                                                                              FILED
                            NOT FOR PUBLICATION                               NOV 30 2012

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-30026

               Plaintiff - Appellee,             D.C. No. 3:10-cr-00116-TMB-1

  v.
                                                 MEMORANDUM*
LEONARD ANDREW LAWSON,

               Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Alaska
                   Timothy M. Burgess, District Judge, Presiding

                      Argued and Submitted November 6, 2012
                               Seattle, Washington

Before:        W. FLETCHER and FISHER, Circuit Judges, and DEARIE, Senior
               District Judge.**




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The Honorable Raymond J. Dearie, Senior United States District
Judge for the Eastern District of New York, sitting by designation.
      Defendant-Appellant Leonard Lawson appeals his conviction for being a

felon in possession of a firearm. He argues that the firearm was discovered in the

course of an unlawful search and should have been suppressed.

      Seizure of evidence in a home is improper under the Fourth Amendment

“unless the initial entry is lawful, either pursuant to a valid warrant or under one of

the recognized exceptions to the warrant requirement.” United States v. Hotal, 143

F.3d 1223, 1228 (9th Cir. 1998). Here, the police did not comply with the

conditions of the warrant. The warrant allowed entry into a dwelling to retrieve a

controlled package containing mostly sham narcotics under three circumstances:

(1) if the electronic transmitter emitted a continuous tone indicating the box had

been opened; (2) if the electronic transmitter failed to transmit; or (3) if two hours

had elapsed after delivery with no change in the transmitter. It is undisputed that

circumstances (1) and (3) did not exist. The only circumstance at issue is (2). The

electronic transmitter never failed to transmit. Instead, it prematurely emitted the

continuous tone indicating the box had been opened, beginning before the box left

police custody. Because none of the three circumstances specified in the warrant

existed, the district court erred when it determined that entry was based on the

warrant.




                                           2
      The district court also erred when it determined, in the alternative, that the

police lawfully made warrantless entry into Lawson’s residence due to exigent

circumstances. “Exigent circumstances justify a warrantless entry, search, or

seizure when police officers, acting on probable cause and in good faith,

reasonably believe from the totality of the circumstances that . . . evidence or

contraband will imminently be destroyed . . . .” United States v. Ojeda, 276 F.3d

486, 488 (9th Cir. 2002) (internal quotation marks omitted) (quoting United States

v. Kunkler, 679 F.2d 187, 191-92 (9th Cir. 1982) (footnote omitted)). “The

government bears the burden of showing specific and articulable facts to justify the

finding of exigent circumstances.” Ojeda, 276 F.3d at 488.

      Exigent circumstances were not present here. Because the electronic

transmitter continued to transmit a signal, the police could track the box throughout

the operation. The person who had collected the box at the first dwelling had left

the second dwelling and had already been arrested when police made entry into the

second dwelling. No facts indicated that essential evidence would imminently be

destroyed. Most of the drugs that had been in the box had been removed by police

and replaced with sham substances before the box was delivered. The government

has not shown that a replacement warrant could not have been obtained fairly

quickly. See United States v. Howard, 828 F.2d 552, 555 (9th Cir. 1987).


                                          3
      The firearm was seized during an unlawful search and should have been

suppressed. We VACATE the conviction and REMAND to the district court for

further proceedings.




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