The opinion of the court was delivered by: United States District Judge Stephen V. Wilson
ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the petition, records on file, and the Report and Recommendation of the United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report to which Petitioner has objected. The Court accepts the findings and recommendation of the Magistrate Judge.
In Ground Two, Petitioner alleged his trial counsel was ineffective for failing to move to suppress his confession because Petitioner was arrested without a warrant. (Petition at 10-12.) Petitioner argues his subsequent confession was inadmissible because it was "obtained by exploitation of an illegal arrest." (Reply at 14-15.)
Petitioner was arrested at his mother's and brother's (Joe Moore's) home. (Report at 35.) The Report assumed Petitioner was arrested without a warrant. (Id. at 32 n.18.) According to the police, Joe Moore invited them into the house where they found Petitioner. (Id. at 35.) The Report found the police had probable cause to arrest petitioner and, therefore, Petitioner's counsel could not have been deficient for not making a meritless motion to suppress Petitioner's confession. (Id. at 36.)*fn1
Petitioner argues that a declaration signed by his brother on September 26, 2007, three and a half years after Petitioner was convicted, contradicts the police report of what happened. (Objections at 3.) According to Joe Moore, he never gave permission for the police to enter the house. (Petition, Ex. A.)
Even assuming the police lacked consent, as long as the police had probable cause to arrest Petitioner, his subsequent confession would not be excluded. See New York v. Harris, 495 U.S. 14, 19, 110 S. Ct. 1640, 109 L. Ed. 2d 13 (1990). In Harris, the police went to Harris' apartment and knocked on the door. Id. at 15. Harris let them in. Id. Inside the house, Harris waived his rights and confessed to the crime. Id. at 16. Harris was arrested, taken to the police station, again informed of his rights, and signed a confession. Id. The issue was whether the statement signed by Harris at the police station violated his Fourth Amendment rights. Id. (citing Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1981), "which held that the Fourth Amendment prohibits the police from effecting a warrantless and nonconsensual search into a suspect's home in order to make a routine felony arrest."). The Harris court accepted the lower court's finding that "Harris did not consent to the police officers' entry into his home" and its conclusion that the police had probable cause to arrest him. Id. at 17. The court held that the exclusionary rule did not apply "in this context because the rule in Payton was designed to protect the physical integrity of the home; it was not intended to grant criminal suspects, like Harris, protection for statements made outside their premises where the police have probable cause to arrest the suspect for committing a crime." Id.; see also United States v. Crawford, 372 F.3d 1048, 1056 (9th Cir. 2004) ("After Harris, the presence of probable cause to arrest has proved dispositive when deciding whether the exclusionary rule applies to evidence or statements obtained after the defendant is placed in custody.").
Accordingly, Petitioner's objection is overruled. Petitioner's remaining objections are without merits.
IT IS ORDERED that judgment be entered denying the petition and dismissing this ...