Case o' The Week: Ninth No Fan of Minivan Plan - Dixon, the Fourth, and Those with Suspicionless Search Conditions

The Fourth Amendment protects our property against warrantless and unreasonable government intrusions.

(Even when the property is a minivan . . . .)

  United States v. Dixon, 2020 WL 7777884 (9th Cir. Dec. 31, 2020), decision available here.

 Players: Decision by Judge Wardlaw, joined by Judge M. Smith and visiting Judge Siler. 

Admirable win for former ND Cal AFPDs Jonathan Abel and Juliana DeVries, building on the district court litigation of Trial AFPD Elizabeth Falk and Appellate AFPD Steven Koeninger.  

Facts: Dixon was on supervised release with a warrantless, suspicionless search condition. Id. at *2. A cop saw Dixon leave an apartment and (allegedly) walk towards a blue minivan. Id. When cops stopped Dixon he dropped two garbage bags he was carrying, and keys. Id. Using one those keys, the cops unlocked, opened, and searched the minivan. They found pot. Id.

Dixon was charged with drug distribution allegations in the Northern District of California.

  During the suppression litigation, Dixon submitted a declaration explaining that he was not in fact walking towards the blue minivan. Id.

   The district court denied the suppression motion without an evidentiary hearing. Id. at *3.   

 Issue(s): “We must decide whether the insertion of a car key into a lock on the vehicle’s door for the sole purpose of aiding the police in ascertaining its ownership or control is a ‘search’ within the meaning of the Fourth Amendment.” Id. at *1. “[W]e must determine whether inserting that key into the minivan’s lock was itself permissible under the Fourth Amendment. This matters because if inserting the key into the car lock violated Dixon’s Fourth Amendment rights, the officers’ resulting knowledge and authority to search that vehicle would be tainted by a Fourth Amendment violation.” Id. at *3.

   “To determine whether a Fourth Amendment violation occurred, we ask two primary questions: first, whether the government conduct amounted to a search within the meaning of the Fourth Amendment; and

   [S]econd, whether that search was reasonable.” Id. at *4. “The level of suspicion required to determine whether a vehicle is subject to a warrantless search condition appears to be an issue of first impression in this circuit . . . .” Id. at *6.

Held: “In light of recent Supreme Court authority tying the Fourth Amendment's reach to the law of trespass . . . we must conclude that because ‘[t]he Government physically occupied private property for the purpose of obtaining information,’ United States v. Jones, 565 U.S. 400, 404 (2012), it conducted a search within the meaning of the Fourth Amendment.” Id. at *1.

  Issue One: “Applying Jones’s property based analysis, we must conclude that a Fourth Amendment search occurs when an officer physically inserts a key into the lock of a vehicle for the purpose of obtaining information, as occurred here. Thus, our decision in Currency is ‘clearly irreconcilable’ with the Supreme Court’s property-based Fourth Amendment jurisprudence, and it cannot stand to the extent that it concluded that no search occurred on these facts.” Id. at *4.

  Issue Two: “We hold that before conducting a warrantless search of a vehicle pursuant to a supervised release condition, law enforcement must have probable cause to believe that the supervisee owns or controls the vehicle to be searched.” Id. at *6. “We therefore remand this case for the district court to conduct an evidentiary hearing and to rule on Dixon’s suppression motion in light of the Jones and Jardines principles we now apply.” Id.

Of Note: The great Dixon opinion is thick with helpful holdings. In addition to a welcome decision of first impression on supervisees and vehicles, the Ninth rejects the government’s attempt to exempt those who have suspicionless search conditions from Jones’ property-based approach. Id. at *5 & n.2. 

A very important Fourth Amendment read.

How to Use: Dixon admitted possession and denied distribution: the jury convicted on simple possession. The DJ, however, denied the two-level reduction for acceptance of responsibility under USSG Section 3E1.1(a). Id. at *8. The Ninth explains that the DJ got the guideline wrong -- Dixon should have received the acceptance break. Id. at *8. 

Dixon is a quiet -- but important -- acceptance-of-responsibility victory, hidden within an attention-grabbing Fourth Amendment win.

For Further Reading: Importantly, the cops’ body cam video substantiated Dixon’s declaration in this case. Id. at *2. Body camera video is a simple reform that adds much integrity and accountability to the criminal justice system.

In our George Floyd era, why would any US Attorney Office federalize a state case that does not have body camera video? That obvious question should be posed to the candidates now eagerly vying for US Attorney gigs in the Biden administration. VP Harris famously touted supporting body cameras, after all.  

Although there are over 100 state, city and county law enforcement agencies in the Northern District of California, Lord only knows which of them have body camera policies or provide the gear to their cops, deputy sheriffs, park and patrol officers.   

For an informative report on this important issue see the report of a San Mateo grand jury, here. 

