- Officer misleads judge when procuring search warrant for child pornography by omitting relevant information from the search warrant application.
United States v. Perkins, 850 F.3d 1109 (9th Cir. 2017)
Facts: In December 2012, United States citizen Charles Perkins, a registered sex offender, was arrested while traveling through Canada after Canadian authorities found images they believed to be child pornography on his computer. Ultimately, Canadian authorities decided not to prosecute Perkins because, in their determination, the images were not pornographic. Under the Canadian definition of child pornography, the image must have a sexual purpose, and the composition of the images on Perkins’ computer did not suggest one. American authorities undertook their own investigation when Perkins returned to his home in Washington. Homeland Security Special Agent Tim Ensley obtained the two images and the Canadian authorities’ descriptions of the images, and used those descriptions to apply for a warrant to search Perkins’ home. In the warrant application, Ensley omitted the fact that Canadian officials determined the two images were not child pornography under Canadian law, omitted the description that genitalia was not prominently depicted, and did not attach the images themselves for the magistrate’s review. The warrant application also mentioned Perkins’ 20-year-old prior convictions for sex-related crimes.
The magistrate issued the search warrant, child pornography was found in Perkins’ home, and he was charged in the federal district court with receipt of child pornography. Perkins moved to suppress the pornographic images found in his home, arguing that the search warrant lacked probable cause, or, in the alternative, that Ensley deliberately or recklessly omitted material facts from the search warrant application, entitling Perkins to a special hearing under Franks v. Delaware. The district court denied the motion, Perkins appealed, and the Ninth Circuit Court of Appeals ordered the district court to conduct the Franks hearing. At the Franks hearing, Agent Ensley testified that he didn’t attach the photos from Canadian authorities because it was not general practice to do so. He also testified that he omitted the fact that Canadian authorities dropped the charges against Perkins because he believed this fact was irrelevant to establishing probable cause under United States law. When pressed, Agent Ensley could not articulate a difference between the Canadian requirement that child pornography have a “sexual purpose” and the American requirement that it be “lascivious.”
The district court determined that Agent Ensley did not intentionally or recklessly mislead the magistrate when he applied for the search warrant. The district court again denied Perkins’ motion to suppress, and Perkins appealed.
Held: The Ninth Circuit Court of Appeals first assessed the first step of Franks, which requires a defendant to demonstrate that the affiant knowingly and intentionally, or with reckless disregard for the truth, made false or misleading statements or omissions in support of the warrant application. The Court held that by omitting the fact that Canadian authorities determined the images were not pornographic, omitting descriptions from Canadian authorities that only a small portion of the child’s genitalia was shown, and omitting the images themselves, Agent Ensley misled the magistrate and “acted with at least a reckless disregard for the truth.” Further, these actions demonstrated a “clear, intentional pattern” of selectively including information bolstering probable cause while omitting information that did not. The Court stated that prior case law established that an officer can mislead a magistrate by reporting less than the total story, thereby manipulating the inferences a magistrate will draw. Further, the Ninth Circuit stated that “by providing an incomplete and misleading recitation of the facts and withholding the images, Agent Ensley effectively usurped the magistrate’s duty to conduct an independent evaluation of probable cause.”
Because the Ninth Circuit held that Agent Ensley acted with a reckless disregard for the truth, it moved on to the second step in the Franks analysis; namely, whether probable cause remained once the evidence presented to the magistrate was supplemented with the challenged omissions. The Ninth Circuit found that if the images themselves had been properly submitted to the magistrate, Agent Ensley’s misleading descriptions of them would have been unnecessary. Thus, the only potentially suspicious fact upon which to base a finding of probable cause would have been Perkins’ 20-year-old convictions, and the two initial images themselves. The Ninth Circuit found neither established probable cause.
Finally, after reviewing the images, the Ninth Circuit found that the images were not “lascivious” and therefore not pornography. For these reasons, the Ninth Circuit reversed the district court’s denial of the motion to suppress and vacated Perkins’ conviction.
For a more detailed discussion of this case, please see Client Alert Vol. 32, No. 8, authored by James R. Touchstone and Keith F. Collins and available at www.jones-mayer.com.
- Fourth Amendment search waiver does not justify a search of a person on probation for a nonviolent offense where the officers are unaware of the waiver before the search.
