Naked Ninjas Caught Flushing Meth Should Object At Trial

UNITED STATES v. NEWMAN, USCA-5 No. 20603, 2006 U.S.App. LEXIS 29813, appeal from USDC-TXSD, before Circuit Judges King, Garza, and Owen, opinion by Garza, filed 05 Dec 2006.

LONG STORY SHORT: Though the suspicious activity that officers saw in plain view might have set up a close question of probable cause, Defendant did not raise the issue at trial, severely limiting the appellate court's ability to correct any error. Binding in LA, MS, TX.

FACTS: DEA agents had a warrant to arrest George Nguyen and responded to a house he frequented and near which his rental car was parked. The agents knew he did not own the house and they had no probable cause to enter it with only an arrest warrant, so they surveilled the house for two hours hoping he would exit. Finally, ten agents overtly carrying raid gear and weapons walked up to the house to try a knock-and-talk. When they were fifteen to twenty feet away, a man burst open the front door, leaving it partially ajar, and ran off, but three agents detained him after he had scrambled over a six-foot fence. The others knocked on the door frame and yelled "Police. DEA. George Nguyen, we've got a warrant for you."

While outside, the agents saw someone moving behind a curtain and also a security camera monitor showing their vehicles outside. The agents entered the house, observed throwing stars and nunchaku on the table, ran upstairs to the sound of running water, and caught Defendant naked in the shower, trying to wash crystal methamphetamine down the drain. Agents arrested him on the spot for drug possession and Mirandized him. Defendant owned the house and consented to search. Agents found more "martial arts" weapons in the kitchen, George Nguyen in the basement, a shotgun under the couch cushions, and a pistol under Defendant's mattress.

PROCEDURE: The United States indicted Defendant for possessing firearms while a convicted felon. He moved to suppress the firearms on grounds that the agents had time to get a warrant but did not do so. SUPPRESSION DENIED. At trial, a jury convicted Defendant as charged. He appealed the denial of suppression on grounds that police did not have probable cause to believe there was contraband or illegal activity in his house, and no exigent circumstances justified the warrantless entry, or if there were exigent circumstances, the government manufactured them.

DECISION: Because Defendant did not bring up the lack of probable cause at trial, review on appeal was limited to the very tough "plain error" standard. Agents knew that a drug dealer frequented the house and his car was parked nearby; they knew a security camera had caught their approach; somebody ran out of the house and over a tall fence; and suspicious movement was in plain view. Put together, these four facts might have been a close question of probable cause, had Defendant argued them in his motion. Since he did not, no error was plain.

In plain view, officers saw a man excited enough to run away and jump fences, and secretive movement behind a curtain, and a surveillance system watching them. These facts, coupled with common knowledge that drug dealers often keep weapons, inspired reasonable concern for officer safety. The agents were trying a perfectly legitimate knock-and-talk when these observations came into plain view and had no obligation to stop their actions and go get a warrant. The fence jumper, not illegitimate government activity, was the key factor in establishing exigency. Suppression denial, and subsequent conviction, AFFIRMED in all respects.

EDITORIAL: Let's see ... shotgun under the cushions ... throwing stars ... numchucks ... you might be a redneck if. All that's missing are Chinese thumb cuffs and Kung Fu Season 1 on DVD. Glad they didn't break out anything that could actually hurt anybody. Naked Ninja's attempted liquidation of assets was not entirely off-base, since methamphetamine hydrochloride is indeed water-soluble, but why the frontal nudity? Well, maybe we don't want to know. Anyway, when you don't like something the police did, you have to tell the trial court first. If you don't keep the toothpaste in the tube, then the appellate lawyer probably won't be able to cram it back in. Nevertheless, given Mr. Hurdles, Candid Camera, and the if-I-can't-see-them-they-can't-see-me bonehead rustling the drapes, I don't think it would have worked to argue lack of probable cause, not in the Fifth Circuit. That means the inevitable ineffective assistance of counsel is not going to habeas his corpus either, thank goodness.