Case o' The Week: Whren is for the Birds -- Mark Johnson and Subjective Intent in Administrative Searches

 Ninth ignores defense arguments, relies on cops’ assertions –

    and reverses for a suppression win!

United States v. Mark Johnson, 889 F.3d 1120 (9th Cir. May 14, 2018), decision available here.

Players: Per curiam opinion: Judges O’Scannlain, Paez, and Bea. Special concurrence by Judge O’Scannlain, joined by Judge Bea. Special concurrence by Judge Paez.

Facts: Deputies found Johnson, who was wanted for a warrant. Id. at 1123. They surveilled him at his house, let him drive away from the home, then at an intersection they boxed his car and stopped him. Id. The cops ordered the parked car towed. Id. 

  Before the tow, they did an inventory search and found (among other things) a backpack. Id. They got a warrant and found meth and evidence of drug dealing in the backpack. Id. at 1124. 

  Johnson was charged federally and moved to suppress. Id. The motion was denied, Johnson was convicted after trial, and sentenced to 188 months. Id.

Issue(s): “We must decide whether the trial court erred in failing to suppress evidence that was seized by . . .  police officers during their inventory search of a criminal defendant and the car he was driving at the time of his arrest.” Id. at *1123. 

  “Johnson contends that the officers in this case impounded and searched the car he was driving not for any legitimate inventory purposes, but rather as a pretext to look for evidence of wrongdoing. He urges that both the officers’ actions leading up to the stop and search of his car and their conduct in carrying out that search show that they were subjectively motivated by an improper desire to find incriminating evidence against him.” Id. at 1125.

Held: “We . . . must determine whether Johnson has produced evidence that demonstrates the officers would not have searched and seized items from the car he was driving but for an impermissible motive.” Id. at *1126. 

  “[W]e need not consider the merits of [Johnson’s] arguments—or whether any such violations of [the tow] policy would require suppression of the evidence found —because the officers themselves explicitly admitted that they seized items from the car in an effort to search for evidence of criminal activity.” Id. at 1127 (emphasis in original).

  “In light of our decision in Orozco, we conclude that the officers' search and seizure of such evidence cannot be justified under the inventory-search doctrine. See Orozco, 858 F.3d at 1212–16. Because the government has not offered any justification for the seizure of such property other than the inventory-search doctrine, we conclude that the district court erred in denying Johnson’s motion to suppress.” Id. at 1128.

Of Note: In a special concurrence, Judges O’Scannlain and Bea waive a red flag at the SCOTUS bull. Id. at 1129 (O’Scannlain, J., specially concurring). The real issue in Johnson is whether the officers’ subjective intent is relevant when considering an inventory search. Under the Ninth’s (correct) Orozco decision, the cops’ intent matters. See generally blog post here. Judge O’Scannlain, however, argues that Orozco parts way with Supreme precedent. Id. at 1131. 

  In a compelling concurrence, Judge Paez strongly disagrees – noting that the "vast majority" of sister circuits have agreed that subjective motive is relevant when assessing administrative searches. Id. at 1135. 

  Judge Paez has the better argument, questioning Judge O’Scannlain’s reliance on a mem dispo in the sister-circuit count. Id. at 1136 n.3. Nonetheless, in uncertain times, this attack on established law for administrative searches is unsettling.

How to Use: Cops are so used to hiding behind the Whren “objective” shield, they get sloppy and are honest about their real subjective intent in administrative searches. That phenomenon is precisely what happened here in Johnson, producing the facts that lead to the suppression win. 

  Consider that Whren-pulse when prepping for evidentiary hearings – this win was handed to the defense by the cops.

                                               

For Further Reading: Justice Scalia, the big Whren Friend, is no longer with us. And Justice Ginsburg – who joined Whren – may be having second thoughts. For a fascinating piece supporting Judge Paez’s view that subjective intent is increasingly relevant for SCOTUS, see “A Crack in the Whren Wall,” available here.

Image of Wren from https://www.allaboutbirds.org/guide/House_Wren/id

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

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Case o' The Week: Cops Lied, Suppression Denied -- Magallon-Lopez, Whren, and Traffic Stops

  Lie to a cop? Defendant goes to jail.

