9/25/20: This appeal concerns the Fourth Amendment’s limits on the government’s use of deceit when executing a valid search warrant

In United States v. Ramirez, --- F.3d ---, No. 18-10429 (9th Cir. 2020), a divided panel reversed the denial of the defendant's suppression motion.

This is an important case worth reading.  Here's the intro:

"This appeal concerns the Fourth Amendment’s limits on the government’s use of deceit when executing a valid search warrant."

"[Agents] obtained a warrant to search the residence of Stefan Ramirez and any vehicle registered to Ramirez located at or near the residence. Under the warrant and the law established by Michigan v. Summers, 452 U.S. 692 (1981), the agents had no authority to seize Ramirez or search his car when they arrived to execute the warrant, because neither was at the residence. The agents manufactured the authority to seize them by falsely claiming to be police officers responding to a burglary to lure Ramirez home. By luring Ramirez home, the agents’ successful deceit enabled them to obtain incriminating statements from Ramirez and evidence from his car and person. The district court denied Ramirez’s motion to suppress the statements and evidence, and Ramirez thereafter pleaded guilty to receipt and distribution of material involving the sexual exploitation of minors. We hold that, under the particular facts of this case, the agents’ use of deceit to seize and search Ramirez violated the Fourth Amendment. Accordingly, we reverse the suppression order and remand for further proceedings."

The majority continued: "Although the propriety of a ruse search or seizure depends on the particular facts of each case, our precedent draws a clear line between two categories of deception. Law enforcement’s use of deception is generally lawful when the chosen ruse hides the officer’s identity as law enforcement and facilitates a search or seizure that is within its lawful authority, such as pursuant to a valid search warrant. Deception is unlawful when the government makes its identity as law enforcement known to the target of the ruse and exploits the target’s trust and cooperation to conduct searches or seizures beyond that which is authorized by the warrant or other legal authority, such as probable cause."

"[W]hen the government agent is known to the suspect as such, and invokes the trust or cooperation of an individual to search or seize items outside what is lawfully authorized, such a ruse is unreasonable under Fourth Amendment."

"Law enforcement does not have carte blanche to use deception to effect a search and seizure. A ruse that reveals the officers’ identity as law enforcement but misrepresents the purpose of their investigation so that the officers can evade limitations on their authority raises serious Fourth Amendment concerns."

"[T]he ruse used here was not a permissible means to effect the search and seizure of Ramirez. The FBI agents posed as police officers and played on Ramirez’s trust and reliance on their story that his home had been burglarized to bring Ramirez and his car within the ambit of the warrant, when they were not otherwise within its ambit. The FBI had no acceptable government interest in using this ruse. Thus, balancing the strong Fourth Amendment interest against the non-existent government interest, the FBI’s conduct was plainly unreasonable under the Fourth Amendment."

"Balancing the Government’s justification for its actions against the intrusion into the defendant’s Fourth Amendment interests, the Government’s conduct was clearly unreasonable. The Fourth Amendment interest is near its zenith in this case because the agents betrayed Ramirez’s trust in law enforcement in order to conduct searches and seizures beyond what they were lawfully authorized to do."

The Court also considered, "whether Ramirez’s statements, made after Agent Ratzlaff revealed the true purpose of the investigation and asked to speak with him, should be suppressed because they were tainted by the illegality of the initial seizure."  

The majority held they should. 

"[T]he Government failed to carry its burden to show that Ramirez’s incriminating statements were not obtained through 'exploitation of illegality'—the use of the ruse to circumvent the Summers rule and unlawfully seize Ramirez— rather than 'by means sufficiently distinguishable to be purged of the primary taint.'"

Judge Collins dissented. 

9/17/20: Automatic dismissal

 In United States v. Qazi, --- F.3d ---, No. 18-10483 (9th Cir. 2020), the Court vacated the defendant's conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g), and remanded with instructions to dismiss the indictment.

In the district court, before trial, the pro se defendant, filed a "Motion to Dismiss Indictment for Failure to State Offense," stating "[t]he Defendant . . . moves . . . to dismiss the Indictment with prejudice, for failure to allege all the elements of a Federal Crime."

