Monday, September 01, 2014

Case o' the Week: Bad Facts (Sometimes) Make Good Law - Nora and Fourth Amendment Suppression after Payton violations

Hon. Paul Watford

  Bad facts made bad law. 
  Except when they don't.  United States v. Nora, 2014 WL 4235955 (9th Cir. Aug. 28, 2014), decision available here.

Players: Decision by Judge Watford, joined by Judges Fletcher and M. Smith.

Facts: Cops came up on Nora and two men on a sidewalk in Central L.A. Id. at *1. By the time the cops got out to speak to the men, Nora was on the porch of his house. As cops talked to them, Nora pushed past and went into the house. Id. Cops saw a handgun in Nora’s hand as he went by. Id. Twenty to thirty officers surrounded the house, a bullhorn and helicopter were used, Nora exited, and a pat-down search revealed marijuana and $1,000 in cash. Id. 
   [Ed. note: Did it not occur to Nora to take the pot and cash out of his pockets, before walking out into the arms of thirty waiting cops?] 
  Nora made incriminating statements. Id. at *2. The cops then got a warrant, searched the house, and found (lots of) drugs, guns, and cash. Id. Nora entered a conditional plea to possession of crack for distribution, preserving his right to appeal his unsuccessful suppression motion. Id.

Issue(s): “Nora contents that, although the officers obtained a search warrant, all of the evidence discovered during the search must be suppressed because the warrant was invalid. The warrant was invalid, Nora argues, because it was based on information acquired as a result of his unlawful arrest. And his arrest was unlawful, Nora urges, because the officers either lacked probable cause to arrest him or, alternatively, arrested him in violation of Payton v. New York, 445 U.S. 573 (1980).”

Held: “Nora didn’t present the kind of immediate threat to the safety of officers or others necessary to justify a disregard of the warrant requirement.” Id. at *4. “Having concluded that the officers had probable cause to arrest Nora [for a misdemeanor violat  ion of possessing a gun in public], but made the arrest in violation of Payton, we must next decide whether the evidence obtained as a result of Nora’s unlawful arrest should be suppressed.” Id. at *5. “[T]he cash and marijuana seized during the search of incident to Nora’s arrest must be suppressed.” Id. at *7. “We conclude that Nora’s post-arrest statements are subject to suppression as well.” Id. “We are . . . left with no portion of the warrant that satisfies the Fourth Amendment’s requirements.” Id. at *10. “[T]he entire warrant was invalid and all evidence seized pursuant to it must be suppressed.”

Of Note: This brief memo cannot do Judge Watford’s great decision justice. He carefully walks through each of the many Fourth Amendment issues involved (suppressing the statements arising from the search, suppressing the evidence on Nora’s person, evaluating the warrant stripped of tainted evidence), in a methodical march towards reversal. It is also a particularly clear opinion and a very accessible analysis – worth a close read, for the latest take on the status of many facets of the Fourth in the Ninth.

How to Use: Payton, you’ll recall, is the 1980 Supreme Court decision holding that the police can’t arrest a subject inside his home absent a warrant or Fourth Amendment exception (like exigency). Id. at *4. Nora gives us a welcome new Ninth rule of first impression: if there is a Payton violation for a defendant forced out of his or her home by police coercion, suppression applies to evidence found in the subsequent pat-down search. Id. at *6. That good new rule merits a close read and the addition of Nora to the Fourth Amendment arsenal.   
For Further Reading: Did Nora get the impeachment info from the personnel files of thirty L.A.P.D.? Unlikely. Meaningful disclosure of impeachment information on cops is systemically blocked by bureaucrat hoops designed to keep Giglio away from prosecutor’s disclosure responsibilities. For a fascinating article documenting this problem, see, Brady’s Blind Spot: Impeachment Evidence in Police Personnel Files and the Battle Splitting the Prosecution Team, available here. 
(A particularly useful attachment the next time an AUSA moves (without standing) to quash your Rule 17(c) subpoenas to a state agency for citizencomplaints against state cops).