  Lie by a cop? Defendant goes to jail.

United States v. Magallon-Lopez, 2016 WL 1254033 (9th Cir. March 31, 2016), decision available here.

Players: Decision by Judge Watford, joined by Judges Fisher and Berzon. Compelling concurrence by Judge Berzon. Hard-fought appeal by AFPDs Michael Donahoe and Mark Werner, FPD, D. Montana.

Facts: A wiretap lead officers to stop a car shipping meth. Id. at *1. The cops made an “investigatory stop,” but had not observed any traffic violations. Id.

 An officer lied and told the driver the reason for the stop was failure to signal properly. Id. 

 The cops got a search warrant and found meth. Id. The driver, Magallon-Lopez, moved to suppress: his motion was denied. Id.

Issue(s): “Unable to contest the existence of reasonable suspicion, Magallon–Lopez challenges the legality of the stop on a different theory. He contends that the stop violated the Fourth Amendment because the officer who pulled him over deliberately lied when stating the reason for the stop, and the reason the officer gave was not itself supported by reasonable suspicion.” Id. at *3.

Held: “That the officer lied about seeing Magallon–Lopez make an illegal lane change does not call into question the legality of the stop. The standard for determining whether probable cause or reasonable suspicion exists is an objective one; it does not turn either on the subjective thought processes of the officer or on whether the officer is truthful about the reason for the stop. If, for example, the facts provide probable cause or reasonable suspicion to justify a traffic stop, the stop is lawful even if the officer made the stop only because he wished to investigate a more serious offense. Whren . . . 517 U.S. 806, 812–13. . . (1996). Likewise, if the facts support probable cause to arrest for one offense, the arrest is lawful even if the officer invoked, as the basis for the arrest, a different offense as to which probable cause was lacking. Devenpeck. . . , 543 U.S. 146, 153–55 . . . (2004); . . .  The same principle—that the objective facts are controlling in this context, not what the officer said or was thinking—applies here. So long as the facts known to the officer establish reasonable suspicion to justify an investigatory stop, the stop is lawful even if the officer falsely cites as the basis for the stop a ground that is not supported by reasonable suspicion.” Id. at *3.

Of Note: Judge Berzon is troubled. “Is it fine for police officers flatly to tell the drivers they stop that they observed—or thought they observed—a traffic violation when they really did not? We hold today that it is. And I cannot disagree, as the line of cases that begins with Whren . . ., seems to lead ineluctably to that distressing conclusion. But lying to government officials can lead to lengthy prison terms. See U.S.S.G. § 2J1.3(a) . . . . One would expect that lying by police officers to citizens would have consequences as well.” Id. at *4 (Berzon, J., concurring.”) 

Citing legal commentators and Justice O’Connor, Judge Berzon worries that Whren and related cases encourage officers to offer “phony explanations” for their actions. Id. at *5. (In California, an officer must inform a detainee of the basis for his or her detention. See id., citing Cal. Penal Code § 841.) Whren also allows minor traffic infractions to be used and abused by law enforcement, with a disproportionate effect on racial minorities. Id. This concurrence is a compelling reflection on what Whren has wrought: well worth the read.  

How to Use: Is there a Due Process (not Fourth Amendment) right to be truthfully informed of the true basis for a stop or arrest? That argument is “not foreclosed,” for Judge Berzon. Id. *5. 

Take this invitation to heart: this is a welcome invitation for some interesting future litigation.  

                                               

For Further Reading: In the recent Lundin opinion, the Ninth considered the subjective intent of officers in the context of a search. See blog post here.  In Section 242 actions (prosecutions of cops for violating rights under color of law), courts are considering whether Whren’s pretext protections should preclude a subjective inquiry as well. 

For a good piece on the next chink in Whren’s pretextual armor, see, When Cops are Robbers: Reconciling the Whren Doctrine and 18 U.S.C. § 242, available here.

Image of police car in rear view mirror from http://img.odometer.com/slides/1/7/2/2/2/4/1722240075/5e6b8f37a9b84edba68dafec92f603589d2b53b0.jpeg

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

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Case o' The Week: Ninth Throws Monkey Whrench into Pretext Searches - Cervantes

Ever suspect that the Exceptions have swallowed the Rule? That the Fourth Amendment is a quaint old ideal fatally eroded by Whren, pretext stops, and the convenient “community caretaking” concept?