 

 

Image of blue minivan from https://www.cargurus.com/Cars/l-Used-Minivan-bg4

 

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

 

 

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Case o' The Week: Passengers Demur? For Sure! - Landeros, Fourth Amendment, Prolonged Searches, and Passengers

  Passengers not there for the search and seizure ride.

 United States v. Landeros, 2019 WL 166120 (9th Cir. Jan. 11, 2019), decision available here.

Players: Decision by Judge Berzon, joined by Judges Rawlinson and Watford. Big win for AFPD Lee Tucker, District of Arizona.

The Hon. Judge Marsha Berzon

Facts: Landeros was a passenger in a car stopped for speeding 11 miles over the limit. Id. at *2. Landeros refused to comply when the officer “commanded” him to produce an I.D. Id. The officer called for backup (prolonging the stop): ultimately Landeros gave in and exited the car. Id. Cops then saw open beer bottles on the floorboard, and Landeros was arrested. Id. The cops cuffed and searched him and found bullets, ultimately leading to a § 922(g) charge. Id. at *3.

 His motion to dismiss was denied. Id. Landeros entered a conditional plea, allowing him to appeal. Id. (An eminently reasonable process under the Rules of Criminal Procedure that is apparently available in Arizona, but which has yet to make it as far west as NorCal.)

Issue(s): “Our question is whether law enforcement officers may extend a lawfully initiated vehicle stop because a passenger refuses to identify himself, absent reasonable suspicion that the individual has committed a criminal offense.” Id. at *1.

Held: “We conclude that they may not do so. As a result, we reverse.” Id. at *1. “This case implicates two doctrines, one concerning the circumstances under which law enforcement can prolong a stop, and the other governing when law enforcement can require a person to identify himself.” Id. at *3. 

  “As explained above, the officers insisted several times that Landeros identify himself after he initially refused, and detained him while making those demands. At the time they did so, the officers had no reasonable suspicion that Landeros had committed an offense. Accordingly, the police could not lawfully order him to identify himself. His repeated refusal to do so thus did not, as the government claims, constitute a failure to comply with an officer's lawful order, Ariz. Rev. Stat. Ann. § 28-622(A). There was therefore no justification for the extension of the detention to allow the officers to press Landeros further for his identity.” Id. at *7.

Of Note: Eleven years ago, the Ninth delivered the aggravating Turvin decision.  517 F.3d 1097 (9th Cir. 2008). In Turvin, Judge Wallace held that an officer didn’t unlawfully extend a traffic stop when he took a little break from writing a traffic citation – to ask about a meth lab and get consent to search the truck! Id. at 1101-02.

  Dissenting Judge Paez didn’t buy the reasoning in Turvin. He compellingly complained that the officer in Turvin had no reasonable suspicion to prolong this traffic stop. Id. at 1106 (Paez, J., dissenting).

Hon. Judge Richard Paez

 It took over a decade, but Judge Paez has finally been vindicated. In Landeros, Judge Berzon recognizes that the Supreme’s 2015 Rodriguez decision (at least partially) abrogated Turvin. She accordingly employs the Gammie whammy to bring the Ninth’s law in line. Landeros, 2019 WL 166120, *4.

  Landeros is now the lead Ninth decision on prolonged traffic stops (and is a particularly well-written opinion): worth a close read in any traffic stop case.     

How to Use: Cops exploit traffic stops to search passengers. To borrow Judge Watford’s dissenting insight from the recent Lamar Johnson case, “it is no secret that people of color are disproportionate victims of this type of scrutiny.” United States v. Lamar Johnson, 2019 WL 137929, *10 (9th Cir. Jan. 9, 2019) (Watford, J., dissenting). 

   Judge Berzon’s thorough analysis in Landeros is just what the doctor ordered for these pretextual passenger searches. As she explains, “[a] demand for a passenger’s identification is not part of the mission of a traffic stop.” Landeros, 2019 WL 166120, *5 (emphasis added).

  When a driver’s expired tags devolves into your client-passenger being searched, turn to Landeros for welcome limits on this heavily-abused law enforcement tool.

                                               

For Further Reading: 51 judicial candidates have been re-nominated by President Trump last week.

The Honorable California Senators Feinstein and Harris

  Conspicuously absent from these re-nominations? Three previous Ninth nominees, that had previously been sent the Senate sans Cali blue slips: Patrick Bumatay, Daniel Collins, and Kenneth Kiyul Lee. See article here. 

“Passengers” Logo from http://logos.wikia.com/wiki/File:Passengers-2016-movie-logo.png

Image of the Honorable Judge Marsha Berzon from http://www.spokesman.com/blogs/boise/2014/sep/08/judge-berzon-train-has-left-station/

Image of the Honorable Judge Richard Paez from https://twitter.com/craigcaplan/status/864161811800752128

Image of the Honorable Senator Diane Feinstein and the Honorable Senator Kamela Harris from https://talkingpointsmemo.com/news/feinstein-harris-no-white-house-consultation-california-judicial-nominees 

Steven Kalar, Federal Public Defender Northern District of California. 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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