Court Says 'Possible' Just As Good As 'Probable;' Lets DEA Keep Evidence From Warrantless Search
from the good-luck-limboing-under-that-low-bar,-defendants dept
The Ninth Circuit Appeals Court has handed down a decision which appears to lower the bar for probable cause. The government's evidence -- obtained via a warrantless search -- will remain unsuppressed. Here's the summary of the decision [PDF]:
The panel affirmed the district court’s order denying the defendant’s motion to suppress contraband seized during a warrantless search of the defendant’s truck.
The panel held that under the totality of the circumstances, there was probable cause to believe that contraband would be found in the truck, and that the search was therefore permissible under the automobile exception to the warrant requirement.
It's the "totality of the circumstances" that's the problem. The court did a lot of scribbling in the margins to help the government's probable cause math add up. The DEA had lots of stuff that was almost proof of something, but lots of key elements were missing. The opinion is riddled with details of agents verbally filling in gaps in their surveillance with assumptions.
[A]gents intercepted another call between Penitani and Faagai, in which Faagai was attempting to locate Penitani at the Pearlridge Shopping Center for what appeared to be a pre-planned meeting. Drug Enforcement Administration Special Agent Clement Sze (“Special Agent Sze”) testified that he believed that although agents were not able to conduct surveillance of that meeting, they believed, based on the entirety of their investigation, that Penitani and Mitchell were meeting Faagai to supply him with methamphetamine.
The beginning of the DEA's bad math: a meeting agents did not actually hear or see. More fuzzy math follows.
On November 5, 2012, agents intercepted a text message from Faagai to Penitani in which Faagai said that he was going to Costco in Kapolei “to buy food for [his] house” and that if Penitani “gotta buy food for [Penitani’s] house,” they should meet at Costco. Special Agent Sze testified that he believed that Faagai was using “food” as a code word for “money.”
Or it could just be food. Since the defense didn't challenge these assertions, the Appeals Court decides to take the agent at his word. Agents attempted to catch the dealers in the act, but missed an opportunity.
Agents traveled to the Costco in Kapolei and observed Penitani and his then girlfriend, Keschan Taylor, exit Costco and drive away. Agents did not see Faagai in the area, but Special Agent Sze testified that the agents believed that the meeting between Faagai and Penitani had already taken place.
Another unobserved meeting, presumed by the government to have taken place and, presumably, been of an illicit nature.
Having intercepted another conversation about "food" and "tools" to take place at a local restaurant, agents headed out to observe the hand-off. Again, they missed their marks.
Law enforcement agents conducted surveillance at the Jack In The Box and did not see Faagai or Penitani. At 8:14 p.m., agents intercepted a text message from Penitani to Faagai changing the location of the meeting to a 7-Eleven. The agents drove to the 7-Eleven at 8:30 p.m., where they saw Faagai in the parking lot, leaning into the passenger side window of Penitani’s car. Penitani and Faagai had already been there for approximately 15 minutes.
Once again, Special Agent Sze makes an assumption and, once again, the court finds it credible.
Special Agent Sze testified that he believed that the drug transaction had already occurred by the time agents arrived on scene.
Based on this wealth of horseshoe/hand grenade information, agents performed a pretextual stop and proceeded to search Faagai's vehicle without a warrant. A half-pound of methamphetamine was discovered along with the usual paraphernalia. The Appeals Court says all the gaps in info and all the assumptions made about unobserved meetings and unheard conversations is fine. It all adds up to Faagai's vehicle being the "more than likely" final resting spot of drugs no DEA agent actually saw change hands.
At the 7-Eleven, agents observed Faagai walk away from Penitani’s car and toward his own truck without anything in his hands. Agents did not observe the entirety of the meeting, which lasted roughly 15 minutes. Because the circumstances indicate the purpose of the meeting was to engage in a drug transaction, there is probable cause to believe that Penitani had delivered drugs (the promised “tools”) to Faagai, and that these drugs could be found in Faagai’s truck.
Why in Faagai’s truck? We know that there was probable cause to believe Penitani brought the “tools” (the drugs) so that Faagai could “get back to work” and not “lose [his] job” (deal the drugs). We know that Faagai arrived at the 7- Eleven in a vehicle, because he drove away in his truck. When the police saw Faagai leaning into the window of Penitani’s car, he had nothing in his hands.
