Sunday, July 13, 2014

Case o' The Week: Ninth Finds McDog Unappetizing -- Franks, PC, and Search Warrants

Q: What happens when a cop omits that his search-warrant witness is a lying, drug-dealing snitch, appropriately named “Scales?”
  A: A stern rebuke (and search upheld . . .  .)
United States v. Ruiz, 2014 WL 3377345 (9th Cir. July 11, 2014), decision available here.

Players: Decision by Judge Morgan Christen, joined by Judge Fisher. Dissent by Judge Gould.

Facts: Cops went to a trailer home where a man, Mills, had been shot in the knee. Id. at *1. A man named “McDog” had knocked on the door, tussled with Mills, while another man with a mask and an assault rifle stood by. Id. Mills’ girlfriend, Scales, was there and gave an “evasive” account to the cops. Id. They searched the trailer, found a meth pipe, discovered Scales was a suspected dealer, and made a controlled by from her later in the day. Id. at *1-*2. She started snitching, identified two guys in a six-pack phot lineup, and eventually settled on Ruiz. Id. at *2. The cops got a warrant for Ruiz (aka “McDog,”) but didn’t reveal in the warrant application that Scales had prior meth drug sales, that she had lied about the meth in the trailer, her interest in being a snitch, or her statement that the shooting had been related to drugs and money. Id. at *2. A search of Ruiz’s residence produced a shotgun - he was indicted federally. Id. In a Franks hearing, the district court found that Detective John Plaza had recklessly omitted material facts in the application, but upheld the search in light of the full record. Id. at *3.

Issue(s): “Ruiz appeals his conviction for Unlawful Possession of a Firearm . . . contending that the district court erred by denying his motion to suppress a shotgun seized during the execution of a search warrant at his residence. Ruiz argues that reckless omissions by the search warrant affiant fatally undermined the magistrate judge’s finding of probable cause.” Id. at *1.

Held:We . . . affirm the district court’s denial of Ruiz’s motion to suppress.” Id. at *1. “We share the district court’s concern about the police conduct in this case, but we conclude there is enough evidence in the record corroborating Mill’s and Scale’s statements to diminish the adverse effect of their credibility issues in the context of the probable cause inquiry . . . In light of the full record, there was a ‘fair probability’ that evidence of the shooting would be discovered at Ruiz’s residence. . . .  The district court properly denied Ruiz’s motion to suppress evidence . . . . Id. at *8 (internal quotations and citation omitted).

Of Note: In a compelling dissent, Judge Gould warns that “we should exercise caution on the side of the Fourth Amendment and improved police practices, rather than a strained
theory of harmless error.” Id. at *9 (Gould, J., dissenting). Judge Gould ticks off the omissions – the Mag Judge didn’t know of Scale’s recent history of drug sales, statement to police that the shooting was related to drugs and money, her sale of meth to police on the afternoon of the shooting, leading to her role as a narc informant. Id. “The majority permits law enforcement to omit all of these essential facts on a theory of harmless error, even where the corroborating evidence is weak and largely comes from Scales, the very interested party whose credibility is challenged.” Id.

How to Use: The best we can do with Ruiz is to entangle it in its own facts. Judge Christen spends a fair amount of time comparing these facts to those of other warrant / Franks cases, id. at *4-*5, and relies heavily on other corroborating evidence relating to the shooting, id. at *6. Using that corroboration, she distinguishes cases where the only detailed description of the facts for the warrant came from the informant. Id. at *6. Use this discussion to keep Ruiz fact-bound when faced with a lying cop in a search warrant application.
For Further Reading: Clemency is heating up. Clemency trainings will be held on July 15 and July 16 and are available to all counsel interested in helping. See link here. 
  We’ll soon have decent figures for eligible petitioners, and we’re expecting more D.C. developments soon. 
   Add the Sentencing Guideline Commission’s vote on -2 drug retroactivity, see article here, and this will be a particularly important week for our incarcerated clients.

Image of the Honorable Judge Gould from  Image of “McDog” from

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


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