Ninth Circuit Blog: Case o' The Week: No Shades of Grey, for Search Astray - Grey, Fourth Amendment, and Motives for Administrative Inspection Searches

Black & Whites’ motives, not Grey . . . .

United States v. Grey, 2020 WL 2745322 (9thCir. May 27, 2020), decision available here.

Players: Decision by Judge Tashima, joined by visiting DJ Harpool. Dissent by Judge Bybee.

Admirable win for AFPD Sonam Henderson, C.D. Cal. FPD.

Facts: Grey lived in a rental house in Lancaster, California. He obscured his home with tarps, erected too-high fences, and was suspected of having an unlawful car-repair business. Id. at *1-*3. Code-enforcement inspectors looked into Grey, and law enforcement began a criminal investigation. Id. at *3.

Deputy sheriffs learned Grey had felony priors, that neighbors alleged he had guns and meth, and had fired guns into the air. Id. Id. at *4. The deputies nonetheless conceded that they did not have probable cause for a search. Id. at *4.

Code enforcement then obtained an administrative inspection warrant: nine deputy sheriffs tagged along when it was executed. Id. The deputies arrested Grey outside his home, then poked around the house for twenty minutes. They found drugs and guns. Id. (See picture of evidence above).

Grey was charged in federal court, the district court suppressed, and the government took an interlocutory appeal. Id. at *7-*8.

Issue(s): “In the case before us, the district court applied Alexander [v. City & County of San Francisco, 29 F.3d 1355 (9th Cir. 1994)], holding that [the Sheriff’s] execution of the warrant was unreasonable under the Fourth Amendment because [the Sheriff’s] primary purpose in executing the warrant was to gather evidence in support of its criminal investigation rather than to assist the inspectors. . . . On appeal, the government argues that the district court should have applied [United States v. Orozco, 858 F.3d 1204 (9th Cir. 2017)], instead, and that [the Sheriff’s] actions were lawful under Orozco because [the Sheriff’s] impermissible motive was not the but-for cause of the search, because the sweep of Grey's dwelling would have occurred regardless of the deputies' motivation to uncover criminal evidence.” Id. at *10 (citations and internal quotations omitted).

Held: “[W]e conclude that the district court properly applied Alexander's primary purpose test, rather than Orozco, to the [Sheriff’s] conduct at issue in this case. Where, as here, law enforcement officers are called upon to assist in the execution of an administrative warrant providing for the inspection of a private residence, the execution of the warrant is consistent with the Fourth Amendment only so long as the officers’ primary purpose in executing the warrant is to assist in the inspection. If the person challenging the execution of the warrant shows that the officers’ primary purpose was to gather evidence in support of an ongoing criminal investigation, the conduct does not satisfy the Fourth Amendment.” Id. at *13.

Of Note: Alexander focuses on the “primary purpose” of the cops involved in the execution of an administrative warrant for the inspection of a private residence. If that primary purpose was to make a criminal arrest, instead of aiding inspectors, the search violates the Fourth. Id. at *9. Orozco requires the defendant to show that the stop would not have occurred in the absence of the impermissible reason. Id.

What’s the difference?

Well, actually, “there appears to be little practical difference between Alexander’s primary purpose test and the Orozco test,” explains Judge Tashima. Id. at *10.

How to Use: Administrative searches, and “special needs” cases, are two Fourth Amendment exceptions where officers’ subjective intent matters. Judge Tashima provides a valuable overview of this line, and reconciles the approaches. Id. at *9.

Grey is a must-read for administrative search cases (including the oft-abused “inventory” search).

For Further Reading: Santa Rita Jail became the target of yet another class action suit, last week.