Where could the “tools” (drugs) be located? In Penitani’s car? Unlikely, because the purpose of the meeting was for Penitani to deliver drugs to Faagai and Faagai left the scene in his truck. On Faagai’s person? Perhaps, but unlikely given that in prior transactions, Penitani had dealt in pounds of methamphetamine. Hidden in the environs of the 7- Eleven? Unlikely, given the high value of the drugs. In Faagai’s truck? More likely than not.
Judge Kozinski's dissent illustrates the dangers of allowing the government to substitute expertise for observation when it comes to commonly-used terms and meetings no one saw take place.
The government’s entire case rests on four meetings between Faagai and John Penitani, a suspected meth dealer. Despite observing most of these meetings and assiduously wiretapping Penitani’s phone, officers never saw a handoff of money or contraband, nor heard an explicit mention of drugs. In fact, they saw and heard nothing objectively suspicious.
The most probative evidence supporting the search was a conversation between Penitani and Faagai where they discussed meeting at Costco to buy food. Agents testified that they “believed [food] to be a code” for drugs. But there was no expert testimony or any other evidence supporting the speculation that food stood for drugs. See United States v. Bailey, 607 F.2d 237, 240 & n.6 (9th Cir. 1979) (discussing expert’s testimony on the meaning of alleged code words). Many people go to Costco to buy food. If talking about shopping for food at Costco were sufficient to justify a search, many of us would be searched by the police twice a week—thrice right before Thanksgiving. Nor does it make any sense to substitute food for drugs when talking about where to meet. If Penitani and Faagai were meeting up to conduct a drug deal, why specify the purpose of the meeting? Why say “Let’s meet at Costco for a drug transfer” rather than just “Let’s meet at Costco,” with the purpose of the meeting understood?
A few judges have called out the government for this behavior, making claims that would turn a large number of non-criminals into potential suspects. Drug dealers are humans and do human things just like millions of non-drug dealers. They shop at Costco just like innocent people do. But the government would have us believe -- "based on training and expertise" -- that common activities are suspicious, especially when the government is already engaged in an investigation. Even the most innocuous actions become sinister when the government is seeking to reach a foregone conclusion.
But there's more to it than that. Kozinski also points out the DEA's "training and expertise" statements often paint contradictory situations as equally suspicious. If the government wants to keep making arguments about common activities being the height of criminal suspicion, the least it could do is be consistent.
The fact that the two men decided to meet in a place with “hardly any people” cuts the wrong way. The government commonly argues that drug dealers intentionally seek out busy locations because a “high volume of pedestrian and vehicle traffic can mask drug-dealing activity.” United States v. Ruiz, 785 F.3d 1134, 1138 (7th Cir. 2015). Here, the government claims the opposite, evidently trying to have it both ways. At best, this fact is irrelevant: There was nothing incriminating about the two men’s preference for a quieter location.
Kozinski sums up his dissent this way:
The majority strings together a sequence of events like beads on a strand, but doesn’t explain how any of them provide probable cause that Faagai was carrying drugs in his car when he was stopped.
And here's the inevitable outcome of this decision, which is published and precedential:
Here’s what this case boils down to: Officers had a hunch that a drug transaction was going down. They saw nothing obviously suspicious, but got tired of waiting, watching and wiretapping. They then jumped the gun by executing a warrantless search. Until today, this was not enough to support probable cause, but going forward it will be. This is a green light for the police to search anyone’s property based on what officers subjectively believe—or claim to believe—about someone’s everyday conduct. That puts all of us at risk. Accordingly, I dissent, and I’m off to Costco to buy some food.
Edge cases like these need to be watched closely by judges. The courts have greatly expanded law enforcement power over the years at the expense of the Bill of Rights. Lowering probable cause to possible cause just makes it easier for officers to have their illegal search and their evidence too.
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Filed Under: 4th amendment, 9th circuit, evidence, fruit of a poison tree, probable cause, warrant
Reader Comments
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Wait a second...
...did Judge Kozinski just admit that he's running off to do a drug deal?
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Re: Wait a second...
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Re: Wait a second...
It sure looks like it.
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What goes around just keeps going around
Then they went ahead with the search anyway, did they suspect based upon 'training and experience' that the court would let them get away with the warrant-less search, based on 'training and experience?
