Sunday, August 11, 2013

Case o' The Week: No Appetite in Ninth for Underwood -- Probable Cause and Leon Good Faith

The devil’s in the details (or lack thereof), when law enforcement cuts and pastes facts into search warrant affidavits. United States v. Underwood, 2013 WL 3988675 (9th Cir. Aug. 6, 2013), decision available here.

Players: Decision by Judge Pregerson, joined by Judges Noonan and Paez.

The Hon. Harry Pregerson
Facts: DEA agents investigated an ecstasy distribution conspiracy headed by one of Underwood’s co-defendants. Id. at *1. They saw two co-Ds meet with Underwood and transfer two unmarked crates from Underwood’s vehicle into their own. Id. Agents tracked the crates to the Heavy’s house: the crates were later found to contain thousands of ecstasy pills. Id. The DEA got search warrants for all involved, including Underwood’s “home.” Id. When they arrived to search Underwood’s house, they found his mother who explained he didn’t live there. Id. Mom told the officers where Underwood lived, they did a “protective sweep” of the second house, found a small amount of pot, then got a state search warrant based on the federal search affidavit. Id. The state search warrant affidavit had probable cause facts that were literally cut and pasted from the federal agent’s affidavit, without clarification of which affiant was speaking. Id. at *2. The (102-page) federal search warrant affidavit was not attached to the state warrant application; the state magistrate never asked to review it. Id. at *3. The search revealed cocaine, ecstasy, cash, and other evidence. Id. In district court, Underwood challenged the probable cause for the search and argued that the Leon good faith exception did not apply. Id. “In a lengthy, scholarly order,” Judge Stephen Wilson granted the motion to suppress. Id. The government appealed. Id.

Issue(s): “The government appeals the district court’s grant of Underwood’s motion to suppress, arguing that (1) the warrant was not supported by probable cause, and (2) if the warrant was not supported by probable cause, the good faith exception applies.” Id. at *4.

Held: “We are not persuaded by these arguments.” 

1. Probable cause: Id. “When viewed in the totality of the circumstances, the affidavit here fails to provide a sufficient basis for probable cause. Like the affidavit in [United States v.] Weber, [923 F.2d 1138, 1145 (9th Cir. 1990)], the affidavit in Underwood’s case includes only two facts, foundationless expert opinion, and conclusory allegations.” Id. at *5.  

2. Leon Good Faith: “An analysis of the totality of the circumstances, including extrinsic factors, establishes that reliance on the search warrant . . . was objectively unreasonable. Thus, even assuming the affidavit was not entirely lacking in indicia of probable cause, the good faith exception is not met in this case.” Id. at *11.    

Of Note: Can extrinsic evidence be used in the Leon good faith analysis, to save a bare bones affidavit? The government argued yes, relying on the Supreme’s decision in Messerschmidt v. Millender, 132 S.Ct. 1235 (2012)
  The Ninth is unpersuaded: “when we have determined that the affidavit is a bare bones affidavit, as we have here, even if the extrinsic factors point to reasonableness, they would not change the result. Reliance upon a bare bones affidavit is never reasonable.” Id. at *10. This little corner of the opinion contains an important Leon holding: a welcome limitation on the seemingly limitless Leon good faith exception.

How to Use: Underwood is terrific, and provides many useful principles for Fourth fights. Of particular interest is Judge Pregerson’s common sense analysis of the probable cause “showing” in the state search warrant affidavit. For example, a personal use amount of marijuana does not indicate the use of ecstasy – the target of this search, and certainly does not indicate that someone “is an ecstasy trafficker.” Id. at *5 (emphasis in original). The relationship between different types of drugs can be so attenuated that possession of one type does not establish probable cause than another type is present – a useful cite for future probable cause battles.
For Further Reading: In this era of bitter partisan rancor, one issue brings opposing legislators together: saving Federal Public Defenders. In a remarkable letter, Senators Coons (D-Del) and Sessions (R-Ala.) have together urged C.J. Traxler – Chair of the Executive Committee of the Judicial Conference – to review the impact that sequestration cuts are having on the Federal Defender Services account. See Senator Coon’s website and letter here.
  A critical bipartisan show of support from the branch of government that actually controls the dough.

Image of the “Underwood” Deviled Ham logo from

Steven Kalar, Federal Public Defender, Northern District of California. Website at



Labels: , , , , ,


Post a Comment

<< Home