Case o' The Week: The Fourth in the Ninth Goes Back to the Future - Lamar Johnson and Search "Incident" to Arrest

A search “incident” to arrest can happen before an arrest, and need not be supported by probable cause for the actual arrest that followed the search that was “incident” to arrest.

(And you thought the space-time quirks of “Back to the Future” were confusing.)

  United States v. Lamar Johnson, 2019 WL 137929 (9th Cir. Jan. 9, 2019), decision available here.

Players: Decision by Judge Wallace, joined by Judge Rawlinson.

 Compelling concurrence by Judge Watford.

  Hard-fought appeal by Oakland AFPD Robin Packel, Northern District of California.  

Hon. Judge J. Clifford Wallace

Facts: Johnson was stopped while driving. Id. at *2. The cop claimed he then smelled marijuana. Id. The officer asked for registration and insurance: Johnson explained he was borrowing the car and rummaged through the glovebox. Id. The officer opined this rummaging was inconsistent with how someone would (sincerely?) dig through a glove box. Id. The officer learned Johnson had been arrested for parole violations. Id. He asked Johnson to step out of the car, searched him, discovered he was wearing a bulletproof vest, and arrested him for being a felon in possession of body armor. Id. A later car search revealed a gun, drugs, scales, and plastic bags. Id.

  The defense motion to suppress was denied.

  This was the Northern District of California, so there was no conditional plea -- the defense and the District Court were forced to go through the rigamarole of a stip facts bench trial to preserve an important Fourth Amendment issue for appeal. Id. at *3.

Issue(s): “Johnson argues that the warrantless search of his person, [and] the warrantless search of his car . . . violated the Fourth Amendment.” Id. at *3. “[A] search, incident to a lawful arrest, does not necessarily need to follow the arrest to comport with the Fourth Amendment.” Id. “[W]hen the officer’s known facts provide probable cause to arrest for an offense, the officer’s subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause.” Id. at *3 (internal quotations and citations omitted).

  “The question presented in this case is whether these two well-established principles may coincide without violating the Fourth Amendment. Johnson contends that to do so would create a ‘search incident to probable cause’ rule, allowing officers to search a person whenever probable cause to arrest exists. Johnson argues that the existence of such a rule will cause widespread fishing expeditions that are pre-textual and discriminatory.” Id. at *4.

Held: “[T]he precise crime for which an officer has probable cause is irrelevant. . . . So long as the search was incident to and preceding a lawful arrest—which is to say that probable cause to arrest existed and the search and arrest are roughly contemporaneous, . . . the arresting officer’s subjective crime of arrest need not have been the crime for which probable cause existed.” Id. at *4.

  “We . . . join our sister circuits in holding that Knowles does not prevent a search incident to a lawful arrest from occurring before the arrest itself, even if the crime of arrest is different from the crime for which probable cause existed.” Id. at *4 (emphases added).

Of Note: Under Lamar Johnson, an officer can now:

  1) search "incident" to arrest before an arrest, and

  2) that search can later be upheld, even if the probable cause wasn’t for the actual arrest that (followed) the search “incident” to arrest!

  Huh?

Hon. Judge Paul Watford

  In a well-reasoned concurrence, Judge Watford politely tears apart this troubling holding. Id. at *7 *(Watford, J., concurring). He explains that he is forced to concur because of the Ninth’s 2004 decision in Smith. Id. Judge Watford persuasively explains, however, that the Smith decision is “doctrinally unsound” and not “consistent” with Supreme Court precedents. Id. at *9.

  The concurrence ends with a trenchant understatement: “it is no secret that people of color are disproportionate victims of this type of scrutiny.” Id. at *10. Judge Watford correctly warns, “So long as Smith remains the law of our circuit, it will only exacerbate this problem.” Id.

  Judge Watford is right - Smith (and Johnson) should go en banc. This dangerous Fourth Amendment decision, and this line of Circuit authority that has strayed far afield from SCOTUS precedent, merits a close second look by the en banc court.

How to Use: Don’t concede a Fourth challenge because of Lamar Johnson: preserve. La Lucha continues.

                                               

For Further Reading: Whither the Judiciary (and FPD) as the shutdown staggers into uncharted territory? For an article that accurately describes the looming crisis, see a helpful NYT piece here. 

