United States v. 186,416.00 ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v. No. 07-56549
$186,416.00 IN U.S. CURRENCY, D.C. No.
Defendant.  CV-05-06703-SVW-
SH
UNITED MEDICAL CAREGIVERS OPINION
CLINIC, INC.,
Claimant-Appellant.

Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted
March 12, 2009—Orange, California
Filed October 20, 2009
Before: Michael Daly Hawkins, Marsha S. Berzon, and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Clifton
14615
14620 UNITED STATES v. $186,416.00 IN U.S. CURRENCY
COUNSEL
Paul L. Gabbert, Santa Monica, California, for the claimant-
appellant.
Thomas P. O’Brien, United States Attorney; Christine C.
Ewell, Assistant United States Attorney, Chief, Criminal
Division; Steven R. Welk, Assistant United States Attorney,
Chief, Asset Forfeiture Section; P. Greg Parham (argued),
Special Assistant United States Attorney, Los Angeles, Cali-
fornia, for the plaintiff-appellee.
OPINION
CLIFTON, Circuit Judge:
California state law differs from federal law in its treatment
of the distribution and possession of marijuana for purport-
edly medical purposes. California has concluded that mari-
juana may have medicinal value, and under California law the
distribution and possession of “medical marijuana” is not ille-
gal. See Cal. Health & Safety Code § 11362.5(b)(1)(A)
(declaring that one purpose of a 1996 voter-approved medical
marijuana initiative is “[t]o ensure that seriously ill Califor-
nians have the right to obtain and use marijuana for medical
purposes”); id. § 11362.765 (exempting from criminal liabil-
ity individuals who perform certain actions involving medical
marijuana). The federal government has not recognized a
legitimate medical use for marijuana, however, and there is no
UNITED STATES v. $186,416.00 IN U.S. CURRENCY 14621
exception for medical marijuana distribution or possession
under the federal Controlled Substances Act, 21 U.S.C.
§§ 801-971. See Gonzales v. Raich, 545 U.S. 1, 14-15 (2005)
(explaining that the distribution or possession of marijuana is
a criminal offense under the Controlled Substances Act);
Raich v. Gonzales, 500 F.3d 850, 854-55 (9th Cir. 2007) (dis-
cussing marijuana’s status as a “Schedule I” controlled sub-
stance, a designation available only to certain substances
found to have “no currently accepted medical use in treatment
in the United States” (quoting 21 U.S.C. § 812(b)(1))).
This difference lies behind the civil forfeiture case before
us. The case concerns $186,416.00 in U.S. currency seized by
officers of the Los Angeles Police Department (“LAPD”) dur-
ing a search of the United Medical Caregivers Clinic
(“UMCC” or “Clinic”), a non-profit medical marijuana dis-
pensary owned by United Medical Caregivers Clinic, Inc.
Although the LAPD secured a state court warrant for the
search, the Department failed to inform the issuing court of
extensive evidence that UMCC may have been operating in
accordance with California’s medical marijuana laws. The
state court subsequently approved the release of the seized
currency to the United States, which then initiated a federal
civil forfeiture action against it. UMCC presented its own
claim to the currency. On UMCC’s motion the District Court
suppressed the currency as evidence, holding the search to
have been illegal. The District Court held, however, that the
government had sufficient evidence, independent of the cur-
rency itself and of any other evidence tainted by the illegal
search, to initiate the forfeiture action against the currency.
We conclude that the evidence relied upon by the District
Court was itself tainted by the illegal search and should be
suppressed, and that without the suppressed evidence the gov-
ernment lacked probable cause to connect the defendant cur-
rency to a violation of federal law. We thus reverse the
judgment of the District Court and remand for further pro-
ceedings.
14622 UNITED STATES v. $186,416.00 IN U.S. CURRENCY
I. Background
In early 2005 LAPD Sergeant Miguel Lopez began receiv-
ing complaints of marijuana smoking near the UMCC offices
on Wilshire Boulevard. Many of the complainants observed
that the individuals smoking marijuana carried the drug in
small brown paper bags.
On March 15, 2005, Lopez investigated and found a flyer
referring to “UMCC” and advising Clinic patrons to leave the
premises after purchasing marijuana. Lopez located the
UMCC facility and entered the building’s lobby. Once inside
he “immediately smelled the strong odor of marijuana” and
observed a number of people leaving the Clinic’s offices with
small brown paper bags.
