3/28/19: Big Fourth Amendment Decision

Today's decision in United States v. Artis, --- F.3d ---, No. 18-10246 (9th Cir. 2018), addresses multiple, important Fourth Amendment issues.  It is a must read.

The relevant factual underpinning is that a federal agent applied to a California state judge for two search warrants and then the federal agent executed the searches.

The searches resulted in federal charges.  The defendants moved to suppress arguing (1) the warrants were invalid because they were executed by officials not authorized to execute warrants under California law; and (2) the warrants were not supported by probable cause.

The district court granted both motions based on a lack of probable cause.  The government appealed.

The Ninth Circuit affirmed as to one of the warrants but reversed as to the other.

Beginning with the issue of the state warrant being executed by federal agent, the Court held, "the identity of the executing officers—federal agents versus peace officers—does not implicate any interest protected by the Fourth Amendment. No greater intrusion upon protected privacy or property interests occurred by virtue of the fact that the searches were conducted by federal agents as opposed to, say, city police officers."  The Court explained,:

California law requires search warrants to be executed by “peace officers,” but federal agents may assist a peace officer in executing a search warrant, provided the federal agent is acting “in aid of the officer on his requiring it, he being present and acting in its execution.” Cal. Penal Code § 1530. As the defendants argue, it seems doubtful that this requirement was satisfied here, although California courts do not appear to have addressed how strictly this provision should be construed when federal agents execute a search warrant as members of a joint federal-state task force that includes peace officers.

We find it unnecessary to decide whether federal agents violated California law by executing the Artis and Hopkins warrants. Even if such a violation occurred, the warrants would still be valid under the Fourth Amendment. An otherwise properly issued search warrant is not rendered void for Fourth Amendment purposes merely because it was executed by law enforcement officers who lacked warrant-executing authority under state law. 

The Court further found no violation of Rule 41, because the searches were not “federal in character.”

As to probable cause, the Court reminds us that, when a warrant application relies on illegally obtained information to establish probable cause, the reviewing court must disregard the information.

The Court then took this rule one step further: "Having excised evidence from the supporting affidavit, we do not defer, as we normally would, to the issuing magistrate’s determination that probable cause existed. In that scenario, we have nothing to which we could defer, as the magistrate made no determination about whether probable cause exists on the set of facts now before us. Instead, we must 'determine on our own whether the remaining portions of the affidavit support a finding of probable cause.'"

Finding a lack of probable cause in one of the affidavits, the Court discussed the good faith exception:

[W]e have held that the good-faith exception may not be invoked when “the search warrant was issued in part on the basis of evidence obtained from an illegal search.” United States v. Wanless, 882 F.2d 1459, 1466–67 (9th Cir. 1989); see also United States v. Vasey, 834 F.2d 782, 789 (9th Cir. 1987). That rule would foreclose the government’s reliance on the good-faith exception here. We acknowledge that the Supreme Court’s precedent on application of the good-faith exception has shifted somewhat since we decided Vasey and Wanless. When those cases were decided, the good-faith exception had been held to apply only when the police acted in reasonable reliance on mistakes made by others, such as the magistrate who issued the defective warrant in Leon. It was not yet clear whether the good-faith exception would apply when the police acted in reliance on their own mistakes. Thus, in rejecting application of the good-faith exception in Vasey, we stressed that “[t]he constitutional error was made by the officer in this case, not by the magistrate as in Leon.” 834 F.2d at 789. The good-faith exception could not apply to the fruit of that constitutional violation, including evidence seized under the resulting warrant.  

The Supreme Court has since held that the good-faith exception can apply even when the police are responsible for the mistake that led to an unlawful search or seizure. In Herring v. United States, 555 U.S. 135 (2009), the Court applied the good-faith exception to uphold the admission of evidence seized during a concededly unlawful arrest, even though the arrest occurred because law enforcement officials negligently failed to remove a recalled warrant from their database. Id. at 138, 147–48. The Court held that, to justify suppression as a remedy for a Fourth Amendment violation, “police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” Id. at 144. The “isolated negligence” at issue in Herring, the Court concluded, did not meet that standard. Id. at 137 

