Sunday, December 14, 2014

Case o' The Week: Camou no L’Étranger to Cell Phone privacy - Fourth Amendment and Cell Phone Searches

  The risk, for the government, when it “throws it all up against the barn
Hon. Judge Harry Pregerson
to see what sticks?”
   You may draw the wrong barn.
   United States v. Camou, 2014 WL 6980135 (9th Cir. Dec. 11, 2014), opinion available here.

Players: Decision by Judge Pregerson, joined by Judges Fisher and DJ Gwin. Big win for James Fife and Jason Ser, Federal Defenders of San Diego, Inc.

Facts: Border Patrol agents stopped a truck driven by Camou, and found an undocumented alien hiding within. Id. at *1. Camou’s girlfriend was also inside. Id. Agents found a cell phone in the truck. Id. Camou’s girlfriend described smuggling trips, arranged by “Mother Teresa” who would call with details. Id. During the interview Camou’s cell rang, the girlfriend identified the number as belonging to “Mother Teresa,” and Camou admitted the cell was his. Id. An agent searched the phone without a warrant and discovered child porn. Id. at *2. Camou was never charged with alien smuggling, but after an FBI search warrant revealed hundreds of child porn images on the phone he was charged with possession of child pornography. Id. His motion to suppress was denied, and he entered a conditional plea that preserved his right to appeal.

Issue(s): “Camou argues that the warrantless search of his cell phone was unconstitutional because the search was not incident to arrest, and no other exceptions to the warrant requirement apply. Camou also argues that the exclusionary rule bars the admissibility of the images found on his phone.” Id. at *3.

Held: “We agree.” Id. “Agent Walla’s search of Camou’s cell phone was too far removed in time from Camou’s arrest to be incident to that arrest.” Id. at *4. “Given both the passage of one hour and twenty minutes between arrest and search and the seven intervening acts between arrest and search that signaled the arrest was over, we conclude that the search of the phone was not roughly contemporaneous with arrest and, therefore, was not search incident to arrest.” Id. at *5. “Even if there was probable cause to search Camou’s cell phone, we conclude that the government failed to meet the second prong of the exigency exception: exigent circumstances that require immediate police action.” Id. at *6. “If the vehicle exception applies to this case . . . . the one hour and twenty minute delay between the seizure of Camou’s cell phone and the search of its contents would not invalidate the search. We hold, however, that cell phones are not containers for purposes of the vehicle exception.” Id. at *7. “[C]ell phones are non-containers for purposes of the vehicle exception to the warrant requirement, and the search of Camou’s cell phone cannot be justified under that exception.” Id. at *9.

Of Note: A cell phone is not a “container” subject to search incident to arrest. See id. at *9. That logical extension of the Supreme Court’s recent decision in Riley, 134 S.Ct. 2473, 2491 (2014) is the best of many great holdings in this terrific opinion. Judge Pregerson reviews the Supreme’s rejection of cell phones as containers in the vehicle context in Riley, and finds “no reason” not to extend that reasoning to cell phones recovered when our clients are arrested. Judge Pregerson may be the most-senior non-Senior judge in the Ninth Circuit, but this Fourth Amendment jurisprudence on cell phones is bleeding edge, and drags the Ninth back into the modern world on technology issues.  

How to Use: Read Camou. The government takes a shotgun approach to try to salvage this (bad) search, and as the Court methodically knocks each argument down it gives the defense great tools on many fronts for our Fourth arsenal. Search incident to arrest, exigency, the automobile exception – each is covered (well) and merits quotation. Don’t overlook, however, a great Herring “good faith” discussion at the end of the opinion. Id. at *10-11. Judge Pregerson rejects a negligent agent’s attempt to assert the “good faith” discussion – a section that merits heavy quotation whenever the government throws that red Herring into its Fourth Amendment briefing.
For Further Reading: Little rusty on Riley? For a particularly thoughtful summary of this important decision, see Ten Key Issues from the Riley Opinion Protecting Cell Phone Data Seized During an Arrest, available here

Image of the Honorable Judge Harry Pregerson from

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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Friday, December 12, 2014

US v. Camou, No. 12-50598 (12-11-14)(Pregerson with Fisher and Gwinnett, D.J.).

 A search incident to arrest, ends with the arrest. It can only occur when (1) the search is of the person or immediate vicinity; and (2) be spatially and temporarily tied to the arrest. In short, person or close to the person, close in time and space. Here, the search of a cell phone, where child porn was found, occurred after the arrest had ended. The cell phone evidence must be suppressed.

The defendant was stopped at a checkpoint. A search of the vehicle found an illegal alien being smuggled. The defendant and his girlfriend were arrested. They were separated. They were taken to separate rooms. More intervening acts occurred. The phone was searched for phone numbers....and closed. The phone was opened and the video was searched....and closed. Photos were then examined, and child porn found. An hour and twenty minutes had gone by. This length of time, span of acts, and different places signaled the end of the arrest. The phone, where numbers if the organizer of the smuggling were listed, was not at that point incident to arrest.

