Opinion
CR-05-1297-PHX-DGC.
August 21, 2006
ORDER
Defendants Mary Ann and Ray Harris are charged with harboring or concealing a person from arrest in violation of 18 U.S.C. § 1071. Trial is scheduled to begin on August 22, 2006. A Final Pretrial Conference was held on August 17, 2006.
During the conference, the Government made clear its contention that the Harrises violated § 1071 by making false statements to law enforcement personnel. Defense counsel argued that false statements alone cannot constitute harboring or concealing within the meaning of the statute, citing United States v. Foy, 416 F.2d 940 (7th Cir. 1969). Counsel for the Government was not familiar with Foy, but conceded that the charges against the Harrises must be dismissed if false statements alone are not sufficient. After further research, the Court concludes that this action must be dismissed.
I. Facts.
On November 5, 2005, United States deputy marshals and ICE agents were assigned to locate and arrest Francisco Javier Briones-Lopez pursuant to a federal arrest warrant for drug possession and trafficking. Briones-Lopez was also the subject of a murder investigation and had been arrested for a weapons charge. Deputies received information that Briones-Lopez might be staying in apartment #2 of building 419 at an apartment complex on West Osborn Road in Phoenix, Arizona. On the day in question, deputies became aware that Briones-Lopez's vehicle was located at the apartment complex.
Deputy Marshal Albert Reble and others set up observation of the suspect's vehicle at approximately 4:00 p.m. Officers involved in the arrest attempt included deputy marshals, an ICE agent, and an officer from the Arizona Department of Public Safety. When Briones-Lopez approached his vehicle, the officers moved in to make the arrest. Briones-Lopez turned and ran into the apartment complex. Deputy Reble gave chase and saw Briones-Lopez run in the back door of apartment #2 in building 429. Reble also ran in the back door and, upon seeing the front door open, concluded that Briones-Lopez had run through the apartment. Deputy Reble continued his chase out the front door and saw the back door of apartment #2 in building 419 slam shut. This was the apartment deputies had identified as the location where Briones-Lopez might be staying.
Deputy Reble knocked on the front door of apartment #2 in building 419. A woman, speaking through the closed door, asked what he wanted. Reble stated that he was a deputy marshal and had a warrant for the arrest of the woman's son. The door opened, and Defendant Ray Harris emerged. Harris was identified by another officer as an individual who was seen running with Briones-Lopez. Harris was restrained for questioning. He admitted that he and Briones-Lopez were friends, but denied that Briones-Lopez was in the apartment. He claimed that Briones-Lopez had run in a different direction. When law enforcement officers stated that Briones-Lopez might be armed and dangerous, Harris vomited. Harris was permitted to re-enter the apartment to change his shirt. He emerged a few moments later in a clean shirt and remained outside the apartment for the remainder of the events in question.
This statement was incorrect. Based on comments from occupants near building 429, Deputy Reble assumed the woman's voice was that of Briones-Lopez's mother. Instead, it was the voice of Defendant Mary Ann Harris, the mother of Defendant Ray Harris.
Defendant Mary Ann Harris also exited the apartment. She informed the officers that she would not permit them to enter her apartment without a warrant. She denied that Briones-Lopez was in the apartment, stating that she and another son (her 16 year old son, Charles) were the only individuals in the apartment.
The law enforcement officers did not have a warrant to search Ms. Harris' apartment. They did have a warrant for the arrest of Briones-Lopez, but that warrant did not authorize entry into the apartment. See Steagald v. United States, 451 U.S. 204 (1981) (absent search warrant or other justifying circumstances, police may not enter a third party's home to search for the subject of an arrest warrant).
By this time, Phoenix police officers had arrived at the scene and Deputy Reble concluded that it was best for police to control the situation. He and other agents informed the police that Briones-Lopez was in apartment #2 in building 419, that he might be armed, that there was a federal warrant for his arrest. They also informed the police that Mary Ann Harris and at least one other individual were in the apartment. The deputy marshals and police discussed obtaining a search warrant for the apartment and agreed that the warrant should be obtained by the ICE agent responsible for the case. Because the agent was then en route from Yuma to Phoenix, efforts to obtain the warrant were not undertaken.
