NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. KEVIN BAIRES-REYES,

Defendant-Appellant. No. 16-10545 D.C. No. 3:15-cr-00122-EMC-2

MEMORANDUM *

Appeal fromthe United States District Court for the Northern District of California Edward M. Chen, District Judge, Presiding Argued and Subm itted July 13, 2018 San Francisco, California Before: HAWKINS, BEA, and HURWITZ, Circuit Judges. Kevin Baires-Reyes was convicted and sentenced in federal c ourt for robbery and firearm s crim es after he was arrested as one of two suspects who robbed a Quick Pick Market in Daly City. He appeals his ju dg ment and sentence. Because we determine that the district court plainly erred by admitting certain evidence obtained 

# FILED
SEP 25 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.in violation o f Baires-Reyes’s Fourth Am endm ent rights, we reverse his conviction

and rem and. As Baires-Reyes argued below, the officers here ex ceed ed th e s co p e o f th e custom ary license to “encroach upon the curtilage of a hom e for the purpose of asking questions of the occupants,” United States v. Perea-Rey , 680 F.3d 1179, 1187 (9th Cir. 2012) (internal ci t ati on an d quotation m arks om itted), by knocking on the door at 4:00 a.m . without a warrant, and thus the “knock and talk” exception to the warrant requirem ent did not apply, United States v. Lundin , 817 F.3d 1151, 1158-60 (9th Cir. 2016) (“[U] nexpected visitors are custom arily expected to knock on the front door of

a hom e only during norm al w aking hours.”). As such, even if the owner of the hom e consented to the officers’ entry, this consent was wrongfully obtained, as was any evidence viewed by the officers while in the hom e without a warrant. The district court, however, denied Baires-Reyes’s m otion to exclude all evidence obtained from the hom e, concluding that the evidence was lawfully obtained through an independent source when the officers left, obtained a warrant, and returned to the hom e around noon. O n appeal, Baires-Reyes concedes that m any of the item s

so obtained, such as the handgun, bottle of Hennessy, and C incinnati Reds cap, were properly admitted pursuant to this do ctri n e. However, because he was no longer present on the property when the o f f i cer s returned with the warrant (having been
2arr es ted and taken to the police station by that point), he c ontends that four cri t i cal

pieces of evidence linking him to the crim e were no longer available or observable by officers executing the warrant and thus c ould not be j u s t i f ied by the independent source doctrine: (1) the observation of the three suspects asleep in the room together; (2) the observation of the clothes Baires-Reyes was wearing when arrested; (3) the seizure of those clothes; and (4) the DNA swab taken upon his arrest. Baires-Reyes did not m ake this argum ent in response to the governm ent’s independent source argum ent below, 1 and he conceded at oral argum ent that it should be reviewed for plain error. 2 B ut, we find that the Fourth Amen dm ent violation is clear under Lundin

. Further, th e i ndependent source doctrine permits only the introduction of evidence actually acquired through a separate and lawful m eans, see

1 Because Baires-Reyes’s m otion to suppress presented the district court with the overarching issue of whether all th e seized evidence was admissible through independent source, Baires-Reyes preserved this issue for a ppeal; his failure to rebut the governm ent’s independent source argum ent below, with respect to this narrower subset of evidence, does not forfeit objection on appeal.

2 Under plain error review, the defend ant mu st establish that “(1) there is an error; (2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected [defendant' s] substantial rights, which in the ordinary case m eans it affected the outcom e of the district-court proceedings; an d (4) the error seriously affected the fairness, integrity, or public reputation of judicial proceedings.” United States v. Walter-Eze , 869 F.3d 891, 911 (9th Cir. 2017) (internal quotation and citation omitted and alteration in original). 3M

u rra y v. Un ited States , 487 U.S. 533, 537–38 (1988). It is also apparent that the specific item s or observations now objected to by B aire s-Reyes were obtained through the officers’ unlawful presence in the hom e without a w arrant, and not from the laterexecuted warrant. The governm ent argues that this evidence could still be admi tted under the inevitable discovery doctrine. However, as we held in Lu n din , “[t] he inevitable discovery exception does not apply when officers have probable cause to a pply for a warrant but sim

ply fail to do so.” 817 F.3d at 1161. The district court here found that

even without the additional evidence obtained through entry into the hom e, the officers had probable cause for a warrant for suspect Flores-Ayar. Ho wever, they intentionally chose not to obtain one: “We would have to wake up the on-call judge after writing the warrant, driving to wherever they’re located—wh ich could be

som ewhere in the southern part o f S an Mateo C ounty to get the order signed—and then returning.” “[T] o excuse the failure to obtain a warrant mer el y b ecause the officers had probable cause and co uld have inevitably obtained a warrant would

com pletely obviate the warrant requirem ent of the fourth am endm ent.” United States

4v. Young , 573 F.3d 711, 723 (9th Cir. 2009) (quoting United States v. Echegoyen , 799

F.2d 1271, 1280 n.7 (9th Cir. 1986)). 3 A dmission of t

he officers’ observations of Baires-Reyes asleep in the room w ith the other robbery suspect and near the spoils of the robbery, wearing clothes identical t o those worn by the second robber in the surveillance tape, w as undoubtedly prejudicial and affected his substantial ri ght s . Indeed, the police had no m eans of

even identifying Baires-Reyes as the second suspect until they entered the hom e and found him sleeping there; thus they would have had no reason to arrest him or obtain the DNA s wab from him without this im properly-obtained evidence. The observations m ade by the police at the tim e of the warrantless entry were repeatedly referred to and em

phasized throughout the trial and affected the fundam ental fairness of the proceeding.

3 In any event, it is not “inevitable” that the officers would have found the sam e evidence and m ade the sam e incriminating obs erv ati o ns of Baires-Reyes that they did during the unlawful entry at 4 : 0 0 a.m . It is certainly not inevitable that Baires-Reyes would have been wearing the sam e clothes as the suspect in the robbery and sleeping near the spoils of the robbery if the officers obtained a warrant and returned later in the day. By daylight or before leaving the apartm ent, Baires-Reyes could have awoken, changed clothes, or even disposed of clothing or other evidence from the robbery. See Young , 573 F.3d at 722-23 ( noting that “nothing m ore than speculation

. . . support[ed] the d i sco v ery of the challenged evidence outside the im proper search”); see also United States v. B oatwright , 822 F.2d 862, 865 (9th Cir. 1987) (“[Defendant] would not have w aited patiently beside his w eapons for an agent to arrive with a warrant.”). 5For these reasons, we reverse Baires-Reyes’s conviction and rem and.

REVERSED AND REMANDED.

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