United States v. Song Cha ( 2010 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 09-10147
Plaintiff-Appellant, D.C. No.
v.  1:08-cr-00008-DDP
SONG JA CHA; IN HAN CHA, (JVEM)
Defendants-Appellees.
 OPINION
Appeal from the United States District Court
for the District of Guam
Dean D. Pregerson, District Judge, Presiding
Argued and Submitted
October 14, 2009—Honolulu, Hawaii
Filed March 9, 2010
Before: Robert R. Beezer, Susan P. Graber and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Beezer
3779
3782 UNITED STATES v. CHA
COUNSEL
Lisa J. Stark, United States Department of Justice, Washing-
ton, D.C., for the plaintiff-appellant.
UNITED STATES v. CHA 3783
G. Patrick Civille, Civille & Tang, PLLC, Hagåtña, Guam;
Howard Trapp, Howard Trapp Inc., Hagåtña, Guam, for the
defendants-appellees.
OPINION
BEEZER, Circuit Judge:
Song Ja Cha (“Ms. Cha”) and In Han Cha (“Mr. Cha”)
were charged with the federal crimes of conspiracy, sex traf-
ficking and coercion, and enticement to travel for the purpose
of prostitution in violation of 18 U.S.C. §§ 2, 371, 1591(a),
1594, and 2242. In the pretrial hearing before the magistrate
judge, the Chas moved to suppress evidence that had been
seized pursuant to a warrant at their house and adjoining busi-
ness, the Blue House Lounge. The magistrate judge concluded
that, although the police had probable cause to seize these
premises while they obtained a warrant, the warrantless sei-
zure was unreasonably long in violation of the Fourth Amend-
ment to the U.S. Constitution. The district court agreed with
the magistrate judge’s conclusions, and the United States
brought an interlocutory appeal to this court. We conclude
that the seizure of the Cha residence, which lasted a minimum
of 26.5 hours, was constitutionally unreasonable and that sup-
pression of the evidence was warranted. We therefore affirm.
I
It was Saturday evening, January 12, 2008, in Tamuning,
Guam, when Officers Manibusan and Laxamana pulled into
the parking lot of the Blue House Lounge karaoke bar to
investigate a report they had received earlier that evening.
Sonina Suwain (“Ms. Suwain”), who was from Chuuk, had
reported that the owner of the Blue House Lounge, Ms. Cha,
had Ms. Suwain’s passport and was refusing to return it.
When the officers arrived at the Blue House Lounge, Ms.
3784 UNITED STATES v. CHA
Suwain told the officers that two of her cousins from Chuuk,
Cindy and Vivian,1 were being held inside the Blue House
Lounge against their will.
Officer Manibusan sent Officer Tan, who had just arrived
with several other officers, into the Blue House Lounge to
find Cindy and Vivian so he could determine whether they
were there “on their own free will.” When Officer Tan
entered the lounge, the karaoke machine was playing and cus-
tomers were drinking at the bar. He found Cindy waiting
tables. Officer Tan asked the bartender where he could find
Vivian, and the bartender pointed to several numbered doors
in the back of the restaurant. Officer Tan recognized these
rooms as “comfort rooms,” which are fairly common in
karaoke bars in Guam. In these rooms, customers “can buy
drinks and take the waitress into the room and watch TV or
sing songs or just chat.” Officer Tan heard a woman’s voice
coming from one of the comfort rooms and knocked on the
door. Vivian emerged looking disheveled, and a man stood
hiding behind the door with his pants “barely on”—unzipped,
unbuttoned, and unbuckled.
Once Officer Tan and the two women were outside, the
women, crying, reported that they were being prostituted
against their will. They maintained that Ms. Cha kept their
passports and that if they refused to have sex with a customer,
Ms. Cha would refuse to feed them that night. Hearing this,
Officer Manibusan ordered Ms. Cha to close up for the eve-
ning even though the bar would normally stay open much
later. The officers interviewed each customer before the cus-
tomer left the bar.
After all the customers left the establishment, Officer
Manibusan asked Ms. Cha to give him and a few other offi-
cers a “tour.” Other officers completed a detailed “scene
1
It was later determined that “Cindy” and “Vivian” were pseudonyms.
