Case o' The Week: Passengers Demur? For Sure! - Landeros, Fourth Amendment, Prolonged Searches, and Passengers

  Passengers not there for the search and seizure ride.

 United States v. Landeros, 2019 WL 166120 (9th Cir. Jan. 11, 2019), decision available here.

Players: Decision by Judge Berzon, joined by Judges Rawlinson and Watford. Big win for AFPD Lee Tucker, District of Arizona.

The Hon. Judge Marsha Berzon

Facts: Landeros was a passenger in a car stopped for speeding 11 miles over the limit. Id. at *2. Landeros refused to comply when the officer “commanded” him to produce an I.D. Id. The officer called for backup (prolonging the stop): ultimately Landeros gave in and exited the car. Id. Cops then saw open beer bottles on the floorboard, and Landeros was arrested. Id. The cops cuffed and searched him and found bullets, ultimately leading to a § 922(g) charge. Id. at *3.

 His motion to dismiss was denied. Id. Landeros entered a conditional plea, allowing him to appeal. Id. (An eminently reasonable process under the Rules of Criminal Procedure that is apparently available in Arizona, but which has yet to make it as far west as NorCal.)

Issue(s): “Our question is whether law enforcement officers may extend a lawfully initiated vehicle stop because a passenger refuses to identify himself, absent reasonable suspicion that the individual has committed a criminal offense.” Id. at *1.

Held: “We conclude that they may not do so. As a result, we reverse.” Id. at *1. “This case implicates two doctrines, one concerning the circumstances under which law enforcement can prolong a stop, and the other governing when law enforcement can require a person to identify himself.” Id. at *3. 

  “As explained above, the officers insisted several times that Landeros identify himself after he initially refused, and detained him while making those demands. At the time they did so, the officers had no reasonable suspicion that Landeros had committed an offense. Accordingly, the police could not lawfully order him to identify himself. His repeated refusal to do so thus did not, as the government claims, constitute a failure to comply with an officer's lawful order, Ariz. Rev. Stat. Ann. § 28-622(A). There was therefore no justification for the extension of the detention to allow the officers to press Landeros further for his identity.” Id. at *7.

Of Note: Eleven years ago, the Ninth delivered the aggravating Turvin decision.  517 F.3d 1097 (9th Cir. 2008). In Turvin, Judge Wallace held that an officer didn’t unlawfully extend a traffic stop when he took a little break from writing a traffic citation – to ask about a meth lab and get consent to search the truck! Id. at 1101-02.

  Dissenting Judge Paez didn’t buy the reasoning in Turvin. He compellingly complained that the officer in Turvin had no reasonable suspicion to prolong this traffic stop. Id. at 1106 (Paez, J., dissenting).

Hon. Judge Richard Paez

 It took over a decade, but Judge Paez has finally been vindicated. In Landeros, Judge Berzon recognizes that the Supreme’s 2015 Rodriguez decision (at least partially) abrogated Turvin. She accordingly employs the Gammie whammy to bring the Ninth’s law in line. Landeros, 2019 WL 166120, *4.

  Landeros is now the lead Ninth decision on prolonged traffic stops (and is a particularly well-written opinion): worth a close read in any traffic stop case.     

How to Use: Cops exploit traffic stops to search passengers. To borrow Judge Watford’s dissenting insight from the recent Lamar Johnson case, “it is no secret that people of color are disproportionate victims of this type of scrutiny.” United States v. Lamar Johnson, 2019 WL 137929, *10 (9th Cir. Jan. 9, 2019) (Watford, J., dissenting). 

   Judge Berzon’s thorough analysis in Landeros is just what the doctor ordered for these pretextual passenger searches. As she explains, “[a] demand for a passenger’s identification is not part of the mission of a traffic stop.” Landeros, 2019 WL 166120, *5 (emphasis added).

  When a driver’s expired tags devolves into your client-passenger being searched, turn to Landeros for welcome limits on this heavily-abused law enforcement tool.

                                               

For Further Reading: 51 judicial candidates have been re-nominated by President Trump last week.

The Honorable California Senators Feinstein and Harris

  Conspicuously absent from these re-nominations? Three previous Ninth nominees, that had previously been sent the Senate sans Cali blue slips: Patrick Bumatay, Daniel Collins, and Kenneth Kiyul Lee. See article here. 