Image of Marty McFly of “Back to the Future” from https://memegenerator.net/instance/68739897/marty-mcfly-i-think-i-got-confused

Image of the Honorable J. Clifford Wallace from https://wallaceinnsd.org/our-founder/

Image of the Honorable Judge Paul Watford from https://livzey.com/corporate/portraiture/attachment/judgewatford_9960/

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

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Case o' The Week: Camou no L’Étranger to Cell Phone privacy - Fourth Amendment and Cell Phone Searches

  The risk, for the government, when it “throws it all up against the barn

Hon. Judge Harry Pregerson

to see what sticks?”

   You may draw the wrong barn.

   United States v. Camou, 2014 WL 6980135 (9th Cir. Dec. 11, 2014), opinion available here.

Players: Decision by Judge Pregerson, joined by Judges Fisher and DJ Gwin. Big win for James Fife and Jason Ser, Federal Defenders of San Diego, Inc.

Facts: Border Patrol agents stopped a truck driven by Camou, and found an undocumented alien hiding within. Id. at *1. Camou’s girlfriend was also inside. Id. Agents found a cell phone in the truck. Id. Camou’s girlfriend described smuggling trips, arranged by “Mother Teresa” who would call with details. Id. During the interview Camou’s cell rang, the girlfriend identified the number as belonging to “Mother Teresa,” and Camou admitted the cell was his. Id. An agent searched the phone without a warrant and discovered child porn. Id. at *2. Camou was never charged with alien smuggling, but after an FBI search warrant revealed hundreds of child porn images on the phone he was charged with possession of child pornography. Id. His motion to suppress was denied, and he entered a conditional plea that preserved his right to appeal.

Issue(s): “Camou argues that the warrantless search of his cell phone was unconstitutional because the search was not incident to arrest, and no other exceptions to the warrant requirement apply. Camou also argues that the exclusionary rule bars the admissibility of the images found on his phone.” Id. at *3.

Held: “We agree.” Id. “Agent Walla’s search of Camou’s cell phone was too far removed in time from Camou’s arrest to be incident to that arrest.” Id. at *4. “Given both the passage of one hour and twenty minutes between arrest and search and the seven intervening acts between arrest and search that signaled the arrest was over, we conclude that the search of the phone was not roughly contemporaneous with arrest and, therefore, was not search incident to arrest.” Id. at *5. “Even if there was probable cause to search Camou’s cell phone, we conclude that the government failed to meet the second prong of the exigency exception: exigent circumstances that require immediate police action.” Id. at *6. “If the vehicle exception applies to this case . . . . the one hour and twenty minute delay between the seizure of Camou’s cell phone and the search of its contents would not invalidate the search. We hold, however, that cell phones are not containers for purposes of the vehicle exception.” Id. at *7. “[C]ell phones are non-containers for purposes of the vehicle exception to the warrant requirement, and the search of Camou’s cell phone cannot be justified under that exception.” Id. at *9.

Of Note: A cell phone is not a “container” subject to search incident to arrest. See id. at *9. That logical extension of the Supreme Court’s recent decision in Riley, 134 S.Ct. 2473, 2491 (2014) is the best of many great holdings in this terrific opinion. Judge Pregerson reviews the Supreme’s rejection of cell phones as containers in the vehicle context in Riley, and finds “no reason” not to extend that reasoning to cell phones recovered when our clients are arrested. Judge Pregerson may be the most-senior non-Senior judge in the Ninth Circuit, but this Fourth Amendment jurisprudence on cell phones is bleeding edge, and drags the Ninth back into the modern world on technology issues.  

How to Use: Read Camou. The government takes a shotgun approach to try to salvage this (bad) search, and as the Court methodically knocks each argument down it gives the defense great tools on many fronts for our Fourth arsenal. Search incident to arrest, exigency, the automobile exception – each is covered (well) and merits quotation. Don’t overlook, however, a great Herring “good faith” discussion at the end of the opinion. Id. at *10-11. Judge Pregerson rejects a negligent agent’s attempt to assert the “good faith” discussion – a section that merits heavy quotation whenever the government throws that red Herring into its Fourth Amendment briefing.

