Sunday, February 28, 2021

Case o' the Week: Overbreadth Done if you Stash A Gun -- King and Overbreadth in Search Warrants

Not a good sign of great things to come, when an opinion begins: 

Firearms seized in search of King's residence

“While searching Sheldon King's home pursuant to a warrant, Fresno police discovered a medley of firearms.”

United States v. Sheldon King, 985 F.3d 702 (9th Cir. Jan. 14, 2021) (emphasis added), decision available here.

Players: Decision by Judge Bumatay, joined by Judge Callahan and D.J. Presnell. 

Hard-fought appeal by former CD Cal (and Alaska!) AFPD Carlton Gunn.  

Facts: A man assaulted a woman, and threatened her with a silver and gold revolver. Id. at 706. In a jail call, the assailant asked the victim to get the “thing” (the gun) to “Dubs” – (aka, the defendant in this case, Sheldon King). King was a felon. Id. Cops got a search warrant for King’s residence, to search for any firearm. Id. The search turned up a “medley of firearms.” Id. He was charged with Section 922(g)(1), and his suppression motion was then denied. Id. King entered a conditional plea preserving an appeal on the suppression motion.  

Issue(s): “King now brings this appeal . . . challenging the validity of the search warrant. Specifically, he argues that the warrant was overbroad—that there was only probable cause for the silver and gold revolver, and no other firearms.” Id. at 707.

Held: “[W]e conclude that the warrant here did not violate the Fourth Amendment. In the affidavit, a police officer detailed his investigation, his training and experience, and his suspicion that King was a felon in possession. The affidavit noted that King had two prior felonies . . . . Despite this criminal history, the affidavit sets out that King took possession of the “large silver & gold revolver” of unknown caliber shortly after it was used in a violent domestic dispute. The officer also explained how he suspected that other weapons might be present at King’s residence since other “individuals [may] arrive at the scene of [the] search” and that, in his experience, “many of these individuals are found to be in possession of weapons.” Moreover, the officer explained that, as a felon, any firearm found in King's possession would constitute evidence of a felon-in-possession offense. The officer expressed his belief that King was in violation of the felon-in-possession statute. These facts, taken together, provided the judge with a substantial basis to authorize the broader search for “any firearm.Id.

 Of Note: The Ninth assures us there was probable cause for any firearm based on an assertation: that King’s willingness to hold a gun for a friend made it likely that he would also have other guns. See id. at 709 (“We doubt that the domestic-abuse suspect would have given the firearm to someone completely inexperienced in possessing firearms, especially a firearm that was just used in a crime. It's fair to think that serving as an illicit depository of another person's firearm makes King's possession of other firearms likely.”)

We may question that logic, but the unfortunate principle probably holds after King: the “stash-it” guy is likely now subject to broader search warrants than just the specific [gun/ammo/drugs ] awkwardly referenced in a jail call.

How to Use: “Gunner” Carl Gunn found a problem with the Career Offender sentence imposed in this case, and took it up to the Ninth. Unfortunately, a sentencing appeal was not carved out in the conditional plea. Judge Bumatay enforces the plea agreement’s waiver of sentencing appeals (although it looks like this potential problem may have cost Mr. King six offense levels). Id. at 711.

The rules around federal sentencing feel like they are changing daily – take a close look at this discussion in King when weighing whether a plea agreement waiving an appeal is worth it.                                               

For Further Reading: In 2016, SFPD Officer Nicholas Buckley, Star # 528, was caught by AFPD Ellen Leonida when a (surprise) surveillance video contracted every relevant fact of his testimony. 

When District Judge Charles Breyer explained that he was “deeply saddened” by what he saw in this hearing, the federal case was promptly dismissed. See blog entry describing evidentiary hearing here

Unbelievably, Officer Buckley is now back on patrol in San Francisco. See San Francisco Examiner article here

  There is no more potent example of toothless police discipline in San Francisco, than Buckley back on the beat.  




Image of firearms seized from Mr. King’s house from

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




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