s failure to

specifically state that the “superiors” would have heeded the officers’ request to

send detectives to the scene does not suffice to render his factual findings clearly

erroneous. Indeed, the magistrate judge engaged in a lengthy and well-reasoned

analysis in which he concluded that, notwithstanding the “self-serving” nature of




                                          6
the officers’ and detectives’ testimony, the testimony was credible and compelled a

finding that a warrant would have been sought regardless of the guns’ discovery.

      Due to the highly deferential nature of the clearly erroneous standard, which

we apply to findings of fact out of a recognition that the court hearing live

testimony “is in a superior position ‘to judge the accuracy of witnesses’

recollections and make credibility determinations,’” we affirm the district court’s

denial of Washington’s motion to suppress. United States v. Lang, 149 F.3d 1044,

1046 (9th Cir. 1998) (quoting United States v. McConney, 728 F.2d 1195, 1201

(9th Cir. 1984) (en banc)).

      AFFIRMED.




                                          7
