UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v.
CHERYL LYNN LITTLE DOG,

Defendant

- Appellant. No. 17

- 30010

D.C. No. 4:16

- cr

- 00009

- BMM

- 1 District of Montana, Great Falls

ORDER

Before: WARDLAW and OWENS, Circuit Judges, and LEFKOW, * District Judge.

Appellant ’s petition for panel rehearing is GRANTED . The memorandum

disposition filed on August 13, 2018, is withdrawn. A replacement memorandum

disposition is being filed concurrently with this order.

No further petitions for rehearing will be entertained in this case.

* The Honorable Joan Lefkow, United States Distric t Judge for the Northern District of Illinois, sitting by designation. 

# FILED

JAN 14 2019

MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL SNOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v.
CHERYL LYNN LITTLE DOG,

Defendant

- Appellant. No. 17

- 30010

D.C. No. 4:16

- cr

- 00009

- BMM

- 1

MEMORANDUM *

Appeal from the United States District Court for the District of Montana Brian M. Morris, District Judge, Presiding

Argued and Submitted July 12, 2018 Portland, Oregon

Before: WARDLAW and OWENS, Circuit Judges, and LEFKOW, ** District Judge.

Cheryl LittleDog 1 appeals from her convictions for harboring a fugitive (18

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable Joan H. Lefkow, United States District Judge for the Northern District of Illinois, sitting by designation.

1 Because LittleDog styles her name this way in her briefing on appeal, we adopt this formulation rather than “Little Dog” (as the name was styled in the district court). 

# FILED

JAN 14 2019

MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

U.S.C. § 1071) and making a false statement to federal law enforcement (18 U.S.C.

§ 1001(a)(2))
, arising from the discovery and capture of federal fugitive Frank

Gallardo in the crawl space of LittleDog ’s home . As the parties are familiar with

the facts, we do not recount them here. We reverse the district court’s order

denying LittleDog ’s motion to suppress evidence obtained during the two searches

of her house

. 2

1. “ A district court's denial of a motion to suppress is reviewed de novo,

while its factual finding s are reviewed for clear error. . . . Whether a person has

actual or apparent authority to consent to a search is a mixed question of law and

fact reviewed de novo.” United States v. Ruiz , 428 F.3d 877, 880 (9th Cir. 2005)

(internal citations omitted)

. The district court clearly erred in finding that

LittleDog consented to the search; thus, the first search of LittleDog’s home

violated the Fourth A mendment

. The government failed to satisfy its “heavy

burden of demonstrating that [LittleD og’s] consent was freely and voluntarily
given.” United States v. Chan

- Jimenez , 125 F.3d 1324, 1327 (9th Cir. 1997).

“T hat burden is heaviest when consent would b e inferred to enter and search a

home.” United States v. Shaibu , 920 F.2d 1423, 1426 (9th Cir. 1990). We have

identified five factors that tend to show a lack of voluntariness: “ (1) the person was

2 Accordingly, w e do not reach LittleDog’s other claims

. We grant LittleDog’s request for judicial notice.3

in custody; (2) the officer had his weapon drawn; (3) the officer failed to

administer Miranda warnings; (4) the officer did not inform the person of his right

to refuse to consent; and (5) the person was told that a search warrant could be

obtained .” Chan

- Jimenez , 125 F.3d at 1327

. The government need not “ch eck off
all five factors, but ‘many of this court’s decisions upholding consent as voluntary
are supported by at least several of the factors.’” United States v. Patayan Soriano
, 361 F.3d 494, 502 (9th Cir. 2004) ( quoting Chan

- Jimenez , 125 F.3d at 1327 n. 3.).

As an initial matter, LittleDog opened her front door after an officer

threatened to kick it in. See United States v. Winsor , 846 F.2d 1569, 1573 n.3 (9th

Cir. 1988) (en banc) ( holding that compliance with a police demand to open a door

is not consent as a matter of law ) ; see also Kentucky v. King , 563 U.S. 452, 471
(2011) ( describing , as a paradigmatic Fourth Amendment violation , a scenario

where officers “ announc[e] that they would break down the door if the occupants

did not open the door vol untarily”)

. When LittleDog opened the door, all three

officers had their weapons drawn

— a factor that indicates involuntariness

. See

Chan

- Jimenez , 125 F.3d at 1327. Further , the officers did not inform LittleDog

tha t she could withhold her consent

— which also indicates involuntariness

. See id.
Although the officers’ failure to inform LittleDog that she could withhold consent
“is not to be given controlling significance,” “it may be a factor in the overall
judgment.” United States v. Watson , 423 U.S. 411 , 424 (1976). The district court4

legally erred by deeming this factor neutral.

Moreover, e ven viewing the evidence in the light most favorable to the

government, only two factors weigh in its favor : (1) LittleDog was not in custody
, and (2) the officers never told LittleDog that they c ould obtain a search warrant if

she refused to consent. 3 See United States v. Kim , 25 F.3d 1426, 1432 (9th Cir.

1994). The government’s position is not “supported by at least several of the

factors.” Patayan Soriano , 361 F.3d at 502 (citation omitted).

T he district court clearly erred by concluding that LittleDog voluntarily

consented to the first search of her residence

. Even if LittleDog expressed her

consent to search her home, in light of the office rs’ threat to kick in her front door,

confronting her with drawn weapons, and failure to inform LittleDog she could
refuse consent, we conclude that the government failed to show that LittleDog’s

consent was freely and voluntarily given. See Chan

- Jimenez, 125 F.3d at 1327.

2. We review de novo the mixed question of fact and law whether evidence

derived from an illegal entry and search require s suppression. See United States v.

Washington , 387 F.3d 1060, 1071 n.11 (9th Cir. 2004). We hold that e vidence

obtained during both the first and second warrantless search es of LittleDog ’s home

3 To the extent the district court held that the third factor weighed in favor o f the government, it erred as a matter of law. At best, the officers’ failure to provide LittleDog with Miranda warning s is neutral because she was not under arrest. See United States v. Russell , 664 F.3d 1279, 128 1

– 8 2 (9th Cir. 2012).5

should be suppressed under the exclusionary rule as fruit of the poisonous tree

. Utah v. Streiff

, 136 S. Ct. 2056, 2061 (2016) (holding that the exclusionary rule
covers both “the primary evidence obtained as a direct result of an illegal search or

seizure,” and “evidence later discovered and found to be derivative of an
illegality”) . Here, t he officers’ reasons for the second s earch

— LittleDog’s
suspicious behavior and the officers’ failure to search the crawl space

— were
derived from the first illegal search. In addition, t he government failed to show

that an exception to the exclusionary rule applied. See id

. Each party s hall bear its own costs on appeal.

REVERSED AND REMANDED

.