UMCC staff admitted Lopez into its offices. While he was
there, at least three individuals appear to have told Lopez that
UMCC was a medical marijuana provider: Scott Feil,
UMCC’s chief executive officer; Gabriella Jaramillo, a man-
ager; and Michael Bryan, a security guard. Additionally,
Jaramillo provided Lopez with copies of UMCC’s corporate
papers and its City of Los Angeles Tax Registration Certifi-
cate, as well as with written information about California’s
medical marijuana laws. In a declaration filed later, Jaramillo
agreed with Lopez’s estimate that he viewed approximately
50 individuals purchasing marijuana from UMCC within a
45-minute period. She added that “[e]ach of these patients
was purchasing medical marijuana pursuant to a doctor’s writ-
ten recommendation” and that Lopez did not object to any of
the transactions.
Lopez called his watch commander to report the situation.
The LAPD applied for a search warrant to search the UMCC
facility. A Los Angeles Superior Court judge issued the war-
rant, and it was executed the same evening. During the search
LAPD officers seized $186,416.00 in U.S. currency from the
Clinic’s safe and from a cash register , along with about 209
UNITED STATES v. $186,416.00 IN U.S. CURRENCY 14623
pounds of marijuana, 21 pounds of hashish, and 12 pounds of
marijuana oil.
No criminal charges were filed against UMCC or any of its
employees, but the LAPD continued to hold the currency.
About two months later UMCC filed a motion in Los Angeles
Superior Court for return of the currency and other items
seized by the LAPD on March 15. Attached to this motion
was a declaration by Feil, the chief executive officer of
UMCC, executed on May 12, 2005 (“Feil declaration”).1
In his declaration Feil acknowledged the connection
between the currency and UMCC’s activities but insisted that
UMCC was, under California state law, a lawful medical mar-
ijuana provider. The declaration stated, among other things,
that “[a]ll cannabis products obtained or produced by UMCC
are only distributed to patient members of UMCC. . . . UMCC
does not allow the distribution of cannabis products to non-
patients or non-members[.]” Feil continued: “On March 15,
2005, the Los Angeles Police Department seized numerous
cannabis products, approximately $200,000 in currency, and
other items including security equipment. The materials
seized were all, to the best of my knowledge and belief, legiti-
mately used in the course of UMCC’s activities as described
above.”
In late August 2005, the state court ordered the release of
the seized currency from state court jurisdiction to allow the
initiation of federal forfeiture proceedings. An LAPD detec-
tive had presented this order for the state court’s approval.
On September 12, 2005, the federal government filed in
1
UMCC filed a second copy of this motion and the Feil declaration in
early August 2005, again in Los Angeles Superior Court, as attachments
to a motion entitled “Motion for Order To Show Cause Why the Court’s
‘Order for Release of Property Pursuant to Search Warrant for Federal
Forfeiture Proceedings’ Should Not Be Set Aside.”
14624 UNITED STATES v. $186,416.00 IN U.S. CURRENCY
District Court a complaint for forfeiture pursuant to 21 U.S.C.
§ 881(a)(6), alleging that the defendant currency was seized
from UMCC and was traceable to narcotics violations under
21 U.S.C. §§ 841, 846. UMCC claimed ownership of the cur-
rency and filed a motion to suppress all evidence seized pur-
suant to the state search warrant issued on March 15, 2005.
The District Court granted the motion to suppress, holding
that there had not been probable cause to issue the warrant for
a violation of state law. In considering probable cause under
state law, the District Court found that the warrant affidavit
submitted by the LAPD had been “misleading” and contained
“reckless” omissions of numerous relevant facts pertaining to
UMCC’s status as a medical marijuana dispensary.
UMCC subsequently brought a motion for summary judg-
ment in the federal civil forfeiture action, arguing that the
government lacked sufficient evidence to initiate the action
against the defendant currency. The District Court denied that
motion, holding in a reported decision that the government
had sufficient evidence to initiate its action, even in the
absence of all evidence excluded under the court’s prior sup-
pression ruling and the fruits of the suppressed evidence.
United States v. $186,416.00 in U.S. Currency, 527 F. Supp.
2d 1103, 1107 (C.D. Cal. 2007). Specifically, the District
Court held that the Feil declaration “provided the Government
with sufficient untainted probable cause” to proceed, as the
declaration was not subject to suppression under any of a vari-
ety of theories. Id. at 1141-42. UMCC then consented to a
judgment forfeiting the currency to the government and filed
a timely appeal.
