Case o' The Week: Oh What Busts We Do Unweave, When Special Agents First Deceive - Ramirez, Ruses, and Deceit

“[A] private person has the right to expect that the government, when acting in its own name, will behave honorably. When a government agent presents himself to a private individual, and seeks that individual's cooperation based on his status as a government agent, the individual should be able to rely on the agent’s representations.”

  United States v. Stefan Ramirez, 2020 U.S. App. LEXIS 30635, *17-*18 (quoting SEC v. ESM Gov't Sec., Inc., 645 F.2d 310, 316 (5th Cir. 1981)), decision available here).

The Honorable Judge Kim Wardlaw

(Discussed in the context of a search challenge -- although sadly apropos in our current times as well. .  .)

Players: Important decision by Judge Wardlaw, joined by Chief Judge Thomas. Dissent by Judge Collins. Big win for ED Cal AFPD Peggy Sasso.

Facts: A child-porn investigation focused on an address where Ramirez, his mother, and others lived. Id. at *5. The FBI got a warrant to search the residence and Ramirez’s car if it was at the premises. Id. at *6.

  On the day of the search, Ramirez went to work by 6:00 a.m, but the Special Agents didn’t mosey over to the house until 9:20 a.m. Id. at *7.  FBI Agent Joshua Ratzlaff therefore decided to create a ruse, because he wanted to talk to Ramirez as part of the search. Id. at *6. SA Ratzlaff lied, said that the home had been burglarized, and insisted the police needed Ramirez to return home. Id. After roping Ramirez’s mother into this ruse, SA Ratzlaff eventually convinced Ramirez to come home. Id.

  After he returned to the house, Ramirez was interrogated by armed agents, confessed, and was charged with distribution of child porn. Id. at *8. The district court denied the motion to suppress, and Ramirez appealed after a conditional plea.

Issue(s): “The agents in this case obtained the legal authority to detain Ramirez for officer safety and brought his vehicle within the scope of their search warrant by falsely claiming to be police officers investigating a burglary at Ramirez's home. Whether the district court erred by denying Ramirez’s motion to suppress turns on whether the agents’ use of this ruse violated the Fourth Amendment.” Id. at *11.

Held: “[T]he agents had no authority to seize Ramirez or search his car when they arrived to execute the warrant, because neither was at the residence. The agents manufactured the authority to seize them by falsely claiming to be police officers responding to a burglary to lure Ramirez home. By luring Ramirez home, the agents’ successful deceit enabled them to obtain incriminating statements from Ramirez and evidence from his car and person. . . . . We hold that, under the particular facts of this case, the agents’ use of deceit to seize and search Ramirez violated the Fourth Amendment.” Id. at *4.

Of Note: Sun gonna rise, birds gonna sing, cops gonna lie. Ramirez is a thoughtful analysis of when cops can reasonably use deceit – and, importantly, when they cannot.

  Judge Wardlaw describes two categories of law enforcement deceit. Id. at *14. Deceit is generally lawful when a ruse hides the cop’s identity as law enforcement, and facilitates a search and seizure that is within its lawful authority. Id. (discussing uncovercover operations as permissible deception).

  The second (unreasonable) category of law enforcement deceit is “when the government agent is known to the suspect as such, and invokes the trust or cooperation of an individual to search or seize items outside what is lawfully authorized.” Id. at *16. In other words, cops can’t identify themselves as cops and trick citizens into responding to fake emergencies – like the burglary in Ramirez.

  A seminal case on cop deceit: worth a very close read.

How to Use: Ramirez is the gift that keeps on giving. After its Fourth Amendment ruling, the Court holds that Ramirez’s statements were tainted by the illegality of the initial seizure and must also be suppressed. Id. at *31.

  Turn to Ramirez when seeking to suppress a confession springing out of an illegal search or seizure.                                             

For Further Reading: In our view, Fresno FBI Agent Joshua Ratzlaff’s deceit in Ramirez is Brady / Giglio info that the ED Cal USAO must reveal in future cases. Thanks to a new statute, Brady disclosure will soon be required through an individual judicial order in every case. See “House Passes Durbin, Sullivan Due Process Protections Act,” article here.  

  “This bill requires a federal judge in criminal proceedings to issue an order confirming the obligation of the prosecutor to disclose exculpatory evidence.” See Congressional summary of bill here. 

  The majority of the Northern District of California District Judges have already issued Brady disclosure orders upon AFPDs’ motions for Brady / Giglio cut-off dates.

The Hon. Charles R. Breyer

See, e.g., United States v. Willie Williams, CR 19-00341 CRB (N.D. Cal.) Dkt. Nos. 88 and 92 (Hon. Judge Charles Breyer granting Brady / Giglio cut-off upon motion of Senior Litigator Dan Blank and AFPD Sophia Whiting); see also Defense Motion at Dkt 88, pages 8-9 (collecting Brady / Giglio cut-off orders in the Northern District of California).

  The NorCal District Court should now issue a district-wide Brady order in anticipation of imminent arrival of the Due Process Protections Act.

 

 

Image of The Honorable Judge Kim Wardlaw from https://twitter.com/ladailyjournal/status/927995680081182722

 Image of the Honorable Charles R. Breyer from https://twitter.com/theusscgov/status/807272270464958464 

 

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

 

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