Case o' The Week: Ninth Has Patience of Jobe for (Long) Delayed Search Warrant - Jobe, Herring, and Search Delays

  Surströmming.

 (Rotten Herring).

United States v. Royce Jobe, 2019 WL 3757596 (9th Cir. Aug. 9, 2019), decision available here.

Players: Decision by visiting DJ Korman, joined by Judges Wardlaw and Hurwitz. 

  Hard-fought appeal by AFPD Margaret Farrand, CD Cal FPD.

Facts: DHS Special Agent Paul Cotcher got a state warrant for Jobe’s residence, on suspicion of a marijuana distribution. Id. Among other things, the search produced a laptop that was seized, but not searched. Id.

   Cotcher then convinced the Feds to take the case. Nearly three weeks later, he got a federal search warrant for the laptop. Id. Twenty days after it was seized, the laptop was finally searched. Id. That search produced evidence leading to federal charges. Id.

  The district judge granted Jobe’s suppression motion, finding unreasonable delay before the federal warrant was secured and laptop was searched. Id. at *2. 

  The government appealed. Id.

Issue(s): “Jobe argues that even if the seizure of the laptop under the state warrant does not provide a basis for exclusion, the twenty-day delay between that seizure and the subsequent execution of the federal search warrant justifies suppression.” Id. at *2.

Held: 1. P.C. in State Warrant, and Herring: “We accept that there was insufficient probable cause to seize the laptop. The state judge lacked a substantial basis for concluding that probable cause existed to seize the laptop because Cotcher’s affidavit did not mention a computer or any electronic devices, much less state any facts suggesting that Jobe’s laptop would likely contain evidence of a marijuana growing operation. . . . Nevertheless, Cotcher’s affidavit supporting the state warrant contained sufficient information to render his reliance on the warrant reasonable.” Id. at *2.

  2. Delay: “Even assuming that the delay was unreasonable, we disagree.” Id. at *2. “[United States v. Cha, 597 F.3d 995, 1003 (9th Cir. 2010)] is our only prior decision addressing the issue posed in Herring in the context of delays.” Id. at *3. “Cha and Herring . . . explain that suppression is warranted to deter deliberate, reckless, or grossly negligent conduct.” Id.

Of Note: Special Agent Paul Cotcher illegally seized a laptop, despite an acknowledged lack of probable cause in the state search warrant. The Ninth, however, finds reliance on the state warrant “reasonable.” Id. at *2. 

  SA Cotcher then held the illegally-seized laptop for nearly three weeks, before finally getting a warrant authorizing a search. The district court (appropriately) suppressed. Although the Ninth grudgingly concedes that “Cotcher could have been more efficient in preparing an application” for the federal search, the Circuit still reverses the district court’s grant of the suppression motion, again citing Herring. 

  As predicted a decade ago, Herring is methodically hollowing-out Fourth Amendment remedies – and by extension, Fourth Amendment protections.

How to Use: Three weeks! That’s an awfully long time for SA Cotcher to sit on an (illegally) seized laptop, before he and the USAO finally get around to getting a second warrant. District Judge Korman spends much of the opinion trying to distinguish Judge Beezer’s decision in Cha – a case where a one day delay merited suppression. 

  Delayed-warrant search cases in the Ninth are now going to have to wrestle with the awkward spectrum of Jobe and Cha: start with this unwieldy pair of opinions when the dust is thick on your client’s seized evidence.

                                           

For Further Reading: A decade ago, NorCal U.S. Attorney Russoniello infamously focused prosecutions on S.F.’s Tenderloin. His initiative federalized low-level drug sales, using the threat of drug mand-mins to coerce quick pleas to high federal sentences. The controversial effort even drew criticism from former AUSAs. See article here. Many of the harsh drug sentences from that era have been reduced over the years, thanks to Johnson, Crack Resentencing, Drug Resentencing, and the First Step Act. 

  Two years ago, NorCal’s U.S. Attorney’s Office charged 37 (all black) defendants in a Tenderloin “Safe Schools” initiative. After litigation, the USAO dismissed the cases in the face of a racial-profiling discovery motion by the FPD’s office (and an order compelling discovery production by the Honorable Judge Edward Chen). See “For Further Reading,” at blog entry here. 

  Five days ago, U.S. Attorney David Anderson announced “F.I.T.”: a new “Federal Initiative for the Tenderloin.” See N.D. Cal. USAO Press Release here. Thirty-two defendants have been charged federally thus far, though notably, another 73 were arrested by S.F. cops in the Tenderloin last week.

  Nihil subsole novum.

