7/26/22: Split decision on probable cause to arrest for displaying a gun in an open carry state

In United States v. Willy, --- F.4th ---, No. 21-30006 (9th Cir. 2022), the majority affirmed the district court’s order granting Willy’s motion to suppress evidence and statements obtained after his arrest.

"This case requires us to determine whether there was probable cause to arrest Marc Anthony Willy for displaying a weapon in a manner that “warrant[ed] alarm for the safety of other persons.” Wash. Rev. Code § 9.41.270(1). Willy was arrested after two people separately reported that a man in a truck had displayed a firearm while asking them questions about an alleged kidnapping in the area. After his arrest, a search of Willy’s vehicle and person recovered illegal firearms and a modified CO2 cartridge. Willy was charged with making and possessing a destructive device in violation of the National Firearms Act, 26 U.S.C. § 5861. The district court granted Willy’s motion to suppress all evidence and statements obtained after his arrest because his arrest was not supported by probable cause. We affirm."

The majority reasoned that, under Washington law, there was no probable cause.  It noted that Washington is an open carry state.  So merely having the gun did not violate any law.  Moreover, Willy's actions in displaying his gun would not "warrant alarm in a reasonable person for the safety of others."  Thus, the majority affirmed the order suppressing all evidence that flowed from the illegal arrest. 

The dissent had a different take: "The only question our court needs to decide is whether Deputy Thaxton had probable cause to suspect that Willy violated the second clause in RCW9.41.270(1) by displaying a firearm “in a manner, under circumstances, and at a time and place that . . . warrants alarm for the safety of other persons.” Without question he did, and Deputy Thaxton lawfully arrested him."

7/22/22: Case on 1001s and supervised release sentencing

In United States v. Oliver, --- F.4th ---, No. 30137 (9th Cir. 2022), the Court affirmed the district court’s judgment revoking supervised release based on Oliver's committing a new crime, and the sentence imposed upon revocation.

The district court revoked Oliver's supervised release for violating 18 U.S.C. § 1001(a) by submitting a monthly supervision report with false statements to his probation officer.  Oliver argued that, because the report was eventually forwarded to a judge, his conduct fell within the exemption in 18 U.S.C. § 1001(b) for statements “submitted to a judge or magistrate” in a judicial proceeding.

The Court rejected that argument: "By its plain language, the judicial proceeding exception only protects statements made 'by [the] party . . . to the judge or magistrate'—not statements made to others in the judicial branch."

"To be sure, we’ve held that some judicial branch “intermediar[ies]” may be such a direct conduit to a judge that the requirement is satisfied by submission to the intermediary. Horvath, 492 F.3d at 1081. For example, we’ve said that delivery of material to a judge “by means of couriers, court clerks, secretaries, and other staff” is sufficiently connected to a judge to meet the submission requirement. Id. We’ve also said that a defendant’s interview with a probation officer before sentencing meets the submission requirement, but “only if the law requires the probation officer to include the statement in the [presentence report (“PSR”)] and submit the PSR to the court.” Id. (emphasis added). There, the probation officer is a “neutral, information-gathering agent of the court” who directs the defendant’s statements to the judge “without superimposing any analysis of his own.” Id. at 1079. We explicitly “limited [the] reach of our holding” in Horvath to that narrow circumstance of a pre-sentencing interview for preparing a PSR. Id. at 1081. None of Horvath’s exceptions apply here. Oliver lied on a monthly supervision report provided to his probation officer during his term of supervised release."

The Court also rejected Oliver's argument "that a jury must find him guilty beyond a reasonable doubt before a court may revoke his supervised release under 18 U.S.C. § 3583(e) for committing a new crime in violation of his supervised release conditions."

"Because a sentence for a supervised release violation is generally part of the penalty for the original offense, it is not a new and additional punishment requiring Apprendi-style jury findings beyond a reasonable doubt. That is true even when the violative act is a criminal offense with no mandatory minimum revocation sentence, as is the case here." 

7/21/22: Case on Fourth Amendment and vehicle stops

In United States v. Nault, --- F.4th ---, No. 20-30231 (9th Cir. 2022), a divided panel affirmed the district court’s denial of Shane Nault’s motion to suppress evidence that resulted from a search of the vehicle he was driving. 

Beginning in reverse order with the dissent: 

In Rodriguez v. United States, 575 U.S. 348, 355–56 (2015), the Supreme Court held that, when police stop a vehicle for a traffic violation, they may prolong the stop to conduct “ordinary inquiries” incident to the stop, including asking the driver for his license, registration, and proof of insurance, because these inquiries are “part of the officer’s traffic mission” and “serve the same objective as enforcement of the traffic code: ensuring that vehicles on the road are operated safely and responsibly.” The officers, however, may not prolong a traffic stop to conduct inquiries unrelated to the purpose of the stop. Id. They may not, for example, prolong the stop to investigate other crimes. Id. at 356–57. 

