U.S. v. Artis

919 F.3d 1123

UNITED STATES of America, Plaintiff-Appellant,

v.Donnell ARTIS; Chanta Hopkins, aka Askari Aquil Mohammed, Defendants-Appellees.

No. 18-10246

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 11, 2019 Pasadena, California

Filed March 27, 2019

OPINION

WATFORD, Circuit Judge:

Federal agents may have violated California law when they executed two search warrants issued by state court judges. California law authorizes "peace officers" to execute search warrants, but excludes federal law enforcement officers from the definition of that term. This apparent violation of state law, we conclude, does not render the warrants invalid under the Fourth Amendment. One of the warrants, however, was not supported by probable cause, and the evidence seized pursuant to that warrant must be suppressed.

I

At the time of the events relevant to this appeal, defendants Donnell Artis and Chanta Hopkins were alleged confederates engaged in credit card fraud and identity theft. Both were also fugitives from justice with outstanding warrants for their arrest on state law charges.

Artis and Hopkins came to the attention of Stonie Carlson, a Special Agent with the Federal Bureau of Investigation assigned to the Pacific Southwest Regional Fugitive Task Force, a joint federal-state task force operating under the direction of the United States Marshals Service. See 34 U.S.C. § 41503(a). Agent Carlson set out to find the two men, both of whom were believed to be in or around Oakland, California. Officers from the Oakland Police Department informed Agent Carlson that Artis and Hopkins could often be found hanging out at a particular liquor store in Oakland, and Agent Carlson spotted Artis there one day. When Agent Carlson and his partner tried to arrest Artis, a brief scuffle ensued, during which Artis dropped his cell phone. Artis broke away and managed to escape on foot, leaving his cell phone behind. Agent Carlson returned to the liquor store and retrieved the phone, a seizure rendered lawful by Artis’ abandonment of the phone when he fled from agents attempting to arrest him.

In his capacity as a member of the fugitive task force, Agent Carlson applied for a warrant to search Artis’ cell phone. Although he could have asked a federal magistrate judge to issue the warrant under Federal Rule of Criminal Procedure 41, Agent Carlson submitted the application to a judge of the Alameda County Superior Court. Agent Carlson later explained that he did so because Artis’ outstanding arrest warrants were for state law offenses and at the time Agent Carlson was not contemplating filing federal charges against Artis. For reasons unexplained in the record, Agent Carlson did not predicate the warrant application on Artis’ status as a known fugitive, which would have provided a basis to search his phone for information useful in finding him. Instead, Agent Carlson’s affidavit recounted facts establishing probable cause to believe that Artis was engaged (with Hopkins) in a conspiracy to commit credit card fraud under state law. He requested permission to search Artis’ cell phone for evidence of that offense.

The Alameda County Superior Court judge issued a warrant, directed to "any peace officer in Alameda County," authorizing a search of Artis’ cell phone for "evidence of a crime"—in particular, for eight specified categories of information, such as stored email and text messages "[c]ontaining any references to fraud or related criminal activity." Agent Carlson found that he lacked the technical expertise to execute the warrant himself, but after a few days’ delay he enlisted the help of a fellow FBI agent who was able to extract the relevant information from Artis’ phone. Based in part on that evidence, the government charged Artis with the federal firearms and identity-theft offenses he faces in this case.

Two days after obtaining the warrant to search Artis’ phone, but before he had been able to execute it, Agent Carlson applied for a second search warrant, this one targeting Hopkins. Agent Carlson again applied for the warrant in his capacity as a member of the fugitive task force, and he again submitted the application to an Alameda County Superior Court judge rather than a federal magistrate judge. Agent Carlson predicated the Hopkins warrant application solely on Hopkins’ status as a fugitive with an outstanding warrant for his arrest. The application sought authorization to use a cell-site simulator to track the location of a cell phone assigned the number (832) 763-5555. Agent Carlson’s affidavit recounted facts establishing probable cause to believe that Hopkins was then using the targeted cell phone.

