Friday, March 16, 2007

Case o' The Week: "Argument after the Fact" Saves Search: Lopez and Fourth Amendment

Visiting district judge Louis Pollack, E.D. Pa. (left) authors a troubling Fourth Amendment decision that salvages a bad search with an "accessory after the fact" "argument after the fact" on appeal. United States v. Hosvaldo Lopez, __ F.3d __, No. 05-30347, Slip. Op. 2913 (9th Cir. Mar. 12, 2007), decision available here.

Players: Hard fought case by AFPD Bryan Lessley of Eugene Oregon.

Facts: State cops were interviewing a witness in a drug case. Slip. Op. at 2918. A tall, thin Hispanic man drove up in a Ford, pulled a gun on the cops, tried to fire, then drove away. Id. The cops later found the abandoned Ford in a department store parking lot; eight hours later another car approached it. Id. at 2919. A woman got out and drove the abandoned Ford away; a Hispanic male drove the other car, left at another mall exit, and then followed the woman down an adjacent street. Id. Cops stopped the Hispanic male who had dropped off the woman (this defendant, Lopez), took him to a police station, and determined that he wasn’t the attempted shooter. Nonetheless, at the station they got Lopez’s consent to search car that he had been driving. The cops found money, drugs and a gun. Id. at 2920. The district court denied the suppression motion. Id. at 2920.

Issue(s): “[T]he critical question before us is whether the police had probable cause when they questioned Lopez at the police station and obtained written permission to search his car.” Id. at 2925.

Held: We think that Lopez’s role in bringing a driver to rescue the Ford Focus, taken in conjunction with his apparent effort to follow the Fort Focus out of the parking lot, could properly have been perceived by a police officer as suspicious activity . . . . We therefore find that the police had probable cause to believe Lopez was an accessory after the fact, under 18 USC § 3, to the attempted shooter’s crime, and that the police did not act unreasonably in holding him under arrest without a warrant while they investigated further.” Id. at 2934.

Of Note: Accessory after the fact? The government did not argue this in the district court, slipped it into appellate briefs, and the theory was barely mentioned at oral argument. Yet this – dubious – theory saves the day. Read visiting district Judge Pollack’s analysis on the issue: he assures us that, “while not of overwhelming evidentiary weight,” a “reasonable” officer could assume that dropping someone off in a department store parking lot is probable cause. Id. at 294. Not a particularly reassuring assurance.

Equally bothersome is Judge Pollack’s use of Lopez’s (entirely constitutional) silence at arrest to prop up this “accessory” theory. Id. at 2933.

Yet another bad aspect of the decision is its heavy reliance on the fact that Lopez followed the woman as she drove the Focus away – yet this was apparently a busy, one-way street, and there was no other choice when exiting the parking lot. Factual faux pas like these are inevitable when the government sandbags with new “creative” P.C. theories on appeal.

District Judge Pollack is best known for his masterful, persuasive, well-reasoned and lengthy opinion rejecting fingerprint “science” – a decision which he famously reversed six weeks later. (He explained in his second opinion, “I disagree with myself.”) Hope for a similar change of heart in Lopez: an en banc petition is underway.

How to Use: For better or worse, Lopez is laden with language on probable cause for arrest: it is likely to be cited heavily for the black-letter law in future Fourth Amendment decisions. The case does reject the government’s crazy theory that there was probable cause for arrest on the theory that the (short) Lopez was the (tall) shooter from earlier in the day. Id. at 2928. The opinion also dances carefully around state officers’ ability to arrest for federal accessory charges. Id. at 2931 & n.10. Differences in federal and state accessory law didn’t happen to matter in this case, so that issue was moot here – but it might be important in future Fourth Amendment litigation.

For Further Reading: For an interesting discussion of Pollack’s infamous fingerprint reversal (of himself) see “Flaws in Forensic Science,” available here.

For a broader view of the problems with fingerprints generally, see AFPD Rob Eptsein’s excellent article: Fingerprints Meet Daubert: The Myth of Fingerprint “Science” is Revealed,” 75 S. Cal. L. Rev. 605 (2002), available here.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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