United States v. Job, 851 F.3d 889 (9th Cir. 2017)
Facts: In October 2012, San Diego police encountered Travis Job standing inside the garage of a house. An officer patted down Job and discovered drug paraphernalia and $1,450. The officer placed Job under arrest for possession of narcotics paraphernalia, then searched Job’s car, where he found methamphetamine. At some point during the encounter, the officers learned Job was on probation for a state nonviolent drug offense with a Fourth Amendment search waiver. In December 2012, officers obtained a search warrant for Job’s house. During the search, they discovered methamphetamine, marijuana, and other drugs and drug paraphernalia.
Job was charged with conspiracy to distribute methamphetamine and possession of methamphetamine with intent to distribute. Job filed two motions to suppress: one for the evidence found on his person and in his car in October, and one for the evidence found during the search of his home in December. The district court denied both motions. A jury convicted Job on all counts. Job appealed, arguing the evidence found during the searches should have been suppressed.
Held: The Ninth Circuit Court of Appeals held that if a probationer is on probation for a nonviolent offense, police officers must know of the probationer’s Fourth Amendment search waiver before they conduct a search in order for the waiver to serve as a justification for the search. Since it was undisputed that the officers were unaware of Job’s waiver when they stopped him and patted him down, the Court concluded the district court erred in denying Job’s motions to suppress evidence from all three searches solely on the basis of Job’s Fourth Amendment search waiver. The Court found that the district court erred in its application of United States v. King because the officers were not aware of Job’s Fourth Amendment search waiver when they stopped him and King was limited to Fourth Amendment search waivers for individuals on probation for violent felonies. It was undisputed that Job was on probation for a nonviolent offense. The Court cited waiver cases involving parolees that required officers to know of the parolees’ waivers before conducting searches, noting that the same reasoning would logically apply to probationers, who have a higher expectation of privacy than parolees.
The Court assessed each search. The Court first found the government failed to provide justification for the warrantless stop and subsequent pat down, and concluded the search of Job’s person was unlawful. Next, the Court rejected the government’s arguments regarding the justifications for the search of Job’s car, concluding the government failed to prove a valid justification for the search and that the evidence seized should have been suppressed. Finally, the Court concluded the affidavit in support of the search warrant established that there was a fair probability that contraband or evidence of a crime would be found in Job’s home, and therefore the search was lawful and the evidence seized was admissible at trial.
The Court affirmed Job’s conviction on the conspiracy charge and vacated Job’s conviction for possession with intent to distribute because the suppressed evidence may have contributed to the jury’s decision on the possession count.
- Officer request for detainee to submit to chemical test does not constitute improper custodial interrogation.
Robertson v. Pichon, 849 F.3d 1173 (9th Cir. 2017)
Facts: In April 2006, Palo Alto police officer Dan Ryan stopped Wade Robertson after observing Robertson make an illegal left turn after leaving a restaurant. Earlier, the restaurant’s manager had told the officer that Robertson had been drinking heavily. Ryan detected alcohol on Robertson’s breath. Additional officers arrived at the scene and observed as Ryan administered a series of field sobriety tests. Robertson performed poorly on the field sobriety tests. Ryan concluded Robertson had been driving under the influence of alcohol. One officer saw a billy club in Robertson’s truck and collected it as evidence. Robertson was arrested and taken into custody. At the police department, Robertson refused to take a breath test and refused to take a blood test. The officers gave Robertson a form issued by the Department of Motor Vehicles, which outlined the chemical test requirements and penalties for refusing or failing to complete a test. The form also indicated that he did not have the right to talk to an attorney or have an attorney present before stating whether he would submit to a test, before deciding which test to take, or during the test. After reading the form, Robertson requested to speak to his attorney before submitting to any chemical test and repeated his refusal to take either test. At some point during the booking process, officers read Robertson his Miranda v. Arizona rights and then asked Robertson if the billy club found in his truck was his. Robertson said yes and that it belonged in the truck. Ryan also administered a second series of field sobriety tests in the booking area, which were recorded and showed that Robertson again performed poorly.
Robertson was charged with driving under the influence, with an enhancement for refusing to submit to a chemical test, as well as possession of a billy club. Robertson filed a motion to suppress the evidence obtained during the traffic stop, arguing that the stop was unlawful because Ryan had not been directly behind him and therefore it could be inferred he had not observed the illegal left turn. The trial court denied the motion. A jury convicted him on both charges. Robertson moved for a new trial, alleging that his Miranda rights were violated. The trial court denied the motion. After the appellate division of the superior court and the Court of Appeal rejected Robertson’s argument that his Miranda rights were violated, Robertson filed a state habeas petition. The California Supreme Court summarily denied Robertson’s habeas petition. Robertson filed a federal habeas petition, which was denied by the district court. Robertson appealed.
