BARRY J. PORTMAN
Federal Public Defender
Assistant Federal Public Defender
450 Golden Gate Avenue
San Francisco, CA 94102
Telephone: (415) 436-7700
Counsel for Defendant XXX XXX
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA,
Plaintiff,
v.
Defendant.
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DEFENDANT'S SUPPLEMENTAL BRIEFING RE MAY 16, 2001 EVIDENTIARY HEARING
Date: May 16, 2001
Time: 8:00 a.m.
Court: Honorable William Alsup The defendant submits this briefing prior to the scheduled evidentiary hearing in order to
assist the Court with evaluating issues that Mr. XXX believes will arise at the hearing, as well as to update the Court as to
the status of witnesses and documentation regarding Mr. XXX's jurisdictional challenge to the federal participation in the
original arrest and search. Mr. XXX does not offer this briefing as a substitute for post-hearing briefing, which may
become necessary based on the testimony of witnesses, but simply to assist the Court's consideration of testimony at the hearing.
A. Supreme Court and Ninth Circuit Law Relating to Protective Sweeps and Security Searches
"A 'protective sweep' is a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding." Maryland v. Buie, 494 U.S. 325, 327 (1990). In Maryland v. Buie, the Supreme Court considered what level of justification was required before police officers, effecting the arrest of a suspect in his home pursuant to a valid arrest warrant, may "conduct a warrantless protective sweep of all or part of the premises." Id. (1)
The Court articulated the following test for whether a search was justifiable as a protective sweep:
[A]s an incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. Beyond that, however, we hold that there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene. Maryland v. Buie, 494 U.S. at 334. The Court emphasized that the search authorized in its opinion "is decidedly not 'automati[c],' but may be conducted only when justified by a reasonable articulable suspicion that the house is harboring a person posing a danger to those on the arrest scene." Id. at 336-337.
The Supreme Court also articulated an important temporal element to the protective sweep, which is that "[t]he sweep lasts no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises." Id.at 335-336 (emphasis added). This temporal aspect was the basis for the Ninth Circuit's decision inUnited States v. Noushfar, 78 F.3d 1442, 1448 (9th Cir. 1996) that the "sweep" by seven customs agents in defendants' apartment "exceeded the limits of a Buie sweep in both time and scope," where agents arrested the defendants within a minute of entering the apartment, but rather than "leaving promptly," made the defendants sit in the living room while agents went through the apartment for half an hour.
The Ninth Circuit has upheld protective sweeps only when police can show specific articulable facts supporting a reasonable suspicion that other persons may pose a threat to officer safety. United States v. Castillo, 866 F.2d 1070, 1079 (9th Cir. 1989). See also United States v. Reid,226 F.3d 1020, 1027 (9th Cir. 2000) (officers not entitled to conduct a protective sweep where there were no specific facts demonstrating that a reasonably prudent officer would have thought that an individual posing a danger to officers was harbored in the apartment). It also follows that police may not use an arrest "as a pretext to search for evidence without a search warrant where one would ordinarily be required under the Fourth Amendment." United States v. Hudson, 100 F.3d 1409, 1414 (9th Cir.1996) (quotations and citations omitted).
B. Ninth Circuit Law Relating to Consent to Searches
To "establish the validity of a consent to search, the government bears the heavy burden of demonstrating that the consent was freely and voluntary given." United States v. Chan-Jimenez, 125 F.3d 1324, 1327 (9th Cir. 1997). The Ninth Circuit has explained that "[t]he existence of consent to a search is not lightly to be inferred and the government always bears the burden of proof to establish the existence of effective consent." United States v. Shaibu, 920 F.2d 1423, 1426 (9th Cir. 1990) (citations and internal quotation marks omitted). To demonstrate effective consent, the Ninth Circuit has established the following burden for the government:
The government must prove that consent was given. It must show that there was no duress or coercion, express or
implied. The consent must be "unequivocal and specific" and "freely and intelligently given." There must be convincing
evidence that defendant has waived his rights. There must be clear and positive testimony. "'Courts indulge every
reasonable presumption against waiver ' of fundamental rights." Coercion is implicit in situations where consent is
obtained under color of the badge, and the government must show that there was no coercion in fact.
Id. (citation omitted).
