Case o' The Week: Miller Sure of Ped-i-Cure - Ped, Conditions of Supervised Release, and Limitations of Appellate Review

The Honorable Judge Eric Miller

  Ninth nixes appellate fixes.

United States v. Ped, 2019 WL 6042813 (9th Cir. Nov. 15, 2019), decision available here.

Players: Decision by Judge Eric Miller, joined by Judges Owens and Ryan D. Nelson. 

  Supervised release win for AFPD Gia Kim, Central District of California.  

Facts: After a parole search for his brother produced guns at his house, felon Ped plead guilty, with a conditional plea agreement. The agreement allowed Ped to challenge the denial of a motion to suppress. Id. at *2.

  The district court imposed (old) standard conditions of supervised release: 1) that Ped “support his . . . . dependents and meet other family responsibilities,” that he 2) “work regularly at a lawful occupation,” and 3) that he “notify third parties of risks that may be occasioned by [his] criminal record or personal history or characteristics.” Id. at *4.

  In United States v. Evans, 883 F.3d 1154 (9th Cir. 2018), the Ninth had held that these conditions were unconstitutionally vague. Id. Ped asked these conditions be corrected on appeal.

Issue(s): The government declined to assert the appeal waiver, and agreed that the conditions were unconstitutional. On appeal, “the government suggested that we rewrite the conditions and affirm the judgment as modified.” Id. at *4.

Held: “Upon further consideration, the government changed its position and argued that a remand is appropriate. We agree.” Id.

Of Note: The key aspect of the supervised release beef in Ped is not whether the conditions of supervised release are constitutional: they aren’t.

  Instead, Judge Miller spills a fair amount of ink explaining why the appellate court cannot cobble together a fix, and instead must vacate the contested conditions and remand for resentencing. Id. at *5.

  Judge Miller is a new Ninthjurist, and Ped may offer an interesting insight into his views of the limited roles of an appellate court. That worked well for the defense here – but we may be less keen on this district-court deference when we’re attacking a decision under an “abuse of discretion” standard.

How to Use: Ped won this S/R battle, but lost the parole-search war at the heart of this case. Id. at *1. 

  The cops in this case learned that Ped’s brother, who was on “post-release community supervision” (like parole), lived in a house where Ped also resided. Id. at *1. Three months later (and after the Probation Officer was given a new and updated address for the brother) the cops searched the brother’s old original residence without a warrant. Id. at *2. The cops discovered Ped, meth pipe in hand, and went on to extract Ped’s confession to the guns found at the house. Id.

  The suppression issue was whether these sloppy cops had probable cause to believe the brother still lived at Ped’s house, when they relied upon three-month old residence info and when they didn’t bother to learn the new and correct address given to the P.O. Id. at *3.

  “Meh - good enough for government work,” is the gist of the disappointing Fourth Amendment holding: “To be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials.” Id. at *3.

  Ped, unfortunately, is an important – albeit fact-bound – decision on probable cause and parole searches of third-party residences. It merits a close read for parole-search cases.

                                               

For Further Reading: We defense attorneys review our clients’ priors. Turns out we should be checking cops’ priors as well. In a fascinating piece, the East Bay Times reveals the number of cops with “dubious backgrounds” in the McFarland Police Department. See article here.

  Want to see if a cop in your case has a conviction? This article has a link to a convicted-cop database, that you can use to run hundreds of current and former California law enforcement officers who were convicted of a crime since 2008. 

  With our Federal courthouse transforming into the Northern branch office of San Francisco’s Hall of Justice, see article here, this convicted-cop database is of particular interest to the NorCal federal defense bar.

Image of the Honorable Judge Eric Miller from https://www.youtube.com/watch?v=nHQYcZ9Kr98

Image of the Hall of Justice seal from https://www.kqed.org/news/11722940/san-francisco-investigator-disciplined-for-issuing-subpoena-under-false-pretenses 

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

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Case o' The Week: First Impression, Depression - Cervantes and Cali "Mandatory Supervision" Searches

  Jaywalk, stopped, searched, hotel room key found -- then room secretly searched without a warrant or reasonable suspicion of crime.

   Jaywalking is dangerous.

United States v. Steven Cervantes, 2017 WL 2622776 (9th Cir. June 19, 2017), decision available here.

The Honorable Judge Paul Watford

Players: Decision by Judge Watford, joined by Judges McKeown and Trott. 