On appeal, Robertson contended that he was under arrest at the time a police officer asked him to take a chemical test, that he was therefore in custody at the time he unambiguously invoked his right to counsel, and that the state court’s failure to suppress his statements regarding the billy club during subsequent questioning violated his Fifth Amendment rights under Miranda and Edwards v. Arizona.
Held: The Ninth Circuit Court of Appeals held that because the Supreme Court has not addressed whether a defendant’s request for counsel in response to a request to submit to a chemical test constitutes an invocation of the defendant’s Miranda rights for purposes of any future custodial interrogations, the state court’s ruling that the admission of Robertson’s statements did not violate Miranda and Edwards was not objectively unreasonable. The Court affirmed the district court’s denial of Robertson’s federal habeas corpus petition.
- Pretrial detention that followed the start of the legal process in a criminal case could violate the Fourth Amendment.
Manuel v. City of Joliet, 137 S. Ct. 911 (2017)
Facts: During a traffic stop in March 2011, police officers in Joliet, Illinois searched Elijah Manuel and found a bottle containing pills. Suspecting the pills to be illegal drugs, the officers conducted a field test, which came back negative for any controlled substance. Still, they arrested Manuel and took him to the police station. An evidence technician tested the pills and got the same negative result, but falsely claimed in his report that one of the pills tested “positive for the probable presence of ecstasy.” An arresting officer also reported that, based on his “training and experience,” he “knew the pills to be ecstasy.” Based on those false statements, another officer filed a sworn complaint charging Manuel with unlawful possession of a controlled substance. A county court judge, relying exclusively on that complaint, found probable cause to detain Manuel pending trial.
While Manuel was in jail, the Illinois police laboratory tested the seized pills and reported that they contained no controlled substances. However, Manuel remained in custody. He spent a total of 48 days in pretrial detention. After his criminal case was dismissed, Manuel filed a 42 U.S.C. § 1983 lawsuit against Joliet and several of its police officers (collectively, “City”), alleging that his arrest and detention violated the Fourth Amendment. The district court dismissed Manuel’s lawsuit. The district court first held that the applicable statute of limitations barred his unlawful arrest claim. Second, the court explained that under binding Seventh Circuit precedent, pretrial detention following the start of legal process (here, the judge’s probable-cause determination) could not give rise to a Fourth Amendment claim. Manuel appealed the dismissal of his unlawful detention claim. The Seventh Circuit affirmed the dismissal and the United States Supreme Court granted review.
Held: In its main holding, the United States Supreme Court held Manuel could challenge his pretrial detention on Fourth Amendment grounds because pretrial detention can violate the Fourth Amendment not only when it precedes, but also when it follows, the start of legal process. In reaching its decision, the Court cited Gerstein v. Pugh, where the Court held that a pretrial detention challenge was governed by the Fourth Amendment, noting that the Fourth Amendment establishes the minimum constitutional standards and procedures not just for arrest but also for detention, and that the Fourth Amendment had always defined the appropriate process for the detention of suspects pending trial. The Court also cited Albright v. Oliver, where the Court reiterated that the Fourth Amendment is the relevant constitutional provision to assess the deprivations of liberty that go hand in hand with criminal prosecutions.
The Court noted that where the legal process has gone forward, but has done nothing to satisfy the probable cause requirement, it cannot extinguish a detainee’s Fourth Amendment claim. The Court explained that if the complaint is that a form of legal process resulted in pretrial detention unsupported by probable cause, then the right allegedly infringed lies within the Fourth Amendment. As such, because Manuel was arrested without probable cause and kept in pretrial detention without probable cause, the Court found that Manuel stated a Fourth Amendment claim when he sought relief for his pre-legal-process arrest and also for his post-legal-process pretrial detention.
- In retroactive award for service-related disability retirement benefits, prejudgment interest is calculated from date of board’s wrongful denial of benefits.