Following its well-established obligation to construe pro se filings liberally, the Court determined this was sufficient to trigger the rule from United States v. Du Bo, 186 F.3d 1177 (9th Cir. 1999), which holds an indictment missing an essential element challenged before trial must be dismissed regardless of whether the omission prejudiced the defendant.

Here, the indictment failed to alleged the defendant’s knowledge of his felon status.  Following Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019), this is a required element under Section 922(g). 

The Court explained: "This case is simple. When Qazi insisted his indictment 'fail[ed] to allege all the elements of a Federal Crime,' he was right. When the district court concluded 'the indictment tracks the language of 18 U.S.C. 922(g), [and] sets forth the elements of the offense,” it was wrong. Liberally construed, Qazi’s objection to the indictment was sufficient to trigger Du Bo’s dismissal rule."

9/10/20: Good Fourth Amendment attenuation case

 In United States v. Garcia, --- F.3d ---, No. 19-10073 (9th Cir. 2020), the Court reversed the denial of the defendant's suppression motion.  

Officers violated the Fourth Amendment when they entered the defendant's home without a warrant, ostensibly to determine whether someone inside posed a threat to their safety or required emergency assistance. 

Though the officers knew nothing about Garcia before entering his home, they discovered him inside, detained him at gunpoint, took him outside in handcuffs, and ran a records check that revealed he was subject to a supervised release condition authorizing suspicionless searches of his residence. 

After discovering this condition, the same officers who had conducted the initial unlawful entry reentered the home to conduct a full search, during which they found methamphetamine and other incriminating evidence.

The issue on appeal was "whether, under the attenuation doctrine, the discovery of the suspicionless search condition was an intervening circumstance that broke the causal chain between the initial unlawful entry and the discovery of the evidence supporting Garcia’s conviction in this case and the revocation of supervised release in the underlying case."

The Court held it was not. 

• The attenuation doctrine is an exception to the usual rule of exclusion or suppression of the evidence. It applies when “‘the connection between the illegality and the challenged evidence’ has become so attenuated ‘as to dissipate the taint caused by the illegality.’” 

• In determining whether an intervening event has sufficiently purged the taint of a preceding Fourth Amendment violation, we consider three factors: (1) “the ‘temporal proximity’ between the unconstitutional conduct and the discovery of evidence,” (2) “the presence of intervening circumstances,” and (3) “the purpose and flagrancy of the official misconduct.” 

The government conceded the first factor favored suppression.  

As to the second factor, "[w]hile the suspicionless search condition here granted the officers the legal authority to search Garcia’s home without cause, it did not—unlike the warrant in Strieff—require them to exercise that authority. The officers’ decision to avail themselves of the suspicionless search condition was volitional, not 'ministerial.' This distinction is important because we have held that the attenuation doctrine does not apply when an officer’s decision to exercise his discretionary authority is 'significantly direct[ed]' by information learned during an unlawful search."

And "when an officer’s exercise of discretionary authority is 'significantly directed' by information learned during an unlawful search, the mere existence of that authority is not an intervening cause that purges the taint of the earlier constitutional violation."

"[T]he Government did not present any evidence regarding the officers’ reasons for entering Garcia’s home the second time, much less evidence sufficient to show that this decision had nothing to do with what they saw inside the home minutes earlier, during their unconstitutional search."

"The officers did not enter Garcia’s home with blinders on. And the record shows that in the few minutes between the two searches, the officers’ motives for entering the home abruptly changed from non-investigatory to investigatory. Yet the Government offers nothing more than its say-so to explain this sudden shift. That is not enough to avoid suppression. Cf. United States v. Bocharnikov, 966 F.3d 1000, 1007 (9th Cir. 2020) (Chhabria, J., concurring) (“To rule in the government’s favor on this appeal would have required us to bend over backwards, doing the government’s work for it. Federal prosecutors should not need that kind of help from the courts, nor should they expect to receive it.”). In the absence of evidence showing that the officers’ decision to conduct the second search was untainted by what they saw during the initial unlawful entry, we conclude that the Government has not met its burden of showing that the discovery of the suspicionless search condition was a sufficient intervening circumstance."

