Monday, November 25, 2013

US v. Arreguin, No. 12-50484 (11-22-13)(Goodwin with Nelson and N. Smith).

Anyone, especially defendants, who might have a guest stay over, and might not want the DEA rummaging through their house, can breath a bit easier. The 9th here holds that the police, in getting third party consent, has to assess whether the "guest" can give consent to, say, a master bedroom, with two doors leading to it. This case involved the DEA going to a house suspected of drug activity, and knocking and announcing at around 11 a.m. The door was opened by a "sleepy" woman, determined by the DEA to be a guest. The DEA saw the other occupants of the house, one of whom disappeared with a shoebox and reappeared. The DEA got a "consent" to come in and look around from the guest and drugs and money were found in the bedroom and in the car. The DEA had no warrant, and before they could do a search, they needed to gather more information as to the guest's "apparent authority" for the search, and consent, than what was given. Who was this person, and what was the extent of her authority? The 9th ordered the suppression of items of evidence found in the bedroom, and remanded to determine whether statements and other evidence seized should be suppressed as "poisonous fruit." The 9th signaled, perhaps, its inclination with a cite where such evidence was suppressed.

Sunday, November 24, 2013

Case o' The Week: Ignorance is Bliss (but not in the Ninth!) - Arreguin and apparent authority to consent to search

“Ignorance is bliss.”

 Cypher believes it -- and so do cops eager to search a house without a warrant.

 The Ninth, happily, does not.

  United States v. Arreguin, 2013 WL 6124722 (9th Cir. Nov. 22, 2013), decision available here.

Players: Decision by Judge Goodwin, joined by Judges DW Nelson and N.R. Smith.

Facts: When Cops and the DEA did a “knock and talk:” the house’s door was answered by “sleepy looking” Valencia. Id. at *1-*2. Agents could see past Valencia, and noticed the defendant, Arreguin. Id. at *2. Arreguin disappeared and reappeared several times, holding a shoe box. Id. The cops asked Valencia if they could come in, Valencia agreed, the cops went into the house, then into the master bedroom, and continued on into a garage. Id. at *2. They found drugs in a bathroom and much cash in a car. Id. Confronted with these discoveries, Arreguin signed a written consent: bricks of meth were then discovered in the garage. Id. at *3. The cops later learned that the sleepy Valencia was a mere house guest. Id. After the district court denied a suppression motion the Ninth reversed; on remand the district court denied the motion again. Id. at *3. Arreguin entered a conditional plea and appealed again. Id. at *1.

Issue(s): “The government may meet its burden to show consent by demonstrating that: (1) a third party had shared use and joint access to or control over a searched area; or (2) the owner of the property to be searched has expressly authorized a third party to give consent to the search . . . Or, if the government cannot present proof of a party’s actual authority, the government may establish consent by means of the ‘apparent authority doctrine.’ . . . Under the apparent authority doctrine, a search is valid if the government proved that the officers who conducted it reasonably believed that the person from whom they obtained consent had the actual authority to grant that consent. . . Apparent authority is measured by an objective standard of reasonableness, and requires an examination of the actual consent as well as the surrounding circumstances.” Id. at *4 (internal quotations and citations omitted). 
  [Ed. note: To paraphrase the issue: based on the facts then known to them, did the officers have an objectively reasonable belief that Valencia had authority to consent to a search of the entire house, including the master bedroom, adjoining bathroom, and attached garage?]

Held:The police are not allowed to proceed on the theory that ignorance is bliss. And the Agents were proceeding in a state of near-ignorance when they searched both the master suite and the area behind the second door in the master suite [the garage]. They knew far too little to hold an objectively reasonable belief that Valencia could consent to a search of those areas.” Id. at *5.

Of Note: In Arreguin Judge Goodwin carefully wades through the facts known to the agents, and rejects the government’s stretch to save the search. See, e.g., id. at *6 (“Valencia’s answering of the Residence door is not, in and of itself, adequate to justify a reasonable belief that he had the authority to consent to a search of the master suite.”) Turn to Arreguin when confronted with the slippery “apparent authority” doctrine. See e.g., id. at *6 (“The failure to inquire properly weighs against the government, not Arreguin, because the police are simply not allowed to proceed on the theory that ignorance is bliss.”) (internal quotations and citation omitted).