II. Discussion
UMCC argues on appeal that the District Court erred in
concluding that the government had probable cause to initiate
the forfeiture proceeding. The Clinic contends that the Feil
declaration was “the only possible basis for the Government
to establish probable cause” and that the court should not have
UNITED STATES v. $186,416.00 IN U.S. CURRENCY 14625
considered the declaration because it was tainted by the
unlawful search of UMCC’s offices. The government, in turn,
defends the District Court’s ruling that the government prop-
erly could rely on the Feil declaration to establish the defen-
dant currency’s alleged connection to marijuana activities
unlawful under federal law. In addition, the government offers
further evidence that it contends could support a determina-
tion of probable cause, even if it were unable to rely on the
Feil declaration.
A. Illegality of the Search
We begin by noting that the government does not contest
the District Court’s finding that the search by the LAPD was
unlawful despite the state court warrant, nor does it contest
the resulting suppression of the currency and other evidence
seized during that search. Accordingly, the District Court’s
August 2006 order quashing the search warrant and suppress-
ing the defendant currency is not before us. See, e.g., Spurlock
v. FBI, 69 F.3d 1010, 1018 (9th Cir. 1995).
There is a disagreement as to the nature of the search’s ille-
gality, however. When the District Court granted UMCC’s
suppression motion in August 2006, it did so on Fourth
Amendment grounds, citing United States v. Stanert, 762 F.2d
775, 780-81 (9th Cir. 1985), in which we held that “the Fourth
Amendment mandates that a defendant be permitted to chal-
lenge a warrant affidavit valid on its face when it contains
deliberate or reckless omissions of facts that tend to mislead.”
In its summary judgment order of August 2007, the District
Court reconsidered and instead described the warrant as
invalid not for a constitutional infirmity but for its failure to
meet the procedural requirements provided in Rule 41 for
obtaining a federal search warrant. $186,416.00 in U.S. Cur-
rency, 527 F. Supp. 2d at 1138. The court reasoned that the
LAPD had probable cause to believe that UMCC was operat-
ing in violation of federal narcotics law, even though it lacked
14626 UNITED STATES v. $186,416.00 IN U.S. CURRENCY
probable cause with regards to state law. Id. As such, the
LAPD’s only error, according to the District Court, was in
failing to comply with the procedural requirements of Rule
41, such as having a federal law enforcement officer request
the warrant and obtaining approval from a magistrate judge
unless none was reasonably available. Id.; see also Fed. R.
Crim. P. 41(b).
[1] We cannot approve this analysis. Rule 41 is inapplica-
ble to “searches conducted by state officers with state war-
rants issued by state judges, with minimal or no federal
involvement,” even if federal prosecution results. United
States v. Piver, 899 F.2d 881, 882 (9th Cir. 1990). The present
case fits this description. Only a “federal law enforcement
officer or an attorney for the government” can request a
search warrant under Rule 41, and no such individual was
involved in requesting the warrant at issue here. Fed. R. Crim.
P. 41(b).
[2] While there may have been probable cause to search
UMCC for a violation of federal law, that was not what the
LAPD was doing. Nothing in the documents prepared at the
time the warrant was obtained from the state court or in the
procedure followed to obtain that warrant supports the propo-
sition that the LAPD thought it was pursuing a violation of
federal law. Instead, it sought a warrant from a state court
judge, though, as the District Court found, it lacked probable
cause for a state law violation and failed to inform the state
court judge of relevant facts that supported the conclusion that
UMCC was not in violation of state law. The LAPD, a city
agency, never initiated the process of seeking a federal search
warrant from a federal magistrate or indicated that it was pur-
suing a violation of federal law.
[3] Accordingly, the search was not illegal simply because
it failed to comply with Rule 41 but because it violated
UMCC’s Fourth Amendment right against unreasonable
searches and seizures, in light of the absence of probable
UNITED STATES v. $186,416.00 IN U.S. CURRENCY 14627
cause under state law. See Piver, 899 F.2d at 882 (holding that
state warrants must adhere to federal constitutional standards).
B. Probable Cause To Institute the Forfeiture Action
The fact that the currency was seized by the LAPD unlaw-
fully does not necessarily mean that it cannot be subject to
forfeiture. See United States v. One (1) 1971 Harley-Davidson
Motorcycle Serial # 4A25791H1, 508 F.2d 351, 351 (9th Cir.
