Case o' The Week: I.A.C., live post-plea: Mahrt and Post-Plea IAC Habeas claims

  Many times, a Ninth decision should force prosecutors to gulp hard and think deeply about their own practice.

  (And from time to time, a Ninth decision should force us to do the same).  

Mahrt v. Beard, 2017 WL 782447 (9th Cir. Mar. 1, 2017), decision available here.

The Honorable Judge William Fletcher

Players: Decision by Judge W. Fletcher, joined by Judges Christen and Friedland.

Facts: Neighbors to a Petaluma residence reported a male and female were “arguing over a gun.” Id. at *1. When officers responded they were met by Mahrt at the gate. Id. He was detained and questioned. Id. 

  Mahrt , and the owner of the property, told the officers that the female involved – Mahrt’s ex-girlfriend – had left the property. Id. Nonetheless, officers conducted a “protective sweep” of Mahrt’s room in the garage. Id. The cops justified the search “due to the report of the possible domestic incident and the mention of a deadly weapon” and “because Mahrt may have been attempting to conceal a victim inside.” Id. 

  No one was found inside the apartment, but ammo cans, ammo, and an apparent AR-15 were discovered. Id. at *2. Cops then learned Mahrt was a felon, obtained consent, searched again, and found guns. Id. 

  Mahrt was charged stateside. His two county PDs did not move to suppress the firearms or ammo. Id. After Mahrt’s motion for new counsel was denied, he plead open and received a six-year sentence. Id. at *3. 

  A Wende appeal was denied in state court, Mahrt – with the assistance of counsel – filed a state habeas petition (denied), and ultimately a § 2254(d) habeas in federal court. Id. ND Cal Magistrate Judge Nandor Vadas granted the federal petition, finding a Sixth Amendment IAC violation. 

 The State of California appealed to the Ninth. Id.

Issue(s): Were the state habeas courts unreasonable in denying the writ?

Held: “It would have been reasonable for the state courts to conclude that a motion to suppress, if brought, would have likely been denied . . . Specifically, the state courts could have reasonably have concluded that the search as justified under the ‘emergency aid’ exception to the warrant requirement.” Id. at *6.

Of Note: Can a habeas petitioner raise an IAC claim against defense counsel for failure to bring a suppression motion, when the petitioner pleaded guilty? That issue is the real heart of Mahrt – and the answer is, “yes.” Id. at *4. 

  Judge Fletcher rejects the State’s “narrow” interpretation of Tollett on the availability of habeas IAC claims after pleas. Id. As he explains, “If the deputies unconstitutionally searched Mahrt’s home, counsel’s failure to move to suppress the fruits of that search prevented Mahrt from making the informed choice to which he was entitled. We therefore conclude that Mahrt’s ineffective assistance of counsel claim is allowed under Tollett.” Id. at *5.

  This is great stuff for habeas folks, opening opportunities in a criminal justice system where the vast majority of criminal cases resolve in guilty pleas. 

  It is also an interesting (and sobering) reminder for trial counsel. 

  The subtext of Mahrt is that the Ninth (fairly) expects explicit discussions with our clients on the pros and cons of pretrial motions (discussions that are even better if done in writing). See id. at *2 (recounting discussions about the motion between defense counsel and Mr. Mahrt). Those discussions must happen before a guilty plea is entered -- and if a decent Fourth motion is abandoned for no good reason, that can be the basis of a later IAC claim. 

  Is the right thing by the client, and an essential step if a pleading defendant is going to make “the informed choice to which he [is] entitled.” Id. at *5.

How to Use: Mahrt’s will be misinterpreted by prosecutors, who will cite the final, AEDPA-compelled Fourth Amendment outcome. Point instead to the decision's threshold holding: “We conclude that trial counsel should have moved to suppress the firearms and ammunition. There was at least a chance that such a motion would have succeeded.” Id. at *5 (emphasis added).  Judge Fletcher carefully goes through the conflicting evidence, the availability of witnesses, and the cop’s (incorrect) original search theory. Id.

   The state-deference, AEDPA-driven outcome means little for Fourth law: this was a bad search and a righteous suppression motion.

                                               

For Further Reading: Three Ninth Circuit jurists have squared-off against the President – in People’s Court.

 (Spoiler alert: the Ninth does just fine).

  For SNL’s coverage of the hearing between POTUS and Judges Canby, Friedland, and Clifton, see clip here.

