Thursday, May 17, 2018

US v. Johnson, No. 15-30222 (5-14-18)(per curiam w/concurrence by O’Scannlain and concurrence by Paez).

“Hey, over here,” shouts a concurrence to the Supremes, “take this case, it strays from precedent regarding an inventory search.” “Nothing here,” sighs the other concurrence, “just a same old application of precedent.” What is this about? An inventory search...where officers said, truthfully, we didn’t do an inventory search because we knew there was drug evidence.”

The case concerns the arrest of the defendant on an outstanding warrant. His car was boxed in by police vehicles, and eventually impounded. Money, cellphones, pipes, and a stun gun were seized. At the suppression hearing, the officers admitted that they seized the items in a search for evidence and not in conducting an inventory.  Not only admitted, but repeatedly said and even wrote that of course they thought there was criminal evidence and that is why they seized the items. The motion was denied and the defendant eventually convicted of drug trafficking.

In US v. Orozco, 858 F.3d 1204 (9th Cir 2017), the 9th held that for administrative searches, like inventory, if there is objective evidence that the search was in bad faith, a court can look at the subjective intent of the officers. Such was the instance here. Apply the precedent to the statements of the subjective intent of the administrative search, and the evidence had to be suppressed.

O’Scannlain, concurring, follows Orozco, but grumbles that it ignores Supreme Court precedent that stresses the subjective intent of the officer is not to be considered; only whether the search should have occurred objectively. See Brigham v. City of Stuart, 547 US 398 (2006); Whren v. US, 517 US 806 (1996). The concurrence asks the 9th to reconsider, but really screams to the Supremes to examine this 9th Circuit test.  For emphasis, O’Scannlain underscores a Circuit split with the 1st, 5th, and 10th rejecting the 9th’s approach; what O’Scannlain calls a “gloss” on Supreme precedent.

In his concurrence, Paez sees no issue.  He examines administrative searches, which are broad and policy driven; and supports the careful approach of the 9th in Orozco, which requires whether there is objective evidence to suspect bad faith. He cites circuits that support this analysis.

In the meantime, the defendant’s motion to suppress should have been granted. His conviction for possession with intent to distribute meth was vacated and remanded.

The decision is here:


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