Case o' The Week: Ninth No Fan of Minivan Plan - Dixon, the Fourth, and Those with Suspicionless Search Conditions

The Fourth Amendment protects our property against warrantless and unreasonable government intrusions.

(Even when the property is a minivan . . . .)

  United States v. Dixon, 2020 WL 7777884 (9th Cir. Dec. 31, 2020), decision available here.

 Players: Decision by Judge Wardlaw, joined by Judge M. Smith and visiting Judge Siler. 

Admirable win for former ND Cal AFPDs Jonathan Abel and Juliana DeVries, building on the district court litigation of Trial AFPD Elizabeth Falk and Appellate AFPD Steven Koeninger.  

Facts: Dixon was on supervised release with a warrantless, suspicionless search condition. Id. at *2. A cop saw Dixon leave an apartment and (allegedly) walk towards a blue minivan. Id. When cops stopped Dixon he dropped two garbage bags he was carrying, and keys. Id. Using one those keys, the cops unlocked, opened, and searched the minivan. They found pot. Id.

Dixon was charged with drug distribution allegations in the Northern District of California.

  During the suppression litigation, Dixon submitted a declaration explaining that he was not in fact walking towards the blue minivan. Id.

   The district court denied the suppression motion without an evidentiary hearing. Id. at *3.   

 Issue(s): “We must decide whether the insertion of a car key into a lock on the vehicle’s door for the sole purpose of aiding the police in ascertaining its ownership or control is a ‘search’ within the meaning of the Fourth Amendment.” Id. at *1. “[W]e must determine whether inserting that key into the minivan’s lock was itself permissible under the Fourth Amendment. This matters because if inserting the key into the car lock violated Dixon’s Fourth Amendment rights, the officers’ resulting knowledge and authority to search that vehicle would be tainted by a Fourth Amendment violation.” Id. at *3.

   “To determine whether a Fourth Amendment violation occurred, we ask two primary questions: first, whether the government conduct amounted to a search within the meaning of the Fourth Amendment; and

   [S]econd, whether that search was reasonable.” Id. at *4. “The level of suspicion required to determine whether a vehicle is subject to a warrantless search condition appears to be an issue of first impression in this circuit . . . .” Id. at *6.

Held: “In light of recent Supreme Court authority tying the Fourth Amendment's reach to the law of trespass . . . we must conclude that because ‘[t]he Government physically occupied private property for the purpose of obtaining information,’ United States v. Jones, 565 U.S. 400, 404 (2012), it conducted a search within the meaning of the Fourth Amendment.” Id. at *1.

  Issue One: “Applying Jones’s property based analysis, we must conclude that a Fourth Amendment search occurs when an officer physically inserts a key into the lock of a vehicle for the purpose of obtaining information, as occurred here. Thus, our decision in Currency is ‘clearly irreconcilable’ with the Supreme Court’s property-based Fourth Amendment jurisprudence, and it cannot stand to the extent that it concluded that no search occurred on these facts.” Id. at *4.

  Issue Two: “We hold that before conducting a warrantless search of a vehicle pursuant to a supervised release condition, law enforcement must have probable cause to believe that the supervisee owns or controls the vehicle to be searched.” Id. at *6. “We therefore remand this case for the district court to conduct an evidentiary hearing and to rule on Dixon’s suppression motion in light of the Jones and Jardines principles we now apply.” Id.

Of Note: The great Dixon opinion is thick with helpful holdings. In addition to a welcome decision of first impression on supervisees and vehicles, the Ninth rejects the government’s attempt to exempt those who have suspicionless search conditions from Jones’ property-based approach. Id. at *5 & n.2. 

A very important Fourth Amendment read.

How to Use: Dixon admitted possession and denied distribution: the jury convicted on simple possession. The DJ, however, denied the two-level reduction for acceptance of responsibility under USSG Section 3E1.1(a). Id. at *8. The Ninth explains that the DJ got the guideline wrong -- Dixon should have received the acceptance break. Id. at *8. 

Dixon is a quiet -- but important -- acceptance-of-responsibility victory, hidden within an attention-grabbing Fourth Amendment win.

For Further Reading: Importantly, the cops’ body cam video substantiated Dixon’s declaration in this case. Id. at *2. Body camera video is a simple reform that adds much integrity and accountability to the criminal justice system.

In our George Floyd era, why would any US Attorney Office federalize a state case that does not have body camera video? That obvious question should be posed to the candidates now eagerly vying for US Attorney gigs in the Biden administration. VP Harris famously touted supporting body cameras, after all.  