More than 20 Phoenix police officers reported to the scene and surrounded the apartment. A negotiator from the police department made telephone contact with Mary Ann Harris, who had re-entered the apartment. Ms. Harris stated that she would not permit entry into her apartment without a warrant. After some conversation, Ms. Harris' boyfriend arrived at the scene and police officers decided to have him speak with Ms. Harris. After doing so, the boyfriend reported that Ms. Harris had agreed to come out of the apartment.
The police set up to receive Ms. Harris and her son when they exited the apartment, but they did not appear. When the police negotiator made phone contact with her again, she said she would talk no further and hung up. She thereafter refused to answer the phone.
At this point, the police became concerned for the safety of Ms. Harris and her son. Their concern was based on a change in circumstances — the fact that Ms. Harris had been communicating with police negotiators and had told her boyfriend that she would leave the apartment, but then failed to appear and stopped communicating. Police were concerned that she might be under the restraint of Briones-Lopez. As a result, police decided to enter the apartment. They fired a series of rubber batons at the front door to simulate a knock. Police heard Ms. Harris yell in response, in an angry tone, but could not make out her words. Police then attempted to communicate with Ms. Harris using a bull horn, urging her to answer the phone. She again yelled back in response, but police could not understand what she said. She did not answer the phone. Police also used the bull horn to tell Briones-Lopez to exit the apartment, without response. The police then shut off electrical power to the apartment. Ms. Harris opened the back door, yelled for police to turn the power back on, and closed the door. Police attempted further communications by bull horn, without success.
Police then breached the front door of the apartment and Ms. Harris and Charles came out. Ms. Harris said nobody else was in the apartment; Charles disagreed. Because police could not confirm whether any other persons were in the apartment, they entered the front room and set up to clear the rest of the residence. While securing the front room, police found Briones-Lopez hiding under a sofa. The bottom of the sofa had been cut away so a man could lay beneath it. No other occupants were found in the apartment.
The Court previously held that police entry into the apartment was justified by exigent circumstances and therefore did not violate the Fourth Amendment. Doc. #34.
II. Discussion.
During the Final Pretrial Conference, counsel for all parties agreed that the charges against Defendants cannot be based on Ms. Harris' refusal to let officers enter her apartment without a warrant. The Ninth Circuit has confirmed this point:
When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. When, on the other hand, the officer demands entry but presents no warrant, there is a presumption that the officer has no right to enter, because it is only in certain carefully defined circumstances that lack of a warrant is excused. An occupant can act on that presumption and refuse admission. He need not try to ascertain whether, in a particular case, the absence of a warrant is excused. He is not required to surrender his Fourth Amendment protection on the say-so of the officer. The Amendment gives him a constitutional right to refuse to consent to entry and search. His asserting it cannot be a crime[.] Nor can it be evidence of a crime.United States v. Prescott, 582 F.2d 1343, 1350-51 (9th Cir. 1978) (citations and quotations omitted). The Ninth Circuit also holds that evidence of a defendant's refusal to permit entry may not be presented at trial, even if done with a limiting instruction and for the sole purpose of putting other facts in context. Id. at 1352-53. Nor may the Government show that it forced entry into the apartment, a fact that necessarily would imply that the defendant refused to grant entry. Id. Thus, if this case were to proceed to trial, the Government could not present evidence of Ms. Harris' refusal to grant entry to her apartment, nor that officers eventually entered the apartment against her wishes.