The Ninth Circuit recently explained that the following factors are to be considered in assessing whether consent to search was voluntary: "(1) whether the person was in custody; (2) whether the officers had their guns drawn; (3) whether a Miranda warning had been given; (4) whether the person was told that he had a right not to consent; and (5) whether the person was told that a search warrant could be obtained." United States v. Reid, 226 F.3d 1020, 1026 (9th Cir. 2000) (citations omitted). The Ninth Circuit further explained that "[a]lthough no one factor is determinative in the equation, many of this court's decisions upholding consent as voluntary are supported by at least several of the factors." Id. at 1026-27 (citations omitted).
C. Clarification of the Scope of Defendant's Motion to Suppress
On March 3, 2001, Mr. XXX moved to suppress "all evidence found as a result of the search at XXXX Street on August 24, 2000, in particular the firearm allegedly found during the search that is the basis of the indictment in this case." Def. Mot. at 1. In its opposition to Mr. XXX's motion, the government argued that the .45-caliber handgun was found pursuant to Mr. XXX's implied consent, and that the rifle was seen in plain view in the bedroom closet. Gov. Opp. at 2. The government stated that because the other items were seized in a search for firearms and ammunition pursuant to consent by the defendant's mother that she did not have authority to give, the United States would not offer any of these items as evidence. Gov. Opp. at 2. Based on the government's acknowledgment that the other items (including ammunition and a very small amount of marijuana) were not lawfully seized, the scope of defendant's motion has been narrowed to the .45-caliber handgun and the rifle.
D. Mr. XXX's Jurisdictional Challenge to the Search
In his motion to suppress, Mr. XXX challenged the authority of a United States Deputy Marshal to serve a local warrant and to conduct a search. After the prior motions were submitted, on April 27, 2001 the government submitted supplemental briefing on the issue, including a Declaration from John Clark, Program Manager of the Domestic Investigations Unit, Investigative Services Division of the U.S. Marshal's Service. The Court asked defense counsel to tell the government whether Mr. Clark needed to be called as a witness at the May 16, 2001 evidentiary hearing.
Undersigned defense counsel informed the government that the defense would not need to call Mr. Clark as a witness given that his declaration simply referred to legal documents purporting to confer authority on the U.S. Marshal's office in local cases (specifically, whether the Attorney General's actions in general have exceeded the scope of statutory delegation of power in 28 U.S.C. § 566, and what exactly the scope of the delegation is). Defense counsel requested copies of the documents referenced in Mr. Clark's declaration, but the government refused to produce those documents. Undersigned counsel and counsel for the government exchanged several letters regarding the complex legal issue of whether Congress intended to delegate such power to federal authorities, and if it did, whether such delegation was unconstitutional. Contrary to the government's position, Mr. XXX believes that the jurisdictional issue is relevant to this case because unlawful authority may form the basis for a motion to suppress evidence. See United States v. Gonzalez, 875 F.2d 875, 878 (D.C.Cir. 1989) (recognizing the issue of "whether Congress's purposes are served by an exclusionary remedy for violations of the statutes setting forth the jurisdiction of federal law enforcement agencies," but assuming without deciding in that case that the statutory authority for the federal agency's actions was "essential to the government's use of the resulting evidence").
Mr. XXX believes that the jurisdictional issue will require further briefing that he cannot complete until he receives the
documents upon which Mr. Clark relied in his declaration, and which are in fact specifically referenced in his declaration.
However, he believes that with one exception, the witnesses at the evidentiary hearing will not need to address the
jurisdictional issue, but instead will be questioned about the lawfulness of the particular search at 1369 Hayes Street. The
one exception is U.S. Marshal Task Force Coordinator Jason Wong, whom defense counsel intends to question both about
pre-arrest and post-arrest investigation of XXX XXX by the Fugitive Apprehension Strike Task Force ("F.A.S.T."), as
well as the criteria by which F.A.S.T. selects local cases (without any federal nexus) to be part of the F.A.S.T. targets.
DATED: May 14, 2001
Respectfully Submitted,
Federal Public Defender
Assistant Federal Public Defender
1. In that case, officers obtained an arrest warrant for the defendant after he was a suspect in an armed robbery committed by two men. Id. at 328. The officers went to the defendant's house to various floors, searching for the defendant. Id. One officer went to the basement and found the defendant. Id. After the officer arrested the defendant, the officer proceeded down into the basement in case there was anyone else there, where he found inculpatory evidence. Id.