Image of the Hon. Paul Watford from

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


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Sunday, August 24, 2014

Case o' The Week: Can you Hear Me Now? - Gadson and Cop "Lay Witness" Testimony under FRE 701

  “This case illustrates the pitfalls of a regime in which officers are permitted to testify as lay witnesses on the basis of information derived from the investigation as a whole, not all of which is before the jury, using specialized equipment and methodologies not available to the jury.” United States v. Gadson, 2014 WL 4067203, *31 (9th Cir. Aug. 19, 2014) (Berzon, J., dissenting), decision available here

  Judge Berzon is right: a case ripe for en banc review.

Players: Decision by Judge Ikuta, joined by Chief Judge Kozinski. Joined in part by Judge Berzon, who dissented in part. 

Facts: Gadson and Wilson were convicted after trial of a conspiracy to distribute cocaine, and firearm offenses. Id. at *1. They were arrested after agents investigated a drug conspiracy in Fairbanks. Id. A search of a hub house revealed drugs, guns and money. Id. at *2. Gadson was later surveilled and tied in with the main conspiracy: a search of Gadson’s house revealed a ballistic vest and lots of cash. Id. at *2. Wilson, arrested as part of the conspiracy, talked to a cousin on jail phones, complained about snitches, and beat a suspected CI in the jail. Id. at *3. At trial, the content of the tapes of the jail calls were interpreted and summarized by a cop “familiar with the prison telephone system.” Id. at *10. There was no defense objection at trial. 

Issue(s): “Wilson asserts that the district court erred in allowing Officer Thompson to testify concerning the content of the telephone calls . . .  According the Wilson, Officer Thompson’s testimony was inadmissible under [FRE 701] because Officer Thompson was not a percipient witness to the conversations, his testimony was based on the investigation as a whole, [and] his interpretation of vague testimony usurped the jury’s role as trier of fact . . . .” Id. at *10.

Held: “Because we rejected this precise argument [regarding FRE 701 and percipient witnesses] in Kevin Freeman, 498 F.3d at 904-05, the district court did not plainly err in not striking Officer Thompson’s testimony on this ground.”  

Of Note: In a compelling dissent, Judge Berzon waves the en banc flag while dissecting the shortcomings of the Ninth’s decision in Freeman. Id. at *27 (Berzon, J., dissenting). You’ll recall the government dodged the reversal bullet on the use of an “expert” to interpret coded calls, because it was harmless error review. See blog on the 2007 Freeman case here.  
  Freeman, observes Judge Freeman, runs afoul of three other circuits that have “severely restricted the ability of officers to testify on the basis of information not before the jury.” Id. at *29 (discussing Sixth, D.C., and Second Circuit decisions). As a result, the Ninth’s case law has “sanctioned a major breakdown in the limits properly placed on lay opinion testimony.” Id. “Kevin Freeman allows the jury’s critical fact-finding role to be usurped by law enforcement testimony based on evidence not presented at trial. As other circuits have held, this procedure has no basis in the Federal Rules of Evidence, undermines trial by jury, and cannot be allowed.” Id. at *34. 

 Judge Berzon correctly argues that “Kevin Freeman should be revisited by an en banc court, perhaps in this case.” Id. at *27. Knock wood her Ninth colleagues agree. 

How to Use: If you’re trying to get in the helpful statements of a witness who has now taken the Fifth, read the disappointing analysis of the decision at *4-*6. Judge Ikuta rejects Gadson’s attempts to admit his brother’s inculpatory statements (when his brother later took the Fifth). Id. The case is a frustrating limitation on the due process right to present a defense by presenting (self-inculpatory) hearsay from a witness who has invoked.                                                

For Further Reading: Cops “interpreting” recorded calls for the jury as lay witnesses under FRE 701: a big problem, and a big evidentiary dispute. For a very interesting summary of the deep Circuit split on this issue, see Sixth Circuit Joins Five Other Circuits in Limiting Agent Lay Testimony Interpreting Recorded Conversations, available here.  
  This is a fuzzy corner of evidence (with rules developed in the context of harmless error litigation). This abuse of "cop lay witness" testimony under FRE 701 has important ramifications: the Ninth’s should heed Judge Berzon's call to revisit Kevin Freeman en banc in the context of Gadson.

Image of inmates call on jail phones from the excellent article “Stupid and Unjust: The Highway Robbery of Prison Phone Rates, at  .

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


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