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: Ninth Ain't Buying Gov's Cell Sell -- Lara, Cell Phones, "Containers" and Probationary Searches

  Ask not for whom the cell tolls; it tolls for thee.

United States v. Lara, 2015 WL 828100 (9th Cir. Mar. 3, 2016), decision available here.

Players: Decision by Judge W. Fletcher, joined by Judges Paez and Berzon. Admirable win for Deputy FPD Alexandra Yates, CD Cal FPD.

Facts: Lara plead guilty to a California drug crime. 

  A condition of probation required him to submit to a search “without our without a warrant, probable cause, or reasonable suspicion.” Id. In his probation agreement, Lara also initialed a section where he agreed to “waive and give up” his Fourth Amendment right to be free from unreasonable searches and seizures. Id.

   Soon after Lara’s probationary term began Probation Officers showed up unannounced at his home, seized and searched his cell phone, and discovered pics of a gun and texts relating to its sale. Id. at *2. GPS coordinates in the gun-photo led to Lara’s mother’s house and discovery of the gun. Id. 

 Lara was charged federally with being a felon in possession. His motion to suppress was denied (before the Supreme Court had decided, in Riley, 134 S. Ct. 2473 (2014), that the police may not, without a warrant, examine the digital information stored on a cell phone seized incident to arrest). Id. at *3. 

  Lara pled guilty, “but preserved his right to challenge the denial of his motion.” Id. at *3.

Issue(s): “Lara contends that his Fourth Amendment right to be free from unreasonable searches and seizures was violated when probation officers conducted two warrantless, suspicionless searches of his cell phone. He contends that the exclusionary rule requires the suppression of images, text messages, and GPS data found on his cell phone, as well as a gun and ammunition, as fruits of the illegal searches.” Id. at *1.

Held: “We agree.” Id. 

 “The government contends that there are three independent reasons to affirm the district court’s denial of Lara’s motion to suppress. First, the government contends that Lara consented to the initial cell phone data search by accepting the terms of his probation agreement, thereby waiving his Fourth Amendment protection against unreasonable searches and seizures. Second, the government contends that, even if Lara did not waive his Fourth Amendment rights, the warrantless search was lawful because it was reasonable. Third, the government contends that even if the cell phone search was unlawful, the evidence it yielded should not be suppressed because a good faith exception to the exclusionary rule applies. We are not persuaded by any of these contentions.” Id. at *3.

Of Note: Does it gall you, to be handed a plea agreement where your client is asked to consent to unreasonable searches? (Or, put differently, where the agreement purports to waive the Fourth Amendment’s requirement that a search be reasonable?) It galls the Ninth, too. See id. at *3. It matters not what waivers the USAO and Probation concoct, “any search made pursuant to the condition included in the terms of probation must necessarily meet the Fourth Amendment’s standard of reasonableness.” Id. 

  The rub, then, is what is “reasonable?” One answer could be that a suspicionless search of non-violent probationers is never reasonable – a potential bright-line hinted at in King, 736 F.3d 806 (9th Cir. 2013). Id. at *4. Judge Fletcher declines to go that far here, and instead conducts an individualized reasonableness assessment (that breaks Lara’s way).

How to Use: The search condition in Lara’s plea agreement covered “person and property, residence, premises, container and vehicle.” Id. at *5. It did not say “cell phone and information therein.” Id. Relying on Riley, the Ninth holds that a cell phone is not a container subject to this search clause. The information within the phone was therefore not fair game for a suspicionless search. Id. 

  Use Lara’s careful reading of the search clause when faced with probationary searches: the precise language of search clauses may be less broad than Probation assumes.

                                               

For Further Reading: Does Judge Fletcher's welcome and thoroughly modern understanding of cell phone privacy, id. at *5, foreshadow the outcome of the iPhone encryption battle when it finally hits the Ninth? Not exactly – though fair to speculate that Lara was well received at 1 Infinite Loop. 

  For one of the best descriptions of the actual technology at issue in the encryption battle, hit the EFF’s great post: A Technical Perspective on the Apple iPhone Case, available here.

Image of iPhone and gun from http://regmedia.co.uk/2013/06/28/side.jpg

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

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