Sunday, March 14, 2010

Case o' The Week: Ninth Provides Valuable Herring-Aid, Song Ja Cha

Judge Beezer authors a good case on what constitutes an unreasonable delay of execution of a search warrant. United States v. Song Ja Cha, __ F.3d __, 2010 WL 775238 (9th Cir. Mar. 9, 2010), decision available here.

Cha is a great case, however, on Herring and its application (or rather, on when this unfortunate new Supreme Court rule doesn't apply).

Players: Decision by Judge Beezer.

Facts: Guam police investigated the “Blue House Lounge” on reports that the owners had refused to return an employee’s passport. Id. at *1. Suspecting prostitution, the police arrested one owner, Ms. Cha, and “seized” the place. Id. at *2. Mr. Cha returned home (attached to the Blue House Lounge) but was denied entrance by the police – even to get his diabetes medicine. Id. at *2. The police worked on a warrant, searched around for a magistrate, and finally got around to executing the warrant 26 hours later. Id. at *2-*3. The Chas were charged with sex trafficking and prostitution-related crimes. Id. at *1.

Issue(s): “The magistrate judge concluded that, although the police had probable cause to seize these premises while they obtained a warrant, the warrantless seizure was unreasonably long in violation of the Fourth Amendment of the U.S. Constitution. The district court agreed . . . and the United States brought an interlocutory appeal . . . .” Id. at *1.

Held: “We conclude that the seizure of the Cha residence, which lasted a minimum of 26.5 hours, was constitutionally unreasonable and that suppression of the evidence was warranted. We therefore affirm.” Id.

Of Note: The core holding of Song Ja Cha balancing test for unreasonable length of seizures clearly favors the defense. is good, but not surprising: the Supreme’s McArthur balancing test clearly favors the defense. See id. at *3. Of greater interest is the Court’s rejection of Herring – Chief Justice Robert's regrettable new rule tolerating “negligent” police conduct that results in Fourth Amendment violations. Id. at *7.

The Ninth explains that Herring “only applies to isolated police negligence,” and here the conduct of the Guam police was “deliberate, culpable, and systematic.” Id. Judge Beezer emphasizes that the case involves a mistake of law, not a mistake of fact: mistakes of law are exactly what suppression is meant to deter. Id. at *7-*8. He also finds that the cops’ reckless conduct precludes application of the Herring rule. Id. at *8. Finally, the Court chides the government on its request for remand to develop facts for the Herring analysis, despite a controlling Ninth Circuit case on the issue: “Herring does not require this Circuit to reanalyze and re-balance each category of cases to which it has applied the exclusionary rule over the past decades.” Id. at *9.

The Herring analysis in Song Ja Cha joins Gonzalez, 578 F.3d 1130 (9th Cir. 2009) in the line of great Ninth Circuit decisions limiting the expansion of the dangerous Herring decision into Fourth Amendment jurisprudence.

How to Use: Song Ja Cha reminds us of a great rule for “seizure delay” cases – it isn’t relevant “whether the evidence is the ‘product’ or ‘fruit’ of the unconstitutional delay.” Id. at *6. For example, in this case the Court agrees with the government that the evidence suppressed isn’t fruit of the poisonous tree, because the evidence seized wasn’t the “fruit” of the unlawful seizure. Id. at *5. The defense still wins, though, because “Although not excludable as fruit of the poisonous tree, the evidence must be suppressed as a direct result of the constitutional violation.” Id. at *6. Not the most intuitive of distinctions. Here’s the gist: for suppression, it doesn’t matter that the government didn’t gain any advantage from the unconstitutionally-delayed seizure. If there is a unconstitutional seizure due to delay, the defense gets to skip the poisonous tree analysis and go straight to suppression. Id. at *5.

For Further Reading: When Herring came out, one commentator described it as “one of the most important rulings in that field in the last quarter century.” See Scotusblog article here. That could be right – Herring is a developing into a hot fight in the Ninth. The government has filed a p.f.r. in the Gonzalez case mentioned above, and the Court has asked (unfortunately) asked for responsive briefing.

Image of the Blueback Herring from

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


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