An Alameda County Superior Court judge issued a search warrant, also directed to "any peace officer in the County of Alameda," authorizing use of a cell-site simulator for a period of 30 days to track the location of the targeted cell phone. The warrant stated that federal agents "employed by the United States Marshals Service are authorized to assist in the service of this search warrant."

A federal agent working as part of the fugitive task force deployed the cell-site simulator in accordance with the warrant.

Through use of the device and additional investigative work, task force agents determined that Hopkins lived in a particular apartment building in San Francisco. They arrested him as he left his apartment and found incriminating evidence during a search incident to arrest. That evidence formed the basis for a search warrant issued by a San Francisco County Superior Court judge authorizing a search of Hopkins’ apartment. The apartment search yielded much of the evidence underlying the federal drug-trafficking and identity-theft charges filed against Hopkins in this case.

Artis and Hopkins filed separate motions to suppress that challenged the validity of their respective Alameda County Superior Court search warrants. Both motions argued that: (1) the warrants were invalid because they were executed by officials not authorized to execute warrants under California law; and (2) the warrants were not supported by probable cause.

After conducting an evidentiary hearing at which Agent Carlson testified, the district court granted both motions to suppress. The court agreed with the defendants that "under California law, federal law enforcement officers are not permitted to execute search warrants issued by California state judges." UnitedStates v. Artis , 315 F.Supp.3d 1142, 1145 (N.D. Cal. 2018). The court concluded that federal agents impermissibly executed both warrants but recognized that suppression would not be justified on the basis of this state law violation alone. Id. at 1143–44. In addition, though, the court held that neither warrant was supported by probable cause, and it declined to apply the good-faith exception to the exclusionary rule in view of a "string of errors" embodied in the two warrant applications submitted by Agent Carlson.

As permitted under 18 U.S.C. § 3731, the government filed an interlocutory appeal from the district court’s suppression ruling.

II

The outcome of this appeal turns on whether the challenged searches violated the Fourth Amendment, which protects the people’s right "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Certain searches must be conducted pursuant to a warrant to be deemed reasonable. The search of Artis’ cell phone definitely required a warrant, see Riley v. California , 573 U.S. 373, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014), and we will assume (as the government has) that use of a cell-site simulator to track the location of Hopkins’ cell phone also required a warrant. But both of the searches in question were conducted pursuant to a warrant. To establish a Fourth Amendment violation, then, the defendants must succeed in showing either that the warrants were invalid under the Fourth Amendment or that, even if valid, the warrants were executed in a manner that rendered the searches unreasonable.

The defendants have confined themselves to the first line of argument, framing their challenge solely as an attack on the validity of their respective warrants. They do not contend that anything about the manner of execution rendered the searches unreasonable. They have not asserted, for example, that the scope of the searches conducted by the agents exceeded what the warrants authorized, or that the agents seized evidence not described in the warrants. Their only complaint about the manner in which the warrants were executed is that federal agents conducted the searches instead of officials designated as "peace officers" under state law. But the identity of the executing officers—federal agents versus peace officers—does not implicate any interest protected by the Fourth Amendment. No greater intrusion upon protected privacy or property interests occurred by virtue of the fact that the searches were conducted by federal agents as opposed to, say, city police officers. Cf. Wilson v. Layne , 526 U.S. 603, 614, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) (holding that police violated the Fourth Amendment by allowing members of the news media into a home during the execution of a warrant, due to the heightened intrusion upon privacy interests caused by their unauthorized presence and non-law-enforcement purpose).

To succeed here, the defendants must demonstrate that their respective search warrants were invalid under the Fourth Amendment. The Amendment’s Warrant Clause provides that a warrant may be issued only "upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The Supreme Court has held that this language imposes three requirements for issuance of a valid search warrant. First, the warrant must be issued by a neutral and detached magistrate. Dalia v. United States , 441 U.S. 238, 255, 99 S.Ct. 1682, 60 L.Ed.2d 177 (1979).¹ Second,...