                                               

For Further Reading: Little rusty on Riley? For a particularly thoughtful summary of this important decision, see Ten Key Issues from the Riley Opinion Protecting Cell Phone Data Seized During an Arrest, available here. 

Image of the Honorable Judge Harry Pregerson from http://www.usvetsinc.org/salute/

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

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Case o' The Week: The Maltese Falcon in San Diego, Fourth Amendment "Protective Sweeps"

It was a dark night in the City that Never Sleeps. It looked like Lemus was still living there, see? But if the copper remembered right, other family lived there too.

Could be just another Dashiell Hammett rag -- but it wasn't. It was United States v. Lemus, __ F.3d __, No. 08-50403, 2009 WL 2999361 (9th Cir. Sept. 28, 2009), decision available here.

Players: Decision by Judge Bybee, joined by Judges Gould and Rawlinson.

Facts: San Diego detectives had a history with Lemus, knew that he had been arrested with drugs and a drive-by shooting, and that he had cousins who had been arrested for violent crimes. Id. at *1. The detectives went to serve an arrest warrant at Lemus’s residence. Id. As they spoke with him he started to back through a sliding glass door of the apartment; the detectives seized him “before he could fully enter to doorway and retreat into his living room.” Id. at *2 (emphasis added).

Officers then went in (without a warrant) and “scanned” the house. Id. They saw what looked like the butt of a gun in a couch, lifted the cushion, and found a .9mm. Id. Lemus was charged with being a felon in possession. When the district court denied his suppression motion Lemus took a conditional plea and appealed.

Issue(s): “Juan Hernan Lemus appeals the district court's denial of his motion to suppress incriminating evidence discovered during a warrantless search of his apartment following his arrest.” Id. at *1.

Held: “Even assuming that there were no articulable facts which would warrant a reasonably prudent police officer to believe that Lemus’s apartment harbored an individual posing a danger to those on the arrest scene, we nevertheless affirm the district court's denial of the suppression motion. Because the area in which the police officers discovered the incriminating evidence ‘immediately adjoin[ed] the place of arrest,’ the officers were justified in conducting a search of that area without either probable cause or reasonable suspicion, Maryland v. Buie, 494 U.S. 325, 334, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990), and anything in plain view that they discovered in the course of that search could be seized without violating the Fourth Amendment, Horton v. California, 496 U.S. 128, 136-37, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990).” Id. at *1.

Of Note: This opinion is exceedingly odd. The fact section is written in a colloquial style that borders on pulp fiction; sounds like the Ninth is channeling Sam Spade. Id. at *1-*2. Maybe this is an innovative new style for Ninth Circuit opinions, or maybe the case is an inside joke. Whatever it is, the “omniscient narrator” technique is a peculiar way to lay down a fact pattern in an important Fourth Amendment decision.

How to Use: Harmonize this: if the cops arrest you and pull you out of a car, and you’re under their control, a “protective search” of the car is unreasonable under the Fourth Amendment. Arizona v. Gant, 129 S. Ct. 1710, 1729 (2009). But if the cops arrest you and pull you out of the doorway of your home, and you’re under their control, the cops can still search your home without a warrant? Pity that Lemus wasn’t arrested in his car instead of his home– there’s more Fourth Amendment protections on four wheels, it appears.

Even worse, Judge Bybee takes pains to explain that the cops didn’t even need articulable facts supporting the belief that there was danger in the room searched. Id. at *4. Here, because Lemus was arrested in an area “immediately adjoining” the living room searched, “a limited search of that room was proper without either reasonable suspicion or probable cause as a protective search incident to arrest.” Id.

Worse still, the Court appears to have latched onto this theory despite the fact the government never argued it and instead pitched the search as a “protective sweep.” Id. at *4 n.2.

Beware of the Lemus hurdle when cops rummage around homes after doorway arrests – and anticipate heated factual disputes on what was in fact “immediately adjoining.”

For Further Reading: For an interesting history of the “search incident to arrest” theory and the ebb and flow of Fourth Amendment protections in this area since Chimel v. California, see Peter W. Fenton and Michael B. Shapiro, Search & Seizure Commentary, 33-JUL CHAMP 50 (July 2009), available here.

Image of Sam Spade from http://www.cultcase.com/2007/07/from-sam-spade-to-harry-callahan.html


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


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