Although there are over 100 state, city and county law enforcement agencies in the Northern District of California, Lord only knows which of them have body camera policies or provide the gear to their cops, deputy sheriffs, park and patrol officers.   

For an informative report on this important issue see the report of a San Mateo grand jury, here. 

 

 

Image of blue minivan from https://www.cargurus.com/Cars/l-Used-Minivan-bg4

 

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

 

 

 .

Case o' The Week: The Ninth's Pending Decision - Pacheco Pacheco and Statutory Interpretation

    “Deported” to Duluth? 

    A Black’s and white statutory interpretation case, for the Ninth.

United States v. Pacheco Pachecho, 2020 WL 5902923 (9th Cir. Oct. 6, 2020), decision available here.

 Players: Decision by visiting WD Ark. DJ Dawson, joined by Judges Graber and Bress. Hard-fought appeal by D. Az. AFPD Keith Hilzendeger.  

 Facts: Section 22465(A) of Title 18 prohibits sexual abuse of a ward, who is in “official detention” “pending deportation.” Id. at *1. Pacheco worked at a shelter housing unaccompanied noncitizen children. Id. He was charged under § 22465(A), for sexual contact with these minors. Id. at *2. An official testified at trial that the minors had been served with a Notice to Appear in Immigration courts, and that their cases were in the process of being adjudicated. Id.

  In reality, however, all of the minors were later placed with U.S. sponsors: none were ultimately deported. Id. 

  Pacheco’s Rule 29 motions argued the minors were not “pending deportation” within the meaning of the statute. Id. Those motions were denied and Pacheco was convicted.

 Issue(s): “To establish federal jurisdiction under the statutes of conviction, the victims must be in ‘official detention’—a term that extends to detentions ‘pending . . . deportation.’ 18 U.S.C. § 2246(5)(A). Pacheco contends that his convictions should be vacated because the government presented insufficient evidence to demonstrate that the minors were in official detention. In Pacheco's view, a person is ‘pending deportation’ only if he is awaiting actual removal from the United States following a final order of removal.” Id. at *1.

Held: “We hold that, under 18 U.S.C. § 2246(5)(A), the phrase ‘pending ... deportation’ does not require a finding of actual or inevitable removal from the United States. Instead, it is sufficient that, as here, the government had initiated removal proceedings against the minors, even though those proceedings were unresolved and the minors therefore did not face a certainty of deportation. Because the government presented testimony establishing that the minors in this case had been served with Notices to Appear in Immigration Court and were placed into removal proceedings that created the possibility of deportation, the statute’s jurisdictional element was met.” Id. at *1.

Of Note: Pacheco rejected a six-year deal before trial. He then received a nineteen year sentence after trial. This whopping 300% trial penalty is reported in a concurrently-filed mem dispo, where the big legal battles in this case are resolved. See United States v. Pacheco, 2020 WL 5910103, (9th Cir. 2020) (mem.) 

  In the mem dispo, the Ninth tolerates a government “expert” forensic examiner specializing in child abuse, and rejects a FRE 403 challenge to that “expert’s” testimony. Id. at *2. The Ninth also tolerates a six-level upward adjustment, based on aggravating circumstances. Id. 

  There are admittedly some bad facts in this case (Pacheco was HIV positive): the mem dispo reveals the story behind the opinion’s story . . .

How to Use: Like the Herrera opinion discussed last week, see blog here, , Pacheco is really statutory interpretation case. And like Herrera, the ubiquitous Bryan Garner makes an appearance in support of the Court’s interpretation. Id. at *3 (discussing Black’s Law Dictionary definition, edited by Prof. Garner).

 Pacheco offers a long discussion of the word, “pending” (and tries to distinguish a 2015 J. Reinhardt decision along the way.) The opinion’s expansive definitions of “pending” and “official detention” may have unintended consequences down the statutory interpretation pike: worth a Westlaw search to see what opportunities the case may present.                             

For Further Reading: A cop’s official statement should not an open-book test, to be tweaked after watching body camera video.

The San Francisco Police Commission has finally adopted a policy that restricts cops from viewing body cam footage before providing a statement in an officer-involved shooting, or involving an in-custody death. 

For an article describing this development (with some insights from our own ND Cal AFPD David Rizk), see New body-worn camera measures pass – after 2.5 years of negotiation with SF police union, available here. 

 

 

 

Image of Black’s Law Dictionary (edited by Bryan A. Garner) from https://twitter.com/bryanagarner/status/1134586489935933440

 

 

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

 

 

.

.