Case o' The Week: (Not) Making a List, (Not) Checking it Twice - Garay and Listless Inventory Searches
Q: What
does one call an “inventory” that neglects to actually inventory the items purportedly inventoried?
A: An "inventory" search.
United States v. Garay, 2019 WL 4419679 (9th Cir. Sept. 17, 2019), decision
available here.
Players:
Decision by Judge Schroeder, joined by Judges Graber and DJ Watson.
Facts: Garay
lead officers on a high-speed chase, crashed the car in a ditch, and fled on
foot. Id. at *1-*2. When Garay was arrested, cash and drugs were found
on him. Id.
The officers searched the car (without a warrant) before it
was towed. Id. They found guns, ammo, and a cell phone attributed to
Garay. Id. A later search revealed that the phone had pictures on it that tied Garay to one of the guns. Id. at *1.
Contrary
to the Sheriff’s inventory policy, the officers who, well, rummaged through the
car did not complete an inventory sheet listing the property recovered. Id.
at *3.
State and, later, federal search warrants for the cell phone asserted
that “that individuals who possess firearms take pictures of them and
communicate via text messages to further their criminal activity.” Id.
at *2. The federal warrant application added an assertion that the “‘collective
experiences’ of law enforcement agents that felons prohibited from possessing
guns use mobile phones to coordinate buying and selling guns.” Id.
The motion
to suppress was denied. Id. at *1.
Issue(s):
“Garay contends that the warrantless seizure of the phone itself was
unreasonable and that the affidavits supporting the search of the contents of
Garay’s phone were inadequate.” Id. at *2.
“Garay contends . . . that
the officers used their authority to inventory the car’s contents here to
unlawfully rummage for evidence. Inventory searches are consistent with the
Fourth Amendment only if they are not used as an excuse to rummage for evidence.”
Id.
Held: “[W]e see no reason to hold that the officers were rummaging
for evidence. The contents of the wrecked car had to be removed and safeguarded
before the car was towed from the site. That is the essence of an inventory
search. Because the site was in effect a crime scene, the items in the car were
sensibly treated as evidence. The searching officer complied with the
department’s inventory-search policy in material respects. . . . . That the
officer did not complete the inventory list that ordinarily would be completed
as part of a department inventory search is not, on its own, a material
deviation from policy.” Id. at *3.
“Given the circumstances leading up to the
search, the officers no doubt expected to find evidence of criminal activity
inside the vehicle. But that expectation would not invalidate an otherwise
reasonable inventory search.” Id. at *4.
Of Note: The Ninth’s holding on the “inventory” search is disappointing; its holding on the phone search doubly so.
Garay persuasively argued that “the
affiants’ belief on the basis of their ‘training and experience,’ unadorned by sufficient
supporting details, cannot properly be considered in establishing probable
cause. He argues that, before the affiants’ beliefs may be taken into
consideration, the affiants must detail the nature of their expertise or
experience and how that experience bears on the facts prompting the search.” Id.
at *4.
Judge Schroeder explains the
Ninth’s “standards . . . are not so stringent.” Id.
Bad facts make bad law: the
high-speed chase, crash, drugs, wads of cash, guns, and ammo of Garay makee for a
troubling opinion on search warrant affidavits.
How to Use:
The only bright spot in a dark decision? Garay’s flight is not a threshold
jurisdictional issue that prevents the Court from getting to his Fourth
challenge. Id. at *2 (citing the Supreme Court's 2018 decision in Byrd).
Garay
and Byrd can get our fleeing clients around any jurisdictional bars and to a Fourth Amendment analysis (although our quest for the suppression
remedy may get a little complicated).
For Further
Reading: President Trump has nominated two
more candidates to the Ninth (one without a California Blue Slip). See article
here.
If these appointments are confirmed, the President will have nominated ten
of the Ninth’s twenty-nine judges. See WSJ Op Ed here.
Image
of “Inventory” from https://www.qstockinventory.com/blog/7-tips-warehouse-inventory-management/
Steven Kalar,
Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org
.
Labels: Fourth Amendment, Inventory Search, Probable Cause - Search, Schroeder, Search Warrants, Trump appointees
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