Cindy’s real name is Simirina Samuel, and Vivian’s is Daileen Robert.
UNITED STATES v. CHA 3785
check.” The officers’ tour extended into the Chas’ residence,
which was connected to the Blue House Lounge by a hidden
door. There, the officers found Mr. Cha asleep. They woke
him and forced him outside.
With the “scene check” complete, Officer Manibusan
instructed the Chas to lock up. Mr. Cha did so and kept the
keys. All of the officers drove away, while the Chas escorted
the women in their car down to the police station. It was 1
a.m. Sunday morning.
The officers interviewed the women throughout the night.
Ms. Cha was not allowed to leave the precinct and was ulti-
mately arrested at 6 a.m. Mr. Cha, however, remained free
throughout, leaving at least once to get Ms. Cha some food.
At about 8 a.m., Mr. Cha returned home to find a police
officer outside, guarding the house. He called his lawyer, Mr.
Van de veld, anxiously recounted the night’s events and told
Mr. Van de veld that “the police were still there and would
not allow him access to the premises.” Mr. Van de veld told
Mr. Cha that he would stop by as soon as he finished his golf
game.
Around 12:45 p.m., Mr. Van de veld, with his golf buddies
in tow, arrived at the Cha residence. The officers informed
him that the Blue House Lounge and the Cha residence had
been “detained” since around midnight and that no one was
allowed to enter the premises. Mr. Van de veld left to drive
his friends home.
When Mr. Van de veld returned to the Blue House Lounge
at 2:30 p.m., Mr. Cha was still waiting outside. Mr. Van de
veld was concerned about Mr. Cha’s health because, earlier
that afternoon, Mr. Cha looked “pale and was perspiring
heavily.” Knowing that Mr. Cha had diabetes, Mr. Van de
veld asked if the police would allow Mr. Cha to find his insu-
lin and glucose monitor inside the house. The police refused.
3786 UNITED STATES v. CHA
It was four hours later, at 7 p.m., when an officer finally
accompanied Mr. Cha into the house to get his medicine.
Afterward, Mr. Cha and Mr. Van de veld waited outside Mr.
Cha’s house until 1 a.m. Monday morning when Mr. Van de
veld went home to get some sleep. The record does not reveal
where Mr. Cha slept while his house was “detained” through
the night.
While Mr. Cha had been waiting outside his house all Sun-
day, the police had been back at the precinct preparing the
warrant application. At about 9:20 Sunday morning, Officer
Perez, who had not previously been involved in the case,
received a call from his supervisor and was told to come into
the office at noon for a briefing. At the briefing, Officer Perez
was tasked with preparing the warrant application. But it was
not until six-and-a-half hours later that he actually began
work on the application; he wanted to wait to receive and
review all the police reports first.
So, while more interviews were conducted and the investi-
gation continued, Officer Perez changed the caption on the
warrant application and updated his background information.
He “urgently” worked from 6:30 to 9:15 p.m. Sunday to finish
the application because, under a Guam ordinance, there was
a presumption against searches conducted after 10 p.m. But
when he found that he could not meet the 10 p.m. deadline,
he worked until 4 a.m. to finish the warrant application. And,
after he returned to work at 7:50 a.m. on Monday morning,
Officer Perez brought the application to the Chief Prosecutor,
who had made an unusual request to review the warrant appli-
cation. Officer Perez then unsuccessfully searched for a mag-
istrate judge throughout the morning. He finally found a
magistrate judge to issue the warrant at 10:25 a.m. Monday.
Even with the warrant in hand, the police did nothing with
the warrant for almost three hours. It was 1:15 p.m. when
Officer Perez finally called Mr. Cha’s lawyer and told him
that the search would be conducted at 2 p.m.—which hap-
UNITED STATES v. CHA 3787
pened to coincide with Ms. Cha’s 2 p.m. arraignment. Mr.
Van de veld requested that the police wait until after the
arraignment to begin the search, but the police refused. By the
time that Mr. Cha and Mr. Van de veld returned from the
courthouse, the police had already began the search at the
Blue House Lounge and Cha residence. The search concluded
at 1 a.m. Tuesday, when Mr. Cha was finally allowed back
into his house. An arrest warrant issued for Mr. Cha a few
weeks later, on February 7, 2008.
