Case o' The Week: Stop Invasive Herring -- Amended Monghur Decision and Fourth Amendment Exclusionary Rule

Nothing is worse than Herring gone bad. Happily, this week the Ninth takes out some bad Herring bits from an otherwise admirable opinion. United States v. Monghur, __ F.3d __, 2009 WL 4432567 (9th Cir. Dec. 4, 2009) (Ord. & Amend. Op.), decision available here.

Players: Important win by AFPD Jason Carr and D. Nev. Defender Franny Forsman, who doggedly pushed on the Herring issue.

Facts: In August of this year we touted the defense victory in the first Monghur opinion. See blog here. Monghur was in custody, facing attempted murder and battery charges. Id. at *1. He made jail calls to a buddy, instructing his pal to pick up a key to his apartment and to “get the thing” “in the green” in his closet. Id. Agents listened to the taped calls and convinced Monghur’s mom to consent to a warrantless search. Id. Agents found a .38 in a green opaque container in Monghur’s closet; he was charged with § 922(g)(1). Id.

During the suppression hearing, the magistrate rejected mom’s authority to authorize the search of the green box, and rejected exigency (the government’ didn’t appeal those theories). Id. at *2.

In the first Ninth Circuit opinion, Judge Tallman rejected the government’s theory that Moghur’s veiled discussions on a (knowingly-taped) jail phone line somehow waived his privacy interest in the green box. Id. at *4. To our chagrin, however, after finding the warrantless search unlawful Judge Tallman mused upon Chief Justice Robert’s new Herring rule and instructed the district court to analyze the case under Herring in the first instance on remand. Monghur, 576 F.3d 1009, 1013-14 (9th Cir. 2009) (amend. on petit. rehearing en banc).

Issue(s): The Supreme Court’s Herring decision held that the exclusion of evidence for a Fourth Amendment violation was only appropriate if the unlawful search involved “deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.” 129 S. Ct. 695, 702 (2009) (decision available here). Grossly oversimplified, Herring held that exclusion isn’t appropriate for individual-event, merely negligent errors in a warrantless search. The Nevada FPD petitioned for rehearing en banc, arguing that the Herring bits in Monghur should be taken out.

Held: The chunk of Herring was removed, an amended opinion issued, and the PFR denied.

Of Note: The amended Monghur decision is a good sign that the Ninth won’t allow Herring to expand beyond the proper limits of the new rule. That’s particularly good news for United States v. Gonzalez, 578 F.3d 1130 (9th Cir. 2009) (decision available here). You’ll recall that in Gonzalez AFPD Rebecca Pennell convinced Judge B. Fletcher to put the brakes on Herring in a Gant car stop case. The government has petitioned for rehearing of Gonzalez: let's hope the amended Monghur decision bodes ill for the government’s efforts.

How to Use: Herring is dangerous because the government (incorrectly) argues that the opinion extends the Leon “good faith” loophole for exclusion for searches with warrants, to apply in all warrantless searches. That it did not do.

At best (or worst), Herring applied the Leon rationale for exclusion of evidence to a narrow category of warrantless searches, involving one-off, mere negligence by the cops. Herring requires our vigilance to avoid “rule creep:” it should be the very rare warrantless search in which Herring becomes an issue at all.

For Further Reading: For a compelling argument on how Herring hamstringed the most effective restraint on the government’s careless use of records technology, see Professor George M. Dery, Good Enough For Government Work: The Court’s Dangerous Decision, in Herring v. United States, to Limit the Exclusionary Rule to Only the Most Culpable Police Behavior, 20 George Mason Univ. Civil Rights Law Journal, 1 (2009).


Image of herring from http://www.thedailygreen.com/cm/thedailygreen/images/0z/herring-lg.jpg


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

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Case o' The Week: Raising a Ruckes Over Car Searches: Ruckes and "Inevitable Discovery" Post-Gant

The Supreme Court's decision in Gant squelched the much-abused Belton rule, which gave the police carte blanche to search a car when a suspect within was arrested -- even if the suspect posed no danger, and was actually far away from the vehicle, in cuffs and safe in the back of a patrol car. (Gant available here).

Is it too much to hope that the Gant case would also eliminate the equally-abused "inevitable discovery" doctrine, that permits the search of a car after an arrest, before a car is impounded and towed?