How to Use: Scrambling to save a shoddy search, the government brought many late arguments to the Ninth. These efforts met with a cool reception. Judge Goodwin deems an “actual” authority argument waived, id. at *4 n.5, and finds a late “protective sweep” argument waived as well. Id. at *7 (collecting authority). Arreguin is a very useful addition to the appellate toolbox, to argue the government’s waiver of late arguments.
For Further Reading: The NSA obtained cell-site location data, without probable cause, in twenty criminal cases in the massive C.D. Cal. By contrast, it appears to have tracked 40 criminal cases without P.C. in the much-smaller ND Cal! (Including United States v. Raymon Hill, a routine S.F. gang case). 
   Who in the ND Cal was so infatuated with cell-site location data, and how did they dodge P.C. requirements in so many cases?
  An indefatigable crew of NorCal defense attorneys are ferreting out the answers – stay tuned. See generally EFF on NSA spying here, and ACLU summary here.

Image of Matrix’s Cypher, with steak, from
Image of NSA Eagle from

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


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Sunday, November 17, 2013

Case o' The Week: Secret Agent Man & Jury Instruction Plan - Agency in federal criminal law

“Secret agent man.”

Works better as a song, than a theory of the defense.
United States v. Oliver King, 2013 WL 6038242 (9th Cir. Nov. 15, 2013), decision available here.

Players: Decision by Judge Nguyen, joined by Judges Thomas and DJ Dearie.

Facts: King, a Canadian, liked guns. Id. at *1. He was unable to legally sell them in the United States, so he paired up with a US citizen named Zarandi. Id. King proposed, and Zarandi agreed, that King would do the “legwork” for a firearms business in Oregon. Id. King filled-out the paperwork and set up a corporation called, “MHPS.” Id. Zarandi was listed as the CEO and sole ‘responsible person’ on the federal firearm application. Id. The application was approved, and along with other more-straightforward transactions King also bought guns – and offered to sell them, in the United States – behind Zarandi’s back. Id. at *2. He was ultimately arrested, charged with, and convicted of – among other things – unlawfully dealing in firearms. Id.

Issue(s): “King’s proposed instructions stated . . . that he could not be convicted of unlicensed firearms dealing unless the government proved that he was not ‘authorized to act on behalf of another person or corporation that did have a license as a firearm dealer.’ King sought these instructions so that he could argue to the jury that he was not guilty of unlicensed firearms dealing because he only acted on behalf of MHPS, a licensed corporate entity.” Id. at *4. “With regard to his conviction for unlawfully dealing in firearms, King contends that the district court erred in refusing to give his proposed jury instructions, which required the government to prove that King was not acting as an authorized agent of a federal firearms licensee.” Id. at *1.

Held:In an issue of first impression in our circuit, we hold that King is not entitled to such an instruction.” Id.

Of Note: King was also convicted of making material false statements to border agents by not revealing that he was entering the US from Canada to mess with guns. Id. at *8. In reality, however, his lies made no difference: he was the target of an ICE investigation, was being followed and surveilled as soon as he was “allowed” to clear customs, and because he was the target of an investigation it didn’t matter what lies he offered for his reason to cross. Were his lies “material,” because he was going to be admitted regardless so ICE agents could continue their investigation? Yes, says Judge Nguyen: “actual influence is not required, so long as the misstatement has a propensity to influence agency action.” Id. at *8. This disappointing holding forecloses a thoughtful counter-argument laid out in 2011 by dissenting Judge Tashima in United States v. Howard.

How to Use: King’s interesting theory was that he didn’t violate the “dealing in gun” statute because he was an agent of an authorized person or corporation – here, MHPS. Judge Nguyen isn’t keen on that theory, rejecting it as a matter of statutory interpretation. Id. at *4. Of broader import, Judge Nguyen spends a fair amount of time discussing agency theory in the context of federal criminal law. Id. at *5 (discussing with approval United States v. Fleischli, 305 F.3d 643, 652 (7th Cir. 2002)). King is worth a sobering read if mulling an agency defense in another context (such as the purchase of machineguns, the agency theory rejected in Fleischli).

For Further Reading: Can the government supersede with a mandatory minimum charge in retaliation for the defendant filing a suppression motion? Sure – despite the clear spirit of the recent Holder memo, discouraging such vindictive use of mand-mins. 
 Here’s a more interesting question: can the district court dismiss the mand-min count for vindictive prosecution? Sure, explains the Sixth Circuit, in a great new decision: United States v. LaDeau, available here. (“Concluding that the government had not rebutted the presumption of vindictiveness, the district court dismissed the superseding indictment. The government filed this appeal. Because the district court did not abuse its discretion in dismissing the superseding indictment, we affirm.”) 
   This welcome win by Nashville AFPD Michael Holley deserves to be imported into the Ninth.  

“Secret Agent Man” graphic from

Steven Kalar, Federal Public Defender ND Cal, website at

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