Flethez v. San Bernardino County Employees Retirement Assn., 2 Cal. 5th 630 (2017)
Facts: In 1998, Frank Flethez suffered a work-related injury while working as an equipment operator for San Bernardino County. His last day of work was a few days before he underwent surgery for the injury in February 2000. Flethez’s last day of regular compensation was July 14, 2000. He applied for work-related disability benefits in June 2008, which the San Bernardino County Employees Retirement Association (SBCERA) granted, effective as of the date of his application. Flethez subsequently requested review and reconsideration of the starting date of his benefits, arguing that his retirement allowance should be retroactive to July 15, 2000, the date following his last day of regular compensation. SBCERA ultimately denied his request and maintained the June 2008 date as the effective date of Flethez’s retirement benefits.
Flethez petitioned for mandamus relief, seeking retroactive benefits plus interest from July 15, 2000, the date following his last day of regular compensation, pursuant to Government Code section 31724. The trial court determined that SBCERA wrongfully denied Flethez the correct starting date for his benefits and interest, and granted his petition, awarding Flethez prejudgment interest of $132,865.37 on the retroactive benefits under Civil Code section 3287(a) (“Section 3287(a)”). SBCERA appealed the prejudgment interest award, and the Court of Appeal reversed the lower court’s judgment to the extent it granted Section 3287(a) interest on all of Flethez’s retroactive disability retirement benefits starting from the first date of those benefits—July 15, 2000. The California Supreme Court granted review of the prejudgment interest issue.
Held: Prejudgment interest should be calculated from the date of the wrongful denial, and the denial could only occur after the application was initially submitted in 2008 and reviewed by SBCERA. The Supreme Court explained that under Section 3287(a), to recover prejudgment interest, the claimant must show (1) an underlying monetary obligation, (2) damages which are certain or capable of being made certain by calculation, and (3) a right to recovery that vests on a particular day. Vesting in the context of Section 3287(a), the Court said, must be understood in the framework of allowing prejudgment interest as a component of damages, and the primary purpose of Section 3287(a) is to make the plaintiff whole as of the date of the injury. Here, Flethez did not apply for service-related disability retirement until June 2008, at which time he did not request a starting date for his benefit earlier than his application date. Only after SBCERA granted his application for benefits retroactive to June 2008 did Flethez request an earlier starting date for his benefits pursuant to Government Code section 31724, which SBCERA denied. The Court explained that Flethez was not wrongfully denied the use of any benefit moneys in any of the years prior to SBCERA’s decision on his request, and Flethez was only injured when SBCERA erroneously denied his request for a July 2000 start date. For purposes of prejudgment interest under Section 3287(a), the Court explained, until the SBCERA made its eligibility determination on his request, there were no damages stemming from an underlying monetary obligation “capable of being made certain”, and his right to an award of retroactive disability benefits did not vest. As such, his entitlement to prejudgment interest began on the date of the wrongful denial.
- Officer who sought and received disability retirement is “honorably retired” notwithstanding pending disciplinary action.
Bonome v. City of Riverside, 2017 Cal. App. LEXIS 264 (Cal. App. 4th Dist. Mar. 24, 2017)
Facts: Camillo Bonome had been employed as a Riverside Police Officer since 1995. In May 2013, a Memorandum of Finding was sustained against Bonome for failing to properly investigate and report an incident involving a sexually abused girl in June 2012. Chief Sergio Diaz recommended Bonome be terminated. Prior to the hearing on his termination, Bonome applied for and was granted disability retirement by the California Public Employees’ Retirement System for a back injury he sustained while on duty.
Upon his disability retirement being effective, Bonome requested his retirement identification badge and that the badge include a concealed carry weapon (CCW) endorsement. Bonome’s request was denied because Chief Diaz and the City of Riverside (“City”) did not consider him to be “honorably retired” as the term is defined in Penal Code section 16690. The City further determined that he was not entitled to a hearing to dispute the finding.
Bonome filed a petition for writ of mandate arguing he was honorably retired and entitled to a CCW endorsement. He further asserted that if the endorsement was denied for cause, he was entitled to a good cause hearing. The trial court agreed and granted the writ. On appeal, the City and Chief Diaz argued the trial court erred in determining Bonome was “honorably retired” within the meaning of Section 16690 based only on the plain language of the statute and without reviewing the legislative history.
Held: An officer who obtains a disability pension prior to termination may still be considered to be “honorably retired.” The City argued that since Bonome only sought the disability retirement after he knew he was about to be fired, Section 16690 precluded a finding that he was “honorably retired.” Section 16690 excludes those who resign or take a pension to avoid disciplinary action from the category of honorably retired peace officers.
