Friday, September 14, 2007

Case o' The Week: Leon gets a Crews Cut, United States v. Crews

In a very disappointing decision, visiting, Senior, district court judge Duffy (right) writes for the Ninth and dramatically expands Leon. In Crews, Judge Duffy stretches the Leon good faith exception to cover a warrant that so lacked probable cause that two respected Oregon district court judges had found it deficient -- including one that had heard live testimony at an evidentiary hearing. United States v. Crews, __ F.3d __, 2007 WL 2580634 (9th Cir. Sept. 10, 2007), decision available here.

En banc petition, on its way . . . .

Players: Hard fought case by AFPDs Lisa Hay and Francesca Freccero.

Facts: Portland cops tried to pull Crews over (at 2:00 a.m.) for failing to signal. 2007 WL 2580634 , *1. Crews (a felon) fled but was soon arrested. Id. The car was registered to“Manus” (a felon). She lived near where Crews was arrested. Id. A sweep of the arrest area produced a .22 revolver under some shrubs. Id. The cops then surveilled Manus’ apartment for two days, and saw Crews and Manus come to and fro. They got a search warrant for the apartment, and discovered a .38 within. Id. at *2. Crews and Manus both confessed when interrogated. Id. Chief Judge Haggerty held an evidentiary hearing, then District Judge King ruled that the search was unlawful and the statements were tainted fruits. Id. at *1. The government appealed.

Issue(s): “The Government now appeals . . .contending that there was probable cause to search . . ., and that even if there was not, the ‘good faith reliance’ exception applies . . . .” Id. at *2.

Held: “While this case is not a model of flawless procedure, it does demonstrate objective reasonableness.” Id. at *8. “[W]e find the good faith reliance exception applicable . . . .” Id. at *3. “On its face, the affidavit was not so lacking in indicia of probable cause as to render reliance upon it objectively unreasonable.” Id. at *4. “For probable cause, an affidavit must establish a reasonable nexus between the crime or evidence and the location to be searched.” Id. “The affidavit showed indicia of such a reasonable nexus between the crime of ‘felon in possession of a firearm’ and Apartment 3 by demonstrating a sufficient link between Crews, Manus, firearm evidence, and Apartment 3 such that an officer could have reasonably relied upon it in good faith.” Id. “If Crews or Manus kept a firearm in the car, it is reasonable to believe perhaps that they also kept evidence of possession of a firearm at Apartment 3, the registered address of the car and the residence where Crews was frequently seen shortly after police discovered the .22 revolver.” Id. “[W]e find that the officers were objectively reasonable in their reliance on the warrant and affidavit in executing their search of Apartment 3 for evidence of possession of firearms.” Id. at *5.

Of Note: This case – “not a model of flawless procedure” – is another troubling investigation by the Portland Police Department. Note the 2:00 a.m. traffic stop for a “failure to signal” (remember the pre-Whren days when pretext stops were illegal?) Note also that Crews, stopped for a signal violation at 2:00 a.m., is black, raising suspicions about whether this was a race-based stop.

The Portland P.D. is becoming a frequent topic in the Ninth – the Court recently delivered a Fourth Amendment win when the Portland Police Department obtained “consent” for a search after an impermissible seizure (of another African-American defendant). See blog here, discussing United States v. Washington, 490 F.3d 765 (9th Cir. 2007), decision available here.

How to Use: Crews is not, technically, a probable cause decision. The core legal analysis in this case is the Leon analysis, and whether the “good faith” exception does not apply. See id. at *4. Visiting Judge Duffy identifies four circumstances where the Leon good faith exception does not apply. Id. The bulk of the opinion focuses on the fourth: “where the affidavit upon which the warrant is based is so lacking in indicia of probable cause that no reasonable officer could rely upon it in good faith.” Id. at *4-*5. (It bears emphasis that below, Chief Judge Haggerty had found the affidavit so lacked P.C. that Leon good faith wasn’t triggered).

It is hard to put any positive spin on this opinion: it is a very disappointing (and unpersuasive) stretch to shoehorn these facts into the protections of Leon good faith. An en banc petition is on its way, and it deserves a close look by the Court – Crews could expand Leon well beyond current Ninth limitations.

For Further Reading: Advocates of a Circuit split complain that i. Senior, ii. district court, and iii. visiting judges are routinely tapped to fill-out Ninth Circuit panels. See article here.

The author of Crews – seventy-four year old, Nixon-appointee, Hon. Kevin Thomas Duffy – is all three. See article here.

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


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