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United States v. Barnes

United States Court of Appeals, Ninth Circuit

July 19, 2018

United States of America, Plaintiff-Appellee,
Travis Shane Barnes, Defendant-Appellant.

          Submitted February 9, 2018 [*] Seattle, Washington

          Appeal from the United States District Court for the Eastern District of Washington Lonny R. Suko, District Judge, Presiding D.C. No. 1:15-cr-02061-LRS-1

          Nicolas V. Vieth, Vieth Law Offices Chtd., Coeur d'Alene, Idaho, for Defendant-Appellant.

          Thomas J. Hanlon, Assistant United States Attorney; Joseph H. Harrington, United States Attorney; United States Attorney's Office, Yakima, Washington; for Plaintiff-Appellee.

          Before: Ronald M. Gould, Richard A. Paez, and Morgan Christen, Circuit Judges.

         SUMMARY [**]

         Criminal Law

         The panel affirmed a conviction for being a felon in possession of a firearm, in a case in which the defendant argued that the district court erred (1) by denying his motion to suppress evidence based on an allegedly invalid arrest warrant and (2) by precluding the defendant from presenting a necessity defense.

         The panel held that the district court's finding that the municipal judge who signed the defendant's arrest warrant must have reviewed the underlying citation as part of her "ordinary course of business" was clearly erroneous, where there is no record evidence that the municipal court judge either received or read a copy of the citation prior to her finding of probable cause. The panel therefore concluded that the warrant for the defendant's arrest for the underlying trip permit violation was inexcusably infirm and that the defendant therefore satisfied his burden of showing judicial abandonment by a preponderance of the evidence.

         The panel held that the good faith exception to the exclusionary rule applies unless a defendant can show that the issuing judge abandoned his or her role and that the law enforcement officer knew or should have known of such abandonment. The panel concluded that although the defendant met his burden of showing judicial abandonment, the evidence cannot be suppressed because the officers executing the infirm warrant were unaware-and had no reason to be aware-of any judicial misconduct.

         The panel held that the district court did not err in denying the defendant's request to present a necessity defense to the jury.


          PAEZ, Circuit Judge

         Travis Barnes appeals his conviction under 18 U.S.C. § 922 for being a felon in possession of a firearm. He argues that the district court erred in two respects: first, by denying his motion to suppress evidence based on an allegedly invalid arrest warrant; and second, by precluding him from presenting a necessity defense at trial. We have jurisdiction under 28 U.S.C § 1291, and we affirm.

         Although the underlying warrant for Barnes's arrest was the product of judicial abandonment, we apply the good faith exception to the exclusionary rule and affirm the district court's denial of his motion to suppress evidence. We also conclude that the district court properly barred Barnes's necessity defense because he failed to adequately demonstrate that he took possession of the gun in response to an imminent threat of death or bodily injury.


         On August 17, 2015, a Yakima Police Department ("YPD") officer told fellow Officers Thomas Tovar and J. Cordova to keep an eye out during patrol for two wanted men in the area, Travis Barnes and his son Raymond Barnes ("Raymond"). Officers Tovar and Cordova consulted their mobile data terminal, confirmed that there were outstanding warrants for both men, and viewed several photographs of Barnes and his son to get a sense of their general appearance. A little over half an hour later, the officers saw Barnes walking along a street, having recognized him by his distinctive neck tattoo. Officer Tovar exited his vehicle and informed Barnes that there was a warrant for his arrest. Although Barnes was initially cooperative and complied with Officer Tovar's request to put his hands behind his back, he took off running after he was mistakenly informed by Officer Cordova that he was wanted on a "DOC felony warrant." In truth, the felony warrant was for his son, Raymond. There was, however, a misdemeanor bench warrant for Barnes that was based on his failure to appear for arraignment for an alleged trip permit violation[1] some six months earlier.

         The officers ordered Barnes to stop, to no effect, and gave chase. Deputy Marshal C. Smith, who was in the area investigating a robbery and had observed Barnes's interaction with Officers Tovar and Cordova, quickly realized that Barnes was running in his direction. Deputy Smith exited his vehicle and instructed Barnes to stop. When Barnes failed to comply, Deputy Smith tased him in the back, knocking Barnes down. Officers Tovar and Cordova caught up seconds later. Together, the officers handcuffed Barnes's hands behind his back and searched his person, eventually recovering a small .22 caliber, silver pistol from his front right pocket.

         Having previously been convicted of a felony, Barnes was arrested and taken into custody. He was subsequently charged in federal court with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Barnes filed a motion to suppress evidence before trial, arguing that his arrest was unlawful for a variety of reasons, only one of which he reasserts on appeal: that the arrest warrant for his failure to appear on the trip permit violation was not supported by probable cause.[2] The government responded to Barnes's motion to suppress evidence by including in its opposition a copy of the criminal complaint prepared by a city prosecutor for Barnes's alleged trip violation. The complaint, dated February 9, 2015, included a stamp where the reviewing judge had circled "Yes" to "Probable Cause" and signed with her initials on February 13, 2015. The government argued that the signed complaint evidenced that the misdemeanor arrest warrant was based on a valid judicial determination of probable cause.

         At an evidentiary hearing, the government called Melissa Blackledge, a Department Assistant for the Yakima Municipal Court Clerk's Office, to testify. Blackledge testified that although she was not normally involved in processing criminal complaints, she was familiar with the process. She explained that once the Yakima Municipal Court received a ticket or citation, a prosecutor would "send[] down a complaint" for a clerk to stamp with "probable cause" and "yes" and "no" responses. The reviewing judge would then circle either "yes" or "no" to probable cause, sign or initial her name, and send the complaint back to the clerk to print out a summons. Blackledge testified on cross-examination that although the prosecutor would forward the complaint for the judge's review, she never saw the prosecutors include a police report with the complaint. When asked whether the prosecutors would submit an affidavit with the complaint, Blackledge- who had been with the court for six and a half years- answered that she wasn't sure what an affidavit was and that she would "have ...

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