As to the third factor, "we find it particularly significant that the officers entered Garcia’s home without cause, detained him at gunpoint, and removed him from the premises in handcuffs. The home is 'first among equals' for purpose of the Fourth Amendment, and it is no trifling matter for police to storm a residence with guns drawn. Incursions of this nature can have tragic results."

"Examining the totality of the circumstances, we conclude that even accepting the district court’s finding that the officers acted in good faith, this fact alone is not enough to justify admission of the evidence."

9/9/20: Guidelines decision on whether the definition of 'victim' under § 2B1.1 includes a state government agency

 In United States v. Herrera, --- F.3d ---, No. 19-50181 (9th Cir. 2020), the Court affirmed a sentence for mail fraud arising from an unemployment-fraud scheme.

The district court calculated the Guidelines as follows: "'The base offense level is 7. The specific offense characteristics increase that by 22 levels. The role in the offense by an additional 3, which gives a subtotal of 32. Reduced by 3 for acceptance of responsibility to 29.' The 22-level specific offense enhancement calculation breaks down as follows: an 18-level enhancement for losses greater than $3.5 million, a 2-level number-of-victims enhancement, and a 2-level sophisticated-means enhancement."

On appeal, the defendant argued the district court miscalculated the amount-of-loss enhancement and improperly imposed the leadership-role and number-of-victims enhancements. 

The Court rejected these arguments.  First, it held, "the district court merely misstated the amount-of-loss enhancement. After considering the parties’ evidence and arguments, the district court found that the losses exceeded $3.5 million. The evidence supports this finding. Losses exceeding $3.5 million merit an 18-level enhancement. U.S.S.G. § 2B1.1(b)(1)(J)."

Second, it explained, "[o]n this record, we conclude the district court did not abuse its discretion by imposing the leadership-role enhancement. Herrera was a leader within the unemployment-fraud scheme, and he was properly treated as such at sentencing."

Finally, the Court considered "[w]hether the definition of 'victim' under § 2B1.1 includes a state government agency [here, the EDD]."  It framed the issue as "whether the definition of 'victim' for § 2B1.1, which does not include government entities in its list of various entities that may be counted as victims, must be interpreted to exclude government entities regardless of whether they suffer loss included in the loss calculation."

The Court held it did not.  It relied on the 'presumption of nonexclusive include.'  This presumption holds that 'the word include does not ordinarily introduce an exhaustive list.'" The Court concluded, "state government agencies who suffer losses that are included in the actual loss calculation under § 2B1.1(b)(1) are properly counted as victims for purposes of the number-of-victims enhancement in § 2B1.1(b)(2)(A)(i)."

9/4/20: Sentencing decision on the FSA

 In United States v. Asuncion, --- F.3d ---, No. 18-30130 (9th Cir. 2020), the Court affirmed the defendant's mandatory minimum life sentence under 21 U.S.C. § 841(b)(1)(A) (2018) based on his previous convictions for two or more “felony drug offenses,” as defined in 21 U.S.C. § 802(44).

This case arose before the First Step Act.  In other words, the defendant was sentenced under the prior version of 841.  The sentencing also took place before United States v. Valencia-Mendoza, 912 F.3d 1215 (9th Cir. 2019), which held that even if a state statute governing a prior drug offense prescribes a maximum sentence of more than one year, the state’s sentencing guideline system can affect whether the defendant was, in fact, convicted of a crime “punishable by imprisonment for a term exceeding one year.”

Based on these changes, the defendant made two primary arguments on appeal. 

"First, he contends that under Valencia-Mendoza, none of his state crimes were 'punishable by imprisonment for more than one year' because the high ends of his guideline ranges never exceeded twelve months. If true, this would mean that Asuncion committed only one prior felony drug offense and should not have been sentenced as if he had committed two or more. And it would result in a sentence of 20 years rather than life in prison (assuming the First Step Act were held not to apply). See 21 U.S.C. § 841(b)(1) (2018)."

