Case o' The Week: No Shades of Grey, for Search Astray - Grey, Fourth Amendment, and Motives for Administrative Inspection Searches

  Black & Whites’ motives, not Grey . . . .

  United States v. Grey, 2020 WL 2745322 (9th Cir. May 27, 2020), decision available here.

Players: Decision by Judge Tashima, joined by visiting DJ Harpool. Dissent by Judge Bybee.

  Admirable win for AFPD Sonam Henderson, C.D. Cal. FPD.  

Facts: Grey lived in a rental house in Lancaster, California. He obscured his home with tarps, erected too-high fences, and was suspected of having an unlawful car-repair business. Id. at *1-*3. Code-enforcement inspectors looked into Grey, and law enforcement began a criminal investigation. Id. at *3.

  Deputy sheriffs learned Grey had felony priors, that neighbors alleged he had guns and meth, and had fired guns into the air. Id. Id. at *4. The deputies nonetheless conceded that they did not have probable cause for a search. Id. at *4.

  Code enforcement then obtained an administrative inspection warrant: nine deputy sheriffs tagged along when it was executed. Id. The deputies arrested Grey outside his home, then poked around the house for twenty minutes. They found drugs and guns. Id. (See picture of evidence above).

  Grey was charged in federal court, the district court suppressed, and the government took an interlocutory appeal. Id. at *7-*8.

Issue(s): “In the case before us, the district court applied Alexander [v. City & County of San Francisco, 29 F.3d 1355 (9th Cir. 1994)], holding that [the Sheriff’s] execution of the warrant was unreasonable under the Fourth Amendment because [the Sheriff’s] primary purpose in executing the warrant was to gather evidence in support of its criminal investigation rather than to assist the inspectors. . . . On appeal, the government argues that the district court should have applied [United States v. Orozco, 858 F.3d 1204 (9th Cir. 2017)], instead, and that [the Sheriff’s] actions were lawful under Orozco because [the Sheriff’s] impermissible motive was not the but-for cause of the search, because the sweep of Grey's dwelling would have occurred regardless of the deputies' motivation to uncover criminal evidence.” Id. at *10 (citations and internal quotations omitted).

Held: “[W]e conclude that the district court properly applied Alexander's primary purpose test, rather than Orozco, to the [Sheriff’s] conduct at issue in this case. Where, as here, law enforcement officers are called upon to assist in the execution of an administrative warrant providing for the inspection of a private residence, the execution of the warrant is consistent with the Fourth Amendment only so long as the officers’ primary purpose in executing the warrant is to assist in the inspection. If the person challenging the execution of the warrant shows that the officers’ primary purpose was to gather evidence in support of an ongoing criminal investigation, the conduct does not satisfy the Fourth Amendment.” Id. at *13.

Of Note: Alexander focuses on the “primary purpose” of the cops involved in the execution of an administrative warrant for the inspection of a private residence. If that primary purpose was to make a criminal arrest, instead of aiding inspectors, the search violates the Fourth. Id. at *9. Orozco requires the defendant to show that the stop would not have occurred in the absence of the impermissible reason. Id.

  What’s the difference?

  Well, actually, “there appears to be little practical difference between Alexander’s primary purpose test and the Orozco test,” explains Judge Tashima. Id. at *10.

How to Use: Administrative searches, and “special needs” cases, are two Fourth Amendment exceptions where officers’ subjective intent matters. Judge Tashima provides a valuable overview of this line, and reconciles the approaches. Id. at *9. 

  Grey is a must-read for administrative search cases (including the oft-abused “inventory” search).

                                               

For Further Reading: Santa Rita Jail became the target of yet another class action suit, last week.

 NorCal ACLU filed in Alameda County Superior Court, demanding the release of inmates vulnerable to COVID-19. See press release here. 