In light of Herring, we can no longer declare the good-faith exception categorically inapplicable whenever a search warrant is issued on the basis of evidence illegally obtained as a result of constitutional errors by the police. We must instead determine whether the police misconduct that led to discovery of the illegally obtained evidence is itself subject to the good-faith exception. If it is, suppression of the evidence seized pursuant to the warrant will not be justified. But if the police misconduct is not protected by the good-faith exception, suppression is the appropriate remedy. The misconduct will by definition be “sufficiently deliberate” that it can be deterred through application of the exclusionary rule, and “sufficiently culpable” to warrant exclusion as a remedy. Id. at 144. And because the illegally obtained evidence will necessarily have been decisive in establishing probable cause (otherwise there would be no need to resort to the good-faith exception), evidence discovered pursuant to the warrant will be the fruit of that earlier illegality and subject to suppression for that reason. See Wong Sun v. United States, 371 U.S. 471, 485 (1963).

Under this new standard, as to one of the warrants, the Court found the good faith exception did not apply, and affirmed suppression.

As noted, the Court reversed as to the other warrant, because it was supported by probable cause.

3/22/19: Important sentencing decision

Today's decision in United States v. Jauregui, --- F.3d ---, No. 16-50429 (9th Cir. 2019), is a must read.

It is a plain-error sentencing reversal out of the SD Ca. The case addresses the intricacies of drug-conspiracy sentencing. 

The essential point is that, in a drug conspiracy -- such as conspiracy to import -- for the defendant to be sentenced based on a specific drug type, the district court must make a two-part finding:

Under Banuelos, two findings are necessary to hold a defendant liable for conspiracy involving a particular drug type or quantity. First, the district court must find “that the conspiracy distributed a particular type and quantity of drugs”—that is, the existence of a conspiracy involving the particular drug type and quantity. Banuelos, 322 F.3d at 704. And second, the district court must also make a determination about the defendant’s personal responsibility—“that the type and quantity were either within the scope of [the defendant’s] agreement with his coconspirators or that the type and quantity were reasonably foreseeable to [the defendant].” Id.

Here, the indictment charged methamphetamine, and the defendant admitted at the plea colloquy that “it was reasonably foreseeable that the controlled substance” he would transport “would be methamphetamine under the Pinkerton case.”

But that was not enough to hold him responsible at sentencing for methamphetamine.  This was so because "[n]othing Jauregui admitted during his plea colloquy, however, even hints at Banuelos’s first prong—“that the conspiracy distributed a particular type and quantity of drugs.” Id. Jauregui never admitted that there was in fact a conspiracy whose object was importing methamphetamine, nor did he ever admit that the substance found in his vehicle was, in fact, methamphetamine."

The court went on to find plain error and vacate the sentence. 

This is a split decision.  And the concurrence makes a strong case for reconsidering Banuelos.

Final note, although the case is about sentencing, it has a thorough discussion of the mens rea for conspiracy in general.  It also reminds us "that 'attempts to broaden the already pervasive and wide-sweeping nets of conspiracy prosecutions' are disfavored[.]"

3/21/19: Interesting 4th Amendment-ish case

In United States v. Cooley, --- F.3d---, No. 17 -30022 (9th Cir. 2019), the Court affirmed the district court's grant of the defendant's suppression motion.

The case arose from a search performed by a tribal police officer.  Much of the decision focuses on tribal authority to seize and search non-Indians.  The Court ultimately held that the officer exceeded his authority as a tribal officer on a public, non-tribal highway crossing a reservation when he detained the defendant and twice searched the truck without having ascertained whether the defendant was an Indian.

The Court also found suppression the appropriate remedy under the Indian Civil Rights Act’s Fourth Amendment counterpart.  On this issue, the Court reminds us of helpful language on suppression that case be used more generally: “[i]f letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the [Fourth] Amendment, declaring his right to be secure against such searches and seizures, is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution.” Weeks v. United States, 232 U.S. 383, 393 (1914).

3/15/19: 4th Amend decision on parolees, but also covers CSLI

In United States v. Korte, --- F.3d ---, No. 18-50051 (9th Cir. 2019), the Court affirmed the denial of the defendant's suppression motions in a bank robbery case.

The defendant was on parole in California.  As part of his parole, he consented to warrantless, suspicionless searches of his person, residence, and any property under his control.

He challenged the warrantless searches of: (1) the trunk of his car; (2) the use of a GPS tracking device on his car; and (3) his CSLI (cell site location information).

The Ninth Circuit found the search of the trunk and the use of the GPS tracker were permissible based on the defendant's parole status.