Yep. United States v. Ruckes,__ F.3d __, No. 08-30088 , 2009 WL 3719209 (9th Cir. Nov. 9, 2009), decision available here.

Players: Decision by Judge Tallman (upper right). Hard-fought case by WD Wa. AFPD Miriam Schwartz.

Facts: Ruckes was stopped by a Washington State Trooper. Id. at *1. When he learned Ruckes was driving on a suspended license, the Trooper put Ruckes in the back of his patrol car. Id. The Trooper searched the car and found crack and a gun: Ruckes was charged with felon in possession, possession of crack for sale, and a § 924(c). Id. at *2. The district court denied Ruckes’ suppression motion, holding (pre-Gant) that this was a permissible car search under Belton or, alternatively, that the Trooper was going to impound the car and therefore the gun and crack were subject to inevitable discovery. Id. Ruckes appealed after a conditional plea. Id. at *1.

Issue(s): “[Ruckes] maintains that Washington State Trooper Kenyon Wiley’s search was not valid incident to his arrest because he was not arrested until after the contraband was located within the vehicle.” Id. at *1.

Held: “After this case was submitted for decision, the Supreme Court handed down Arizona v. Gant, . . . 129 S.Ct. 1710 (2009), which limits the applicability of Belton . . . . Because we find that Trooper Wiley’s search of Ruckes’ vehicle does not fit within . . [Gant’s] narrow situations to satisfy the search-incident-to-arrest exception to the warrant requirement, we hold that this search cannot be sustained on this theory under the Fourth Amendment. However, because the district court did not err in alternatively holding that the drugs and firearm would have been uncovered during a routine inventory search of the vehicle upon impound, we affirm its denial of the motion to suppress under the doctrine of inevitable discovery.” Id. at *1.

Of Note: This a disappointing result for the defense, but not entirely unexpected. In Gant, a divided Supreme Court chucked its (heavily-abused) rule that it had created in Belton, permitting a search of a car incident to arrest even when a suspect was cuffed and in a patrol car. Gant, 129 S. Ct. at 1719. The Gant Court did not, however, eliminate the “inevitable discovery” doctrine for searches of cars that will be towed. Disappointing, but not too surprising, that the Ninth would hold that the “inevitable discovery” doctrine survived Gant.

How to Use: It is a pleasant surprise to find some good, strong limiting language on the use of the inevitable discovery exception at the end of this decision. Id. at *5. Judge Tallman writes, “We emphasize . . . that the inevitable discovery doctrine will not always save a search that has been invalidated under Gant.” Id. at *5. The government bears of burden of showing the car would have been impounded, and speculative facts won’t work: the theory “focuses on demonstrated historical facts capable of ready verification or impeachment.” Id. at *5. The use of this exception must be limited and evaluated on a case-by-case basis: “To hold otherwise would create an impermissible loop-hole in the Court’s bright-line Gant determination.” Id. at *5. In short, while we’ll be fighting car impound searches after Ruckes, the opinion gives us some good ammo to help in that fight.

For Further Reading: A brighter spot than Ruckes was last week’s order denying rehearing en banc in the exquisite Amezcua-Vasquez decision. See United States v. Javier Amezcua-Vasquez, No. 07-50239 (9th Cir. Nov. 10, 2009), order available here. You’ll recall that case reversed an in guideline illegal reentry sentence because the high sentence was “unreasonable” under Booker and Section 3553. Panel decision available here (Judges Canby, Kleinfeld, and Bybee - big victory by San Diego AFPD Janet Tung).

It is a great case, and its key holding is that old crimes that create dramatic offense level increases (like the +16 specific offense adjustments for illegal reentry) can generate guideline sentences that are unreasonable under Section 3553. (Ed. Note: The same rationale would apply to old priors that increase the offense level in gun cases under Section 2K2.1).

Judge O’Scannlain (and CJ Kozinski, and Judges Gould, Tallman, Callahan, Bea, and N.R. Smith) dissent from the denial of rehearing, and give us valuable language on just how broad and powerful Amezcua-Vasquez is. Judge O’Scannlain’s dissent is a great primer on how to use the decision: a good start when exploiting the “defendant-specific” basis for attacking an in-guideline sentence.

Image of the Hon. Richard Tallman from http://www.ce9.uscourts.gov/cm/articlefiles/73-GSA_Ribbon_450x335.jpg.


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


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