Image of surströmming from https://www.vice.com/en_us/article/78dedg/a-rotten-fish-party-got-crashed-by-emergency-services

Image of Tenderloin mural from https://sfcitizen.com/blog/2016/09/28/brand-new-tenderloin-peoples-garden-mural/

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

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Case o' The Week: Don't Bother With Fed, Use County Instead - Artis and Federal Agent Execution of State Search Warrants

  Where do federal agents go for search warrants, for searches to be undertaken by federal investigators, producing evidence leading to federal prosecutions?

  

  Alameda County, of course.

United States v. Artis, 2019 WL 1375260 (9th Cir. Mar. 27, 2019), decision available here.

Players: Decision by Judge Watford, joined by Judge Tashima and visiting DJ Robreno.

  Hard-fought appeals by ND Cal CJA Stalwarts John Jordan and Steven Gruel (whose names are curiously omitted from the opinion). Underlying suppression of evidence by ND Cal DJ Chhabria.

Facts: Artis and Hopkins were allegedly involved in credit card fraud. Id. at *1. They were state fugitives. Id. 

  Federal Special Agent Stonie Carlson was assigned to the "Pacific Southwest Regional Fugitive Task Force," a joint state-federal task force under the direction of the Marshals. 

  Agent Carlson found Artis, scuffled with him, and ended up with Artis’ phone when Artis fled. Id. Agent Carlson sought a warrant to search the phone from an Alameda County Superior Court (California) judge. Id. Carlson didn’t base the warrant on Artis’ fugitive status – it was instead based on alleged “evidence of crime.” Id. The warrant was directed to “any peace officer in Alameda County” (and federal agents are not “peace officers” under California law.) Id. 

  Federal agents searched the phone, and obtained evidence leading to federal prosecutions. Id. at *2. 

  Northern District of California District Judge Chhabria suppressed the evidence from warrants for both Artis and Hopkins. 

  The government appealed.

Issue(s): “Whether the warrants were improperly executed by federal agents is a closer question. California law requires search warrants to be executed by ‘peace officers,’ but federal agents may assist a peace officer in executing a search warrant, provided the federal agent is acting ‘in aid of the officer on his requiring it, he being present and acting in its execution.’ . . . . [I] t seems doubtful that this requirement was satisfied here, although California courts do not appear to have addressed how strictly this provision should be construed when federal agents execute a search warrant as members of a joint federal-state task force that includes peace officers.” Id. at *4.

Held: “We find it unnecessary to decide whether federal agents violated California law by executing the Artis and Hopkins warrants. Even if such a violation occurred, the warrants would still be valid under the Fourth Amendment. An otherwise properly issued search warrant is not rendered void for Fourth Amendment purposes merely because it was executed by law enforcement officers who lacked warrant-executing authority under state law.” Id. at *5.

  [The Ninth later affirms Judge Chhabria as to suppression on the Artis warrant: there was insufficient probable cause. Id. at *7].

Of Note: In this same case, Agent Stonie Carlson obtained another search warrant, for a cell-site simulator for Artis' co-defendant, Hopkins. 

  As with the Artis warrant, Agent Carlson got an Alameda County judge to sign the warrant. Id. at *3. Agent Carlson then deployed the cell-site simulator – in San Francisco County! Id. at *3 & n.2. 

  Judge Watford avoids deciding the legality of that gambit, but notes Hopkins is free to raise that issue on remand. Id. 

  County-hopping search warrants are common in NorCal: will be interesting to see how this challenge pans out.

How to Use: Agent Carlon could have easily obtained a (federal) warrant to search the phone based on Artis’ fugitive status. Instead, he bungled, and relied on an “evidence of crime” theory that didn’t show probable cause. 

  “Meh, close enough for government work,” the Feds pleaded on appeal. The government urged the Ninth to uphold the search warrant based on a “fugitive” theory not identified in the warrant application. 

  The Ninth was unimpressed. Judge Watford “reject[s] the government assertion that the warrant may be upheld” on this alternative “fugitive” basis: the government is stuck with the probable cause basis actually articulated in the warrant application. Id. at *5. 

  The Ninth's limitation on alternative search warrant theories in Artis is a useful rejection of a government dodge.   

                                               

For Further Reading: Judge Chhabria didn’t mince words, when describing this investigation. “[T]he whole string of errors embodied in these warrant applications militates against applying the good-faith exception. Indeed, although the above-described errors are the most egregious ones, they are not the only instances of sloppy, inappropriate law enforcement work.”

  For a more fulsome description of a very troubling case (including a French Poodle Sheriff analysis), see Judge Slams FBI for Improper Cellphone Search, Stingray Use, here. 