“Passengers” Logo from http://logos.wikia.com/wiki/File:Passengers-2016-movie-logo.png

Image of the Honorable Judge Marsha Berzon from http://www.spokesman.com/blogs/boise/2014/sep/08/judge-berzon-train-has-left-station/

Image of the Honorable Judge Richard Paez from https://twitter.com/craigcaplan/status/864161811800752128

Image of the Honorable Senator Diane Feinstein and the Honorable Senator Kamela Harris from https://talkingpointsmemo.com/news/feinstein-harris-no-white-house-consultation-california-judicial-nominees 

Steven Kalar, Federal Public Defender Northern District of California. Website at www.ndcalfpd.org

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Case o' The Week: Gov't Gobbles Second Bite of Argument Apple - Williams and Reasonable Suspicion for Searches

 Q: What’s does one call a government argument, raised for the first time on appeal?

  A: Waived. “More precise.”

   United States v. Williams, 2016 WL 5030343 (9th Cir. Sept. 20, 2016), decision available here.

Players: Decision by Judge Wallace, joined by Judge Kozinski and DJ Whaley.

The Honorable Judge Clifford Wallace

Hard fought appeal by D. Nev. AFPD Amy B. Cleary.

Facts: A named tipster called a police hotline and reported a suspected drug dealer, sleeping in a specific type of Ford in a particular area. Id. at *1. At around 4:40 a.m., the cops blocked the parked Ford and shined a light inside. Williams sat up, looked around, started the car, then put the car in reverse and then parked. Id. at *2. At the officers’ command, Williams got out of the car – and then ran. Id. He was caught and arrested: a pat search revealed crack and cash. Id. A search of the car revealed a gun. Id. 

  Williams was charged with federal gun and drug offenses. Id. He filed – and won – a suppression motion, and the government appealed.

Issue(s): “The government . . . argues that the district court erred in concluding that the officers lacked reasonable suspicion to conduct an investigatory stop.” Id. at *3.

Held: “Applying the principles articulated in White and Navarette, we hold that [the] officers . . . had reasonable suspicion to stop Williams based on the information they possessed and the tip’s reliability.” Id. at *3. “[T]he officers acted reasonably when they blocked in the driver with their police car, turned on their police lights, and one of the officers drew his gun.” Id. at *4.

Of Note: The heart of this case is tipsters, and their role in creating reasonable suspicion. Id. at *3. Judge Wallace employs two Supreme Court decisions to find reasonable suspicion here: Navarette v. California,134 S.Ct. 1683 (2014) (reliability of tips and reasonable suspicion), and Alabama v. White, 496 U.S. 325 (1990) (tips creating reasonable suspicion.) Id. at *3. 

  As with most things Fourth, Williams is a fact-bound inquiry. In this case, the call was from an identified tipster, the caller described the car’s make and location, the tipster made specific criminal allegations, Williams reacted suspiciously when the cops arrived, and it was a high-crime area. Id. at *4. 

  The Ninth decision upholding this stop rests on layers of supporting facts for the government. Don’t let an AUSA cite Williams as a blank check for tipster stops – the facts of the case are ripe for distinction.

How to Use: Reasonable suspicion for the initial stop was the first issue in the case: PC for the arrest, the second. Williams also argued that the cops lacked probable cause to arrest (and thus, search) him. Id. at *4. 

  For the first time, on appeal, the government argued that a Nevada “obstruction” statute created probable cause when Williams ran. Id. at *5. 

  There is, of course, “a ‘general rule” against entertaining arguments on appeal that were not presented or developed before the district court.” Id. at *5. Judge Wallace, however, notes that the government resisted the probable cause argument in the district court. The government’s new “Nevada statute” theory before the Ninth was, the Court assures us, just “a more precise argument on appeal.” Id. at *6. 

  This is an aggravating second bite of the apple for the government in this case, but store the decision away. It is a useful “sauce for the goose” citation for our own “more precise [defense] arguments” before the Ninth.

                                               

For Further Reading: At least the Williams tipster identified himself. In the 5-4 Navarette case, Justice Thomas tolerated reasonable suspicion developed from an anonymous call. 134 S.Ct. at 1688-89 (“Even assuming for present purposes that the 911 call was anonymous . . . we conclude that the call bore adequate indicia of reliability for the officer to credit the caller's account.”) For a vigorous critique of Navarette, see Whither Reasonable Suspicion: The Supreme Court’s Function Abandonment of the Reasonableness Requirement for Fourth Amendment Seizures (2016), available here, or on Westlaw at 53 Am. Crim. L. Rev. 349.