"Second, Asuncion argues that section 401 of the First Step Act should apply because his conviction and sentence were on appeal (and therefore still pending) when the law was enacted. If that were true, his three prior state convictions would not count (regardless of the outcome of his first argument), because the offenses were not “serious drug felonies” within the meaning of section 401. In this scenario, Asuncion, who received a mandatory life sentence, would need to be resentenced with fifteen years as the new mandatory minimum sentence—what the First Step Act prescribes for a defendant with one qualifying prior conviction. See § 401(a)(2)(A)(i), 132 Stat. at 5220."

The Court rejected both arguments.  

As to the first claim, the Court held that because the defendant was sentenced for his prior state drug offenses under Washington’s previous guideline system -- which gave the judge broad, open-ended discretion to impose a sentence above the guideline range (and thus above a year) -- they all qualified as prior felony drug offenses. 

As to the second claim, the Court held that the FSA did not apply to cases on appeal when the sentence was imposed before enactment: "a sentence is 'imposed' when the district court pronounces the sentence, and not, as Asuncion argues, when the conviction becomes final after appeal."

Important note:  This does not (at least should not) apply to cases where the sentence was first imposed before the FSA, then the sentence was vacated on appeal, and the resentencing is taking place after the FSA.  Because the original sentence was vacated, there is no longer any sentence imposed before the FSA. 
 

9/2/20: Fourth Amendment FISA decision almost four years in the making

 In United States v. Moalin, --- F.3d ---, No. 13-50572 (9th Cir. 2020), the Court affirmed the convictions of four members of the Somali diaspora for sending, or conspiring to send, $10,900 to Somalia to support a foreign terrorist organization.

This case was argued in November 2016!  It addresses the U.S. government’s authority to collect bulk data about its citizens’ activities under the auspices of a foreign intelligence investigation, as well as the rights of criminal defendants when the prosecution uses information derived from foreign intelligence surveillance.  

"We conclude that the government may have violated the Fourth Amendment and did violate the Foreign Intelligence Surveillance Act ('FISA') when it collected the telephony metadata of millions of Americans, including at least one of the defendants, but suppression is not warranted on the facts of this case. Additionally, we confirm that the Fourth Amendment requires notice to a criminal defendant when the prosecution intends to enter into evidence or otherwise use or disclose information obtained or derived from surveillance of that defendant conducted pursuant to the government’s foreign intelligence authorities. We do not decide whether the government failed to provide any required notice in this case because the lack of such notice did not prejudice the defendants. After considering these issues and several others raised by the defendants, we affirm the convictions in all respects."

On appeal, the defendants argued, "that the metadata collection violated his Fourth Amendment 'right . . . to be secure . . . against unreasonable searches and seizures.'"

The Court agreed the collection of vast amounts of metadata raised serious concerns: "The amount of metadata created and collected has increased exponentially, along with the government’s ability to analyze it. 'Records that once would have revealed a few scattered tiles of information about a person now reveal an entire mosaic—a vibrant and constantly updating picture of the person’s life.'  According to the NSA’s former general counsel Stewart Baker, '[m]etadata absolutely tells you everything about somebody’s life. . . . If you have enough metadata you don’t really need content . . . .”
 

The Court thus found "defendants’ Fourth Amendment argument has considerable force."  But it did "not come to rest as to whether the discontinued metadata program violated the Fourth Amendment because even if it did, suppression would not be warranted on the facts of this case."

"Having carefully reviewed the classified FISA applications and all related classified information, we are convinced that under established Fourth Amendment standards, the metadata collection, even if unconstitutional, did not taint the evidence introduced by the government at trial."

The Court then turned to the defendant's argument that the metadata collection program violated FISA Subchapter IV, under which the FISA Court authorized it.