Take heart.  United States v. Cervantes, 2012 WL 1700840 (9th Cir. May 16, 2012), decision available here.

Players: Decision by Judge Pregerson, joined by Judge D.W. Nelson. Dissent by Judge Ikuta. 

Big win for CD Cal AFPD Michael Tanaka.

Facts: Cops surveilling a suspected stash house saw a man enter, then leave with a large white box. Id. at *1. The man drove away, parked, and gave the box to Cervantes. Id. Cervantes drove on a freeway, and then through a residential neighborhood. Id. Cops thought this was “counter-surveillance” creating probable cause, but didn’t stop Cervantes. Id. 

 Cervantes then stopped at a residence and puttered about; three hours later he drove away. Id. Cops find a reason for a traffic stop, arrest Cervantes for driving without a license (he had one), and find two kilos of cocaine in the box after an impound search. Id. at *2. 

The district court upheld the search using, among other theories, the “community caretaking” function. Id.

Issue(s): “[T]he government contends that the officers had probable cause to search Cervantes's vehicle based on (1) [the officer’s] conclusory statement that the box in Cervantes's possession came from a ‘suspected narcotics stash house,’ and (2) [the officer’s] observation that Cervantes ‘did not take a direct route to his location.’” Id.

Held: “The government asks us to place heavy reliance on [the officer’s] conclusory statement that, based on [his] training and experience, the white box in Cervantes's possession came from a ‘suspected narcotics stash house.’ But in the absence of any underlying facts as to why [the officer] suspected the house was a ‘stash house,’ this statement is entitled to little, if any, weight in the probable cause analysis.” Id. “While [the officer’s] training and experience are factors to be considered, it is incumbent upon the arresting or searching officer to explain the nature of his expertise or experience and how it bears upon the facts which prompted the officer to arrest or search. Conclusory statements and a general claim of expertise will not suffice.” Id. at *3 (internal quotations and citation omitted). 

“The government also urges us to rely on [the officer’s] observation that Cervantes ‘“did not take a direct route to his location.” Cervantes's unremarkable driving practices, however, fall short of any indicia of criminal activity.” Id. at *3. “[The officer’s] observations regarding Cervantes's benign travel tactics, when coupled with [the officer’s] conclusory statement about the box in Cervantes's possession, are insufficient to establish probable cause. . . . This is only reinforced by [the officer’s request that [other officers] develop a lawful reason to stop Cervantes. Had probable cause existed to stop Cervantes, there would have been no need to develop an independent reason to pull Cervantes over.” Id. at *4.

Of Note: This is a good decision on probable cause for an auto search. It is a great decision, however, on the much-abused “community caretaking” exception. Id. at *4. In a compelling analysis, Judge Pregerson explains that the community caretaking exception cannot be a “ruse for general rummaging in order to discover incriminating evidence.” Id. The opinion surveys Ninth authority on the “community caretaking” concept, questions whether the cops in Cervantes even complied with the vehicle code, id. at *6, and ultimately rejects the community caretaking exception because -- in part -- the impoundment and search was a “pretext to search for narcotics.” Id. 

Cervantes is now the lead “community caretaking” opinion: very much worth a close read. 

How to Use: Read Cervantes, think Whren. In Whren, the Supremes endorsed that hated “pretext” concept – OK to use traffic stops as a pretext for what is really a Fourth Amendment search. 517 U.S. 806 (1996). 

In Cervantes, the Ninth weighs the cops’ pretextual stop against the government, in the context of both the probable cause analysis, id. at *4, and in the community caretaking analysis, id. at *6. Take a good look at Cervantes’ handling of Whren when wrestling with a pretext traffic search.  

                                               

For Further Reading: Whren makes for bad searches, protects bad cops, and makes for bad police-community relations. So correctly observes D.C. District Judge James Robertson, in a compelling little summary of what’s wrong with Whren. See “How Whren Protects Pretext,” available here.

Monkey wrench image from http://rantingsonthebay.blogspot.com/2011/08/hot-cocoa-in-august.html

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




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