Image of evidence seized in Grey case, from http://theavtimes.com/2018/05/09/guns-drugs-100k-seized-in-lancaster-raid/

Image of Santa Rita Jail from https://www.mercurynews.com/2020/03/18/east-bay-jail-looks-to-reduce-jail-population-by-keeping-only-violent-criminals/

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

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Case o' The Week: (Not) Making a List, (Not) Checking it Twice - Garay and Listless Inventory Searches

Q: What does one call an “inventory” that neglects to actually inventory the items purportedly inventoried?

 A: An "inventory" search.

United States v. Garay, 2019 WL 4419679 (9th Cir. Sept. 17, 2019), decision available here.

Players: Decision by Judge Schroeder, joined by Judges Graber and DJ Watson.

Facts: Garay lead officers on a high-speed chase, crashed the car in a ditch, and fled on foot. Id. at *1-*2. When Garay was arrested, cash and drugs were found on him. Id. 

  The officers searched the car (without a warrant) before it was towed. Id. They found guns, ammo, and a cell phone attributed to Garay. Id. A later search revealed that the phone had pictures on it that tied Garay to one of the guns. Id. at *1. 

  Contrary to the Sheriff’s inventory policy, the officers who, well, rummaged through the car did not complete an inventory sheet listing the property recovered. Id. at *3. 

  State and, later, federal search warrants for the cell phone asserted that “that individuals who possess firearms take pictures of them and communicate via text messages to further their criminal activity.” Id. at *2. The federal warrant application added an assertion that the “‘collective experiences’ of law enforcement agents that felons prohibited from possessing guns use mobile phones to coordinate buying and selling guns.” Id. 

  The motion to suppress was denied. Id. at *1.

Issue(s): “Garay contends that the warrantless seizure of the phone itself was unreasonable and that the affidavits supporting the search of the contents of Garay’s phone were inadequate.” Id. at *2. 

   “Garay contends . . . that the officers used their authority to inventory the car’s contents here to unlawfully rummage for evidence. Inventory searches are consistent with the Fourth Amendment only if they are not used as an excuse to rummage for evidence.” Id.

Held: “[W]e see no reason to hold that the officers were rummaging for evidence. The contents of the wrecked car had to be removed and safeguarded before the car was towed from the site. That is the essence of an inventory search. Because the site was in effect a crime scene, the items in the car were sensibly treated as evidence. The searching officer complied with the department’s inventory-search policy in material respects. . . . . That the officer did not complete the inventory list that ordinarily would be completed as part of a department inventory search is not, on its own, a material deviation from policy.” Id. at *3.

  “Given the circumstances leading up to the search, the officers no doubt expected to find evidence of criminal activity inside the vehicle. But that expectation would not invalidate an otherwise reasonable inventory search.” Id. at *4.

Of Note: The Ninth’s holding on the “inventory” search is disappointing; its holding on the phone search doubly so.

  Garay persuasively argued that “the affiants’ belief on the basis of their ‘training and experience,’ unadorned by sufficient supporting details, cannot properly be considered in establishing probable cause. He argues that, before the affiants’ beliefs may be taken into consideration, the affiants must detail the nature of their expertise or experience and how that experience bears on the facts prompting the search.” Id. at *4.

  Judge Schroeder explains the Ninth’s “standards . . . are not so stringent.” Id.

  Bad facts make bad law: the high-speed chase, crash, drugs, wads of cash, guns, and ammo of Garay makee for a troubling opinion on search warrant affidavits.

How to Use: The only bright spot in a dark decision? Garay’s flight is not a threshold jurisdictional issue that prevents the Court from getting to his Fourth challenge. Id. at *2 (citing the Supreme Court's 2018 decision in Byrd). 

  Garay and Byrd can get our fleeing clients around any jurisdictional bars and to a Fourth Amendment analysis (although our quest for the suppression remedy may get a little complicated).  

                                               

For Further Reading: President Trump has nominated two more candidates to the Ninth (one without a California Blue Slip). See article here. 

  If these appointments are confirmed, the President will have nominated ten of the Ninth’s twenty-nine judges. See WSJ Op Ed here.  

Image of “Inventory” from https://www.qstockinventory.com/blog/7-tips-warehouse-inventory-management/

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

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