Monday, February 14, 2005

Case o' The Week: Martinez-Garcia, delayed service of search warrants

In this disappointing decision, the Ninth holds that under the "totality of circumstances" there was no Fourth Amendment violation when officers searched a house before explaining a warrant, in Spanish, to a Spanish-speaking defendant. Equally unconvincing is the Court's rejection of a Franks challenge regarding "colorful" informant Brian Doland.

Players: Hard-fought case by AFPD Tonia Moro.

Facts: Martinez-Garcia entered a conditional plea to being an alien in possession of a firearm. United States v. Martinez-Garcia, __ F.3d __, 2005 WL 326844, *1 (9th Cir. Feb. 11, 2005), available here. A state police officer got a search warrant, based on the insights of confidential informant "Doland." Id. at *1-*2. The affidavit failed to mention that Doland had pending drug charges against him in federal district court, that the task force had agreed to give a favorable recommendation in exchange for Doland’s cooperation, or that the defendant was just one of three brothers that lived in the house. Id. at *2. When the officers served the search warrant the defendant said he did not speak English and asked what was going on. Id. at *2. The officers called a federal agent who spoke Spanish, removed the defendant and his family, and searched the house until the agent arrived and explained the search warrant. Id. at *2-*3.

Issue(s): 1) Did the officers violate "the Fourth Amendment by not serving the warrant at the out set of the search and that the handgun should be suppressed as the fruit of an unlawful search?" Id. at *3. 2) "We . . . consider whether the district court properly denied a Franks hearing on Martinez-Garcia’s remaining claims." Id. at *7.

Held: 1) "We . . . hold that the law enforcement officers did not act unreasonably in delaying service in light of the totality of the circumstances facing them . . . The officers tried to serve the warrant in good faith, were unable to do so on account of a language barrier, and promptly called for interpretive assistance. They served the warrant as soon as was practicable – while the search was ongoing and forty minutes to an hour after it began." Id. at *4.

2) "Considering this information [of other corroboration in the affidavit] along with the information regarding Doland’s pending federal drug charges, we conclude that the totality of the circumstances still indicates probable cause to search the Martinez-Garcia home . . . Probable cause requires a fair probability, but not a certainty, that a search would yield evidence of crime . . . . The affidavit detailed ample evidence that criminality was afoot at the premises to be searched. The omission of Doland’s pending federal drug charge from the affidavit does not affect the conclusion that there was probable cause for the search of the Martinez-Garcia home. The district court correctly denied his motion for a hearing." Id. at *9 (internal quotations and citation omitted).

Of Note: This disappointing case uses the "totality of the circumstances" to hold that it wasn’t a violation of the Fourth Amendment to search an alien’s home without advising the alien, in Spanish, that the officers had a search warrant. From a practical perspective, why couldn’t the police separate the defendant, seize the house, and delay the search until an interpreter arrived? The Franks analysis is equally unpersuasive – the informant was working off federal drug charges, that fact wasn’t reported in the affidavit, and that doesn’t rise to reversible Franks error?

How to Use: The only glimmer of hope in this opinion are two footnotes that concede that an officer may violate the Fourth Amendment by not serving a warrant at the outset of a search. Id. at *4 & n.2, n.3. If dealing with a delayed search warrant case, seize on these footnotes and try to distinguish Martinez-Garcia.

For Further Reading: It appears that Informant Brian Doland was also involved in another set-up involving Native American artifacts and ultimately, murder-for-hire. For the Outside Magazine article on this bizarre case and on Informant Doland, visit the article here.

Steven Kalar, Senior Litigator N.D. Cal.


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