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: Herring gone bad - Henderson and Unlawful NIT Child Porn Searches

Thousands of illegal Federal hacking searches, across the United States.

  All salvaged with a Herring aid.

United States v. Henderson, 2018 WL 5260851 (9th Cir. Oct. 23, 2018), decision available here.

Players: Decision by Judge O’Scannlain, joined by Judge Bea and DJ. Hard fought appeal (with e.b. petition on way) by ND Cal AFPD Hanni Fakhoury.

Facts: The FBI seized and operated a child porn server called “Playpen.” Id. at *1-*2. The Feds obtained a Network Investigative Technique (“NIT”) warrant from an ED Va. magistrate judge. Id. That warrant allowed the search of a computer, wherever located, if it was logged into Playpen. Id.

  ND Cal resident Henderson accessed child porn on Playpen. Id. After he was charged with child porn offenses, Henderson moved to suppress evidence seized pursuant to the “NIT” warrant. Id. at *3.

  The motion was denied, Henderson was convicted, and appealed.

Issue(s): “Henderson argues that the motion to suppress should have been granted because the NIT warrant was issued in violation of [Fed. R. Crim. Pro.] 41(b), which authorizes magistrate judges to issue warrants subject to certain requirements. To prevail . . . Henderson must show both that the NIT warrant did violate Rule 41(b) and that suppression is the appropriate remedy for such violation.” Id. at *4.

   “[W]e must decide whether evidence that was obtained pursuant to a warrant that authorized a search of computers located outside the issuing magistrate judge’s district must be suppressed.” Id. at *1. 

  “If the (Herring “good faith”) exception may apply in cases where an officer relied on a valid warrant which had been revoked or a warrant which never existed, may the exception apply where the officer relied on a warrant subsequently recognized as void due to the issuing judge’s jurisdictional violation?” Id. at *8.

Held: “[T]he NIT mechanism is not a ‘tracking device’ within the meaning of . . . Rule . . . 41(b)(4). . . . [T]he NIT warrant violated Rule 41(b) by authorizing a search outside of the issuing magistrate judge’s territorial authority.” Id. at *4. “[ ] Rule 41(b) is not merely a technical venue rule, but rather is essential to the magistrate judge’s authority to act in this case.” Id. at *5. “Without any other source of law that purports to authorize the action of the magistrate judge here, the magistrate judge . . . exceeded the scope of her authority and her jurisdiction . . . .” Id. “[A] warrant purportedly authorizing a search beyond the jurisdiction of the issuing magistrate judge is void under the Fourth Amendment. We . . . conclude that the Rule 41 violation was a fundamental, constitutional error.” Id. at *7.

  “Application of the good faith exception is permitted where a warrant is void because of a magistrate judge’s jurisdictional violation, so long as the executing officers had an objectively reasonable belief that the warrant was valid. We are unconvinced by Henderson’s argument otherwise, and we are satisfied that the good faith exception may apply to warrants that are void ab initio.” Id. at *8. “[T]he NIT warrant falls squarely within the Leon good faith exception: the executing officers exercised objectively reasonable reliance on the NIT warrant, and the marginal or nonexistent benefits produced by suppressing evidence ... cannot justify the substantial costs of exclusion.” Id. at *9.  

Of Note: The old Rule 41(b) -- in place when this search took place -- clearly didn’t authorize this warrant. In fact, it so clearly didn't authorize this warrant that in 2016 Congress had to change the rule to permit these searches. 

  Many child porn defendants throughout the country are now serving many decades of custody, based on convictions arising from these patently unlawful ED Va. NIT searches. The Feds’ alarming (and unlawful) NIT hack illustrates the injustices that arise when “good faith” draws the teeth of suppression remedies. 

  Something to Fourth Amendment fans to mull, with new Supreme Court majorities in play. See Orin Kerr article here. 

How to Use: Fourth gurus beware: Judge O’Scannlain pens what appears to be a rule of first impression in the Ninth. Leon / Herring “good faith” can salvage a warrant, even it is invalid ab initio. Id. at *8.

                                               

For Further Reading: Henderson refuses to suppress the evidence seized from unlawful domestic hacking by the FBI.

   For a troubling account of this unprecedented investigation, see a great EFF series of posts, here. 

“Deaf Fish” meme from http://weknowmemes.com/generator/meme/443518/

FBI hacking image from https://www.thedailybeast.com/the-fbi-blindly-hacked-computers-in-russia-china-and-iran

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

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Case o' The Week: .22s and the Yakima Blues - Barnes and Necessity / Justification Defenses in 922(g) cases

  Eastern Wha? means new bad law.