This case, however, is unlike Rodriguez. Police officers approached Shane Nault’s vehicle, which was already parked in a private lot, because they were looking for Joei Ross, who was the subject of an outstanding arrest warrant. When they learned that Ross was not present, their mission was completed and their authority for the seizure ended. The officers nevertheless prolonged the stop to thereafter conduct an unrelated traffic safety investigation, asking Nault for his license, registration, and proof of insurance. These inquiries, of course, were not part of the officers’ mission in making the stop. The officers therefore violated Nault’s Fourth Amendment rights. 

The majority disagreed with this seemingly straightforward analysis. 

Officer Chroniger’s continuation of the stop to request Nault’s documents did not violate the Fourth Amendment because that request fell within the mission of the stop. 

An officer conducting a vehicle stop has interests extending beyond that of “detecting evidence of ordinary criminal wrongdoing.” An officer’s “mission” includes certain “ordinary inquiries incident to the traffic stop,” even if they are not required to investigate a particular traffic violation. Id. (citation and internal quotation marks omitted). Those inquiries “[t]ypically … involve checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance.” Id. Such routine checks “ensur[e] that vehicles on the road are operated safely and responsibly.” Id. By contrast, unrelated inquiries such as dog sniffs or other non-routine checks, which are “aimed at ‘detect[ing] evidence of ordinary criminal wrongdoing,’” lack the same “close connection to roadway safety,” and must be justified by independent reasonable suspicion. 

We therefore must determine whether Officer Chroniger’s request for documents—as it would be in a typical traffic stop—was “fairly characterized as part of the officer’s traffic mission.”

The circumstances of Officer Chroniger’s encounter with Nault implicate the same vehicle safety purpose discussed in Rodriguez. When Officer Chroniger pulled into the Zip Trip parking lot, Nault was sitting in the driver’s seat of the truck. The engine was running. There was no indication either that someone else had driven Nault to the gas station or that someone else would drive him away. As with any traffic stop, Officer Chroniger had a strong interest in ensuring that Nault had the ability to legally operate his vehicle.

It is of no moment that Officer Chroniger never observed Nault commit a traffic violation. In describing the scope of an officer’s mission during a traffic stop, the Supreme Court said categorically that it includes the “ordinary inquiries” that Officer Chroniger conducted, without any need for individualized suspicion that a driver poses a risk to others or is violating vehicle licensing, registration, or insurance requirements.  While an interest in traffic safety would not alone justify a stop to conduct these ordinary inquiries, these inquiries can be performed during a traffic stop once the intrusion of a stop has been justified by some other lawful basis.

Of course, a traffic violation is not the only lawful basis for an officer to conduct a vehicle stop. An officer may stop a vehicle with reasonable suspicion that a person inside “has committed, is committing, or is about to commit a crime.” That can include suspicion that the vehicle’s driver is the subject of an outstanding warrant.  Under Rodriguez’s categorical rule, a routine document check would remain part of the officer’s mission even when the suspicion that justified a stop was based on an outstanding warrant rather than a traffic violation. That is precisely the case here.

We hold that Officer Chroniger did not unconstitutionally prolong the stop, and the evidence acquired during the subsequent investigation and search of the truck was not tainted. As discussed above, that investigation revealed further indicia of intoxication from Officer Chroniger’s field sobriety tests, and a positive alert from a dog sniff. Combined with the evidence from the controlled methamphetamine buy from Nault out of the same truck a month earlier, the search warrant was amply supported by probable cause. Therefore, no Fourth Amendment violation occurred and the district court correctly denied the motion to suppress. 

7/16/22: Case on distributing drugs on board a vessel - significant minor role implications

In United States v. Dominguez-Caicedo, --- F.4th ---, No. 19-50268 (9th Cir. 2022), the Court affirmed convictions for conspiring to distribute cocaine on board a vessel, possession of cocaine with intent to distribute on board a vessel, and aiding and abetting; affirmed two of the defendants' sentences; and vacated the other defendant's sentence.

The case stems from the Coast Guard taking the defendants into custody near the Galapagos Islands and then eventually transporting them to California.  