Image of the Honorable Judge William Fletcher from https://i.ytimg.com/vi/rjHRxqbL1cU/hqdefault.jpg

Clip from Saturday Night Live from http://www.nbc.com/saturday-night-live/video/trump-peoples-court/3468894?snl=1

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

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Case o' The Week: Ninth Falls for Government's Snipe Hunt, New Fourth Rule

Do folks really still fall for the "snipe hunt" gag? The Ninth does here. Judge Bybee creates a new rule -- and a bad one, at that -- for the "emergency" exception to the Fourth Amendment warrant requirement. United States v. Sonny Snipe, __ F.3d __, 2008 WL 216996 (9th Cir. Jan. 28, 2008), decision available here. While Snipe purports to be dictated by a 2006 Supreme Court case, the new Ninth Circuit decision rejects any limitations on a warrant-exception rule that will be quickly abused by law enforcement.

Players: Decision by Judge Bybee, joined by Judges Thompson and Kleinfeld.

Facts: An unidentified, hysterical man called the cops on a non-emergency line at 5:00 am on New Year’s day. Id. at *1. He said “get the cops now,” to the residence of defendant Snipe’s father. Id. Cops reported, and one of them – who lived down the street – noticed i) a strange car in front of the house, ii) someone he didn’t know entering the house, and iii) lights on inside, though the rest of the block was dark. Id.

The cops knocked on the open door, it opened, they went in, and saw a bunch of guys hanging around a table full of drugs. Id. With permission, they looked around. Id. The cops left, got a warrant, returned, found a gun with an obliterated serial number, and charged Snipe. [ed. note: They left the house and went to get a warrant? Only in Idaho – L.A. or S.F. cops would have had everyone in choke holds on entry].

Snipe appealed after a plea. Id. at *2. (Note the government's interesting goof -- this wasn't a conditional plea, but the government forgot to object at the plea and so waived any challenge to appeal). Id. at *2 n.3.

Issue(s): “Snipe challenges his conviction on the ground that the district court erroneously denied his suppression motion.” Id. at *2.

Held: “[W]e affirm Snipe’s conviction. The officers’ initial entry was justified by exigent circumstances, and their subsequent observations of illegal drugs in plain view provided probable cause for the search warrant that led to their finding the firearm with an obliterated serial number.” Id. at *2.

Of Note: This is an important case that changes a longstanding Ninth Circuit rule. The Ninth previously used a three-part test for “emergency entry” cases. See id. at *2 (discussing United States v. Morales Cervantes, 219 F.3d 882, 888 (9th Cir. 2000)). That test – which included a probable cause component – is now gone.

Judge Bybee creates a new test in light of the Supreme Court’s 2006 decision in Bringham City. Snipe, 2008 WL 216996, *3. The new Ninth Circuit test asks whether:

“(1) considering the totality of the circumstances, law enforcement had an objectively reasonable basis for concluding that there was an immediate need to protect others or themselves from serious harm; and

(2) the search’s scope and manner were reasonable to meet that need.” Id. at *4.

What is not in this new test is any showing of probable cause linking the “emergency” and the location searched, or any confirmation that the emergency call was authentic. Id. at *4-*5. (Remember: the call in this case was anonymous, not made to an emergency line, and had no caller ID). As discussed below, anticipate much abuse of this rule.

How to Use: Drug dealers and estranged lovers will love Snipe. Just call the police from a blocked cell number, scream while you anonymously report an “emergency” at your rival dealer’s or ex’s place, then sit back and enjoy the fireworks. There’s no need for any other indicia of reliability that courts annoyingly require for the typical anonymous snitch. Or, to avoid the middleman, a beat cop can “hear” hysterical cries from a suspected drug location and just barge in – the cop’s subjective reason for entering is no longer relevant. See id. at *4 (discussing objectively reasonable basis for search); id. at *3 (discussing Whren).

The Snipe rule will be abused, and quickly. When fighting an exigency search, contrast the depth of supporting facts in the Snipe case. In Snipe, there was:

• a hysterical call asking for a response to a specific address;
• the cop lived on that street and recognized a strange car (only in Idaho);
• the cop who lived on that street saw a stranger enter the house;
• lights were on at 5 am, unlike every other house on the block;
• the entry was just a gentle knock on an open door;
• the cops declined an invitation to kick in the door of a locked room inside the house; and
• the cops went and got a warrant before conducting a full search.

The new Snipes rule is a “totality of the circumstances” test, and few searches (outside of Idaho) will boast as many facts supporting a “reasonable” entry as Snipes.

For Further Reading: For a thoughtful analysis of the objective/subjective Fourth Amendment debate as it was (miserably) played out in Bringham City, see George E. Dix, Subjective “Intent” as a Component of Fourth Amendment Reasonableness, 76 MSLJ 373 (2006).

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at www.ndcalfpd.org

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