  Hard-fought appeal by CD Cal AFPD Michael Tanaka.

Facts: Cervantes pleaded guilty to felony drug and counterfeiting charges in California. Id. at *1. He received a split sentence under the 2011 California “Realignment Act.” That suspended the second part of the term: a period called “mandatory supervision.” Id. Those on “mandatory supervision” are supervised in the same manner as those on probation. Id. Cervantes agreed to mandatory terms of supervision, including a warrantless, suspicionless search condition. Id. at *2. 

  After Cervantes was released from his initial custody, he was stopped for jaywalking. The officer learned Cervantes was on probation (actually, mandatory supervision), searched him, and found a hotel room key. Id. Without a warrant or any suspicion of criminal activity, officers searched the hotel room and found counterfeit currency. Id. 

  Cervantes was charged federally, the suppression motion was denied, and Cervantes was convicted after a stipulated facts bench trial. Id.

Issue(s): “On appeal, Cervantes renews his contention that the warrantless, suspicionless search of his hotel room violated the Fourth Amendment. As it did below, the government defends the legality of the search primarily by relying on the search condition imposed during Cervantes’ term of mandatory supervision.” Id. “Our main task is to determine whether the search of Cervantes' hotel room was in fact authorized by the clear and unambiguous terms of his search condition; if so, the search will likely be deemed reasonable.” Id. at *4.

Held: “Although the issue is admittedly a close one, for Fourth Amendment purposes we think mandatory supervision is more akin to parole than probation. Id. at *3.

  “[L]ike parole, mandatory supervision is more akin to imprisonment than probation is to imprisonment, . . . and the State’s interest in supervising offenders placed on mandatory supervision is comparable to its interest in supervising parolees. California courts concur: They have held that a split sentence under § 1170(h)(5) is akin to a state prison commitment, and that mandatory supervision is therefore more similar to parole than probation. . . . Given the similarities between mandatory supervision and parole, and the State’s comparably weighty interest in supervising offenders placed on both forms of supervision, we conclude that the Fourth Amendment analysis in this case is governed by the line of precedent applicable to parolees.” Id. at *4 (internal quotations and citations omitted).

  “No Fourth Amendment violation having been shown, the district court properly denied Cervantes' motion to suppress the evidence found in his hotel room.” Id. at *6.

Of Note: In the ’06 Samson decision, the Supremes created the great Fourth divide for those on supervision: probationers versus parolees. See id. at *3 (discussing Samson decision). 

  In Cervantes, Judge Watford queries whether to slot California “mandatory supervision” folks into the (more protected) “probation” category, or the (anything goes) “parole” category. This Ninth question of first impression breaks bad. The Court concludes that Cali “Mandatory supervision” is more akin to “parole” (with the very limited Fourth Amendment protections due parolees). 

  A disappointing outcome with broad impact, given the number of defendants affected by California Realignment.

How to Use: Even a parolee (or someone on “mandatory supervision") has some rights to Fourth Amendment reasonableness protections. Was it reasonable for officers to weasel their way into this hotel room, with no suspicion of criminal activity, while Cervantes was not even in or near the room? Judge Watford expressly avoids deciding that issue because it wasn’t briefed: a potential factual twist for another day. Id. at *5.

                                               

For Further Reading: In the first year after Realignment, over 560 California felony offenders were sentenced to split terms, per month. 

  For an interesting discussion on split sentences after Realignment, and links to data on its use - broken down by California county, see briefing here. 

Image of the Honorable Judge Paul Watford from United States Court of Appeals for the Ninth Circuit - United States Court of Appeals for the Ninth Circuit, Annual Report, pg 11, Public Domain, https://commons.wikimedia.org/w/index.php?curid=48278795

Image of jaywalking man from https://www.thestar.com/content/dam/thestar/news/gta/2013/09/05/data_shows_torontonians_love_to_jaywalk_and_sometimes_pay_the_price/jaywalking_man.jpg

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

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Case o' The Week: Many are the afflictions of the righteous: but the [Ninth] delivereth him out of [some] of them - Job and King Searches

 Illegal searches, denied suppression motions, an unsuccessful trial, a thirty-year custodial term, and an appeal.

 The Ninth rewards the patience of Job.

United States v. Job, 2017 WL 971803 (9th Cir. Mar. 14, 2017), decision available here.