In a pretrial hearing, the Chas moved to suppress the evi-
dence seized at their house and the Blue House Lounge. The
magistrate judge recommended and the district court con-
cluded that the warrantless seizure of the Cha residence was
unconstitutionally long. The district court ordered the evi-
dence suppressed.
II
The United States appeals the suppression of the evidence
pursuant to 18 U.S.C. § 3731, certifying that the evidence
suppressed constituted substantial proof of material fact in the
proceeding. We thus have interlocutory appellate jurisdiction
pursuant to that statute. We review de novo the district court’s
decision to suppress the evidence, and we review its factual
findings supporting that decision for clear error. See United
States v. Jones, 286 F.3d 1146, 1150 (9th Cir. 2002).
III
[1] It is undisputed that the police officers had probable
cause and that the officers were allowed to seize the Blue
House Lounge and Cha residence for a reasonable time while
they obtained a warrant. “Of course, a seizure reasonable at
its inception . . . may become unreasonable as a result of its
duration or for other reasons.” Segura v. United States, 468
U.S. 796, 812 (1984) (plurality opinion). Neither the Supreme
Court nor this Circuit has identified when a warrantless sei-
3788 UNITED STATES v. CHA
zure of a residence becomes unconstitutionally long. Here, the
police seized the Cha house for at least 26.5 hours—from 8
a.m. on Sunday, January 13, 2008 to 10:25 a.m. on Monday,
January 14, 2008.2 Under the circumstances of this case, the
duration of this seizure was too long under the Fourth Amend-
ment.
[2] The Supreme Court in Illinois v. McArthur set forth the
relevant test for determining the reasonableness of a seizure
of a residence. 531 U.S. 326 (2001). Under this test, we are
to “balance the privacy-related and law enforcement-related
concerns” using four factors: (1) whether the police had prob-
able cause to believe that the defendant’s residence contained
evidence of a crime or contraband; (2) whether “the police
had good reason to fear that, unless restrained,” the defendant
would destroy the evidence or contraband before the police
could return with a warrant; (3) whether “the police made rea-
sonable efforts to reconcile their law enforcement needs with
the demands of personal privacy”; and (4) whether “the police
imposed the restraint for a limited period of time”—in other
words, whether the “time period was no longer than reason-
ably necessary for the police, acting with diligence, to obtain
the warrant.” Id. at 331-32.
[3] Because the police officers had probable cause, the first
factor favors the government. But the other three factors favor
2
The parties have argued at length regarding when the seizure occurred.
The Chas argued that the premises were seized at 1:30 a.m. Sunday, and
the government initially argued that the seizure did not occur until 9:22
a.m. In its brief and at oral argument, the government essentially conceded
that the seizure occurred at 8 a.m. See Appellant’s Br. at 25 (noting that
the police did not restrict access to the Blue House Lounge “until an offi-
cer was posted on the premises—no earlier than 8:00 a.m. Sunday”). The
district court adopted the Chas’ argument that the seizure occurred at 1:30
a.m. Sunday. We need not decide whether the premises were seized at
1:30 a.m., however. Even if the premises were seized at 8 a.m. as the gov-
ernment argues, the seizure would have lasted 26.5 hours. As discussed,
we hold that this length of time is constitutionally unreasonable.
UNITED STATES v. CHA 3789
the Chas. The district court’s finding under the second factor
that the government did not have good reason to fear that Mr.
Cha would destroy evidence is not clearly erroneous.
[4] The third factor weighs in favor of the Chas because
the government did not make “reasonable efforts to reconcile
their law enforcement needs with the demands of personal
privacy.” Id. at 332. In McArthur, the Supreme Court con-
cluded that the third factor weighed against the defendant in
part because the officers allowed the defendant to enter his
trailer home accompanied by an officer whenever he wished.
Id. But the police did not allow Mr. Cha to enter his residence
even with police accompaniment for 11 hours after he sought
permission to enter his house and more than four hours after
the police were informed that Mr. Cha needed medicine for
his diabetes.
