Law Office of Tim Warriner

June 18, 2007

Victory in Brendlin

In a 9-0 decision, the Supreme Court in Brendlin v. California upheld the right of an automobile passenger to assert the violation of his/her fourth amendment rights. I represented Mr. Brendlin at the trial level where I litigated the search and seizure motion. Attorney Beth Campbell represented Mr. Brendlin before the Supreme Court. She did an excellent job fielding the mind bending questions of the justices at oral argument.

Posted by Tim Warriner at 12:21 PM

April 27, 2007

Hoping for a Good Result in Brendlin

In People v. Brendlin, now pending before the United States Supreme Court, at issue is whether automobile passengers have standing to contest an illegal automobile stop. I represented Mr. Brendlin at the trial level before the Sutter County Superior Court. Attorney Beth Campbell from the Central California Appellate Project argued the case before the Supreme Court. The oral argument transcript can be viewed online at the Supreme Court website, www.supremecourtus.gov. The questioning was very interesting. Most people I have talked to agree that no passenger would ever feel free to walk away from a car after a law enforcement stop.

Posted by Tim Warriner at 01:31 PM

January 13, 2007

Leon Has its Limits: United States v. Thai Luong (9th Cir.2006)

At issue in Luong was the search of Luong’s residence pursuant to a search warrant. The search warrant stated that the Hong Kong office of the DEA had informed the Los Angeles office that “a suspected suspect (Chun-Ying Jao) known as a chemist” was arriving at LAX to “set up and manufacture methamphetamine.” The affidavit set forth the surveillance of Jao. Luong was seen going to Jao’s hotel room. The two left the hotel and went to a restaurant where they ate lunch. After lunch, they went to a residence, then drove to a Home Depot store. They entered Home Depot carrying a red high pressure hose and questioned a store employee about “how to insert a new adapter fitting into (the) hose.” Luong purchased an adapter fitting, and he and Jao drove back to the residence. The affiant stated that she recognized the hose as a common tool used with a vacuum pump during the production of methamphetamine. Upon execution of the search warrant, agents found evidence of methamphetamine manufacturing in Luong’s home.

Luong’s case was originally brought in the state court. After the state court suppressed the evidence, Luong was indicted in federal court. Luong’s motion to suppress was granted by the District Court, the court finding that the affidavit was so lacking in indicia of probable cause that it was not objectively reasonable for an officer to rely on the warrant.

On appeal, the government conceded that the warrant was not supported by probable cause. However, the government maintained that suppression was unnecessary under United States v. Leon, 468 U.S. 897 (1984), due to the officers’ good faith reliance upon the warrant. The court stressed that the Leon good faith test was an objective one, the inquiry being “whether a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization.” The court discussed the situations in which reliance on a warrant cannot be considered objectively reasonable. One of those situations is when the affidavit is so lacking in indicia of probable cause that official belief in its existence is objectively unreasonable. The court concluded that the Luong affidavit was so deficient that the officer’s reliance thereon was unreasonable. Totally missing from the affidavit was any factual basis to believe the anonymous tip was true. “The tip must include a ‘range of details,’ and it must predict future actions by the suspect that are subsequently corroborated by the police.” United States v. Morales, 252 F.3d 1070, 1075 (9th Cir.2001).

The court rejected the government’s claim that exigent circumstances made it objectively reasonable for the officers to rely on the warrant. Also rejected was an attempt to justify reliance on the affidavit by facts orally conveyed to the magistrate but not contained in the affidavit. The court stressed that “all data necessary to show probable cause for the issuance of a search warrant must be contained within the four corners of a written affidavit given under oath.” United States v. Gourde, 440 F.3d 1065, 1067 (9th Cir.2006).

Posted by Tim Warriner at 09:02 AM

March 25, 2006

My Thoughts on Georgia v. Randolph

In Georgia v. Randolph, a case decided this week, the Supreme Court held that when one co-occupant of a residence consents to police entry into the home, and the other co-occupant, who is present on scene, objects, the police may not enter the home.

My first thought is that it will be unusual for circumstances analogous to those in Georgia v. Randolph to occurr. How often is the co-occupant present when the police arrive? The dissent is concerned about the impact upon victims of domestic violence. Putting asside the issue of whether Roberts and Scalia are not being true to their conservative judicial philosophy by permitting their fourth amendment analysis to be bent by concerns over a popular, albiet important, social issue, the dissent just has no idea how domestic violence cases are investigated. When a purported domestic abuse victim calls 911 reporting that the alleged abuser is in the house, responding officers know what to do to ensure their entry into the home is justified by the "exigent circumstance" of preventing further domestic abuse or by preserving evidence of domestic abuse. In practice, it is fairly easy for officers responding to a domestic violence call to either obtain the needed consent, or to adequatly justify their entry into the home. Right or wrong, the courts seem very willing to listen to an officer's justification for the entry.

