Friday, December 15, 2006

Case o' The Week: Ninth Takes the Luong Way Home, "Exigent" Facts in Search Affidavit

The Ninth thinks that one of 9,000 other LAPD Officers could type an affidavit when Officer Lori Fishburn struggled with a broken thumb. See United States v. Luong, __ F.3d __, 06 Cal. Daily Op. Serv. 19331 (9th Cir. Dec. 12, 2006), opinion available here. That is the only questionable assumption in an otherwise great opinion on Leon and the ever-expanding "good faith" loophole to the warrant requirement.

Players: Another great Ferguson decision.

Facts: The DEA tipped off the LAPD that a suspected meth chemist – “Jao” – was flying in from Hong Kong. Id. at 19335. The officers’ (state) search warrant described surveillance from LAX, Jao’s meeting with defendant Luong, and a trip to a local residence. Id. at 19335-36. The pair also went to Home Depot and bought an adapter for a red high pressure house, then returned to the residence. Id. at 19336.

LAPD officer Lori Fishburn wrote the affidavit: she had a broken thumb and a sprained wrist, and later testified this impacted her ability to type. (?!?) Id. at 19342. She also explained to the state magistrate – but not in the affidavit – that the DEA tip came from a DEA wiretap that the agency didn’t want to divulge. Id. at 19338. The search revealed a meth lab and lead to the recovery of over sixty pounds of meth. Id. at 19336. The state court suppressed, so the feds (despicably) took it federal: when the district court also suppressed, the government appealed.

Issue(s): The warrant lacked probable cause, and a broken thumb wasn’t an exigent circumstance. (The Court questionably asserts that other LAPD officers could type). Id. at 19342. Given these facts, may the Court “consider evidence of facts not contained in the affidavit to demonstrate that the officers acted in good faith?” Id. at 19342.

Held: No. “On the facts of this case, where the underlying affidavit is entirely lacking in indicia of probable cause, we reject the government’s invitation to look to facts orally conveyed to the magistrate in order to generate the colorable theory of probable cause. Leon clearly and unequivocally states that when the affidavit itself is entirely lacking in indicia of probable cause, it cannot be said that the officer acted in good faith on a warrant that issues. That is the precise situation we have in this case.” Id. at 19343.

Of Note: There’s a heated (and unpersuasive) dissent by Judge Callahan. Consider the broader impact of this case, not discussed in the decision. The DEA had probable cause on Jao – it had a wiretap in Hong Kong. It would have been easy to include this information in writing in the search warrant, and ask that the info be placed under seal in the affidavit if necessary. Instead, LAPD and DEA tried to have their cake and eat it too – “orally” conveying the wiretap info, yet hiding that fact from the defense.

DEA may, in fact, have violated the disclosure requirements of Title III – 18 USC § 2518(9) requires disclosure of wiretap orders and applications within ten days of use in a hearing. This is a classic, slimy, federal investigation – using state officers as shills to “orally” convey wiretap info, without complying with the Title III statute. The feds did the same in the N.D. Cal.: in Stepney, they intentionally disguised the identity of a wiretap as an ‘informant’ because “disclosing the existence of the wiretap to the reviewing [state] magistrate in any manner would jeopardize the confidentiality of the wiretap and the federal investigation.” United States v. Aisha McCain, 271 F.Supp.2d 1187, 1192 & n.3 (N.D. Cal. 2003). That rationale was, to say the least, poorly received by former state judge, now federal District Judge, Marilyn Patel.

How to Use: The defense bar will argue that this is a broad new bright line rule: no exigent facts can justify a lack of P.C. in an affidavit. The government will counter that this new rule is limited to search warrants where there was no P.C. in the application. We will be litigating this issue in the future. Nonetheless, Luong is now the lead defense case for limiting the corrosive impact of Leon on the Fourth Amendment warrant requirement.

For Further Reading: Last week Callahan found herself on the losing end of two ‘son decisions; Luong, with Ferguson, and the remarkable Carrington decision, by Pregerson. See post on Carrington here. (Contrast Callahan's majority decision, and Ferguson's dissent, in Decoud, see blog here). Despite this tension with her more liberal brethren, Judge Callahan still opposes conservative moves for a circuit split. See article here.

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



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