Sunday, November 24, 2013

Case o' The Week: Ignorance is Bliss (but not in the Ninth!) - Arreguin and apparent authority to consent to search

“Ignorance is bliss.”

 Cypher believes it -- and so do cops eager to search a house without a warrant.

 The Ninth, happily, does not.

  United States v. Arreguin, 2013 WL 6124722 (9th Cir. Nov. 22, 2013), decision available here.

Players: Decision by Judge Goodwin, joined by Judges DW Nelson and N.R. Smith.

Facts: When Cops and the DEA did a “knock and talk:” the house’s door was answered by “sleepy looking” Valencia. Id. at *1-*2. Agents could see past Valencia, and noticed the defendant, Arreguin. Id. at *2. Arreguin disappeared and reappeared several times, holding a shoe box. Id. The cops asked Valencia if they could come in, Valencia agreed, the cops went into the house, then into the master bedroom, and continued on into a garage. Id. at *2. They found drugs in a bathroom and much cash in a car. Id. Confronted with these discoveries, Arreguin signed a written consent: bricks of meth were then discovered in the garage. Id. at *3. The cops later learned that the sleepy Valencia was a mere house guest. Id. After the district court denied a suppression motion the Ninth reversed; on remand the district court denied the motion again. Id. at *3. Arreguin entered a conditional plea and appealed again. Id. at *1.

Issue(s): “The government may meet its burden to show consent by demonstrating that: (1) a third party had shared use and joint access to or control over a searched area; or (2) the owner of the property to be searched has expressly authorized a third party to give consent to the search . . . Or, if the government cannot present proof of a party’s actual authority, the government may establish consent by means of the ‘apparent authority doctrine.’ . . . Under the apparent authority doctrine, a search is valid if the government proved that the officers who conducted it reasonably believed that the person from whom they obtained consent had the actual authority to grant that consent. . . Apparent authority is measured by an objective standard of reasonableness, and requires an examination of the actual consent as well as the surrounding circumstances.” Id. at *4 (internal quotations and citations omitted). 
  [Ed. note: To paraphrase the issue: based on the facts then known to them, did the officers have an objectively reasonable belief that Valencia had authority to consent to a search of the entire house, including the master bedroom, adjoining bathroom, and attached garage?]

Held:The police are not allowed to proceed on the theory that ignorance is bliss. And the Agents were proceeding in a state of near-ignorance when they searched both the master suite and the area behind the second door in the master suite [the garage]. They knew far too little to hold an objectively reasonable belief that Valencia could consent to a search of those areas.” Id. at *5.

Of Note: In Arreguin Judge Goodwin carefully wades through the facts known to the agents, and rejects the government’s stretch to save the search. See, e.g., id. at *6 (“Valencia’s answering of the Residence door is not, in and of itself, adequate to justify a reasonable belief that he had the authority to consent to a search of the master suite.”) Turn to Arreguin when confronted with the slippery “apparent authority” doctrine. See e.g., id. at *6 (“The failure to inquire properly weighs against the government, not Arreguin, because the police are simply not allowed to proceed on the theory that ignorance is bliss.”) (internal quotations and citation omitted).

How to Use: Scrambling to save a shoddy search, the government brought many late arguments to the Ninth. These efforts met with a cool reception. Judge Goodwin deems an “actual” authority argument waived, id. at *4 n.5, and finds a late “protective sweep” argument waived as well. Id. at *7 (collecting authority). Arreguin is a very useful addition to the appellate toolbox, to argue the government’s waiver of late arguments.
For Further Reading: The NSA obtained cell-site location data, without probable cause, in twenty criminal cases in the massive C.D. Cal. By contrast, it appears to have tracked 40 criminal cases without P.C. in the much-smaller ND Cal! (Including United States v. Raymon Hill, a routine S.F. gang case). 
   Who in the ND Cal was so infatuated with cell-site location data, and how did they dodge P.C. requirements in so many cases?
  An indefatigable crew of NorCal defense attorneys are ferreting out the answers – stay tuned. See generally EFF on NSA spying here, and ACLU summary here.

Image of Matrix’s Cypher, with steak, from
Image of NSA Eagle from

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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