Friday, January 15, 2021

US v. King, No. 20-10007 (1-14-21)(Bumatay w/Callahan & Presnell).  The issue concerns whether a warrant was overbroad. The police investigated a domestic violence incident and learned that the defendant – a prohibited possessor – might have a specific “large silver and gold revolver.” The affidavit for a warrant asked for a search for the firearm; the warrant issued stated “any firearm” and firearm related items. The search uncovered a whole trove of firearms and ammunition. The district court denied the motion to suppress.

The 9th affirmed. It held that the warrant was not overbroad. The 9th distinguished Millender v. County of Los Angeles, 620 F.3d 1016 (9th Cir. 2010), rev’d sub nom Messerschmidt v. Millender, 565 U.S. 535 (2012), In Millender, the warrant was overbroad as it went from an investigation of one firearm in an assault case to authorizing a search for any firearm. Under those facts, the specific could not lead to the general rummaging.

Here, the search for firearms was related to the defendant being a prohibited possessor – evidence of his prohibited status, with facts that support probable cause there were other weapons around him given his record and circumstances. In Millender, the search led to weapons unrelated to the offense; the search here led to evidence of the offense suspected. The property was not protected, but illegal.

US v. Nora, 765 F.3d 1049 (9th Cir. 2014) was distinguished because of tainted evidence. The only untainted evidence was for one weapon, not several. Again, more evidence was supposedly reasonable to believe there were more weapons involved.

The 9th concluded by finding “good faith” reliance by the officers.

In a sentencing issue, the 9th held that the challenge was waived by the plea.

CJA Carl Gunn fought hard. The 9th’s distinctions could seem stretched given the evidence.

The decision is here:


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