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 https://www.law.umich.edu/multimedia/PublishingImages/CambellCompetition2013/IG_cambellmootcourt13ML_02.jpg
Steven Kalar, Federal Public Defender N.D Cal. Website at www.ndcalfpd.org