1974) (per curiam) (“The mere fact of the illegal seizure,
standing alone, does not immunize the goods from forfeiture.”
(internal quotation marks omitted)). The government may still
institute a forfeiture action if it can demonstrate probable
cause for doing so, based upon untainted evidence. See United
States v. $493,850.00 in U.S. Currency, 518 F.3d 1159, 1169
(9th Cir. 2008). The probable cause requirement is statutory.
Pursuant to 19 U.S.C. § 1615, which also assigns the burden
of proof in forfeiture proceedings, the government must show
that probable cause exists to institute its action. We recently
held that this requirement survived the enactment of the Civil
Asset Forfeiture Reform Act of 2000. $493,850.00 in U.S.
Currency, 518 F.3d at 1169.
[4] “The government has probable cause to institute a for-
feiture action when it has reasonable grounds to believe that
the property was related to an illegal drug transaction, sup-
ported by less than prima facie proof but more than mere sus-
picion.” Id. (internal quotation marks omitted). Probable
cause may be supported only by facts “untainted” by any prior
illegality. See United States v. Driver, 776 F.2d 807, 812 (9th
Cir. 1985). It may be based only upon information gathered
before the forfeiture action was instituted. $493,850.00 in
U.S. Currency, 518 F.3d at 1169.
We therefore must determine whether the government had
probable cause to file its complaint on September 12, 2005.
The government argues that probable cause was supported by
the Feil declaration and, alternatively, by its knowledge of
14628 UNITED STATES v. $186,416.00 IN U.S. CURRENCY
UMCC’s marijuana sales at the time the forfeiture action was
instituted, independent of any evidence tainted by the unlaw-
ful search. The District Court held that the Feil declaration
was admissible and by itself gave the government sufficient
probable cause for bringing this action. $186,416.00 in U.S.
Currency, 527 F. Supp. 2d at 1142. We review the District
Court’s determination of probable cause de novo.
$493,850.00 in U.S. Currency, 518 F.3d at 1164.
1. The Feil Declaration
In his declaration, Feil, UMCC’s CEO, admitted that
UMCC “distributed” marijuana. The declaration stated: “All
cannabis products obtained or produced by UMCC are only
distributed to patient members of UMCC.” Feil then linked
the defendant currency to the distribution of marijuana by
declaring that seized items were “used in the course of
UMCC’s activities as described above.” Because there is no
exception for medical marijuana distribution under the federal
Controlled Substances Act, 21 U.S.C. §§ 801-971, see Raich,
545 U.S. at 14-15, the Feil declaration would suffice to estab-
lish probable cause to believe that the money in question was
linked to sales of marijuana, if we conclude that the govern-
ment was permitted to rely on it.
UMCC argues that the government is barred from relying
on the Feil declaration because it is tainted by the unlawful
search conducted by the LAPD. We consider, then, whether
the Feil declaration must be excluded as the “fruit” of the
LAPD’s unconstitutional actions. See United States v. Crews,
445 U.S. 463, 470 (1980) (“[T]he exclusionary sanction
applies to any ‘fruits’ of a constitutional violation . . . .”). The
Fourth Amendment exclusionary rule applies to civil forfei-
ture proceedings. One 1958 Plymouth Sedan v. Pennsylvania,
380 U.S. 693, 696 (1965); United States v. $191,910.00 in
U.S. Currency, 16 F.3d 1051, 1063 (9th Cir. 1994), super-
seded by statute on other grounds as stated in United States
v. $80,180.00 in U.S. Currency, 303 F.3d 1182, 1184 (9th Cir.
UNITED STATES v. $186,416.00 IN U.S. CURRENCY 14629
2002). We review de novo the District Court’s refusal to set
aside the Feil declaration on these grounds. See United States
v. Crawford, 372 F.3d 1048, 1053 (9th Cir. 2004) (en banc).
[5] We recognize, as have other courts, that the fact-
intensive nature of Fourth Amendment cases demands that
each be evaluated on its own facts. United States v. Fifty-
Three Thousand Eighty-Two Dollars in U.S. Currency,
$53,082.00, 985 F.2d 245, 248 (6th Cir. 1993); see also
Brown v. Illinois, 422 U.S. 590, 603 (1975) (“The question
whether a [criminal defendant’s] confession is the product of
a free will . . . must be answered on the facts of each case.”).
