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9th Circuit: Faulty search warrant affidavit nixes computer search; search waiver of which police were unaware failed to validate search of person; drug sentence vacated for failure to follow statutory procedures

United States v. Perkins, — F.3d —, 2017 WL 957205 (9th Cir. Mar. 13, 2017): Agent’s omission of relevant information from warrant invalidated computer search

There’s an old story about a two-car race, orchestrated during the height of the Cold War, between a driver from the United States and a driver from the Soviet Union. The race is close, but the American driver narrowly wins. The next day’s headline in the state-run Soviet newspaper reads: “In historic race, Soviet driver finishes second, while American driver barely manages to finish second to last.” It’s all true, of course, but the omission of material information renders it rather misleading. Amusing enough, as a parable of state propaganda; less so as a template for drafting a search warrant affidavit.

Which brings us to Mr. Charles Perkins. Mr. Perkins was en route to the United States through a Canadian airport when Canadian law enforcement agents learned that he was a registered sex offender and decided to have a look at his laptop. They found two questionable images, and called in an officer with expertise in child exploitation crimes. The expert examined the images and wrote up a report explaining his conclusion that they did not meet the Canadian definition of child pornography. Mr. Perkins went on to the United States, while the Canadian expert’s report went to the U.S. Department of Homeland Security. An American DHS agent drafted an affidavit, based on the Canadian expert’s report, in support of an application for a warrant to search Mr. Perkins’ home computers. The agent relayed the basic facts from the Canadian expert’s report, but omitted mitigating portions of the Canadian officer’s descriptions of the images, failed to include the actual images, and failed to mention that the Canadian expert had determined that the images were not pornographic. Finding that these omissions were knowing and misleading, and that a properly-drafted affidavit would not support probable cause, the Ninth Circuit held that the evidence derived from the search warrant should have been suppressed, and vacated Mr. Perkins’ conviction. Judge Murguia dissented, arguing that the majority should have exhibited greater deference to the district court’s assessment of the agent’s omissions.

(Congratulations to Corey Endo and Vicki Lai, of the Federal Public Defender’s Office in Seattle, Washington.)

United States v. Job, — F.3d —, 2017 WL 971803 (9th Cir. Mar. 14, 2017): Warrantless search not validated by waiver of which police were unaware; sentencing finding lacked supporting evidence

Police were in the midst of looking for someone else when they happened to notice Travis Job, looking very surprised and nervous, wearing baggy cargo shorts the pockets of which appeared to be “full of items.” An officer handcuffed Mr. Job and patted him down, felt what he recognized to be a crack pipe, and arrested him for possession of drug paraphernalia. Police then searched Mr. Job’s car, where they found methamphetamine. “At some point” during all this, police conducted a records check and discovered that Mr. Job was on probation, with a condition requiring him to submit to warrantless searches. Relying on a Ninth Circuit case holding that a Fourth Amendment search waiver authorized suspicionless searches, the district court denied Mr. Job’s motion to suppress the evidence derived from these searches. The Ninth Circuit reversed, stressing that it was undisputed that the police did not know about Mr. Job’s search waiver when they stopped him and patted him down. A Fourth Amendment waiver as a condition of probation is meant to advance the state’s interest in supervising probationers; this purpose is not implicated by searches conducted without knowledge that the subject is a probationer. Also, crime for which Mr. Job was on probation was a nonviolent offense. The Ninth Circuit accordingly vacated one of Mr. Job’s convictions. The Ninth Circuit also vacated Mr. Job’s sentence, holding that the district court erred when it imposed United States Sentencing Guidelines enhancements based on Mr. Job’s alleged importation of methamphetamine, use of premises for the manufacture of methamphetamine, and discharge of a toxic substance, without resolving underlying factual disputes and without adequate supporting evidence.

(Congratulations to Todd W. Burns of Burns and Cohan, San Diego, California.)

United States v. Rodriguez, — F.3d —, 2017 WL 971809 (9th Cir. Mar. 14, 2017): District court failed to follow procedures specified in 21 U.S.C. 851 regarding prior-conviction enhancement

Robert Rodriguez was allegedly the leader of the methamphetamine conspiracy that included Travis Job. Mr. Rodriguez was convicted of conspiracy and related charges stemming from this operation. The government sought enhanced penalties, including a 20-year mandatory minimum, based on Mr. Rodriguez’s three prior felony convictions. Pursuant to 21 U.S.C. 851, when such enhancements are to be applied, the court must address the defendant personally and ask him whether he acknowledges being the person named in the prior convictions, and inform him that he must raise any challenge to prior convictions before sentencing. The district court failed to follow these procedures here. The Ninth Circuit accordingly vacated Mr. Rodriguez’s sentence and remanded the case for resentencing.

(Congratulations to Jack J. Boltax and Leif Harrison Kleven, of San Diego, California.)

(Dan Kaplan is an Assistant Federal Public Defender in Phoenix, Arizona.)

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