[5] Under the fourth factor, the duration of the seizure in
this case was much longer than in McArthur—at least 26.5
hours instead of only two. And although the United States
argues that the police officers “were extraordinarily diligent
and worked tirelessly around the clock in their pursuit of a
search warrant,” Appellant’s Br. at 33, the McArthur test asks
only how long was reasonably necessary for police, acting
with diligence, to obtain the warrant. Here, even if the police
officers acted diligently during the seizure interviewing wit-
nesses multiple times and drafting a meticulous warrant appli-
cation, they took a much longer time than was reasonably
necessary to obtain the warrant. The government already had
probable cause by 1 a.m. Sunday. See Appellant’s Br. at 4, 15.
And the magistrate judge who authored the report and
recommendation—a magistrate judge in Guam and familiar
with warrant procedure there—admonished, “Police officers
on Guam know that when exigent circumstances are present
and there is an urgency to obtain a search warrant, a detached
magistrate may be located at any hour to approve a warrant
application.”
3790 UNITED STATES v. CHA
Segura v. United States also supports the conclusion that
the seizure here was unreasonable. In Segura, the Supreme
Court concluded that a 19-hour warrantless seizure was rea-
sonable under the circumstances. 468 U.S. at 798, 801. The
two Justices to expound on the seizure’s duration cited three
reasons why the seizure was reasonable. They noted that the
officers did not exploit the delay in obtaining the warrant, that
only eight hours of the delay was during the hours of 10 a.m.
to 10 p.m.—when they assumed judicial officers were not
readily available—and that both the defendants who had pos-
sessory interests in the residence were under arrest or in the
custody of the police during the entire occupation. Id. at
812-13 (plurality opinion).
[6] Here, although there was no evidence of bad faith, the
delay was much longer: at least 26.5 hours instead of 19.
Also, in Segura, the seizure occurred at night, and more than
half of the delay occurred before 10 a.m. the next morning. Id.
Here, however, the seizure occurred in the morning, and the
officers had all day Sunday to obtain the warrant before the
late-night-hour of 10 p.m.3 Also contrary to the assumption in
Segura, a judicial officer was available to the police even at
night. And, unlike the defendants in Segura, Mr. Cha was not
3
The two Justices to reach the question in Segura noted that “more than
half of the 19-hour delay was between 10 p.m. and 10 a.m. the following
day.” Segura, 468 U.S. at 812-13 (plurality opinion). Because the apart-
ment in Segura was seized at about 11:15 p.m. and the warrant was issued
at 6 p.m. the following day, there were eight hours between 10 a.m. and
10 p.m. The United States, here, attempts to argue that more than half of
the delay in this case was also at night. See Appellant’s Br. at 29, 33. This
analogy verges on the nonsensical. In any delay longer than a day, roughly
half of the time will always be between 10 p.m. and 10 a.m. Thus, it
makes more sense to read the Justices’ statement as pointing out the abso-
lute numbers of non-late-night hours available to the police and not the
relative number of hours available. Here, the seizure took place at least
between 8 a.m. on Sunday and 10:25 a.m. on Monday. Thus, 12.5 hours
were between the hours of 10 a.m and 10 p.m. Moreover, assuming that
the seizure began at 8 a.m. Sunday morning, the initial seizure occurred
during daylight hours.
UNITED STATES v. CHA 3791
under arrest or in the custody of the police but rather sought
entry to his residence. His possessory interests were therefore
quite strong instead of “virtually nonexistent.” Id. at 813.4 In
light of the Supreme Court’s discussion of the two-hour sei-
zure in McArthur and the two Justices’ discussion of the 19-
hour seizure in Segura, Supreme Court precedent strongly
suggests that the length of the seizure at issue in this case was
unreasonable.5
[7] Ninth Circuit precedent also supports our conclusion
that the seizure was unreasonable. In United States v. Holz-
man, applying the Segura test, we concluded that the 13-hour
seizure of a hotel room was reasonable. 871 F.2d 1496,
1507-08 (9th Cir. 1989), overruled on other grounds by Hor-
ton v. California, 496 U.S. 128 (1990). The facts in this case
that distinguish Segura also distinguish Holzman. The seizure
here was much longer than the 13-hour seizure in Holzman.