The Fourth District Court of Appeal rejected the City’s reasoning and ruled in favor of Bonome, holding that the express language of the statute spoke to those who resign or who take a service pension as being ineligible for a CCW endorsed retiree identification card.
The Court further distinguished disability pensions from service pensions, noting that one who is eligible for a service pension may take that pension as of right and without need of permission or approval, whereas a disability pension, such as that obtained by Bonome, requires an application and finding of industrial disability, either of which may be denied.
Therefore, since Bonome sought, was approved for, and obtained a disability pension before he was terminated, he was not excluded from the definition of one who is “honorably retired” for purposes of Section 16690, and thus was entitled to a retiree identification card endorsed for CCW.
For a more detailed discussion of this case, please see Client Alert Vol. 32, No. 9, authored by James R. Touchstone and Paul R. Coble and available at www.jones-mayer.com.
The Civil Discovery Act applies to proceedings under the California Public Records Act (CPRA), since the CPRA proceeding is a special proceeding of a civil nature.
City of Los Angeles v. Superior Court, 9 Cal. App. 5th 272 (2d Dist. 2017)
Facts: In June 2015, Cynthia Anderson-Barker filed a petition for writ of mandate to compel the City of Los Angeles (“City”) to disclose vehicular impound records, which were held by private contractors. Anderson-Barker argued that the documents were obtainable under the California Public Records Act (“CPRA”). The City contended that it did not own the documents. Rather, the contractor did. Anderson-Barker served discovery requests relating to the City’s contentions. The City declined to provide the discovery requested and, instead, argued that Anderson-Barker was not entitled to discovery in her mandate action because the Civil Discovery Act did not apply to CPRA proceedings. Anderson-Barker filed a motion with the trial court to compel the City to respond to the discovery. The trial court found that the Civil Discovery Act did apply to the CPRA proceeding as it was a “special proceeding of a civil nature.” The trial court ordered the City to respond to the discovery requests and sanctioned the City $5,560, finding its refusal to respond was not justified. The City appealed, petitioning for a writ of mandate vacating the trial court’s order.
Held: The Court of Appeal determined that the Civil Discovery Act applies to petitions for writ of mandate brought under the CPRA, finding that such petitions are special proceedings of a civil nature. The Court granted the petition and addressed, as a matter of first impression, the issue of whether the Civil Discovery Act applies to petitions for writ of mandate to enforce the CPRA. The Court agreed with the trial court, finding that the Civil Discovery Act does apply because a writ proceeding under the CPRA is a special proceeding within the meaning of the Civil Discovery Act, citing Code of Civil Procedure sections 2017.010 and 2016.020, because it is enshrined in statute (California Government Code Sections 6250 et seq.) and is undisputedly civil in nature.
On the issue of sanctions, the Court found that the trial court erred in imposing sanctions because prior to this case, no case authority addressed whether the Civil Discovery Act applies to a CPRA writ proceeding.
If a nonjudicial forfeiture proceeding is initiated by a member of the police department, the forfeiture proceeding is invalid in the first instance.
Ramirez v. Tulare County District Attorney’s Office, 9 Cal. App. 5th 911 (5th Dist. 2017)
Facts: Three similar cases were filed in April 2014 in the Tulare County Superior Court with the respective plaintiffs seeking the return of property seized by law enforcement officers on the ground that government agencies purportedly conducting forfeiture proceedings failed to comply with the statutory requirements for nonjudicial forfeiture. Plaintiffs alleged, among other things, that no forfeiture proceedings were ever initiated by prosecutors, as specifically required by the forfeiture statutes. Instead, local police officers attempted to initiate the nonjudicial forfeiture proceedings on their own. The trial court entered a judgment of dismissal after it sustained defendants’ demurrers, and made additional conclusions regarding the statute of limitations issues. Plaintiffs appealed in each of the three separate actions, which were consolidated into one appeal by the Fifth District Court of Appeal since they involved identical legal issues.
Held: The Court of Appeal reversed and ordered the trial court to overrule the defendants’ demurrers because the forfeiture proceedings were invalid in the first instance. The Court explained that Health & Safety Code section 11488.4(j) specifies that only the Attorney General or the District Attorney can initiate nonjudicial forfeiture proceedings. In each of the three cases, the purported nonjudicial forfeiture proceedings were initiated solely by police officers or deputies, not prosecutors. Therefore, they were invalid in the first instance and the question of whether plaintiffs filed a claim was not relevant, since there was no proper or valid forfeiture proceeding to which the plaintiffs could make a claim.