Posted by Tim Warriner at 06:54 AM

April 29, 2005

From the Ninth Circuit . . . the good, and the bad and ugly

First the good news: Moreno v. Baca, 400 F.3d 1152 (9th Cir. 2005). Moreno is a civil rights action where the plaintiff, a parolee, claimed he was wrongfully detained by the LAPD. The court, relying upon Knights, agreed that, despite the standard parole search condition, he was illegally detained. The court held that even if you are on parole, law enforcement must have reasonable suspicion of criminal activity. The plaintiff in this case was just walking down the street. There is some great language in this opinion for future search and seizure motions. California state practitioners must be sure to move to suppress evidence even if their clients are subject to parole/probation search conditions.

Now the bad & ugly: United States v. Pulliam (9th Cir., 2005). The court held that passengers of automobiles do not have standing to suppress if the vehicle they are in is wrongfully stopped. The passenger must demonstrate a privacy interest in the automobile. One of the problems with the opinion is that it does not discuss prior 9th Circuit precedent holding that passengers do have standing. A case of mine on this same issue is now pending before the California Supreme Court. I suspect Pulliam will be cited. This issue ought to go to the United States Supreme Court.

Posted by Tim Warriner at 07:43 AM

January 31, 2005

The Caballes Decision: Part I How Far Did the Supreme Court Go?

In Illinois v. Caballes the Supreme Court considered whether the sniff of a drug dog was a search. The defendant in Caballes was stopped for a traffic violation. During the time it took to write the ticket, an officer directed his drug dog around the outside of the vehicle. The dog alerted to the trunk. When the trunk was opened, a cache of drugs was located. The Supreme Court held that the drug dog’s actions did not infringe upon the occupant’s right to privacy.

The court’s characterization of its holding is not without qualification: “the use of a well-trained narcotics-detection dog–one that “does not expose noncontraband items that otherwise would remain hidden from public view”...during a lawful traffic stop, generally does not implicate legitimate privacy interests. In this case, the dog sniff was performed on the exterior of respondent’s car while he was lawfully seized for a traffic violation.” (emphasis added)

The Caballes decision should not be read as permitting law enforcement to extend the period of detention in order to “bring in the dogs.” The court was careful to explain that the dog sniff was conducted during the time it took the officer to issue the traffic citation. Whether this will pose much limitation in practice is questionable. It is easy for officers to come up with reasons to extend detentions, and it is tricky for defense counsel to challenge those justifications. Defense counsel will have to be alert to cases where the police expand the scope of their inquiry from a mere traffic ticket to a narcotics investigation.

Another limitation of the Caballes decision is alluded-to in the language quoted above: the holding only applies to the “well-trained narcotics-detection dog.” Counsel handling dog sniff cases will need to put the dog on trial. Documentation of the dog’s training and performance history should be discovered or subpoenaed. One concern is that Caballes will encourage the widespread use of poorly trained, “hack” dogs. Are there minimum standards that a dog must achieve to qualify as a “well-trained” dog as required by Caballes? It will be up to the courts of appeal to answer this and other questions.

The dog’s abilities and, ipso facto, accuracy, also have bearing upon whether the dog’s alert constitutes probable cause to search a trunk, or reasonable suspicion to expand a traffic stop into a narcotics investigation. This issue was not raised in the Caballes case, the record containing no evidence whatsoever concerning the dog’s error rate. It would be incorrect to read Caballes as sanctioning the search of a car trunk upon a mere alert absent evidence imparting significance to the dog’s behavior.

Defense counsel should stress that the Caballes holding applies only to a dog sniffing the outside of a car. It should be argued that to permit a dog inside the vehicle, or to subject persons not within the confines of a vehicle to the intrusion of a dog nose would constitute a dramatic interference with privacy concerns.

Finally, the decision only applies where the dog sniff is preceded by “lawful” traffic stop. Thus, the first step of analysis for defense counsel is whether the officer had a sufficient basis to effect a traffic stop.

In Part II of my analysis of Caballes I will discuss the dissents written by Justices Souter and Ginsberg, and what I believe is the subtext to this and other recent fourth amendment decisions.

Posted by Tim Warriner at 09:22 PM