Sunday, June 03, 2018

Case o' The Week: Whren is for the Birds -- Mark Johnson and Subjective Intent in Administrative Searches

 Ninth ignores defense arguments, relies on cops’ assertions –

    and reverses for a suppression win!
United States v. Mark Johnson, 889 F.3d 1120 (9th Cir. May 14, 2018), decision available here.

Players: Per curiam opinion: Judges O’Scannlain, Paez, and Bea. Special concurrence by Judge O’Scannlain, joined by Judge Bea. Special concurrence by Judge Paez.

Facts: Deputies found Johnson, who was wanted for a warrant. Id. at 1123. They surveilled him at his house, let him drive away from the home, then at an intersection they boxed his car and stopped him. Id. The cops ordered the parked car towed. Id. 
  Before the tow, they did an inventory search and found (among other things) a backpack. Id. They got a warrant and found meth and evidence of drug dealing in the backpack. Id. at 1124. 
  Johnson was charged federally and moved to suppress. Id. The motion was denied, Johnson was convicted after trial, and sentenced to 188 months. Id.

Issue(s): “We must decide whether the trial court erred in failing to suppress evidence that was seized by . . .  police officers during their inventory search of a criminal defendant and the car he was driving at the time of his arrest.” Id. at *1123. 
  “Johnson contends that the officers in this case impounded and searched the car he was driving not for any legitimate inventory purposes, but rather as a pretext to look for evidence of wrongdoing. He urges that both the officers’ actions leading up to the stop and search of his car and their conduct in carrying out that search show that they were subjectively motivated by an improper desire to find incriminating evidence against him.” Id. at 1125.

Held: “We . . . must determine whether Johnson has produced evidence that demonstrates the officers would not have searched and seized items from the car he was driving but for an impermissible motive.” Id. at *1126. 
  “[W]e need not consider the merits of [Johnson’s] arguments—or whether any such violations of [the tow] policy would require suppression of the evidence found —because the officers themselves explicitly admitted that they seized items from the car in an effort to search for evidence of criminal activity.” Id. at 1127 (emphasis in original).
  “In light of our decision in Orozco, we conclude that the officers' search and seizure of such evidence cannot be justified under the inventory-search doctrine. See Orozco, 858 F.3d at 1212–16. Because the government has not offered any justification for the seizure of such property other than the inventory-search doctrine, we conclude that the district court erred in denying Johnson’s motion to suppress.” Id. at 1128.

Of Note: In a special concurrence, Judges O’Scannlain and Bea waive a red flag at the SCOTUS bull. Id. at 1129 (O’Scannlain, J., specially concurring). The real issue in Johnson is whether the officers’ subjective intent is relevant when considering an inventory search. Under the Ninth’s (correct) Orozco decision, the cops’ intent matters. See generally blog post hereJudge O’Scannlain, however, argues that Orozco parts way with Supreme precedent. Id. at 1131. 
  In a compelling concurrence, Judge Paez strongly disagrees – noting that the "vast majority" of sister circuits have agreed that subjective motive is relevant when assessing administrative searches. Id. at 1135. 
  Judge Paez has the better argument, questioning Judge O’Scannlain’s reliance on a mem dispo in the sister-circuit count. Id. at 1136 n.3. Nonetheless, in uncertain times, this attack on established law for administrative searches is unsettling.

How to Use: Cops are so used to hiding behind the Whren “objective” shield, they get sloppy and are honest about their real subjective intent in administrative searches. That phenomenon is precisely what happened here in Johnson, producing the facts that lead to the suppression win. 
  Consider that Whren-pulse when prepping for evidentiary hearings – this win was handed to the defense by the cops.
For Further Reading: Justice Scalia, the big Whren Friend, is no longer with us. And Justice Ginsburg – who joined Whren – may be having second thoughts. For a fascinating piece supporting Judge Paez’s view that subjective intent is increasingly relevant for SCOTUS, see “A Crack in the Whren Wall,” available here.

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


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