United States v. Barnes, 2018 WL 3468136 (9th Cir. July 19, 2018), decision available here.

Players: Decision by Judge Paez, joined by Judges Gould and Christen.

Facts: Yakima cops stopped Barnes, and (mistakingly) told him he was wanted for a felony. Id. at *1. (It was a misdo bench warrant). Barnes ran, was tackled and tazed, and had a .22 on him when searched. Id. at *2.

  Before his § 922(g) trial Barnes made a proffer for a “necessity defense.” Id. at *3. [Ed. Note: Judge Paez explains the distinctions between a “necessity” defense versus “justification” – this case is probably the latter. Id. at *8 & n.4]. 

  Barnes explained that he had been taking care of his meth-addicted adult son. Id. Barnes came across the gun in his house, grabbed it to keep it away from kids in the home, and was on the way to throw it in a dumpster when confronted by the cops. Id. at *3.

  The district court refused to allow a necessity / justification defense: Barnes was convicted at trial. Id.

Issue(s): “[Barnes] argues that the district court erred . . . by precluding him from presenting a necessity defense at trial.” Id. at *1.

Held: “A defendant is entitled to present evidence on a necessity defense and have the jury instructed accordingly once he has adequately established—through an offer of proof—that all four requisite factors are met: 

(1) he was faced with a choice of evils and chose the lesser evil; 

(2) he acted to prevent imminent harm; 

(3) he reasonably anticipated a causal relation between his conduct and the harm to be avoided; and 

(4) there were no other legal alternatives to violating the law.” Id. at *8 (internal quotations, citations, and fn. omitted). Id. at *8. 

“[ ] Barnes’s offers of proof, even when viewed in the light most favorable to him, were insufficient to show that he acted to prevent imminent harm. “[T]he term ‘imminent harm’ connotes a real emergency, a crisis involving immediate danger to oneself or to a third party.” . . . There is no indication that Barnes acted in response to such a crisis. There was no evidence that the children had, for instance, already obtained possession of the gun or were about to do so. There was no evidence that the children were in close proximity to the firearm. At most, Barnes removed a dangerous weapon from a house where children were present . . . [T]he district court correctly denied Barnes’s request to present a necessity defense to the jury.” Id. (internal quotations and citations omitted).

Of Note: Barnes has a second disappointing holding, upholding the denial of a suppression motion. A [conspicuously unnamed] Yakima municipal judge failed to look at an incident report, or an affidavit, before “finding” probable cause for Barnes’ misdemeanor complaint. Id. at *2. Judge Paez finds “judicial abandonment.” Id. at *5. 

  However, in an unfortunate decision of first impression, the Ninth holds that, to overcome Leon good faith, a defendant must show both “judicial abandonment” and that the cops knew – or should have known – of the abandonment. Id. at *7. Barnes stumbled on this second step. 

  One gets the impression the Ninth isn’t keen on this rule, but finds itself “bound to follow the Supreme Court’s directives.” Id. at *7.

  Hopefully, Yakima defense counsel will explore complaints signed by this mystery municipal judge –how many complaints bear rubber stamps, in Eastern Washington?

How to Use: If you’re mulling this defense in a § 922(g) case, footnote four is where to start. Id. at *8 & n.4. Judge Paez explains how the Ninth considers this theory under the “justification” rubric in gun cases, and lays out the elements for the defense. Id. 

  A good blueprint when considering a justification challenge, for the waves of gun cases that await on the horizon.

                                               

For Further Reading: “Necessity,” “duress,” “justification:” this line of federal law is confusing. 

  For an interesting discussion of these theories, along with a thought-provoking recommendation, see Schwartz, Stephen S. (2008) “Is There a Common Law Necessity Defense in Federal Criminal Law?,” University of Chicago Law Review: Vol. 75 : Iss. 3 , Article 8, available here.

Image of “Welcome to Yakima” from http://www.thedailychronic.net/2014/27331/yakima-washington-bans-all-marijuana-businesses/

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

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Case o' The Week: No Appetite in Ninth for Underwood -- Probable Cause and Leon Good Faith

 

The devil’s in the details (or lack thereof), when law enforcement cuts and pastes facts into search warrant affidavits. United States v. Underwood, 2013 WL 3988675 (9th Cir. Aug. 6, 2013), decision available here.

Players: Decision by Judge Pregerson, joined by Judges Noonan and Paez.