The Holzman seizure took place at midnight, and the search
was conducted that same afternoon at 1 p.m. And the defen-
dants were both under arrest in Holzman, whereas Mr. Cha
was not under arrest. See id. at 1499.
Cases that have allowed the seizure of packages for a lon-
ger period of time than involved here do not cast doubt on our
decision. See, e.g., United States v. Van Leeuwen, 397 U.S.
249, 253 (1970) (holding that seizure of package of stolen
4
As the magistrate judge noted, this factor applies differently to Ms.
Cha because she was under arrest during the entire period, but the overall
analysis under McArthur and Segura would make the seizure unreasonable
as to Ms. Cha as well.
5
The United States relies heavily on a Guam Ordinance that provides a
presumption against searches between the hours of 10 p.m. and 6 a.m. See
Guam Code Ann. tit. 8, § 35.20(c). The government delayed much longer
than this time frame, however. Additionally, this section provides that
warrants cannot be executed between 10 p.m. and 6 a.m. “unless the court,
by appropriate provision in the warrant and for reasonable cause shown,
authorizes its execution [during these hours].” In view of this exception,
too, the United States’ reliance on this section is misplaced.
3792 UNITED STATES v. CHA
coins for 29 hours was reasonable); United States v. Gill, 280
F.3d 923, 929 (9th Cir. 2002) (holding that six-day delay of
package was reasonable). That a package may be seized for
a longer period of time than a residence is logical given the
heightened constitutional protection “preserving the privacy
and sanctity of the home.” Payton v. New York, 445 U.S. 573,
588 (1980); see id. at 585, 589. “[A] man’s house is his cas-
tle,” id. at 596, 598, whether it is under siege by police offi-
cers prying into his possessions stored within or whether they
exclude him from its sanctuary.
The poignant facts of this case demonstrate why Fourth
Amendment possessory and privacy interests are greatly
affected by the seizure of a dwelling. Mr. Cha was rendered
homeless for the duration of the seizure. When he left his wife
at the police station at 8 a.m., he went home only to find that
he was barred from entering. He then waited outside his house
for most of the day until 7 p.m. when an officer finally
accompanied him to retrieve his diabetes medicine. He then
waited outside his residence until at least 1 a.m. The next day
he waited outside as well, only to travel to his wife’s arraign-
ment. The search began at 2 p.m., and he helped the officers
during the search that lasted until 1 a.m. Tuesday morning.
Only then was he allowed to return to his house—nearly 48
hours after being excluded.6
6
The United States also cites Dixon v. Wallowa County to argue that we
have recognized a “crime scene exception” to the warrantless seizure rule
that would allow for warrantless seizures of unlimited duration. See
Appellant’s Br. at 41 (citing Dixon v. Wallowa County, 336 F.3d 1013 (9th
Cir. 2003)). We did not address the reasonableness of the seizure’s dura-
tion in Dixon. But more importantly, there is no “crime scene exception”
to the Fourth Amendment. “[S]earches and seizures inside a home without
a warrant are presumptively unreasonable.” Payton, 445 U.S. at 586. With
probable cause, the police may seize a residence for a reasonable period
of time to prevent the destruction of evidence while a warrant is obtained.
See McArthur, 531 U.S. at 337. The Fourth Amendment makes no further
distinction between a house and a “crime scene.”
UNITED STATES v. CHA 3793
[8] Under Segura, McArthur, and Holzman, we conclude
that the 26.5-hour warrantless seizure of the Cha residence
was unreasonable.
IV
The United States argues that even if the seizure of the Cha
residence was unreasonable, the evidence seized pursuant to
the delayed warrant should not be suppressed because the evi-
dence was not the “fruit” of the unreasonable seizure. See
Appellant’s Br. at 19-23.7 We agree that the fruit of the poi-
sonous tree doctrine does not apply, but we hold the evidence
must be suppressed in this case as a direct result of the Fourth
Amendment violation.
[9] It is clear that the evidence cannot be excluded as
“fruit” of the unreasonable seizure because the evidence was
not the “product” of the illegality and because the warrant
provided an “independent source” for the information.
[10] Here, the evidence was not the “product” of the
unconstitutional action because the unconstitutional seizure
was not the “but for” cause of the discovery of the evidence.