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Wouldn't that be "possible cause"?
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Likely, but probable cause is the standard.
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I hear ya...except for...
The news that appeals court justices cannot read or interpret law is not so much shocking as...illegal.
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And who's going to tell them that their decision was illegal?
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In other words, nobody.
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According to Gallup's annual “Confidence in Institutions” survey, in 2017, Americans' confidence in the criminal justice system rose to 27% overall. That's up 4% from 23% in 2016.
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Looks like this judge thinks iffy cause is the standard.
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Lowering probable cause to possible cause just makes it easier for officers to have their illegal search and their evidence too.
Which misses the far more important point: That they deliberately refused to get the warrant that was required of them. At no point during this entire story was there a point where getting a warrant would have been even mildly inconvenient.
Except, of course, that they had no probable cause for the warrant...
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Doubleplusgood
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Blast from the past
Drug Enforcement Administration Special Agent Clement Sze (“Special Agent Sze”) testified that he believed that although agents were not able to conduct surveillance of that meeting, they believed, based on the entirety of their investigation, that Penitani and Mitchell were meeting Faagai to supply him with methamphetamine.
...
Special Agent Sze testified that he believed that Faagai was using “food” as a code word for “money.”
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Special Agent Sze testified that he believed that the drug transaction had already occurred by the time agents arrived on scene.
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Despite observing most of these meetings and assiduously wiretapping Penitani’s phone, officers never saw a handoff of money or contraband, nor heard an explicit mention of drugs. In fact, they saw and heard nothing objectively suspicious.
Looks like spectral evidence is once more legally admissible, at least as far as the ninth circuit goes. Don't see or hear anything incriminating? Not a problem, so long as you believe it happened that's good enough for the ninth circuit.
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Its the 9th Circus
yet another example of the failure of congress.
And I bet none of you idiots will figure out why.
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Re: Its the 9th Circus
And I bet none of you idiots will figure out why.
Because congress is bad and it fails at things: since failure makes god sad, he causes the sky to rain clowns who punish us for only electing people to Congress who run for congressional seats. The clowns hypnotize our representatives into appointing them circuit court judges, who then let cops run free and wild in the land of tautological crackpots.
Nothing hard to 'figure out' here: he cycle of god's rain clowns is simple theology.
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possible does NOT equal probbable.
Probable - there is evidence that something has occurred. Or there is a high chance of something of succeeding. (It is Probable that I am somewhere in the US and that I am a US citizen)
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What conceivable alternate reason could be given for such behavior? Yes, it is within the capability of most people to call some individual--some random unrelated individual--and tell them some random fact: but the same random individual, four times? He's either a very very strange phone stalker, or a drug buyer, or too nuts to be allowed to drive.
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Boggled
Your statement here is not supported by the facts recited in either Judge Bea's opinion or in Judge Kozinski's dissent.
It is essentially certain that Nov 5, 2012 is not “every time [appellant Faagai] felt a need to go to a grocery store.”
Your misstatement of the facts appears intentional. You appear to be trolling.
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Re: Boggled
Assuming this actually made any sense and the facts were as mis-puported, then the fuzz should not have had any trouble getting a warrant now, should they have?
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Exception...
What I think is that the court used is "New Math" to add up the officers deductions and came up with their answer/ruling. They just talk through how they got their answer and everything is ok.
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eVERYTHING
Probability?? NOT SO MUCH..
Dear Court..It is possible you have drugs on your property..But Probably not..
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But if we make that substitution, then they're going to buy... money? Both of them are going to buy money?
It's plausible that the words they were using were code words, yes. (Given that drugs were indeed found, they almost certainly were.) But it does feel like they should need something more to search your vehicle. The fact that the police didn't have anything more solid even after tapping their phones and surveilling them weighs against the police, too.
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Buying money
No. You're making an unreasonable leap here. “Almost certainly” is not supportable.
From Judge Bea's opinion
At least 6 hours after appellant Faagai's text about going to Costco for food, and after multiple other texts, appellant Faagi's vehicle is stopped and search. Besides the agents' imagination, there's nothing at all connecting the food text to the contraband found in the vehicle.
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Re: Buying money
So when you "roll it back" a but and have a look, you have to understand (and the judge clearly did) that you are dealing with two guys who's goal is to move drugs.