The Hon. Harry Pregerson

Facts: DEA agents investigated an ecstasy distribution conspiracy headed by one of Underwood’s co-defendants. Id. at *1. They saw two co-Ds meet with Underwood and transfer two unmarked crates from Underwood’s vehicle into their own. Id. Agents tracked the crates to the Heavy’s house: the crates were later found to contain thousands of ecstasy pills. Id. The DEA got search warrants for all involved, including Underwood’s “home.” Id. When they arrived to search Underwood’s house, they found his mother who explained he didn’t live there. Id. Mom told the officers where Underwood lived, they did a “protective sweep” of the second house, found a small amount of pot, then got a state search warrant based on the federal search affidavit. Id. The state search warrant affidavit had probable cause facts that were literally cut and pasted from the federal agent’s affidavit, without clarification of which affiant was speaking. Id. at *2. The (102-page) federal search warrant affidavit was not attached to the state warrant application; the state magistrate never asked to review it. Id. at *3. The search revealed cocaine, ecstasy, cash, and other evidence. Id. In district court, Underwood challenged the probable cause for the search and argued that the Leon good faith exception did not apply. Id. “In a lengthy, scholarly order,” Judge Stephen Wilson granted the motion to suppress. Id. The government appealed. Id.

Issue(s): “The government appeals the district court’s grant of Underwood’s motion to suppress, arguing that (1) the warrant was not supported by probable cause, and (2) if the warrant was not supported by probable cause, the good faith exception applies.” Id. at *4.

Held: “We are not persuaded by these arguments.” 

1. Probable cause: Id. “When viewed in the totality of the circumstances, the affidavit here fails to provide a sufficient basis for probable cause. Like the affidavit in [United States v.] Weber, [923 F.2d 1138, 1145 (9th Cir. 1990)], the affidavit in Underwood’s case includes only two facts, foundationless expert opinion, and conclusory allegations.” Id. at *5.  

2. Leon Good Faith: “An analysis of the totality of the circumstances, including extrinsic factors, establishes that reliance on the search warrant . . . was objectively unreasonable. Thus, even assuming the affidavit was not entirely lacking in indicia of probable cause, the good faith exception is not met in this case.” Id. at *11.    

Of Note: Can extrinsic evidence be used in the Leon good faith analysis, to save a bare bones affidavit? The government argued yes, relying on the Supreme’s decision in Messerschmidt v. Millender, 132 S.Ct. 1235 (2012). 

  The Ninth is unpersuaded: “when we have determined that the affidavit is a bare bones affidavit, as we have here, even if the extrinsic factors point to reasonableness, they would not change the result. Reliance upon a bare bones affidavit is never reasonable.” Id. at *10. This little corner of the opinion contains an important Leon holding: a welcome limitation on the seemingly limitless Leon good faith exception.

How to Use: Underwood is terrific, and provides many useful principles for Fourth fights. Of particular interest is Judge Pregerson’s common sense analysis of the probable cause “showing” in the state search warrant affidavit. For example, a personal use amount of marijuana does not indicate the use of ecstasy – the target of this search, and certainly does not indicate that someone “is an ecstasy trafficker.” Id. at *5 (emphasis in original). The relationship between different types of drugs can be so attenuated that possession of one type does not establish probable cause than another type is present – a useful cite for future probable cause battles.

                                               

For Further Reading: In this era of bitter partisan rancor, one issue brings opposing legislators together: saving Federal Public Defenders. In a remarkable letter, Senators Coons (D-Del) and Sessions (R-Ala.) have together urged C.J. Traxler – Chair of the Executive Committee of the Judicial Conference – to review the impact that sequestration cuts are having on the Federal Defender Services account. See Senator Coon’s website and letter here.

  A critical bipartisan show of support from the branch of government that actually controls the dough.

Image of the “Underwood” Deviled Ham logo from http://farm2.staticflickr.com/1182/5160192097_ac439114c3_z.jpg

Image of the Honorable Harry Pregerson from https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgc3rM4iQOUZ8Vc2zxi3r9nh3y3Au34PbRpiBBQfxVUswhjRhPV1mEFxrXF688W3EurRVO6AizV24ILYsMQczhL351MqvAAqHjG2xnIBa5nJJkMhnjrZti-1Mqfwyy_1zeiWy4X/s640/david+rothman+and+judge+pregerson.jpg

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

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Case o' The Week: Living with Leon -- Needham, Leon, and PC for Child Porn Search Warrants

  In the great flick Leon, the hitman hero is a “cleaner” who quickly and

efficiently resolves messes -- and isn’t terribly interested in what the law actually requires.