Players: Decision by (the always-welcome) visiting District Judge Friedman, District of Columbia, joined by Judges Tashima and Paez.  

Facts: Cops, looking for some other dude, happened upon Travis Job: they patted him down. Id. at *2.

  They discovered a glass pipe in Job’s pocket, $1,450 in cash, and car keys. Id. When the cops pushed the key fob a car in the driveway beeped and unlocked. Id.

   Cops searched the car and found meth, a cig with Spice, another glass pipe, and a cell phone. Id.  At some unknown point, the officers discovered Jobs was on probation “with a 4^th amendment waiver.” Id.

  Job was charged in a meth conspiracy with Robert Rodriguez, and others. Id. at *2 (see also United States v. Rodriguez, 2017 WL 971809 (9th Cir. Mar. 14,2017)(discussing challenges to wiretap). Job’s challenges to the searches of his person and car were denied. He was convicted at trial and sentenced to 360 months [other offenses and searches were also involved in the case]. Id. at *3.   

Issue(s): “[Job] argues that the district court erred by denying his motions to suppress evidence found during searches of his person [and] car . . . .” Id. at *1.

Held: “In denying Job’s motions to suppress, the district court concluded — based on our decision in United States v. King — that Job’s Fourth Amendment search waiver provided a justification for all three searches. 736 F.3d 805, 810 (9th Cir. 2013). In King, we held that a suspicionless search, conducted pursuant to a suspicionless-search condition of a violent felon's probation agreement, does not violate the Fourth Amendment. Id. The district court erred by applying King’s holding to this case . . .”  Id. at *3.

  “The district court erred in denying Job’s motions to suppress evidence . . . solely on the basis of Job’s Fourth Amendment search waiver.” Id. at *4 (internal quotations and citation omitted).

Of Note: There were two problems with the government’s use of King in the district court. First, “it is undisputed that the officers were unaware of Job’s Fourth Amendment search waiver when they stopped him and patted him down.” Id. at *3. However, the Ninth’s policy rationale behind permitting the suspicionless searches of parolees (and probationers) requires that cops know of the search condition before searching. Id. Without that key fact, King’s “suspicionless search” rule can’t salvage a bad search.

  Second, King only applies to folks on paper for violent felonies –here, Job was on probation for a narcotic offense (Cal. H&S § 11377(a)). Id. at *4. A probation search waiver for a drug offense (offenses that have been deemed “nonviolent” by the Ninth) won’t justify a King suspicionless search of person, car, or home. Id.

How to Use: It is all well and good that the district court erred -- for Mr. Job, however, the far more-pressing question is the actual impact of the holding on convictions underlying his 30 year sentence?

  The Ninth employs harmless error review to answer that question. Judge Friedman schools the government for misstating the standard for this harmless error review: the test is not “whether a rational jury could have found Job guilty.” Id. at *8 & n.6. Instead, this error is “harmless only when it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Id. at *8 (internal quotations and citation omitted).

  The Ninth ultimately reverses one count of conviction under the standard as correctly set forth by Judge Friedman. Take careful note of footnote six: the government’s (wrong) standard of review would have probably meant defeat for Mr. Job. Job is a useful summary of the correct S.O.R. for Fourth Amendment motions after trial (and a potent reminder not to trust the government’s asserted standards on appeal).

           

The Honorable Chief Judge Thomas, with the Honorable Judges Bea and Kozinski (left to right).

                                   

For Further Reading: Republican-appointed judges are testifying in Congress, and opposing a Ninth Circuit split. Judges Bea and Kozinski joined C.J. Thomas at the House Judiciary Subcommittee to oppose the proposed creation of a new 12th Circuit from current Ninth States. For a video of their testimony, see the C-SPAN link here. 

  On a related note, Republican-appointed jurists occasionally disagree with some of the decisions of their colleagues on the Ninth. They are not, however, big fans of the Executive’s ad hominem attacks on the Judiciary. For an interesting piece on a very interesting dissent along these lines, see Appeals Court Judges Rebuke Trump for Personal Attacks, available here.

