Sunday, September 22, 2019

Case o' The Week: (Not) Making a List, (Not) Checking it Twice - Garay and Listless Inventory Searches

Q: What does one call an “inventory” that neglects to actually inventory the items purportedly inventoried?

 A: An "inventory" search.
United States v. Garay, 2019 WL 4419679 (9th Cir. Sept. 17, 2019), decision available here.

Players: Decision by Judge Schroeder, joined by Judges Graber and DJ Watson.

Facts: Garay lead officers on a high-speed chase, crashed the car in a ditch, and fled on foot. Id. at *1-*2. When Garay was arrested, cash and drugs were found on him. Id. 
  The officers searched the car (without a warrant) before it was towed. Id. They found guns, ammo, and a cell phone attributed to Garay. Id. A later search revealed that the phone had pictures on it that tied Garay to one of the guns. Id. at *1. 
  Contrary to the Sheriff’s inventory policy, the officers who, well, rummaged through the car did not complete an inventory sheet listing the property recovered. Id. at *3. 
  State and, later, federal search warrants for the cell phone asserted that “that individuals who possess firearms take pictures of them and communicate via text messages to further their criminal activity.” Id. at *2. The federal warrant application added an assertion that the “‘collective experiences’ of law enforcement agents that felons prohibited from possessing guns use mobile phones to coordinate buying and selling guns.” Id. 
  The motion to suppress was denied. Id. at *1.

Issue(s): “Garay contends that the warrantless seizure of the phone itself was unreasonable and that the affidavits supporting the search of the contents of Garay’s phone were inadequate.” Id. at *2. 
   “Garay contends . . . that the officers used their authority to inventory the car’s contents here to unlawfully rummage for evidence. Inventory searches are consistent with the Fourth Amendment only if they are not used as an excuse to rummage for evidence.” Id.

Held: “[W]e see no reason to hold that the officers were rummaging for evidence. The contents of the wrecked car had to be removed and safeguarded before the car was towed from the site. That is the essence of an inventory search. Because the site was in effect a crime scene, the items in the car were sensibly treated as evidence. The searching officer complied with the department’s inventory-search policy in material respects. . . . . That the officer did not complete the inventory list that ordinarily would be completed as part of a department inventory search is not, on its own, a material deviation from policy.” Id. at *3.
  “Given the circumstances leading up to the search, the officers no doubt expected to find evidence of criminal activity inside the vehicle. But that expectation would not invalidate an otherwise reasonable inventory search.” Id. at *4.

Of Note: The Ninth’s holding on the “inventory” search is disappointing; its holding on the phone search doubly so.
  Garay persuasively argued that “the affiants’ belief on the basis of their ‘training and experience,’ unadorned by sufficient supporting details, cannot properly be considered in establishing probable cause. He argues that, before the affiants’ beliefs may be taken into consideration, the affiants must detail the nature of their expertise or experience and how that experience bears on the facts prompting the search.” Id. at *4.
  Judge Schroeder explains the Ninth’s “standards . . . are not so stringent.” Id.
  Bad facts make bad law: the high-speed chase, crash, drugs, wads of cash, guns, and ammo of Garay makee for a troubling opinion on search warrant affidavits.

How to Use: The only bright spot in a dark decision? Garay’s flight is not a threshold jurisdictional issue that prevents the Court from getting to his Fourth challenge. Id. at *2 (citing the Supreme Court's 2018 decision in Byrd). 
  Garay and Byrd can get our fleeing clients around any jurisdictional bars and to a Fourth Amendment analysis (although our quest for the suppression remedy may get a little complicated).  
For Further Reading: President Trump has nominated two more candidates to the Ninth (one without a California Blue Slip). See article here
  If these appointments are confirmed, the President will have nominated ten of the Ninth’s twenty-nine judges. See WSJ Op Ed here 

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


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