See, e.g., Segura, 468 U.S. at 815; United States v. Ankeny,
7
The Chas argue that the government has waived this argument because
the government raised it for the first time in its objections to the magistrate
judge’s report and recommendations. A district judge has discretion to
consider new evidence or legal arguments made only in the objections to
the magistrate judge’s report, but “the district court must actually exercise
its discretion, rather than summarily accepting or denying the motion.”
Brown v. Roe, 279 F.3d 742, 744 (9th Cir. 2002) (internal quotation marks
omitted). Here, the district judge merely stated without elaboration that
“[u]pon said [de novo] review, the court finds that the objections to the
Magistrate Judge’s Report and Recommendations are not well-taken.”
This boilerplate language is not enough. See id. at 745. With no decision
to review for abuse of discretion, we conclude for ourselves that the argu-
ment should be considered because it involves a legal question and no fur-
ther factual development is necessary. See Janes v. Wal-Mart Stores Inc.,
279 F.3d 883, 888 n.4 (9th Cir. 2002).
3794 UNITED STATES v. CHA
502 F.3d 829, 836-38 (9th Cir. 2007) (not deciding whether
the execution of the search warrant in an allegedly violent
manner made the search unreasonable because the evidence
would have been discovered whether violence was used or
not). Because the police officers initially had probable cause,
it is irrelevant how long they seized the Cha residence
because the length of the seizure outside the house could
never lead to the discovery of the evidence.
In a similar vein, because the Chas do not argue the initial
entry and “scene check” of their residence was unconstitu-
tional, the witnesses’ testimony derived from this entry pro-
vided sufficient probable cause for the warrant. The warrant
thus provided an independent source for the evidence, dissi-
pating the taint from the unconstitutional action. See, e.g.,
United States v. Salas, 879 F.2d 530, 536-39 (9th Cir. 1989)
(holding sufficient evidence derived independently of, and
prior to, unconstitutional entry rendered warrant valid and not
tainted). Thus, the evidence was not excludable on the basis
of the fruit of the poisonous tree doctrine.
V
[11] Our analysis does not end there, however. Although
not excludable as fruit of the poisonous tree, the evidence
must be suppressed as a direct result of the constitutional vio-
lation. United States v. Dass holds that the exclusionary rule
is applicable to unreasonably long seizures. 849 F.2d 414, 414
(9th Cir. 1988). In that case, we specifically concluded that it
is irrelevant whether the evidence is the “product” or “fruit”
of the unconstitutional delay:
[W]e reject the government’s argument that it did
not benefit from the delay. The police established
probable cause at the moment of the dog sniff; there-
fore, it argues, the government’s “constitutional
position” did not change as the seizure continued.
Such a contention undercuts two goals of the fourth
UNITED STATES v. CHA 3795
amendment—deterring unreasonable police behavior
and judicial determination of probable cause. The
government’s theory would allow an unlimited
period of seizure without judicial intervention; to
accept its argument would nullify the seizure portion
of the search and seizure clause of the fourth amend-
ment. This we will not do.
Id. at 415-16 (citations omitted); see United States v. Rodri-
guez, 869 F.2d 479, 486 (9th Cir. 1989) (“So long as the ‘sei-
zure’ of the premises was supported by probable cause, and
not otherwise unreasonable, items subsequently seized under
the valid warrant are not directly excludable.” (emphasis
added)). McArthur and Segura also assumed the evidence
would have been excluded if the Court had concluded that the
seizures were unreasonable. See McArthur, 531 U.S. at 329
(reversing the trial court’s order granting suppression);
Segura, 468 U.S. at 804 (“The only issue here is whether [the]
drugs . . . should have been suppressed.”).
Finally, the Supreme Court’s recent decision, Herring v.
United States, does not change our decision to affirm suppres-
sion of the evidence. 129 S. Ct. 695 (2009). In Herring, police
officers arrested the defendant, relying on a warrant from
another county. Id. at 698. Although the warrant appeared to
be valid in the police database system, the warrant had been
recalled five months earlier. Id. Because of a clerical error,
the system had not been updated. Id. The defendant was
indicted for possessing drugs and a pistol, which were found
on his person when he was searched incident to his arrest
under the invalid warrant. Id. at 698-99. The Supreme Court
affirmed the district court’s and Eleventh Circuit’s decisions
to admit the evidence. Id. at 699.