First, the Court rejected the government's lack of standing argument with helpful language: "As our cases have explained, 'Fourth amendment standing is quite different . . . from ‘case or controversy’ determinations of article III standing.' Whereas Article III standing concerns our jurisdiction, Fourth Amendment standing 'is a matter of substantive fourth amendment law; to say that a party lacks fourth amendment standing is to say that his reasonable expectation of privacy has not been infringed.''

"We reject the government’s invitation to dispense with defendants’ statutory argument on the basis of Fourth Amendment standing. First, as Carpenter clarified after this case was briefed, there is no categorical rule preventing criminal defendants from challenging third-party subpoenas. Carpenter, 138 S. Ct. at 2221. Second, as discussed above, Moalin likely had a reasonable expectation of privacy in his telephony metadata—at the very least, it is a close question. Finally, and most importantly, defendants’ statutory and Fourth Amendment arguments rest on independent legal grounds, and we see no reason why Moalin’s 'standing' to pursue the statutory challenge should turn on the merits of the Fourth Amendment issue. We therefore proceed to the merits of the statutory challenge."

As to the merits, the Court further held "the telephony metadata collection program exceeded the scope of Congress’s authorization in section 1861 and therefore violated that section of FISA."  

But it rejected the argument that suppression was required for the statutory violation. "Even if we were to apply a 'fruit of the poisonous tree' analysis, we would conclude, based on our careful review of the classified FISA applications and related information, that the FISA wiretap evidence was not the fruit of the unlawful metadata collection. Again, if the statements of public officials created a contrary impression, that impression is inconsistent with the facts presented in the classified record."

Next, the Court considered the defendants' argument "that the Fourth Amendment required the government to provide notice to defendants of its collection and use of Moalin’s telephony metadata. They also contend that they were entitled to notice of any additional surveillance, other than FISA Subchapter I surveillance, that the government conducted of them during the course of its investigation."

"The government did not notify defendants that it had collected Moalin’s phone records as part of the metadata program. Defendants learned that after trial—from the public statements that government officials made in the wake of the Snowden disclosures. See supra pp. 13–14. Nor did the government provide notice of any additional surveillance, apart from FISA Subchapter I surveillance, it had conducted of defendants."

"The Fourth Amendment requires that a person subject to a government search receive notice of the search, absent 'exigent circumstances.'"

"[B]ecause the Fourth Amendment applies to foreign intelligence investigations, U.S. criminal defendants against whom the government uses evidence obtained or derived from foreign intelligence surveillance may have Fourth Amendment rights to protect. The principal remedy for a Fourth Amendment violation is the exclusionary rule: a criminal defendant may seek suppression of evidence obtained from an unlawful search or seizure, as well as of the 'fruits' of that evidence—additional evidence to which it led. But criminal defendants who have no knowledge that a potentially unconstitutional search has played a part in the government’s case against them have no opportunity to vindicate any Fourth Amendment-protected rights through suppression."

"Notice is therefore a critical component of the Fourth Amendment in the context of a criminal prosecution. And although the Fourth Amendment may apply differently to foreign intelligence surveillance than to searches undertaken in ordinary criminal investigations, notice of a search plays the same role in the criminal proceeding: it allows the defendant to assess whether the surveillance complied with the Fourth Amendment’s requirements, whatever the parameters of those requirements are." 

"At a minimum, then, the Fourth Amendment requires notice to a criminal defendant when the prosecution intends to enter into evidence or otherwise use or disclose information obtained or derived from surveillance of that defendant conducted pursuant to the government’s foreign intelligence authorities."

"We emphasize that notice is distinct from disclosure. Given the need for secrecy in the foreign intelligence context, the government is required only to inform the defendant that surveillance occurred and that the government intends to use information obtained or derived from it. Knowledge of surveillance will enable the defendant to file a motion with the district court challenging its legality." 

However, "assuming without deciding that the government should have provided notice of the metadata collection to defendants, the government’s failure to do so did not prejudice defendants. Defendants learned of the metadata collection, albeit in an unusual way, in time to challenge the legality of the program in their motion for a new trial and on appeal."

The Court also rejected the defendants' Brady claims and arguments as to evidentiary errors during trial.