The 9th also found that there was no exigent circumstances. The police had the phone. There was no immediate need or emergency. A warrant should have been requested. Likewise, the discovery was not inevitable.

The 9th suppressed.

Congrats to Jim Fife, Deputy Federal Defender for the Federal Defenders of San Diego for this notable win.

Tuesday, December 09, 2014


Warger v. Shauers, No. 13-517 (Sotomayor, J. for a unanimous Court) ---
Rule 606(b) of the Federal Rules of Evidence does not permit the introduction of an affidavit from one juror that alleges that another juror lied in response to voir dire questions for the purpose of concealing a potential source of bias.

The petitioner sued the respondent (so now I'll call the parties the plaintiff and defendant) in federal court over injuries resulting from a traffic accident. The jury found in favor of the defendant, but after trial one of the jurors told plaintiff's counsel that she had learned that the foreperson had lied in response to voir dire questions about potential biases. Armed with that affidavit, the plaintiff moved for a new trial. The district court denied the motion for a new trial, reasoning that the affidavit was inadmissible and without it there was no other evidence of concealed bias on the part of the foreperson. The Eighth Circuit and the Supreme Court both affirmed that decision.

This outcome, the Court said, was the simple result of the plain meaning of the words in Rule 606(b). That rule applies during an "inquiry into the validity of the verdict." Congress chose these words, the Court said, because it was rejecting a competing rule, adopted by some state courts, that permits juror testimony to expose bias on the part of other jurors. Because the affidavit here, if believed, would lead to setting aside the verdict as invalid, see McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548 (1984), the decision in Tanner v. United States, 483 U.S. 107 (1987), made the affidavit inadmissible. Finally, the canon of constitutional avoidance did not require admission of the affidavit. The canon only applies when there are plausible competing interpretations of the text, and here there weren't competing interpretations, one of which raised concerns about denying litigants their right to an impartial jury.

The decision is here:
[Ed. note:  Keith Hilzendeger for Jon M. Sands.  I am cocounsel for the appellant in the case summarized today.]
Alvarez v. Tracy, No. 12-15788 (NR Smith with O'Scannlain; dissent from Kozinski) ---
The Ninth Circuit affirmed the denial of a 25 U.S.C. § 1303 habeas petition filed by a tribal prisoner challenging his bench-trial conviction in tribal court on five counts involving domestic violence and his pre-TLOA, five-year sentence. The petitioner did not file a direct appeal following his conviction. The Ninth Circuit held that failure to exhaust his tribal-court remedies against the petitioner, and affirmed the dismissal on that basis without reaching the merits of the challenges to the conviction.
There are two federal claims before the court, both claimed violations of the Indian Civil Rights Act of 1968. The first is a violation of the right to jury trial. At arraignment, the petitioner was presented with an advice-of-rights form that advised that the defendant had a right to a jury trial, but did not tell him that ICRA required him to affirmatively request a jury trial or what the procedure for asking for a jury trial was. The second claim was a violation of the ICRA right to confront adverse witnesses, which is the same as that under the Sixth Amendment. Finally, the form told the petitioner that he had five days to file a notice of appeal in the event of conviction. The petitioner was convicted and sentenced to five years on this domestic-violence charge, consecutive to sentences in other cases that were not challenged before the Ninth Circuit. He did not take a direct appeal from his conviction; some time later he filed a motion for commutation of sentence, but did not raise his ICRA-based claims in that petition. The commutation petition was denied.

In federal court, the tribe moved to dismiss the habeas petition based on failure to exhaust three particular tribal remedies -- a motion for commutation of sentence, a tribal habeas petition, or a "motion to correct sentence." The tribe did not complain that the petitioner had failed to exhaust his remedy of direct appeal. The district court denied the tribe's motion to dismiss for failure to exhaust, and later denied the petition on the merits. On appeal, the tribe never argued that the court should affirm because the petitioner failed to file a direct appeal and his claims were thus unexhausted.