The lack of argument from one defendant in court in regards to how the police interpreted the phrases and such used says a lot.
I would suspect that the two were already subject to a wiretap style warrant for their text messages and such.
It's a very different story when you consider those things.
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That really is the key point.
For as 'certain' as MyNameHere seems to be making it that the agents had all this evidence pointing to how bad these people were, they still didn't get a warrant, suggesting that said evidence was not in fact nearly as ironclad as they are making it out to be, or the agents were too lazy/incompetent to perform such a simple, basic step.
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Re: Re: Re: Re: Buying money
Carroll v United States was decided all the way back in 1925.
In the decision under discussion here, on p.9, Judge Bea cites US v Ibarra (9th Cir 2003), citing Ornelas v US (1996). That latter case cites not only Carroll, but also Brinegar v US (1949).
On p.10, Judge Bea cites US v Brooks (9th Cir 2010). In turn, that case cites (e.g.) US v Albers (9th Cir 1998). Thence back to Carroll (1925).
The mere absence of a warrant for a vehicle search doesn't suggest a whole lot to me these days. I don't see how it has any bearing on the meaning of appellant Faagai's Costco food text, more than six hours before the stop and search of his vehicle.
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Again from Judge Bea's opinion (p.5):
There are two separate questions here: First is whether to hear the testimony at all. Second —a separate question— is the weight to be given the testimony.
Appellant Faagai's failure to object to Special Agent Sze's expert opinion operates to admit the testimony. But that's it.
Plainly, though, SA Sze's “expert opinion“ is imaginative, fantasy bullshit. Judge Bea doesn't point to support for SA Sze's opinion beyond SA Sze's credentials as an expert. If Judge Bea could point to evidence firmer than SA Sze's imagination, he would. But he just falls back on SA Sze's credentialed opinion.
An expert's job is to assist the trier of fact in understanding the evidence. But it's clear error for the trier of fact to mistake an expert's bullshit for a proven fact. The trier of fact must not let some expert take over the trier of fact's job.
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Re: Re: Buying money
It's fundamental, of course, that in determining the legality of a search, the search is not to be justified after the fact by what it turns up.
But in this particular thread, we're not applying that fundament rule. Instead, we are arguing whether the expert's opinion is “almost certain” given what the search turned up.
From the OP, again:
This statement is unsupportable. Even given that contraband was found in appellant's Faagai's vehicle more than six hours later, nothing substantial ties the Costco food text to the contraband.
All you've got is the expert's imagination.
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I'd have been sent up the river for 'possession of Doritos with intent to distribute' (based on amount, though it's really all for personal use) years ago.
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Shouldn't these guys be in jail?
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Results
From p.9 of the decision:
The Supreme Court is not going to grant cert on this. It's equally unlikely that the Ninth Circuit will review the three judge panel's decision en banc. The case is decided, and appellant is going to prison.
If all that really matters is the ultimate direct results, well, there you have them.
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Summary...
- two guys *might* have met up, *probably* to discuss drug dealing.
- they texted each other about buying food at Costco.
- they *might* have met again at Costco.
- they did meet again, *probably* starting 15 minutes before the cops saw them, and *probably* exchanging drugs during these 15 minutes the cops didn't witness.
Based on all that evidence they didn't have, and their imagination about what happened, the cops decided to perform a warrantless search, and a majority of judges agree with them.
There already were secret evidence presented to secret courts to uphold secret laws, now we're moving to imaginary evidence and testimony?
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Re: Summary...
From Judge Bea's opinion, on p.4:
Might as well say the Oct 29, 2012 meet up did take place.
(Look, I wasn't there myself, and I wouldn't swear that I know the meet went down —I don't— but in this context we're most likely entitled to rely on Judge Bea as a relatively faithful narrator of the evidence. If Judge Bea is out-and-out lying —he might be— then there's not much we can discuss here.)
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Re: Summary...
Neither Ninth Circuit Judge Bea, nor Judge Hawkins will ever, ever sit on a curb while their vehicle gets tossed.
District of Hawaii (Senior) Judge Mollway will never, ever repair her car's upholstery after the cops put her back on the road 'cause the hunch was just fucked-up.
These judges don't care. It doesn't affect them.
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