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 (9th Cir. 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.

 NorCal ACLU filed in Alameda County Superior Court, demanding the release of inmates vulnerable to COVID-19. See press release here. 

Image of evidence seized in Grey case, from http://theavtimes.com/2018/05/09/guns-drugs-100k-seized-in-lancaster-raid/

Image of Santa Rita Jail from https://www.mercurynews.com/2020/03/18/east-bay-jail-looks-to-reduce-jail-population-by-keeping-only-violent-criminals/

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

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Case o' The Week: Whren is for the Birds -- Mark Johnson and Subjective Intent in Administrative Searches

 Ninth ignores defense arguments, relies on cops’ assertions –

    and reverses for a suppression win!

United States v. Mark Johnson, 889 F.3d 1120 (9th Cir. May 14, 2018), decision available here.

Players: Per curiam opinion: Judges O’Scannlain, Paez, and Bea. Special concurrence by Judge O’Scannlain, joined by Judge Bea. Special concurrence by Judge Paez.

Facts: Deputies found Johnson, who was wanted for a warrant. Id. at 1123. They surveilled him at his house, let him drive away from the home, then at an intersection they boxed his car and stopped him. Id. The cops ordered the parked car towed. Id. 

  Before the tow, they did an inventory search and found (among other things) a backpack. Id. They got a warrant and found meth and evidence of drug dealing in the backpack. Id. at 1124. 

  Johnson was charged federally and moved to suppress. Id. The motion was denied, Johnson was convicted after trial, and sentenced to 188 months. Id.

Issue(s): “We must decide whether the trial court erred in failing to suppress evidence that was seized by . . .  police officers during their inventory search of a criminal defendant and the car he was driving at the time of his arrest.” Id. at *1123. 

  “Johnson contends that the officers in this case impounded and searched the car he was driving not for any legitimate inventory purposes, but rather as a pretext to look for evidence of wrongdoing. He urges that both the officers’ actions leading up to the stop and search of his car and their conduct in carrying out that search show that they were subjectively motivated by an improper desire to find incriminating evidence against him.” Id. at 1125.

Held: “We . . . must determine whether Johnson has produced evidence that demonstrates the officers would not have searched and seized items from the car he was driving but for an impermissible motive.” Id. at *1126. 

  “[W]e need not consider the merits of [Johnson’s] arguments—or whether any such violations of [the tow] policy would require suppression of the evidence found —because the officers themselves explicitly admitted that they seized items from the car in an effort to search for evidence of criminal activity.” Id. at 1127 (emphasis in original).

  “In light of our decision in Orozco, we conclude that the officers' search and seizure of such evidence cannot be justified under the inventory-search doctrine. See Orozco, 858 F.3d at 1212–16. Because the government has not offered any justification for the seizure of such property other than the inventory-search doctrine, we conclude that the district court erred in denying Johnson’s motion to suppress.” Id. at 1128.

Of Note: In a special concurrence, Judges O’Scannlain and Bea waive a red flag at the SCOTUS bull. Id. at 1129 (O’Scannlain, J., specially concurring). The real issue in Johnson is whether the officers’ subjective intent is relevant when considering an inventory search. Under the Ninth’s (correct) Orozco decision, the cops’ intent matters. See generally blog post here. Judge O’Scannlain, however, argues that Orozco parts way with Supreme precedent. Id. at 1131. 

  In a compelling concurrence, Judge Paez strongly disagrees – noting that the "vast majority" of sister circuits have agreed that subjective motive is relevant when assessing administrative searches. Id. at 1135. 

  Judge Paez has the better argument, questioning Judge O’Scannlain’s reliance on a mem dispo in the sister-circuit count. Id. at 1136 n.3. Nonetheless, in uncertain times, this attack on established law for administrative searches is unsettling.

How to Use: Cops are so used to hiding behind the Whren “objective” shield, they get sloppy and are honest about their real subjective intent in administrative searches. That phenomenon is precisely what happened here in Johnson, producing the facts that lead to the suppression win. 

  Consider that Whren-pulse when prepping for evidentiary hearings – this win was handed to the defense by the cops.

                                               

For Further Reading: Justice Scalia, the big Whren Friend, is no longer with us. And Justice Ginsburg – who joined Whren – may be having second thoughts. For a fascinating piece supporting Judge Paez’s view that subjective intent is increasingly relevant for SCOTUS, see “A Crack in the Whren Wall,” available here.

Image of Wren from https://www.allaboutbirds.org/guide/House_Wren/id

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

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