To apply the exclusionary rule to the unique set of facts pres-
ented here, we must consider the rule’s dual purposes: to deter
similar police misconduct in the future and to preserve the
integrity of the courts. See Dunaway v. New York, 442 U.S.
200, 217-18 (1979). We have observed that “[w]hether the
twin aims of deterrence and judicial integrity warrant applica-
tion of the exclusionary rule depends largely on the facts of
each case.” Crawford, 372 F.3d at 1054.
[6] Before beginning our analysis we note that the exclu-
sionary rule is particularly well-suited to advance both of
these goals in the context of civil forfeiture proceedings. Law
enforcement agencies today depend, at least in part, on the
proceeds of forfeiture actions to finance their activities. See
Mark J. Crandley, A Plymouth, A Parolee, and the Police:
The Case for the Exclusionary Rule in Civil Forfeiture After
Pennsylvania Board of Probation and Parole v. Scott, 65 Alb.
L. Rev. 147, 160 (2001). The Supreme Court has recognized
that, as a consequence, the government has a substantial
financial stake in drug forfeitures. See United States v. James
Daniel Good Real Prop., 510 U.S. 43, 56 n.2 (1993) (citing
a 1990 memorandum by the Attorney General urging United
States Attorneys “to increase the volume of forfeitures in
order to meet the Department of Justice’s annual budget tar-
get”). Given the government’s strong financial incentive to
prevail in civil forfeiture actions, the application of the exclu-
14630 UNITED STATES v. $186,416.00 IN U.S. CURRENCY
sionary sanction in these cases is likely to prove especially
effective in deterring law enforcement agents from engaging
in illegal activity.2 Applying the exclusionary rule in forfei-
ture proceedings also protects judicial integrity by ensuring
that the courts do not serve as a conduit through which the
government fills its coffers at the expense of those whose con-
stitutional rights its agents violated.
Moreover, the exclusion of evidence in forfeiture proceed-
ings is without the major societal cost associated with exclu-
sion in criminal cases: setting a criminal free. Justice
Cardozo’s famous critique of the exclusionary rule, that it
allows “[t]he criminal . . . to go free because the constable has
blundered,” does not apply to forfeitures. People v. Defore,
150 N.E. 585, 587 (N.Y. 1926). The only tangible cost to
society from excluding evidence in a case like ours is mone-
tary, a far less compelling reason to restrict the rule’s applica-
tion than the risk of freeing a guilty party.
[7] To determine whether evidence, such as the Feil decla-
ration, is subject to exclusion as the fruit of a constitutional
violation, we must ask whether the evidence has been
obtained “by exploitation of [the] illegality or instead by
means sufficiently distinguishable to be purged of the primary
taint.” Wong Sun v. United States, 371 U.S. 471, 488 (1963)
(internal quotation marks omitted). Challenged evidence is
not considered the fruit of lawless police conduct when the
connection between the illegality and the evidence becomes
“so attenuated as to dissipate the taint.” Id. at 491 (internal
quotation marks omitted).
[8] As a preliminary step, it is plain that the Feil declaration
2
One observer contends that “[t]he deterrence to police misconduct cre-
ated by the exclusionary rule in civil forfeiture is unique because forfeiture
plays a large role in modern police work, officers have a financial stake
in seized assets, and the proceedings themselves are quasi-criminal.”
Crandley, 65 Alb. L. Rev. at 178.
UNITED STATES v. $186,416.00 IN U.S. CURRENCY 14631
was the product of the LAPD’s illegal activity. See New York
v. Harris, 495 U.S. 14, 19 (1990). “There is no question of
‘attenuation’ until the connection between the primary illegal-
ity and the evidence obtained is established.” Crawford, 372
F.3d at 1058 (quotation marks omitted). As the Supreme
Court has recognized, “most cases begin with the premise that
the challenged evidence is in some sense the product of illegal
governmental activity.” Crews, 445 U.S. at 471. This case is
no exception. The LAPD’s illegal search revealed the defen-
dant currency and allowed for its seizure. Feil, in turn, sub-
mitted his declaration for the express purpose of securing the
return of the illegally seized currency. This being so, there
indisputably is a strong connection between the unlawful
search and the Feil declaration.
