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: A "WARRENless" Search Case with New Fourth Amendment Rules, Al Nasser

Judge Kleinfeld (seen here, left, with members of the Harvard Federalist Society) authors a "new" (amended) Fourth Amendment decision that asks whether a defendant is "seized" when he or she voluntarily stops for the police. United States v. Al Nasser, __ F.3d. __, No. 05-10466, 2009 WL 251951 (9th Cir. Feb. 4, 2009), decision available here.
The answer? Nope.

Players: Decision by Judge Kleinfeld, joined by Judges Trott and N. Randy Smith. Dissent in original decision by the late Hon. Judge Warren Ferguson.

Facts: Border patrol and tribal police stopped one car at night, then stopped a second car that was smuggling undocumented aliens. Id. at *1. By the time the third car – Al Nasser’s – passed on the highway the cops had their hands full and (said) they didn’t intend for him to stop. Id. Seeing flashing lights – and a flashlight shined at him by a cop – Al Nasser stopped anyway. Id. Turns out Al Nasser was carrying undocumented aliens too. Id. at *2. The district court denied his suppression motion, holding there was no seizure. Id. at *3.

Issue(s): “What if the police do not intend to stop someone, but a person thinks that he is being stopped? Must that unintended stop still be supported by reasonable suspicion in order to prevent suppression of its fruits? Does the ‘objective’ examination of police conduct, as required in Whren v. United States for a vehicle stop brought about by police action undertaken to effect the stop, mean that if a reasonable person would think that he was being stopped, then the person is ‘seized’ within the meaning of the Fourth Amendment, even if the police do not want the person to stop and intended for him to go on about his business without stopping?” Id. at *3 (footnote omitted).

Held: “‘A person is seized when he is “ meant to be stopped by [a particular law enforcement action] ... and [is] so stopped.’ That is, a seizure occurs where a person is stopped by ‘the very instrumentality set in motion or put in place in order to achieve that result.’ Here, the two Border Patrol agents and the tribal police officer did not stop their vehicles or the two civilian ones in order to make other vehicles stop. Although Al Nasser did stop, the lights and the vehicles that caused him to do so were not a roadblock put in place to accomplish that purpose. Thus, Al Nasser was thus not ‘seized’ within the meaning of the Fourth Amendment when he stopped his car.” Id. at *7 (quotes and brackets in original, footnotes omitted).

Of Note: This dense decision is not an easy read, so here’s the gist. Remember how, after Whren, the subjective intent of the officers isn’t relevant in a Fourth Amendment search? Remember how, after Whren, a cop could want to stop and search for drugs, but could use the pretext of a traffic stop, and as long as there was P.C. for the traffic stop, the seizure passed Fourth Amendment muster? Remember how the objective evaluation of probable cause, not the subjective intent of the officers, is what is important?

Well, that’s all still true – unless the cop didn’t intend to stop the defendant. Then, after Al Nasser, we switch: it becomes a subjective test and we ask whether the subjective intent of the cop was to effectuate a stop. If it wasn’t, there’s no stop. No stop, no Fourth Amendment violation.

A cynic might claim that the Court is flip-flopping between subjective and objective tests, cherry-picking whichever approach will defeat a Fourth Amendment challenge. But we’re not cynics.

How to Use: There’s some big new Fourth rules buried in this opinion, but the case offers no clear tests or decision-trees for how to approach this analysis. In short, Al Nasser is going to prompt a lot of head-scratching and litigation, both in criminal defense and in § 1983 claims. The opinion will also spawn more evidentiary hearings, as that old, fuzzy, subjective “intent-of-the-officers” is now back in play (just like pre-Whren). Finally, anticipate cops abusing the rule – particularly in road-block and DUI cases. The best way to use Al Nasser is to avoid it, if possible.

For Further Reading: This amended opinion followed Judge Warren Ferguson’s (right) death and replacement on the panel by Judge N. Randy Smith. For a radically different account of this stop – and a persuasive argument against the ultimate holding – see Judge Ferguson’s original dissent at Hussein Al Nasser, 479 F.3d 1166, 1172 (9th Cir. 2007). As Judge Ferguson explained, the border patrol agent stood in the lane in front of Al Nasser, shined a “stinger’ flashlight into the car, then continued to shine it into the car as it passed. Id. One officer testified that Al Nasser was “ordered to stop.” Id. at n.1. With typical forthrightness, Judge Ferguson opined, “the majority’s decision contradicts both logic and clear precedent.” Id.



Image of the Hon. Judge Andrew J. Kleinfeld from http://www.law.harvard.edu/students/orgs/fedsoc/2003_event_summary.shtml . Image of the Hon. Warren Ferguson from http://www.nytimes.com/2008/07/12/washington/12ferguson.html?ref=todayspaper

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

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