Case o' The Week: Ninth Has Patience of Jobe for (Long) Delayed Search Warrant - Jobe, Herring, and Search Delays

  Surströmming.

 (Rotten Herring).

United States v. Royce Jobe, 2019 WL 3757596 (9th Cir. Aug. 9, 2019), decision available here.

Players: Decision by visiting DJ Korman, joined by Judges Wardlaw and Hurwitz. 

  Hard-fought appeal by AFPD Margaret Farrand, CD Cal FPD.

Facts: DHS Special Agent Paul Cotcher got a state warrant for Jobe’s residence, on suspicion of a marijuana distribution. Id. Among other things, the search produced a laptop that was seized, but not searched. Id.

   Cotcher then convinced the Feds to take the case. Nearly three weeks later, he got a federal search warrant for the laptop. Id. Twenty days after it was seized, the laptop was finally searched. Id. That search produced evidence leading to federal charges. Id.

  The district judge granted Jobe’s suppression motion, finding unreasonable delay before the federal warrant was secured and laptop was searched. Id. at *2. 

  The government appealed. Id.

Issue(s): “Jobe argues that even if the seizure of the laptop under the state warrant does not provide a basis for exclusion, the twenty-day delay between that seizure and the subsequent execution of the federal search warrant justifies suppression.” Id. at *2.

Held: 1. P.C. in State Warrant, and Herring: “We accept that there was insufficient probable cause to seize the laptop. The state judge lacked a substantial basis for concluding that probable cause existed to seize the laptop because Cotcher’s affidavit did not mention a computer or any electronic devices, much less state any facts suggesting that Jobe’s laptop would likely contain evidence of a marijuana growing operation. . . . Nevertheless, Cotcher’s affidavit supporting the state warrant contained sufficient information to render his reliance on the warrant reasonable.” Id. at *2.

  2. Delay: “Even assuming that the delay was unreasonable, we disagree.” Id. at *2. “[United States v. Cha, 597 F.3d 995, 1003 (9th Cir. 2010)] is our only prior decision addressing the issue posed in Herring in the context of delays.” Id. at *3. “Cha and Herring . . . explain that suppression is warranted to deter deliberate, reckless, or grossly negligent conduct.” Id.

Of Note: Special Agent Paul Cotcher illegally seized a laptop, despite an acknowledged lack of probable cause in the state search warrant. The Ninth, however, finds reliance on the state warrant “reasonable.” Id. at *2. 

  SA Cotcher then held the illegally-seized laptop for nearly three weeks, before finally getting a warrant authorizing a search. The district court (appropriately) suppressed. Although the Ninth grudgingly concedes that “Cotcher could have been more efficient in preparing an application” for the federal search, the Circuit still reverses the district court’s grant of the suppression motion, again citing Herring. 

  As predicted a decade ago, Herring is methodically hollowing-out Fourth Amendment remedies – and by extension, Fourth Amendment protections.

How to Use: Three weeks! That’s an awfully long time for SA Cotcher to sit on an (illegally) seized laptop, before he and the USAO finally get around to getting a second warrant. District Judge Korman spends much of the opinion trying to distinguish Judge Beezer’s decision in Cha – a case where a one day delay merited suppression. 

  Delayed-warrant search cases in the Ninth are now going to have to wrestle with the awkward spectrum of Jobe and Cha: start with this unwieldy pair of opinions when the dust is thick on your client’s seized evidence.

                                           

For Further Reading: A decade ago, NorCal U.S. Attorney Russoniello infamously focused prosecutions on S.F.’s Tenderloin. His initiative federalized low-level drug sales, using the threat of drug mand-mins to coerce quick pleas to high federal sentences. The controversial effort even drew criticism from former AUSAs. See article here. Many of the harsh drug sentences from that era have been reduced over the years, thanks to Johnson, Crack Resentencing, Drug Resentencing, and the First Step Act. 

  Two years ago, NorCal’s U.S. Attorney’s Office charged 37 (all black) defendants in a Tenderloin “Safe Schools” initiative. After litigation, the USAO dismissed the cases in the face of a racial-profiling discovery motion by the FPD’s office (and an order compelling discovery production by the Honorable Judge Edward Chen). See “For Further Reading,” at blog entry here. 

  Five days ago, U.S. Attorney David Anderson announced “F.I.T.”: a new “Federal Initiative for the Tenderloin.” See N.D. Cal. USAO Press Release here. Thirty-two defendants have been charged federally thus far, though notably, another 73 were arrested by S.F. cops in the Tenderloin last week.

  Nihil subsole novum.

Image of surströmming from https://www.vice.com/en_us/article/78dedg/a-rotten-fish-party-got-crashed-by-emergency-services

Image of Tenderloin mural from https://sfcitizen.com/blog/2016/09/28/brand-new-tenderloin-peoples-garden-mural/

Steven Kalar, Federal Public Defender, N.D. Cal. FPD. Website at www.ndcalfpd.org 

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