Sunday, December 13, 2009

Case o' The Week: Stop Invasive Herring -- Amended Monghur Decision and Fourth Amendment Exclusionary Rule

Nothing is worse than Herring gone bad. Happily, this week the Ninth takes out some bad Herring bits from an otherwise admirable opinion. United States v. Monghur, __ F.3d __, 2009 WL 4432567 (9th Cir. Dec. 4, 2009) (Ord. & Amend. Op.), decision available here.

Players: Important win by AFPD Jason Carr and D. Nev. Defender Franny Forsman, who doggedly pushed on the Herring issue.

Facts: In August of this year we touted the defense victory in the first Monghur opinion. See blog here. Monghur was in custody, facing attempted murder and battery charges. Id. at *1. He made jail calls to a buddy, instructing his pal to pick up a key to his apartment and to “get the thing” “in the green” in his closet. Id. Agents listened to the taped calls and convinced Monghur’s mom to consent to a warrantless search. Id. Agents found a .38 in a green opaque container in Monghur’s closet; he was charged with § 922(g)(1). Id.

During the suppression hearing, the magistrate rejected mom’s authority to authorize the search of the green box, and rejected exigency (the government’ didn’t appeal those theories). Id. at *2.

In the first Ninth Circuit opinion, Judge Tallman rejected the government’s theory that Moghur’s veiled discussions on a (knowingly-taped) jail phone line somehow waived his privacy interest in the green box. Id. at *4. To our chagrin, however, after finding the warrantless search unlawful Judge Tallman mused upon Chief Justice Robert’s new Herring rule and instructed the district court to analyze the case under Herring in the first instance on remand. Monghur, 576 F.3d 1009, 1013-14 (9th Cir. 2009) (amend. on petit. rehearing en banc).

Issue(s): The Supreme Court’s Herring decision held that the exclusion of evidence for a Fourth Amendment violation was only appropriate if the unlawful search involved “deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.” 129 S. Ct. 695, 702 (2009) (decision available here). Grossly oversimplified, Herring held that exclusion isn’t appropriate for individual-event, merely negligent errors in a warrantless search. The Nevada FPD petitioned for rehearing en banc, arguing that the Herring bits in Monghur should be taken out.

Held: The chunk of Herring was removed, an amended opinion issued, and the PFR denied.

Of Note: The amended Monghur decision is a good sign that the Ninth won’t allow Herring to expand beyond the proper limits of the new rule. That’s particularly good news for United States v. Gonzalez, 578 F.3d 1130 (9th Cir. 2009) (decision available here). You’ll recall that in Gonzalez AFPD Rebecca Pennell convinced Judge B. Fletcher to put the brakes on Herring in a Gant car stop case. The government has petitioned for rehearing of Gonzalez: let's hope the amended Monghur decision bodes ill for the government’s efforts.

How to Use: Herring is dangerous because the government (incorrectly) argues that the opinion extends the Leon “good faith” loophole for exclusion for searches with warrants, to apply in all warrantless searches. That it did not do.

At best (or worst), Herring applied the Leon rationale for exclusion of evidence to a narrow category of warrantless searches, involving one-off, mere negligence by the cops. Herring requires our vigilance to avoid “rule creep:” it should be the very rare warrantless search in which Herring becomes an issue at all.

For Further Reading: For a compelling argument on how Herring hamstringed the most effective restraint on the government’s careless use of records technology, see Professor George M. Dery, Good Enough For Government Work: The Court’s Dangerous Decision, in Herring v. United States, to Limit the Exclusionary Rule to Only the Most Culpable Police Behavior, 20 George Mason Univ. Civil Rights Law Journal, 1 (2009).

Image of herring from

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


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