Sunday, March 19, 2017

Case o' The Week: Many are the afflictions of the righteous: but the [Ninth] delivereth him out of [some] of them - Job and King Searches

 Illegal searches, denied suppression motions, an unsuccessful trial, a thirty-year custodial term, and an appeal.
 The Ninth rewards the patience of Job.
United States v. Job, 2017 WL 971803 (9th Cir. Mar. 14, 2017), decision available here.

Players: Decision by (the always-welcome) visiting District Judge Friedman, District of Columbia, joined by Judges Tashima and Paez.  

Facts: Cops, looking for some other dude, happened upon Travis Job: they patted him down. Id. at *2.
  They discovered a glass pipe in Job’s pocket, $1,450 in cash, and car keys. Id. When the cops pushed the key fob a car in the driveway beeped and unlocked. Id.
   Cops searched the car and found meth, a cig with Spice, another glass pipe, and a cell phone. Id.  At some unknown point, the officers discovered Jobs was on probation “with a 4th amendment waiver.” Id.
  Job was charged in a meth conspiracy with Robert Rodriguez, and others. Id. at *2 (see also United States v. Rodriguez, 2017 WL 971809 (9th Cir. Mar. 14,2017)(discussing challenges to wiretap). Job’s challenges to the searches of his person and car were denied. He was convicted at trial and sentenced to 360 months [other offenses and searches were also involved in the case]. Id. at *3.   

Issue(s): “[Job] argues that the district court erred by denying his motions to suppress evidence found during searches of his person [and] car . . . .” Id. at *1.

Held: “In denying Job’s motions to suppress, the district court concluded — based on our decision in United States v. King — that Job’s Fourth Amendment search waiver provided a justification for all three searches. 736 F.3d 805, 810 (9th Cir. 2013). In King, we held that a suspicionless search, conducted pursuant to a suspicionless-search condition of a violent felon's probation agreement, does not violate the Fourth Amendment. Id. The district court erred by applying King’s holding to this case . . .”  Id. at *3.
  “The district court erred in denying Job’s motions to suppress evidence . . . solely on the basis of Job’s Fourth Amendment search waiver.” Id. at *4 (internal quotations and citation omitted).

Of Note: There were two problems with the government’s use of King in the district court. First, “it is undisputed that the officers were unaware of Job’s Fourth Amendment search waiver when they stopped him and patted him down.” Id. at *3. However, the Ninth’s policy rationale behind permitting the suspicionless searches of parolees (and probationers) requires that cops know of the search condition before searching. Id. Without that key fact, King’s “suspicionless search” rule can’t salvage a bad search.
  Second, King only applies to folks on paper for violent felonies –here, Job was on probation for a narcotic offense (Cal. H&S § 11377(a)). Id. at *4. A probation search waiver for a drug offense (offenses that have been deemed “nonviolent” by the Ninth) won’t justify a King suspicionless search of person, car, or home. Id.

How to Use: It is all well and good that the district court erred -- for Mr. Job, however, the far more-pressing question is the actual impact of the holding on convictions underlying his 30 year sentence?
  The Ninth employs harmless error review to answer that question. Judge Friedman schools the government for misstating the standard for this harmless error review: the test is not “whether a rational jury could have found Job guilty.” Id. at *8 & n.6. Instead, this error is “harmless only when it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Id. at *8 (internal quotations and citation omitted).
  The Ninth ultimately reverses one count of conviction under the standard as correctly set forth by Judge Friedman. Take careful note of footnote six: the government’s (wrong) standard of review would have probably meant defeat for Mr. Job. Job is a useful summary of the correct S.O.R. for Fourth Amendment motions after trial (and a potent reminder not to trust the government’s asserted standards on appeal).
The Honorable Chief Judge Thomas, with the Honorable Judges Bea and Kozinski (left to right).
For Further Reading: Republican-appointed judges are testifying in Congress, and opposing a Ninth Circuit split. Judges Bea and Kozinski joined C.J. Thomas at the House Judiciary Subcommittee to oppose the proposed creation of a new 12th Circuit from current Ninth States. For a video of their testimony, see the C-SPAN link here
  On a related note, Republican-appointed jurists occasionally disagree with some of the decisions of their colleagues on the Ninth. They are not, however, big fans of the Executive’s ad hominem attacks on the Judiciary. For an interesting piece on a very interesting dissent along these lines, see Appeals Court Judges Rebuke Trump for Personal Attacks, available here.


Image of the Honorable Chief Judge Thomas, the Honorable Judge Bea, and the Honorable Judge Kozinski, from

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


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