Sunday, June 17, 2012

Case o' The Week: The Kings (and Queens) of Leon - Grant, Fourth Amendment and PC for Warrants

The Hon. Marsha Berzon

Like grandparents nostalgic for the old days, we’ve touted the role of the great cohort of Carter appointees in making the Ninth the first among Circuits. See blog here
The Clinton crew, however, can also hold their own. United States v. Grant III, 2012 WL 2086588, (9th Cir. June 11, 2012), decision available here.

Players: Decision by Judge Berzon, joined by Judges Thomas and Wardlaw. Great win by CD Cal AFPD Matthew Larsen.

Facts: A witness reported a tall, thin black man fled from where a victim was fatally shot. Id. at *1. Detective Ryan Thompson and others used cell phone data and GPS tracking to develops leads on two suspects: two half-brothers associated with a gang. Id. at *2-*3. (One brother fit the vague description of the shooter). Id. at *2. Searches of residences associated with these suspects were unproductive. Id. at *4. 

Nearly nine months after the murder, Detective Thompson ultimately got a search warrant for the home of the father of one of the suspects: Grant. Id. at *4. When that search produced guns, Grant was charged with being a felon in possession. Id. (Note that none of the guns found had anything to do with the homicide, and Grant never was a suspect). Grant challenged the PC for the search warrant, lost in the district court, and entered a conditional plea. Id. at *4.

Issue(s): “We consider in this case whether the basis for the search that resulted in Grant’s conviction was so attenuated as to require suppression of firearms evidence found in the search. The district court held that there was indeed a lack of probable cause to issue the warrant authorizing the search, but invoked the good faith reliance doctrine of United States v. Leon, 468 U.S. 897 (1984), to permit use of the evidence.” Id. at *1.

Held: “We agree as to probable cause but not as to the application of the Leon doctrine, and so reverse.” Id.

Of Note: This opinion is a textbook example of the proper examination of probable cause underlying a search warrant. To broadly summarize a true tangle of facts, this cop had PC to tie one brother to a murder weapon, and probable cause to link the other brother to Grant’s residence. Id. *5-*9. Judge Berzon correctly demands both together: a showing of PC that evidence of a crime will be found, and that the evidence will be found in the place searched. Id. Crime – evidence – place: each of those probable cause showings must exist together for a search warrant to issue. Grant is our scripture for that PC trinity.

How to Use: As good as the PC discussion is, Grant’s real legacy will be its strict analysis of that hated Leon “good faith” exception. Judge Berzon explains that the “good faith” exception doesn’t work if an affidavit is “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Id. at *9 (quoting United States v. Leon, 468 U.S. 897, 923 (1984). That’s just the case in Grant, and the Court carefully explains why while comparing other Ninth and Supreme Court “good faith” decisions – including the very recent Supreme Court opinion in Messerschmidt v.Millender, 132 S. Ct. 1235 (2012). Id. at *9. This opinion is the new go-to case when battling the government’s “good faith” dodge – when you hear Leon, think Grant.
For Further Reading: What do Judges Berzon, Thomas, and Wardlaw have in common (besides this terrific Fourth Amendment decision?) All were appointed to the Ninth by President Clinton. And, more recently, all have been bandied about as SCOTUS candidates. See articles here and here

While we’d hate to lose them from the Ninth, for the good of the Republic we’ll grudgingly let them join The Nine. Here’s hoping for a trifecta of smooth Senate confirmations in 2013 (or ’14, or ’15, or ’16).

Image of the Hon. Marsha Berzon from

Steven Kalar, Senior Litigator ND Cal FPD. Website at


Labels: , , , , , , , ,


Post a Comment

<< Home