 
 

Image of (the biblical) Job from http://www.college.columbia.edu/core/sites/core/files/Job.jpg

Image of the Honorable Chief Judge Thomas, the Honorable Judge Bea, and the Honorable Judge Kozinski, from https://www.c-span.org/video/?425486-1/ninth-circuit-court-appeals-judges-testify-court-restructuring

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

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Case o' The Week: The Fourth Reappears in Car Searches, Caseres

Did the subject of a warrantless car search have the skill of Houdini and the strength of Hercules? See decision at *20.

The Ninth ain't buying it, in a wonderful decision that restores some of the battered Fourth Amendment protections associated with car searches. United States v. Caseres, No. 06-50546, 2008 LEXIS 15575 (9th Cir. July 21, 2008), decision available here.

Players: Important win by CD Cal AFPD Jonathan Libby. Decision by Judge Pregerson, joined by Judges Bright (8th Cir.) and Wardlaw.

Facts: An unmarked L.A. cop car tailed Caseres’s car for blocks at 9:45 p.m. The cops were suspicious of Caseres’s failure to signal a turn and the car’s tinted windows. Id. at *2. [Ed. note: see what Whren has wrought!]

When Caseres lawfully parked, a uniformed cop got out and told Caseres to stop as he walked toward his house. Id. at *3. “Fuck you, I’m home,” the defendant replied. Id. As the cop tried to stall for time Caseres opined, “I’m going to kick your fuckin’ ass,” which earned him a shot of pepper spray, which then devolved into a footchase. Id. at *4-*5.

“Well after” he had been taken into custody, the cops searched his car and found a gun and ammo. Id. Caseres was charged with § 922(g), and entered a conditional plea to preserve his suppression motion. Id. at *6.

Issue(s): “We must decide whether Lt. Murphy had a reasonable basis to detain Caseres, and whether the warrantless search of the passenger compartment of Caseres’s car was constitutional as a search incident to a valid arrest, an inventory search, or a parole search.” Id. at *6.

Held: 1. Incident to Arrest? “The district court improperly held that the search of Caseres’s car was constitutionally permissible as a search incident to arrest. [W]e conclude that the search of Caseres’s car was characterized by neither the spatial nor the temporal proximity to the place and time of the arrest required to constitute a valid search incident to arrest.” Id. at *11.

2. Inventory Search? “We reverse and hold that the police lacked the authority to impound and conduct an inventory search of Caseres’s car – which was lawfully parked on the street two houses away from his residence – because doing so did not serve any community caretaking purpose.” Id. at *25.

3. Parole Search: “Because the record does not establish that Lt. Murphy was aware that Cal. Pen. Code § 3607 applied before he ordered the search of Caseres’s car, the search is not justified by the state’s interest in supervising probationers.” Id. at *30-*31 (emphasis in original).

Of Note: Because there’s so much of value to mine in Caseres, the parole search issue is an easily-overlooked nugget. Note that Caseres was on parole, and the cops knew it before the search. Id. at *29. In California, parolees for offenses committed after January 1, 1997, must agree to a warrantless search condition. Id. at *29. Here, however, the cop didn’t determine whether Caseres was on California parole, for a post-‘97 offense, before the car search. Id. at *29.

Hence a good, common-sense rule: the cops have to know the subject is on parole and has a search condition before that favorite excuse works for a warrantless search. Id. at *30-*31.

How to Use: The “search incident to arrest” holding is probably the rule with the broadest potential application in Caseres. The Court reviews the confusing law on this warrant exception. Id. at *12. In sum, there’s much conflicting law on the temporal and spatial limitations permitted to still permit a search. (“So much for bright lines.”) Id. at *23.

Caseres gathers the different scenarios, and concludes that – in this case – the defendant had been gone from the car too long, and was too far away, to justify the search. Caseres should be the starting point for this fact-intensive analysis in future “incident to arrest” search cases.

For Further Reading: Unfortunately, it is Judge – and not Justice – Pregerson, so he can’t decide the big issue: “whether law enforcement officers must demonstrate a need to preserve evidence relating to the crime of conviction to justify a warrantless vehicular search incident to arrest.” Id. at *20.

That’s the question the Supremes have up in Arizona v. Gant, 128 S. Ct. 1443 (2008). What the Honorable H.P. can do is to emphasize that Belton – the vehicle search case – has been “sharply criticized” by many Justices. Id. at *12 & n.5.

Judge Pregerson’s footnote five is the starting point for the right result in Gant. Of course, the right result is not always the SCOTUS outcome. See "Simple Justice" blog commentary here.

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


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