Sunday, September 13, 2020

Case o' The Week: Footnotes Matter - Garcia and Fourth Amendment Attenuation (Intervening Circumstances)

"Recent events have reminded us of the devastating consequences that can follow when armed officers take the residents of a home by surprise. See Darcy Costello & Tessa Duvall, Minute by Minute: What Happened the Night Louisville Police Fatally Shot Breonna Taylor, Louisville Courier J. (May 29, 2020), ." 

Ms. Breonna Taylor

United States v. Javier Garcia, 2020 WL 5417153, at *8 &n.6 (9th Cir. Sept. 10, 2020), decision available here.

 Players: Decision by Judge Wardlaw joined by Judges M. Smith and visiting Circuit Judge Siler.

  Big win for (former) ND Cal CJA Attorney Jamie Moore, in an appeal from a hard-fought district court case by ND CJA counsel Tom Ferrito.  

 Facts: Salinas cops saw a suspicious guy enter a building: they apprehended him outside minutes later. Id. at *2. Despite having already arrested their original suspect, the cops then did a “protective sweep” of the apartment. They dragged sleeping occupant Garcia outside, in cuffs. Id. 

  After learning Garcia’s name they discovered that he was on supervised release with a search condition. Id. A search of the apartment revealed meth, he was charged in federal court, and a San Jose D.J. refused to suppress. Id. 

  Garcia appealed and won in the Ninth: the case was remanded for findings on the second search. Id. at *3. 

  On remand, the district court again upheld the search, concluding that the search condition was an attenuating and intervening circumstance. Id. Garcia appealed again.

Issue(s): “The question before us today is whether, despite these facts, suppression of the evidence found in Garcia's home, and other evidence derived from that evidence, is not required because, under the attenuation doctrine, the officers’ discovery of the suspicionless search condition broke the causal chain between the Fourth Amendment violation and the discovery of the evidence.” Id. 

  “[T]he key question this case presents is whether the officers’ discretionary decision to conduct a full investigatory search of Garcia's home was significantly directed by information they learned during their initial unlawful entry. And because the Government bears the burden of showing attenuation . . . it was the responsibility of the Government to introduce evidence on this point.” Id. at *6.

Held: “[T]he Government did not present any evidence regarding the officers’ reasons for entering Garcia’s home the second time, much less evidence sufficient to show that this decision had nothing to do with what they saw inside the home minutes earlier, during their unconstitutional search.” Id. at *6 (emphasis in original).

  “The officers did not enter Garcia's home with blinders on. And the record shows that in the few minutes between the two searches, the officers’ motives for entering the home abruptly changed from non-investigatory to investigatory. Yet the Government offers nothing more than its say-so to explain this sudden shift. That is not enough to avoid suppression. Cf. United States v. Bocharnikov, 966 F.3d 1000, 1007 (9th Cir. 2020) (Chhabria, J., concurring) (“To rule in the government's favor on this appeal would have required us to bend over backwards, doing the government's work for it. Federal prosecutors should not need that kind of help from the courts, nor should they expect to receive it.”). In the absence of evidence showing that the officers’ decision to conduct the second search was untainted by what they saw during the initial unlawful entry, we conclude that the Government has not met its burden of showing that the discovery of the suspicionless search condition was a sufficient intervening circumstance.” Id. at *7.

  “We conclude that the evidence found in the search was not sufficiently attenuated from the constitutional violation.We therefore hold that the district court erred by denying Garcia's motion to suppress, and we reverse his conviction. Id. at *2.  

 Of Note: Armed officers storming a residence and taking sleeping residents by surprise – sound familiar? 

  In a most-notable footnote, Judge Wardlaw warns of the “devasting consequences” of this law enforcement approach, and refers us to a story about the homicide of Breonna Taylor. See id. at *8 & n.6.

 How to Use: This great opinion carefully distinguishes the Supreme Court’s Strieff decision. Particularly important is Judge Wardlaw’s refusal to equate supervision search conditions (probation, parole, supervised release) with the arrest warrant in Strieff, for the attenuation analysis. Id. at *5.

  An “attenuation” must read.

 For Further Reading: For an in-depth account on the tragic killing of Breonna Taylor, and a moving description of her life story, listen to the two-part NYT “Daily” podcast available here


Image of Breonna Taylor from

Image of Breonna Taylor mural from


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


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