5/27/20: Good Fourth Amend. decision on the administrative search exception & a quick note on minor role

In United States v. Grey, --- F.3d ---, No. 18-50328 (9th Cir. 2020), a split panel affirmed the district court's order granting the defendant's suppression motion. 

The case arose out of an administrative code enforcement search of the defendant's property, which was aided by LA Sheriff's deputies.  Here is some of the key language:

Following Alexander v. City & County of San Francisco, 29 F.3d 1355 (9th Cir. 1994) . . . we hold that where, as here, law enforcement officers are asked to assist in the execution of an administrative warrant authorizing the inspection of a private residence, they violate the Fourth Amendment when their "primary purpose" in executing the warrant is to gather evidence in support of a criminal investigation rather than to assist the inspectors.

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The government argues, in essence, that the presence of LASD’s criminal investigatory motive was harmless because “the sweep of Grey’s dwelling would have occurred regardless of the deputies’ motivation to uncover criminal evidence.” We disagree. Under the Fourth Amendment, reasonableness is determined by assessing the degree to which a search or seizure “intrudes upon an individual’s privacy.” Reasonableness therefore accounts not only for the scope of a search or seizure but also the “manner of [its] execution.” 

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Where, as here, law enforcement officers are called upon to assist in the execution of an administrative warrant providing for the inspection of a private residence, the execution of the warrant is consistent with the Fourth Amendment only so long as the officers’ primary purpose in executing the warrant is to assist in the inspection. If the person challenging the execution of the warrant shows that the officers’ primary purpose was to gather evidence in support of an ongoing criminal investigation, the conduct does not satisfy the Fourth Amendment.

In other news, I know many of us feel that minor role appeals have become hopeless endeavors with inevitable affirms.  But I just got a minor role reversal yesterday.  Here.  Keep hope alive. 

5/8/20: SCOTUS criminal decisions this week

With all the newness, it is easy to forget about the ordinary.  This week the Supreme Court decided two criminal cases. 

First, in Kelly v. United States, 590 U.S. ---, (2020), the Supreme Court vacated the defendants' convictions in the "Bridgegate" scandal.  This was the case in which several NJ officials rerouted several lanes of traffic to the George Washington Bridge to punish a local democratic mayor for not supporting Governor Christie's reelection.

In short, the Court concluded that, because the state officials' actions were not aimed at securing public money or property, they had not committed a federal crime.  In other words, "a state or local official’s fraudulent schemes violate that law only when, again, they are 'for obtaining money or property.'"  Some of the key language is below:

• The federal wire fraud statute makes it a crime to effect (with use of the wires) “any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises.” 18 U. S. C. §1343. Construing that disjunctive language as a unitary whole, this Court has held that “the money-orproperty requirement of the latter phrase” also limits the former.  The wire fraud statute thus prohibits only deceptive “schemes to deprive [the victim of] money or property.”  Similarly, the federal-program fraud statute bars “obtain[ing] by fraud” the “property” (including money) of a federally funded program or entity like the Port Authority. §666(a)(1)(A). So under either provision, the Government had to show not only that Baroni and Kelly engaged in deception, but that an “object of the[ir] fraud [was] ‘property.’” Cleveland v. United States, 531 U. S. 12, 26 (2000). That requirement, this Court has made clear, prevents these statutes from criminalizing all acts of dishonesty by state and local officials.

•  this Court has already held that a scheme to alter such a regulatory choice is not one to appropriate the government’s property. 

• Contrary to the Government’s view, the two defendants did not “commandeer” the Bridge’s access lanes (supposing that word bears its normal meaning). They (of course) did not walk away with the lanes; nor did they take the lanes from the Government by converting them to a non-public use. Rather, Baroni and Kelly regulated use of the lanes, as officials responsible for roadways so often do—allocating lanes as between different groups of drivers. 

• a property fraud conviction cannot stand when the loss to the victim is only an incidental byproduct of the scheme

• not every corrupt act by state or local officials is a federal crime. Because the scheme here did not aim to obtain money or property, Baroni and Kelly could not have violated the federal-program fraud or wire fraud laws. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. 

Second, in United States v. Sineneng-Smith, 590 U.S. ---, (2020), the Court reversed the Ninth Circuit's decision, which held that §1324(a)(1)(A)(iv) (encouraging or inducing an alien to enter or remain illegally) is unconstitutionally overbroad under the First Amendment.

This case is interesting because it was NOT a ruling on the merits.  Rather, the Supreme Court reversed because the Ninth Circuit panel decided the case on an issue not presented by the parties.  The Supreme Court held: "the appeals panel departed so drastically from the principle of party presentation as to constitute an abuse of discretion."

That means, the merits of the First Amendment issue are still in play for current and future cases to litigate.  

5/4/20: Fourth Amendment decision on license plate readers

My title is somewhat misleading.  Although United States v. Yang, --- F.3d ---, No. 18-10341 (9th Cir. 2020), arose in the context of a warrantless search of a license plate reader database, the majority decided the case on other grounds.

The basic facts are that the defendant was caught on camera stealing mail in a rented vehicle.  Turned out, he failed to return the vehicle to the rental company, and could not be located.  A Postal Inspector found the defendant and the vehicle by inputting the license plate number into a license-plate location database, which receives license plate images and the GPS coordinates from digital cameras mounted on tow truck, repossession company, and law enforcement vehicles.  The Inspector did not have a warrant.

The defendant moved to suppress, arguing the automatic license plate recognition technology used by the Postal Inspector without a warrant violated his Fourth Amendment right to privacy in the whole of his movements under Carpenter v. United States, 138 S. Ct. 2206 (2018).  The district court denied the motion and the Ninth Circuit affirmed. 

The majority concluded the defendant "failed to establish that he has a reasonable expectation of privacy in the historical location information of the Yukon under the facts of this case. There is no evidence in the record that Prestige Motors had a policy or practice of allowing lessees to keep cars beyond the rental period and Prestige had made affirmative attempts to repossess the vehicle by activating the GPS unit to locate and disable the vehicle."

Further, "[b]ecause the ALPR camera captured the Yukon’s location information well after the close of Prestige’s business hours, as clearly advertised on the rental agreement, we need not determine whether a defendant has standing to object to a “search” of a rental vehicle’s historical location information that was captured and uploaded to a database prior to the expiration of the rental agreement."

Judge Bea concurred in the judgment but not the reasoning. He would have affirmed on the grounds that the search of the database did not reveal the whole of the defendant’s physical movements, and therefore did not infringe on that reasonable expectation of privacy.  He left open the possibility, however, that license plate reader technology could progress to the point where a warrant would be required.