Sunday, May 20, 2012

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

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


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