Image of the Honorable Judge Clifford Wallace from http://www.iclrs.org/content//events/presenters/4f0625e2d6476.jpg

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

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Case o' The Week: Anon, anon - Anonymous Tips & Reasonable Suspicion - Edwards and Fourth Amendment Stops

Q: How reliable can an anonymous tip really be?
A: Reliable enough.

United States v. Edwards, 2014 WL 3747130 (9th Cir. July 31, 2014), decision available here.

Players: Decision by Judge Fisher, joined by Judges Noonan and Wardlaw. Hard-fought appeal by (former) CD Cal AFPD Davina Chen.

Facts: An anonymous 911 caller reported a “young black male” shooting at cars. Id. The shooter was described as between 5’ 7” and 5’9” tall, and “maybe 19, 20” years old. Id. The suspect was described as wearing a black shirt and grey khaki pants. Id. Minutes later, officers stopped Edwards: an African American who was 5’11”, 26 years old, and wearing a black long-sleeved shirt and gray pants. Id. He was arrested near the store where the shooting took place. Id. Cops approached Edwards with guns drawn, told him to kneel, handcuffed him, stood him up, had him spread his legs, pat searched him, and found a .22 revolver. Id. Edwards was charged with Section 922(g) and entered a conditional guilty plea after losing his suppression motion. Id. at *22. 

  (Ed. Note: The CD Cal USAO allows conditional pleas, and the wheels of justice continue to turn. Interesting fact, for the ND Cal.)

 

Issue(s): “Specifically, Edwards contends that the officers’ conduct converted his detention before the gun was discovered from an investigatory stop into an arrest, and that even if Edwards’ detention was merely an investigatory stop, the officers did not have reasonable suspicion to stop him.” Id. at *1. “Edwards . . . disputes that the anonymous 911 call provided the officers with enough information to give them reasonable suspicion to support the investigatory stop in the first place.” Id. at *4.

Held: “We hold that the officers properly conducted an investigatory stop and had reasonable suspicion to do so.” Id. at *1. “Here . . . the officers’ aggressive conduct was reasonable and did not convert Edwards’ detention into an arrest.” Id. at *3 (citation omitted). “In this case, the tip was an anonymous 911 call from an eyewitness reporting an ongoing and dangerous situation and providing a detailed description of the suspect. In light of Navarette, we conclude that the anonymous call leading to Edwards’ detention exhibited sufficient indicia of reliability to provide the officers with reasonable suspicion.” Id. at *6. “Applying Navarette and Terry-Crespo, we hold that the officers in this case reasonably relied on the anonymous call in stopping Edwards, as the district court properly found.”

Hon. Judge Raymond Fisher

Of Note: The main focus of this decision is the intersection of an anonymous tip in an emergency situation – and whether that setting can provide reasonable cause for a stop. Id. at *4. The new wrinkle in this analysis is the Supreme Court’s 2014 decision in Navarette v. California. Id. at *5. Unfortunately, that wrinkle is applied by Judge Fisher to find – in this setting – that reasonable suspicion supported the stop. Id. at *6. 

  For better or worse, Edwards is now an important Ninth decision on anonymous tips and stops: the Circuit’s first application of the Supreme Court’s new rules in this area.

How to Use: Could the knowledge of the 911 dispatcher be imputed to the responding officers? Edwards argued, “no,” relying on the Second’s decision in Colon. Id. at *7 & n.3. The Ninth avoids the issue, distinguishing Colon because in Edwards the dispatcher conveyed to the officers the core data used to build reasonable suspicion: the suspect’s location, description of the suspect, etc. Id. The issue of imputed dispatcher knowledge appears to remain an open question (and an area of potential challenge) in the Ninth.

                                               

For Further Reading: 46,000 incarcerated drug offenders may get relief from resentencing. Every one of them are now writing you, to ask for help. For an interesting summary of the drug resentencing status, see article here. 

   Happily, the Administrative Office of the U.S. Courts hasn’t (yet) prohibited Federal Defenders from – well, defending – these clients. See, contra, Clemency Memo article here. 

   CJA counsel, stay tuned for updates– Defender organizations are meeting on the project, structured plans for this righteous work are underway.

Image of the “Anonymous” mask from http://upload.wikimedia.org/wikipedia/commons/e/e0/Anonymous.svg

Image of the Honorable Judge Raymond Fisher from http://www.swlaw.edu/swlawonline/winter04/images/bigchill_fischer.jpg

Steven Kalar, Federal Public Defender ND Cal FPD. Website at www.ndcalfpd.org

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