The opinion is lengthy, covering lots of issues, including Rule 5 violations and when dismissal can be an appropriate remedy, as well as when a court may dismiss a case based on outrageous government conduct. But for purposes of this summary, I'm going to focus on the minor role analysis.  The Court goes in depth on the proper inquiry and discusses who can be considered a "likely" participant: 

The relevant comparison is to the other participants in the defendant’s crime, not to typical defendants who commit similar crimes.Thus, in this case, the district court was required to compare the defendants to the other participants in their crimes, not to typical defendants occupying their roles, such as typical drug transporters. Further, when the mitigating role commentary instructs courts to compare the defendant’s culpability to that of “the average participant in the criminal activity,” it is not referring to the actual level of culpability of any single participant. It is instead referring to the mathematical average, i.e., a “single value that represents the midpoint of a broad sample of subjects.” Thus, “all likely participants in the criminal scheme” must be included in calculating the average. 

To determine whether a defendant is substantially less culpable than the average participant in the offense, a district court must proceed in three steps. First, the court must identify all of the individuals for whom there is “sufficient evidence of their existence and participation in the overall scheme.” Rojas-Millan, 234 F.3d at 474. Second, the court must calculate a rough average level of culpability for these individuals, taking into consideration the five factors in comment 3(C) to the Mitigating Role Guideline. See Diaz, 884 F.3d at 916. Third, the court must compare the defendant’s culpability to that average. If the defendant is substantially less culpable than that average and meets the other criteria, he should be granted a mitigating role adjustment. If the defendant is not substantially less culpable than that average, he is not eligible for the adjustment.

The Government and some district courts appear to have interpreted United States v. Hurtado, 760 F.3d 1065, 1069 (9th Cir. 2014), overruled on other grounds by Gasca-Ruiz, 852 F.3d at 1174, to suggest that a court must first identify all participants in the crime and then disregard participants of above-average culpability (and, presumably, those of below-average culpability) and compare the defendant’s culpability only to the remaining individuals whom the district court deems to be of average culpability. A court following this approach compares the defendant’s culpability to only the median participants’ actual level of culpability instead of comparing the defendant’s culpability to the average level of culpability of all the participants in the offense. 

This understanding of Hurtado is incorrect. At the outset, we note that much of Hurtado has been overruled or abrogated. But to the extent anything remains of Hurtado, it simply stands for the proposition that comparing a defendant to only the most culpable subset of the participants in the offense does not demonstrate that the defendant is entitled to a minor role reduction. Instead, the district court must compare the defendant’s culpability with the average level of culpability of all of the participants in the crime. Hurtado did not set forth an entirely different method of performing the minor role analysis.

***

The fact that illicit drugs are often traceable to larger drug trafficking organizations does not mean that district courts must compare the conduct of each defendant convicted of a drug crime to that of every hypothetical member of a typical drug trafficking organization. We have repeatedly held that the relevant comparators are the actual participants in the defendant’s crime. By “actual participants,” we mean only participants for whom there is “sufficient evidence of their existence and participation.” Even if one can assume based on how drug trafficking organizations typically operate that it is likely that another unidentified person participated in the crime, the district court is not required to compare the defendant’s culpability with that of the unidentified person. Indeed, without evidence of the proposed comparator’s existence or participation the district court has nothing against which to compare the defendant’s conduct.

We have referred to likely participants to make clear that the defendant does not necessarily need to know the participant’s name or see the participant for there to be sufficient evidence of that person’s participation in the offense. But we have never required a comparison to unknown persons one might assume participated but about whom there is no evidence of their actual participation. 

7/11/22: En banc opinion on 1326

In United States v. Bastide-Hernandez, --- F.4th ---, No. 19-30006 (9th Cir. 2022), the en banc Court reversed the district court’s dismissal of an indictment charging illegal reentry after removal in violation of 8 U.S.C. § 1326.

The district court had dismissed the indictment based on defects in the notice to appear (“NTA”), which initiated the immigration proceedings against the defendant resulting in his eventual removal from the United States.  The district court concluded that the defects deprived the immigration court of subject matter jurisdiction, thereby rendering the entire immigration proceeding void.

The Ninth Circuit disagreed: 

"Consistent with our own precedent and that of every other circuit to consider this issue, we hold that the failure of an NTA to include time and date information does not deprive the immigration court of subject matter jurisdiction, and thus Bastide-Hernandez’s removal was not 'void ab initio,' as the district court determined. We reverse the district court’s dismissal and remand for further proceedings."

"Although the statutory definition of an NTA requires that it contain the date and time of the removal hearing, 8 U.S.C. § 1229(a)(1)(G)(i), this provision chiefly concerns the notice the government must provide noncitizens regarding their removal proceedings, not the authority of immigration courts to conduct those proceedings.  Nowhere does the statute imply, much less 'clearly state,' that its requirements are jurisdictional."