The question then becomes whether the attenuated basis
exception applies. We observe that UMCC does not dispute,
nor would there be grounds for doing so, that Feil’s declara-
tion was “voluntary,” in the sense pertinent to the Fifth
Amendment. Nevertheless, whether a statement is voluntary
is merely a “threshold requirement” for admissibility. Brown,
422 U.S. at 604. For the “causal chain” between the illegality
and the subsequent statement to be broken, the statement also
must be “sufficiently an act of free will to purge the primary
taint.” Id. at 602 (quoting Wong Sun, 371 U.S. at 486). To
guide this inquiry, the Brown Court identified several factors
relevant to whether a statement is sufficiently attenuated from
the illegality as to be admissible: “[t]he temporal proximity of
the arrest and the confession, the presence of intervening cir-
cumstances, and, particularly, the purpose and flagrancy of
the official misconduct.” Id. at 603-04 (footnotes and internal
citation omitted). The Court also emphasized that the Fourth
Amendment cannot turn on any single “talismanic test,” given
the diverse “possibilities of misconduct” that exist. Id. at 603.
With this in mind, we now determine “[w]hether the twin
aims of deterrence and judicial integrity warrant application
of the exclusionary rule” under the unique facts of the present
14632 UNITED STATES v. $186,416.00 IN U.S. CURRENCY
case. Crawford, 372 F.3d at 1054. Applying the factors put
forth by the Supreme Court in Brown, we consider, first, that
Feil executed his declaration on May 12, 2005, nearly two
months after the illegal search of UMCC. While this is a rela-
tively long time, “there is no ‘bright-line’ test for temporal
proximity” in an attenuation analysis. United States v. Reed,
349 F.3d 457, 463 (7th Cir. 2003). Rather, we must consider
whether intervening circumstances may have purged the Feil
declaration of taint from the illegal search. Brown, 422 U.S.
at 603-04.
[9] Under this factor, we do not find any intervening cir-
cumstances that would allow us to say that Feil made “an
unconstrained, independent decision that was completely
unrelated to the initial unlawful violation.” United States v.
Washington, 387 F.3d 1060, 1074 (9th Cir. 2004) (internal
quotation marks and brackets omitted). Far from making an
“unconstrained, independent decision” to file his declaration,
Feil had to offer a declaration of ownership on UMCC’s
behalf, or else UMCC would have lost all hope of rectifying
the “initial unlawful violation” by the LAPD. Id. This is so
because at the time UMCC filed its motion for return of the
seized currency in state court, with the Feil declaration
attached, such a filing appeared to be its only option for
regaining the currency unlawfully seized by the LAPD. Feil’s
declaration, therefore, was not only closely tied to the
LAPD’s illegal activity but was virtually compelled by it.
[10] In addition, when discussing the first two attenuation
factors, we have held that “[i]t is not enough for Fourth
Amendment attenuation that [a] statement be uncoerced; the
defendant’s ‘free will’ must also be sufficient to render inap-
plicable the deterrence and judicial integrity purposes that jus-
tify excluding his statement.” United States v. Perez-Esparza,
609 F.2d 1284, 1289 (9th Cir. 1979). Considering Feil in
place of “the defendant” referenced in our precedent, we con-
clude that Feil’s act was not one of free will that would over-
come our substantial interests in deterring official illegality
UNITED STATES v. $186,416.00 IN U.S. CURRENCY 14633
and upholding judicial integrity. As we have discussed, Feil
could obtain return of UMCC’s illegally seized money only
by asserting UMCC’s ownership interest in the currency,
thereby leaving his decision well short of being a product of
an “unconstrained” and “independent” free will. Washington,
387 F.3d at 1074. At the same time, substantial deterrence
interests will be served by refusing to allow the government
to rely on the Feil declaration, given law enforcement’s strong
incentive to prevail in forfeiture actions. The integrity of this
court also is served by our refusal to allow the government to
profit from illegal activity by law enforcement when such
activity produces incriminating evidence like the Feil declara-
tion.
[11] The third attenuation factor is “the purpose and fla-
grancy of the official misconduct.” Brown, 422 U.S. at 604.
