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United States v. Kiba

filed: January 8, 1992.

UNITED STATES OF AMERICA PLAINTIFF-APPELLEE,
v.
KATHLEEN REBECCA KIBA DEFENDANT-APPELLANT. UNITED STATES OF AMERICA PLAINTIFF-APPELLEE, V. STEPHEN GEORGE KIBA DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Southern District of California. Judith N. Keep, District Judge, Presiding. DC No. CR-89-1131-05-K, DC No. CR-89-1131-04-K

Before: Browning, Boochever, and Reinhardt, Circuit Judges.

MEMORANDUM

Kathleen Rebecca Kiba and Stephen George Kiba appeal their convictions and sentences for conspiracy to manufacture methamphetamine. We AFFIRM in part and REMAND in part.

BACKGROUND

On October 30, 1989, the Drug Enforcement Administration (DEA) arranged a controlled buy of methamphetamine between an agent and co-defendant Richard Gold (aka Steven Anderson) in Pacific Beach, San Diego. When DEA agents proceeded to arrest him, Gold attempted to flee and to shoot an agent with a handgun. During the pursuit, DEA agents fired shots. Shortly thereafter, the news media arrived on the scene. DEA agents apprehended Gold and seized a loaded handgun and several pounds of methamphetamine. Concerned that the news media would broadcast the event, DEA agents went to Gold's house and conducted a search, based upon the consent of Michael Clapp, Gold's roommate. They seized approximately two pounds of methamphetamine, chemicals and equipment used in the manufacture of methamphetamine, and another firearm. During the search, co-defendant William Chambers arrived at Gold's house to deliver one pound of "wet" methamphetamine. After his arrest, Chambers confessed to his involvement and admitted that he had just come from the laboratory site, which was located at the residence of Stephen and Kathleen Kiba.

Clapp and Chambers directed agents to the Kiba residence at 3862 Tiara Street, San Diego. Chambers told the agents that people were at the residence when he left. When DEA agents arrived at the laboratory site, the house lights were on and the blinds were drawn. Agent Powers knocked on the back screen door and announced his presence but did not receive a response. In the back of the residence, he saw an activated fan, smelt odors associated with the manufacture of methamphetamine and saw some parts of the laboratory equipment. DEA agents entered the residence and conducted a protective sweep. They found a laboratory in the patio area but did not find anyone in the house. Thereafter, the agents obtained and executed a telephonic search warrant.

The search of the residence, the patio and the garage led to the seizure of chemicals and notes relating to the manufacture and distribution of methamphetamine. Agents found documents indicating dominion and control of the premises by Stephen and Kathleen Kiba, along with packets of methamphetamine. They also found a .38 caliber revolver, a .410 shotgun, and magazine clips and ammunition for an AK-47 assault rifle. Kathleen and Stephen Kiba were arrested on November 1, 1989 in Ocean Beach, San Diego. On September 7, 1990, a jury found the Kibas guilty of conspiracy to manufacture methamphetamine with intent to distribute. The district court sentenced both Kathleen and Stephen Kiba to 188 months imprisonment,*fn1 followed by five years supervised release.

Kathleen and Stephen Kiba seek reversal of their convictions, claiming the protective sweep of their Tiara Street residence was not justified by exigent circumstances. Kathleen Kiba also claims that the evidence was insufficient to support her conviction. In the alternative, they both appeal the district court's enhancement of their base offense level for firearm possession. In addition, Kathleen Kiba challenges the district court's denial of a reduction in her base offense level for acceptance of responsibility and its refusal to depart downward in imposing sentence.

Discussion

I. Protective Sweep

We uphold the district court's findings of fact at a suppression hearing unless they are clearly erroneous. We review de novo the ultimate issue of whether exigent circumstances justify a warrantless entry and/or search. United States v. Echegoyen, 799 F.2d 1271, 1277-78 (9th Cir. 1986). We have defined exigent circumstances

as those circumstances that would cause a reasonable person to believe that entry (or other relevant prompt action) was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.

United States v. McConney, 728 F.2d 1195, 1199 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984).

Our review of the record reveals ample evidence to justify the district court's finding of exigent circumstances. DEA agents were concerned about the arrival of the television news crew on the scene of Gold's arrest. The possible broadcast of the event could have alerted other potential defendants of police activity and would have frustrated DEA agents' efforts to apprehend other members of the ...


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