Beginning with United States v. Perkins, --- F.3d ---, Case No. 15-30035 (9th Cr.2017), this is a CP case in which the Court reversed the district court’s denial of a motion to suppress evidence obtained from the defendant’s computers pursuant to a search warrant and vacated the defendant's conviction.
This is a rare case where the Court determined the investigating agent intentionally or recklessly misled the magistrate who issued the warrant.
The agent omitted the fact that Canadian agents who first found the images that ultimately led to the warrant concluded they were not of a sexual nature and thus not illegal. According to the Court, "[t]hese omissions reveal a clear, intentional pattern in Agent Ensley’s actions: he selectively included information bolstering probable cause, while omitting information that did not. We have recognized that an affiant can mislead a magistrate “[b]y reporting less than the total story, [thereby] . . . manipulat[ing] the inferences a magistrate will draw.”
The Court determined, "[b]y providing an incomplete and misleading recitation of the facts and withholding the images, Agent Ensley effectively usurped the magistrate’s duty to conduct an
independent evaluation of probable cause."
The Court further concluded that, once corrected, the warrant would not establish probable cause. In reaching this conclusion, the Court explained that the defendant's prior criminal history, which included a child molestation conviction, had only marginal relevance. Finally, the Court held that the images themselves were not sufficient to establish probable cause: “In short, a warrant application explaining that an individual with two 20-year-old convictions was in legal possession of two non-pornographic images while traveling through Canada is insufficient to support probable cause to search his home computers in Washington for child pornography”
Note: this was a 2-1 decision.
Moving on, the next two cases come from the Southern District of California.
In UnitedStates v. Rodriguez, --- F.3d ---, Case No. 15-50096 (9th Cir. 2017), the Court vacated the defendant’s sentence – which was enhanced under 21 USC 851 – because the district court failed to comply with the statutory procedures. Specifically, the district court failed to comply with 851(b), which requires the court address the defendant personally, inquire if he or she denies the alleged convictions, and inform him or her that any challenges not brought will be waived. On the specific facts here -- some confusion as to whether the defendant disputed convictions, and added confusion over the proper standard to apply in ruling on the 851 (beyond a reasonable doubt) -- the Court could not say the error was harmless.
This is an important case to read whenever you have an 851 enhancement looming.
The Court also discussed an important area of Fourth Amendment law, how a district court should evaluate a wiretap warrant approved by a different district court judge. It held: a reviewing district court judge should apply the Ninth Circuit’s two-step approach: (1) review de novo whether the application for a wiretap contains a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or be too dangerous; and (2) if the application meets those requirements, review for abuse of discretion the issuing judge’s conclusion that the wiretap was necessary.
There is also a lengthy discussion of the necessity requirement.
Finally, in United States v. Job, --- F.3d ---, Case No. 14-50472 (9th Cir.2017), the Court vacated one of the defendant’s convictions and his sentence in a meth conspiracy case.
The Court found the district court erred in denying the defendant’s motion to suppress evidence found during searches of his person, car, and home solely on the basis that the defendant, who was on probation for a nonviolent offense, was subject to a Fourth Amendment search waiver at the time of the searches.
Because the police did not learn of the Fourth Waiver until after the searches, it could not support them. On this point, the Court explained, “A Fourth Amendment search waiver cannot provide a justification for a search of a probationer where the officers were unaware of the waiver before they undertook the search.”
Further, the Court explained that its decision in King, which allowed certain suspicionless searches when there was a Fourth Waiver, applied only to violent felonies.
The Court also rejected the government’s attempt to justify the search of the defendant as a valid Terry stop or his car under the automobile exception.
The opinion also has good language on the harmless error standard: “Review for harmless error requires not only an evaluation of the remaining incriminating evidence in the record, but also the most perceptive reflections as to the probabilities of the effect of [the] error on a reasonable trier of fact. We must be convinced that the improperly admitted evidence did not contribute to the verdict, and the government bears the burden of showing the harmlessness of the error.”
As to sentencing issues, the Court reiterated that, when the defendant makes specific PSR objections, the district court “must —for any disputed portion of the presentence report or other controverted matter —rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter in sentencing.”
There is also an important discussion of the +2 for importing meth under 2D1.1(b)(5). The government argued for a strict liability standard such that the increase would apply “so long as the government proves that the drugs were imported by someone — and regardless of the defendant’s intent, knowledge, or lack of knowledge that the drugs were imported.” The Court rejected the approach. Thus, the defendant must actually know the drugs were imported. Or, if the enhancement is alleged to apply on the basis of joint activity, the importation must be at least reasonably foreseeable.