Counsel for the Government agreed during the Final Pretrial Conference that Defendants cannot be convicted on the basis of Ms. Harris' assertion of her Fourth Amendment rights. Counsel stated that the sole basis for Defendants' criminal liability are their false statements to the officers. Research completed by the Court since the Final Pretrial Conference has confirmed, however, that false statements alone cannot violate § 1071. In United States v. Magness, 456 F.2d 976, 978 (9th Cir. 1972), the Ninth Circuit explained that "[t]he conduct proscribed by 18 U.S.C. § 1071 is harboring or concealing a person for whose arrest a warrant or process has been issued[.]" The Ninth Circuit then held that "a false statement, standing alone, . . . could not constitute the active conduct of hiding or secreting contemplated by the statute." Id. In support of this holding, the Ninth Circuit cited the Foy case mentioned during the Final Pretrial Conference by defense counsel. Id. Subsequent Ninth Circuit cases have confirmed that "[f]alse statements to police . . . do not lie within the scope of the statute." United States v. Yarbrough, 852 F.2d 1522, 1543 (9th Cir. 1988); see Prescott, 581 F.2d at 1353.
During the Final Pretrial Conference, the Court invited the parties to submit additional case law or argument concerning this issue. In response, the Government submitted a short supplemental memorandum calling the Court's attention to United States v. Hill, 257 F.3d 116 (9th Cir. 2001). Without elaboration, the Government quoted the following statement from Hill: "[A]ny physical act of providing assistance, including food, shelter, and other assistance to aid the [fugitive] in avoiding detection and apprehension will make out a violation of section 1071." 257 F.3d at 1120 (quoting Yarbrough, 852 F.2d at 1543).
The Government identified this case as United States v. King, but the correct title is United States v. Hill. See 257 F.3d at 116.
The Hill opinion cited by the Government has been withdrawn by the Ninth Circuit, see 268 F.3d 1140, but the language quoted in the Government's memorandum constitutes a correct statement of the law, see Yarbrough, 852 F.2d at 1543. Even so, the statement does not apply here. The Government's memorandum does not change the position taken by the Government at the Final Pretrial Conference — that this case is based entirely on false statements. Because the Government has not contended that there is evidence of a "physical act of providing assistance" in this case, the quoted language is inapposite.
Some might contend that the presence of Briones-Lopez in the apartment for approximately two hours while Ms. Harris refused entry and demanded a warrant constitutes the kind of "physical assistance" sufficient for conviction, but the Court has difficulty distinguishing his presence in the apartment during this period from Ms. Harris' exercise of her Fourth Amendment rights. Assuming, hypothetically, that Ms. Harris had done nothing more than demand a warrant, and that it had taken officers two hours to obtain a warrant and gain entry to her apartment, the Court could not hold that Ms. Harris violated § 1071 by the presence of Briones-Lopez in her apartment for the two hours. The Ninth Circuit has held that "passive refusal to consent to a warrantless search is privileged conduct which cannot be considered as evidence of criminal wrongdoing. If the government could use such a refusal against the citizen, an unfair and impermissible burden would be placed upon the assertion of a constitutional right and future consents would not be freely and voluntarily given." Prescott, 581 F.2d at 1351 (quotation omitted). In this case, the only conduct engaged in by Defendants in addition to Ms. Harris' assertion of her Fourth Amendment rights are the false statements made by Defendants to the officers. The Government has conceded this fact and has identified no other evidence that Defendants provided Briones-Lopez with physical assistance in avoiding detection by officers.
The Government conceded at the Final Pretrial Conference that it has no evidence that Defendants assisted Briones-Lopez in concealing himself under the couch in the apartment.
The Government's supplemental filing also cites United States v. Donaldson, 793 F.2d 498 (2d Cir. 1986). Although the facts are somewhat similar, Donaldson did not address the question of whether false statements alone can constitute a violation of § 1071. Donaldson held primarily that the officers in question were justified in entering Donaldson's apartment. Id. at 502-503. The case also held that evidence of the defendant's exercise of his Fourth Amendment rights was admissible at trial, id. at 503, a result directly contrary to the Ninth Circuit's holding in Prescott. Donaldson thus provides no basis for concluding that this case should proceed to trial.
Because false statements alone cannot violate § 1071 under Magness, and Defendant's other actions are privileged and inadmissible under Prescott, the charges against Defendants must be dismissed.
IT IS ORDERED that the charges against Defendants Mary Ann Harris and Ray Harris are dismissed with prejudice. The Clerk is directed to terminate this action.