As to the CSLI, the Court did not decide the constitutional issue.  Instead, it found the good faith exception applied.  At the time of the CSLI search, Carpenter had not yet been decided.  Thus, the Court concluded the government relied in good faith on the then-applicable authorizing statute, the Stored Communications Act.

3/14/19: Right to reject insanity defense and rape shield rule.

Two cases today. 

First, in United States v. Read, --- F.3d ---, No. 17-10439 (9th Cir. 2019), the Court vacated the defendant's convictions for assault with a deadly weapon with intent to bodily harm, and assault with a deadly weapon resulting in serious bodily injury, in violation of 18 U.S.C. § 113(a).  The case arose out of a prison stabbing. 

The defendant was adamant that he did not want to pursue an insanity defense.  His attorney and the district court overruled him. 

On appeal, the Court held that, under McCoy v. Louisiana, 138 S. Ct. 1500 (2018), a district court commits reversible error by permitting defense counsel to present a defense of insanity over a competent defendant’s clear rejection of that defense.

The case also has some other issues regarding the jurisdictional element of § 113(a), which prohibits assaults “within the special maritime and territorial jurisdiction of the United States.”


Second, in United States v. Haines, --- F.3d ---, No. 17-50059 (9th Cir. 2019), the Court affirmed the defendant's conviction for sex trafficking a minor.  This was a pimping case.  The alleged victim recanted and testified favorably to the defendant at trial.  The defense wanted to ask her about prior prostitution but the government successfully kept it out under the rape shield rule in Fed. R. Evid. 412.

The Ninth finds no error. It rejected the defendant's contention that evidence of the victim's prior prostitution activities should have been admitted under the exception in Rule 412(b)(1)(C) for “evidence whose exclusion would violate [his] constitutional rights.”

The Court further held that the applicability of Rule 412 should not depend on the alleged victim’s desire to testify.

3/12/19: A couple of interesting Guidelines cases

First, in United States v. Door, --- F.3d ---, No. 17-30165 (9th Cir. 2019), the Court addressed whether two Washington statutes -- felony harassment and second degree assault -- qualify as crimes of violence, as defined in U.S.S.G. § 4B1.2.

The opinion has a thorough explanation of how the categorical analysis works differently with respect to the force clause, the enumerated offense clause, and the residual clause. 

Based on prior precedent, the Court held that the conviction for felony harassment in violation of Wash. Rev. Code §§ 9A.46.020(1)(a)(i) constitutes a crime of violence pursuant to the force clause of § 4B1.2(a)(1).

On the other hand, the conviction for second-degree assault in violation of Wash. Rev. Code § 9A.36.021(1)(c) did not qualify as a crime of violence pursuant to the force clause, or the residual clause.

Most noteworthy about this opinion is it limitation of United States v. Valdivia-Flores, 876 F.3d 1201 (9th Cir. 2017), which held that Washington aiding an abetting was overbroad because it did not require specific intent.  For a while, it looked like that holding would render all Washington crimes overbroad for federal sentencing-enhancement purposes, but today the Court limited Valdivia-Flores's holding to the enumerated clause.  In other words, the aiding and abetting overbreadth applies to crimes falling within the enumerated clause but not others. 

Frankly, this does not mesh with my understanding of categorical analysis, but I don't make the rules.

Second, in United States v. Pien-Pinto, --- F.3d ---, No. 18-30055 (9th Cir. 2019), the Court reaffirmed its holding that the lack of a mens rea requirement in § 2K2.1(b)(4) (use of a stolen firearm in a crime) does not violate due process.   In doing so, it rejected a number of creative and compelling defense arguments.

3/4/19: Good faith and CSLI post Carpenter

In United Sates v. Elmore, --- F.3d ---, No. 16-10109 (9th Cir. 2019), the Court reversed the district court's order granting suppression of historical cell-site location information (CSLI).

The CSLI was obtained pursuant to a warrant.  But the district court found it lacked probable cause as to this particular defendant.  The Ninth Circuit agreed with that point.  Nevertheless, it found exclusion unwarranted under the good faith exception.  It concluded: "Although we agree with the district court that the warrant authorizing the seizure of Gilton’s location data was not supported by probable cause, we conclude that the deficiencies were not so stark as to render the officers’ reliance on the warrant 'entirely unreasonable.'"