When applying for a warrant to search UMCC, the LAPD was
aware of extensive evidence to suggest that the Clinic may
have been operating in compliance with California law per-
mitting medical marijuana sales. Nevertheless, in its warrant
affidavit, the LAPD omitted any reference to this evidence
when applying to a state magistrate for a search warrant under
state law. The District Court properly found that the warrant
affidavit omitted the following undisputed facts:
• that Lopez [the first officer to arrive at UMCC]
and other officers at the clinic were repeatedly
told that UMCC was a valid medical marijuana
dispensary under California’s medical marijuana
laws, and were handed copies of the relevant stat-
utes and associated literature;
• that patients who entered the clinic held letters
from physicians recommending marijuana for
their ailments;
• that while LAPD officers were on the scene,
approximately fifty patients obtained marijuana
14634 UNITED STATES v. $186,416.00 IN U.S. CURRENCY
with doctor’s letters and without objection from
the officers;
• that Lopez was voluntarily buzzed in by UMCC
staff, who were polite and cooperative throughout
the encounter;
• and that Lopez was shown UMCC’s incorpora-
tion papers and a copy of its City of Los Angeles
Tax Registration Certificate for a retail business.
By omitting these facts, the LAPD misled a state judge into
perceiving UMCC’s conduct as criminal when, in fact, it was
probably legal under California law. This is no trivial distinc-
tion under California narcotics law. While designated owners,
operators, or employees of medical marijuana clinics are not
subject to state criminal liability for certain marijuana-related
offenses, see Cal. Health & Safety Code §§ 11362.7,
11362.765, individuals not covered by California’s medical
marijuana laws still face prison time if convicted of, among
other offenses, selling marijuana or possessing it for sale, id.
§§ 11359, 11360. Under California law these two situations
differ dramatically, and the difference hinges entirely on
information the LAPD failed to provide the state magistrate.
In short, the LAPD simply ignored copious evidence of
UMCC’s compliance with state law and failed to inform the
state court judge of it.
[12] This police misconduct is both highly objectionable
and closely connected to the Feil declaration. The LAPD’s
omission of crucial information from the warrant affidavit
enabled its illegal search of UMCC’s offices and its seizure
of the defendant currency. This, in turn, led directly to Feil’s
declaration as, without a statement of ownership, UMCC
would have been left without legal recourse to regain the cur-
rency that was illegally taken from its possession. Because
this unbroken “causal chain” links the initial illegality and
Feil’s subsequent statement, the Feil declaration is not “suffi-
UNITED STATES v. $186,416.00 IN U.S. CURRENCY 14635
ciently an act of free will to purge the primary taint” from the
LAPD’s unlawful actions. Brown, 422 U.S. at 602 (quoting
Wong Sun, 371 U.S. at 486).3
[13] We are particularly concerned by the possibility that
the LAPD might stand to profit from unlawful activity. It
would be objectionable that any unit of government might
profit from the LAPD’s actions, but even greater concern
arises here from the suggestion in UMCC’s opening brief, not
denied by the government, that the LAPD “stands to receive
up to 80% of any forfeiture obtained by the federal govern-
ment in this case.” Although the record on appeal contains no
indication of how any forfeiture proceeds might be divided
between the federal government and the LAPD, we recognize
the distinct and disturbing possibility that the LAPD could
profit from its own illegal activity, were the government to
3
The government cites United States v. Raposa, 84 F.3d 502 (1st Cir.
1996), as an example of a court holding that a voluntary statement was
“sufficiently an act of free will to purge the primary taint” of a prior illegal
search. Id. at 505 n.7 (quoting Wong Sun, 371 U.S. at 486). In Raposa, a
criminal defendant succeeded on a motion to suppress cocaine found in his
apartment as the fruit of an illegal search, but subsequently agreed to plead
guilty to a separate charge of heroin possession. Through his attorney, the
defendant submitted to the federal probation officer for inclusion in his
pre-sentence report (“PSR”) a signed statement in which he voluntarily
admitted ownership of the cocaine that had been suppressed. Id. at 503-05.
The First Circuit held that the exclusionary rule “clearly could not have
barred the district court from considering the defendant’s voluntary state-
ments as set forth in the PSR.” Id. at 505. Indeed, the “[d]efendant [did]
not and could not credibly argue that the statements recounted in the PSR
constituted a fruit of the illegal search conducted on the day of his arrest,”
for the statements were voluntarily submitted and were provided after the
ruling on the suppression motion. Id. at 505 n.7.
Feil likewise made a voluntary statement regarding ownership, but
Feil’s statement was made before the decision on the suppression motion,
was directly aimed at remedying the illegal seizure of the currency, and
so was tightly linked to the illegal seizure, as we have discussed. In
Raposa, in contrast, the defendant’s statements in the PSR were not so
motivated. Accordingly, we do not consider the reasoning in Raposa to be
relevant to the present case.