Image of Task Force patch from https://www.worthpoint.com/worthopedia/marshal-pacific-southwest-regional-1788753130

Alameda County Seal from http://www.acgov.org/government/ 

San Francisco City & County Seal from https://www.linkedin.com/company/city-and-county-of-san-francisco 

French Poodle image from https://en.wikipedia.org/wiki/Poodle 

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

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Case o' The Week: En Banc Petition, Grant? - Antonio Gilton, Leon "Good Faith," and Search Warrants

  The Ninth holds the D.J. was prescient: we do have a privacy interest in our cell site location data.

  The Ninth holds the D.J. was correct: there was insufficient probable cause to support a valid search warrant.

  (And the Ninth should take this opinion en banc . . . )

United States v. Antonio Gilton, 2019 WL 1008722 (9th Cir. Mar. 4, 2019), decision available here.

Players: Decision by Judge Bybee, joined by Judge Wallace. Forceful dissent by Judge McKeown.

  Hard-fought appeal by ND Cal CJA Stalwart Mark Goldrosen (and half of the NorCal CJA Bar as Elmore’s co-counsel).  

Facts: Pimp Sneed had a minor “girlfriend:” “L.G.” Id. at *1. L.G. had been staying with her cousin Antonio Gilton in L.A. Id. Her parents did not approve of Sneed.

  Early one morning, Sneed waited to pick up L.G. near her parents’ home in San Francisco. L.G. later told police that a SUV approached Sneed in his car, shots were fired, and Sneed was killed. Id. Antonio Gilton’s cell number was in L.G.’s phone. Id. at *2.  

  A snitch implicated L.G.’s father, Barry Gilton, and an unknown person. Id. Cell site location on Barry Gilton showed his cell moving through San Francisco and near the shooting, when he had claimed to be asleep at home. Id. SF Police Sgt. Gary Watts obtained a search warrant for the cell site location data for Antonio Gilton, relying on the above information. Id.

  When Antonio Gilton was later charged in federal court, he moved to suppress the cell site location data from this warrant. Id. District Judge William H. Orrick granted that motion, correctly finding no probable cause for the cell site location search. Judge Orrick rejected the government’s good faith pitch, holding “it was entirely unreasonable to believe that the affidavit’s passing, innocuous references to A. Gilton established probable cause to obtain his cell phone data.” Id. at *2.

  The government appealed.

Issue(s): “[T]he government . . . obtain[ed] a warrant authorizing the acquisition of Gilton’s CSLI data. Our analysis is thus confined to the questions of whether that warrant was supported by probable cause, and, if not, whether the search should nevertheless be upheld on the basis of the officers’ good faith reliance on the warrant.” Id. at *3.

Held: “Although we agree with the district court that the warrant authorizing the seizure of Gilton’s location data was not supported by probable cause, we conclude that the deficiencies were not so stark as to render the officers’ reliance on the warrant ‘entirely unreasonable.’ See United States v. Leon, . . . (1984). We reverse.”

Of Note: Judge McKeown’s dissent correctly challenges the “good faith” holding of Antonio Gilton. 

  

The Hon. Judge Margaret McKeown

Judge McKeown explains, “The warrant affidavit for Antonio Gilton’s cell-site location information (“CSLI”) so thoroughly lacked probable cause that it was objectively unreasonable for the officer to have relied on it. The affidavit’s only statement vaguely implicating Antonio was a suggestion that a Gilton family member may have been involved in the murder. As any reasonable officer should have known, ‘none of the facts in the affidavit, singly or en masse, provide a reasonable basis from which to infer that’ Gilton’s CSLI connected him to the murder. United States v. Grant, 682 F.3d 827, 841 (9th Cir. 2012). Weak inferences from vague facts do not amount to probable cause as to specific individuals. These are precisely the circumstances where the good faith exception cannot save a defective warrant.” Id. at *7 (emphasis added).

   This opinion cries out for en banc review, for its unprecedented extension of Leon “good faith” to inoculate a search from a patently deficient warrant.

How to Use: Though a bitter loss on Leon “good faith,” Antonio Gilton concedes the privacy protections set forth by SCOTUS in Carpenter. In NorCal, however, even that is weak tea: our prescient bench correctly anticipated Carpenter, and CLSI warrants have long been the norm. See Judge Koh’s decision here.                 
                           

For Further Reading: Judge McKeown is right: Antonio Gilton cannot fairly be reconciled with the Ninth’s great Leon case: United States v. Grant, 682 F.3d 827,841 (9th Cir. 2012).