According to the majority, the petitioner's failure to file a direct appeal meant that the federal courts should not exercise their jurisdiction to decide the merits of his claims. Neither of the two exceptions to the exhaustion doctrine applied. Nothing in the record explained that the direct appeal would have been futile or that the direct appeal would not have offered an adequate remedy. But wasn't that because the tribe never asserted failure to file a direct appeal as a basis for lack of exhaustion? And didn't the tribe at least waive (if not forfeit) this exhaustion theory by failing to argue it either in the district court or the court of appeals. These issues didn't trouble the majority. Unlike in Wood v. Milyard, 132 S. Ct. 1826 (2012), there was no deliberate failure on the tribe's part to argue the exhaustion defense -- after all, it did identify three other bases for failure to exhaust (which the district court rejected and the court of appeals did not address). This gave the petitioner a fair opportunity to argue that his failure to file a direct appeal did not make his claims unexhausted. Moreover, for the majority the Supreme Court's decision in Granberry v. Greer, 481 U.S. 129 (1987), required exhaustion of all tribal-court remedies in order to protect tribal sovereignty "in a manner similar to abstention in favor of state courts." Accordingly, the majority affirmed the denial of the habeas petition based on the failure to take a direct appeal from the judgment of conviction.

Dissenting, Judge Kozinski complained primarily about the unfairness of holding the petitioner to a single default -- the failure to take a direct appeal -- while excusing two defaults on the part of the tribe -- the failure to argue failing to take a direct appeal as a basis for lack of exhaustion, and the failure to raise anyexhaustion argument in the court of appeals as an alternative basis for affirming the district court. He also believed that the petitioner should win oin the merits of his jury-trial claim.

The decision is here:

Saturday, December 06, 2014

Case o' The Week: Prince Pays for royal mistake - Prince and ACCA predicates

 Q: What could be worse, than accidentally shooting oneself with a revolver?
 A: Getting fifteen years in custody, once you’re released from the hospital.
United States v. Prince, 2014 WL 6610329, (9th Cir. Nov. 24, 2014), decision available here.

Players: Decision by Judge Christen, joined by Judges Gould and Wardlaw. Hard-fought appeal by AFD Matthew Campbell, Federal Defenders of Eastern Washington & Idaho.

Facts: Convicted of 18 USC § 922(g)(1), Prince was sentenced under the Armed Career Criminal Act to fifteen years of custody. Id. at *1. (He was arrested after accidentally shooting himself. Id.). He did not object at sentencing. Id. Prince appealed his sentence.

Issue(s): “Prince challenges the district court’s conclusion that his prior California attempted robbery conviction was a ‘violent felony’ under the Armed Career Criminal Act (ACCA). See 18 U.S.C. § 924(e)(1) – (2)(B).” Id.

Held:The district court did not err by ruling that attempt to commit robbery under California Penal Code § 211 qualifies as a ‘violent felony’ for purposes of the ACCA because attempted robbery presents a serious potential risk of physical injury to another, and because it is roughly similar, in kind as well as in degree of risk posed, to burglary and extortion, both of which are listed as violent felonies under the ACCA.” Id. “Applying [the two-step framework from United States v. Chandler, 743 F.3d 648, 650 (9th Cir. 2014)], we conclude that attempted robbery under California Penal Code § 211 qualifies as a violent felony under the ACCA’s residual clause.” Id. at *2 (emphasis added).

Of Note: Judge Christen starts with the Chandler decision, that had held that the Nevada crime of conspiracy to commit robbery qualified as a “violent felony” for Career Offender because it was similar to extortion and burglary. Id. at *3-*4. The California statute, she concedes, allows a robbery without directly taking from a person. Id. at *4. It is close enough, though, because the non-traditional robbery aspects of a California robbery meet the definition of generic extortion (obtaining something from another induced by the wrongful use of fear or threats). By comparing the California attempted robbery statute into two generic crimes – robbery, and extortion – the Court concludes there are analogous-enough risks to satisfy the residual clause. Id. at *5.

How to Use: It is not good, but it is good to know: bad for Career Offender often is bad for ACCA. In Prince, the Court looked to its earlier Chandler decision and its analysis of “conspiracy to commit robbery,” for the analytical structure on this ACCA question. A Career Offender “crime of violence” refers to a guideline definition, USSG  § 4B1.2(a),  while ACCA “violent felony” refers to a statutory definition in 18 USC § 924(e)(2)(B)(ii). The two definitions are close enough for the Court in Prince, which uses the guideline definition to guide its analysis on this statutory definition question. Id. at *2 & n.2. Tricky business, this. The take-away is to check Career Offender authority before breathing a sigh of relief when a potential ACCA prior has yet to be tagged as a “violent felony” predicate.
For Further Reading: Fifteen year mandatory minimum sentence, for a guy who was arrested after accidentally shooting himself? The mandatory-minimum provision of the ACCA is too harsh, and the definitions of crime of violence too vague and confusing, for just sentencing. 
  Don’t you wish the Sentencing Commission would take a hard look at mandatory minimum sentences, and recommended statutory changes to Congress to deal with the mess of “crimes of violence” definitions and predicate convictions in general? Wish granted: mand mins and prior convictions are two of the Commissions’ priorities for the 2014-15 Amendment Cycle. See Final Priorities for Amendment Cycle, available here

Steven Kalar, Federal Public Defender Northern District of California. Website at


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