14636 UNITED STATES v. $186,416.00 IN U.S. CURRENCY
prevail. Under federal forfeiture statutes, the Secretary of the
Treasury is permitted to transfer forfeited property to “any
State or local law enforcement agency that participated
directly or indirectly in the seizure or forfeiture of the proper-
ty.” 19 U.S.C. § 1616a(c)(1)(B)(ii). The LAPD would qualify
to receive forfeited funds under this provision, should the fed-
eral government elect to make such a transfer.
[14] Accordingly, we exclude the Feil declaration as tainted
by the unlawful search and hold that the government may not
rely on it to establish probable cause for instituting its forfei-
ture action.4
2. Other Government Evidence
[15] The burden thus falls on the government to show that
it had probable cause to institute a forfeiture action against the
defendant currency, independent of the tainted and suppressed
evidence. $493,850.00 in U.S. Currency, 518 F.3d at 1169;
Driver, 776 F.2d at 812; One (1) 1971 Harley-Davidson
Motorcycle, 508 F.2d at 351 (holding that evidence may be
introduced in a forfeiture proceeding if it was “derived inde-
pendently” of an unconstitutional seizure of the res). In other
words, the government must demonstrate that at the time it
instituted the forfeiture action it had “reasonable grounds,”
separate from evidence connected to the illegal seizure of the
defendant currency, for believing that the cash money was
related to an illegal drug transaction. $493,850.00 in U.S.
Currency, 518 F.3d at 1169; One (1) 1971 Harley-Davidson
Motorcycle, 508 F.2d at 351. The evidence the government
offers us fails to meet this standard.
4
Having excluded the Feil declaration on Fourth Amendment grounds,
we need not reach UMCC’s other arguments against permitting the gov-
ernment to rely on the declaration, specifically that the government should
be judicially estopped from so relying and that the declaration should be
set aside on a rationale similar to that employed in Simmons v. United
States, 390 U.S. 377 (1968), and Safarik v. United States, 62 F.2d 892 (8th
Cir. 1933).
UNITED STATES v. $186,416.00 IN U.S. CURRENCY 14637
[16] The government points to the knowledge of UMCC’s
marijuana sales that it gained from LAPD officers’ observa-
tions on the day of the search, independent of the search itself.
These observations include Sergeant Lopez’s receipt of a flyer
advertising UMCC, his perception of the scent of marijuana
inside the UMCC building, the individuals he saw leaving the
Clinic with brown paper bags (as consistent with complaints
of marijuana smokers in the neighborhood holding such
bags), the statements that employees of UMCC made to
Lopez indicating that the Clinic sold marijuana, and another
officer’s corroborating observations. Although, taken
together, this evidence may indicate, as the government con-
tends, that UMCC was selling marijuana, the evidence does
not reference the defendant currency and thus cannot alone
establish any connection between UMCC’s marijuana sales
and the currency.
[17] According to the government, however, we must con-
sider this evidence in conjunction with the lack of evidence
suggesting that UMCC had any source of revenue apart from
marijuana sales. On this logic, there was probable cause to
believe that “any money found on the premises at UMCC rep-
resented proceeds of sales of marijuana, and was therefore
forfeitable.” Yet under our precedent we cannot consider in a
forfeiture proceeding the amount of currency that the govern-
ment illegally seized. $493,850.00 in U.S. Currency, 518 F.3d
at 1165 (citing $191,910.00 in U.S. Currency, 16 F.3d at
1059, 1065). This being so, we are left without a clue as to
whether currency of an unknown amount discovered at
UMCC was indeed revenue from the Clinic’s operations or
was, for instance, a small amount of personal cash that an
employee had acquired elsewhere and kept in a locked drawer
at work. Because we are precluded from considering how
much currency the LAPD illegally seized, we cannot agree
with the government that the mere presence of currency, of
any amount, at UMCC established probable cause to find that
such currency was connected to marijuana sales. See
$493,850.00 in U.S. Currency, 518 F.3d at 1165. Accord-
14638 UNITED STATES v. $186,416.00 IN U.S. CURRENCY
ingly, the government has failed to show that it had probable
cause to institute its forfeiture action against the defendant
currency.
III. Conclusion
[18] Having determined that the government failed to show
probable cause, we reverse the District Court’s denial of
UMCC’s motion for summary judgment and order the District
Court to enter judgment for UMCC.
REVERSED and REMANDED.