  Required viewing before grappling with the Supreme’s line of Leon “good faith” jurisprudence. United States v. Needham, 2013 WL 2665889 (9th Cir. June 14, 2013), decision available here.

Players: (Reluctant?) decision by Judge M. Smith, joined by Judges Berzon and Tallman (both concurring, on very different grounds). Hard-fought appeal by CD Cal AFPD Matt Larsen.

Facts: A mother alleged Needham molested her son. Id. at *1. A detective got a warrant to search Needham’s home. Id. at *2. The “Statement of Probable Cause” reported the facts surrounding the alleged molestation, that Needham was a registered sex offender, and that a decade before – when Needham was 16 – he had been arrested for lewd and lascivious with a child, and charged with sex abuse of a child and possession of obscene matter. Id. The detective opined that Needham had an unnatural sexual interest in children, and that “these people” collected child porn. Id. The detective did not explain how she learned the “characteristics” of those with sexual interest in children. Id. 

  A search revealed child porn on Needham’s iPod, he was charged federally, and moved to suppress based on the warrant’s lack of probable cause. Id. at *3. The district court denied the motion, holding the search was in good faith reliance on the warrant, and the Leon exception to the exclusionary rule applied. Id.

Issue(s): “Needham first contends that the warrant affidavit did not contain facts sufficient to find probable cause to search his residence for child pornography. In particular, he argues that [the detective’s] assertions that Needham ‘has an unnatural sexual interest in children’ and that ‘[t]hese people collect sexually explicit material of children’ are inadequate to support probable cause that Needham possessed child pornography in his home. He also contends that the district court erred in applying Leon's good faith exception to the exclusionary rule in this case.” Id.

Held: “Like the officers in Dougherty, the . . . . officers in this case relied on a warrant predicated on the bare inference that those who molest children are likely to possess child pornography. Since the date we decided Dougherty, it is clear in this circuit that such an inference, alone, does not establish probable cause to search a suspected child molester's home for child pornography. But because the standard for granting qualified immunity is the same as the standard of objective reasonableness under Leon, we cannot consistently grant qualified immunity to officers in Dougherty, who relied on the warrant in that case, and find that reliance on a similar type of warrant in this case (which was decided before Dougherty ) was objectively unreasonable. We thus conclude that the search in this case was executed in objectively reasonable reliance on the search warrant.” Id. at *5.

Of Note: Judge M. Smith (grudgingly, it seems) finds that the Leon issue is controlled by Dougherty v. City of Covina, 654 F.3d 892 (9th Cir. 2011). Dougherty is a Judge N.R. Smith opinion granting qualified immunity on a very similar warrant (Judge B. Fletcher, interestingly, joined that decision). 

  In Needham, Judge Tallman describes Dougherty as a “flawed decision,” id. at *12 (Tallman, J., concurring), and Judge Berzon complains of the “considerable tension” in Dougherty’s internal reasoning, id. at *11 (Berzon, J., concurring). (Though, to be clear, these concurring judges dislike Dougherty for very different reasons). Needham and Dougherty illustrate the huge price of Leon: “good faith” means bad law wags a long tail, sweeping over bad searches for years.

How to Use: Get past the frustrating Leon holding, and you’ll find another Berzon jewel: a wonderful exegesis on the probable cause required for a search warrant. Needham, 2013 WL 2665889 at *6 (Berzon, J. concurring). Clearly and persuasively written, Judge Berzon’s opinion is step one for a 4^th challenge to warrants lacking PC.  

                                               

For Further Reading: Prosecution of another terrorism case has stalled, because sequestration has forced a respected Federal Defender to pull out of the defense of the case. See "Federal Defender Wants Out of Terrorism Case Due to Budget Cuts," here. 

  In the same week, a convicted killer’s execution proceedings stalled when a different Federal Defender couldn’t pay travel and witness fees because of sequestration. See “Budget fight delays justice for mother of slain KCK girl Pamela Butler” here.   The mother of the child-victim – frustrated by the delays – offered to “help the defense out . . . . If they want me to get a fundraiser together to help them get their witnesses in, I’ll do that.” Id.

   Small tastes of the world that awaits, when -23% budget cuts hit all Federal Defenders next fiscal year. See Recorder article here.

Image of Leon and Mathilda from http://jrm.cc/leon-the-professional Image of Ms. Cherri West, with her daughter Pamela Butler, from http://www.kansascity.com/2013/06/09/4282348/washington-budget-fight-delays.html

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

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