  For a recap of Judge Berzon’s Grant decision (joined by CJ Thomas and Judge Wardlaw), see the summary here (just avoid the painfully incorrect “For Further Reading” speculation in this blog posting . . .)

Image of “Come back with a warrant” from https://i.etsystatic.com/9789359/r/il/c6bec6/794497835/il_1588xN.794497835_1nal.jpg

Image of the Honorable Judge Margaret McKeown from https://kevincooper.org/judge-mckeown-opinion/

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

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Case o' The Week: Ninth Reverses Convictions for Three Grizzly Deaths - Wallen and Good Faith Self-Defense

 The AUSA and MJ won’t like our subjective “good faith” self-defense theory after reversal and remand.

  (But they’ll have to grin and “bear” it).

United States v. Wallen, 2017 WL 4799292(9th Cir. Oct. 25, 2017), decision available here.

Players: Decision by Judge Fisher, joined by Judges O’Scannlain and Friedland. Admirable win by Assistant Defender John Rhodes, Federal Defenders of Montana.

Facts: Wallen lived in Montana. There are bears. Specifically, three grizzlies killed his chickens, ran near his kids, scared his wife, and returned repeatedly despite being chased off. Id. at *2. When the bears returned to the home for the third time in one day, Wallen killed them. Id.

  He gave different narratives of what happened to agents, and was charged with three misdemeanor counts of violating the Endangered Species Act. Id.

  At the bench trial, Wallen asserted he shot the bears in self-defense. Id. at *2. Id. The magistrate judge, as the factfinder, found Wallen’s claim of self-defense was objectively unreasonable and found him guilty. Id. at *3.

 Wallen appealed.

Issue(s): “Here, the parties dispute whether the ‘good faith belief’ standard an objectively reasonable belief, as the government argues, or requires only a subjective belief in the need to protect oneself or others, as Wallen maintains. The magistrate judge and district court applied an objective test.” Id. at *5.

Held: “We conclude that was error.” Id. “We now hold that subjective good faith belief suffices to establish self-defense under this statute.” Id. 

  “We . . . construe § 1540(b)(3) in accordance with the general principle that a good faith belief defense ordinarily depends on a defendant’s subject state of mind rather than the objective reasonableness of the defendant’s belief . . . .” Id. at *8.

Of Note: The Endangered Species Act provides a defense when the defendant kills an endangered animal, but had a “good faith belief he was acting to protect himself or herself” or others from bodily harm. Id. at *5 (quoting 16 U.S.C. § 1540(b)(3)). Judge Fisher concludes that the words “good faith” requires an analysis of the defendant’s subjective belief – not the (more difficult) “objective” reasonable person standard. Id. at *5-*6.

  “But wait,” you may ask, “doesn’t the vanilla federal assault statute require that more-difficult objective, ‘reasonable’ belief of danger to argue self-defense?”

  It does indeed.

  Judge Fisher observes that 18U.SC. § 113 (“Assaults within maritime and territorial jurisdiction”) only permits a self-defense theory when a defendant reasonably believes the force was necessary. Id. at *6, quoting United States v. Keiser, 57 F.3d 847, 851 (9th Cir. 1994). Shoot a grizzly and your sincere belief in the need for self-defense is enough. Assault a human, and a “reasonable,” objective belief in the need for self-defense is necessary.

   Weird? Blame Congress, explains this admirably honest opinion. Id. at *6. The two statutes are written differently: unlike the Endangered Species Act, the Section 113 assault statute has no “good faith” language. The Ninth is just calling ‘em like Congress writes ‘em.

How to Use: Fourth Amendment fans may get a little nervous with all this “subjective good faith” language that peppers Wallen. In a world where Leon and Jacobson give cops a “good faith” harbor, does Wallen mean that a cops who honestly – but unreasonably – believe a search was righteous escapes suppressesion?

  It does not. 

  Judge Fisher carefully distinguishes those other good faith cases, that arise in the context of the Fourth Amendment and § 1983 claims. A cop’s assertion of good faith for a search, and the government’s assertion of good faith in the context of the Stored Communications Act, still must be objectively reasonable. Id. at *7.

                                               

For Further Reading: Last summer, Senator Jeff Flake (R-Arizona) introduced a bill to split the Ninth– and held a hearing on the issue. See article here.  

 This week, Senator Flake famously explained he would not be seeking re-election – and added a bon mot or two with his announcement. See article here. 

  Impossible to predict the Split’s momentum, but safe to predict it won’t come be from a bill sponsored by Senator Flake.

Image from the Big Lebowski from https://i.pinimg.com/originals/98/cf/76/98cf7624015401cbfba1eb733640b428.jpg

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

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