[12] The Herring Court explained that Supreme Court
cases apply the exclusionary rule to “deliberate, reckless, or
grossly negligent conduct, or in some circumstances recurring
or systemic negligence.” Id. at 702. It concluded that because
3796 UNITED STATES v. CHA
the exclusionary rule is triggered only if police conduct is
“sufficiently deliberate that exclusion can meaningfully deter
it, and sufficiently culpable that such deterrence is worth the
price paid by the justice system,” id., the marginal deterrence
of excluding evidence that was the result of isolated, “nonre-
curring and attenuated negligence” did not “ ‘pay its way,’ ”
id. at 702, 704. The Court noted that it was “crucial to [its]
holding” that the Eleventh Circuit concluded that the police
error was merely negligent and that the “question presented
treat[ed] the error as a ‘negligen[t]’ one.” Id. at 700 & n.1.
Because Herring only applies to isolated police negligence,
it does not bar suppression here because the police conduct
was deliberate, culpable, and systemic.
The police conduct was sufficiently deliberate. The United
States cites Herring and argues that application of the exclu-
sionary rule is not justified in this case because “the police did
not engage in intentional misconduct when they seized the
premises.” Appellant’s Br. at 23. This argument misses the
mark. Herring holds only that the conduct triggering applica-
tion of the exclusionary rule cannot be merely negligent
because it must be sufficiently deliberate that it can be
deterred. Herring, 129 S. Ct. at 700 & n.1, 704. Herring
emphasizes that the standard is “objective, not an ‘inquiry into
the subjective awareness of arresting officers.’ ” Id. at 703.
The case applies the good-faith standard espoused in United
States v. Leon—“ ‘whether a reasonably well trained officer
would have known that the search [or seizure] was illegal.’ ”
Id. (quoting United States v. Leon, 468 U.S. 897, 922 n.23
(1984)); see United States v. Gonzalez, 578 F.3d 1130, 1132
(9th Cir. 2009) (noting that Herring employs Leon’s good
faith standard).
Herring’s emphasis on an objective reasonableness stan-
dard is paramount here where the officers made a mistake of
law, rather than a mistake of fact. In Herring, the police offi-
cers made a mistake of fact—whether an arrest warrant
UNITED STATES v. CHA 3797
existed for the defendant. Here, the officers made a mistake
of law—they did not realize that a seizure must last “no lon-
ger than reasonably necessary for the police, acting with dili-
gence, to obtain the warrant.” McArthur, 531 U.S. at 332.
Our precedent distinguishes between mistakes of fact and
mistakes of law because mistakes of law can be deterred more
readily than mistakes of fact. In United States v. Lopez-Soto,
we concluded that “there is no good-faith exception to the
exclusionary rule for police who do not act in accordance with
governing law.” 205 F.3d 1101, 1106 (9th Cir. 2000). We
emphasized that “[t]o create [such] an exception . . . would
defeat the purpose of the exclusionary rule, for it would
remove the incentive for police to make certain that they
properly understand the law that they are entrusted to enforce
and obey.” Id.8
[13] The Guam police officers’ deliberate conduct in this
case demonstrates why mistakes of law can and should be
deterred. Officer Perez testified that he was never taught at
the police academy that “ ‘time was of the essence’ once the
police have secured a premises” or “that the police had to act
with deliberate haste to obtain the warrant.” See McArthur,
531 U.S. at 332. Indeed, the United States argues that “Officer
Perez . . . did not know that he had a duty to diligently pursue
the drafting and eventual approval of the warrant by a
detached magistrate.” Appellant’s Br. at 23. The Guam police
department’s failure to know the governing law was reckless
behavior; the police officers were a far stretch from Leon’s
“reasonably well trained officer.” In fact, the magistrate judge
found that the officers involved should have known that when
“there is an urgency to obtain a search warrant, a detached
8
Herring did not discuss mistakes of law, and our cases holding that the
good-faith exception does not apply to mistakes of law are still good law.
See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc) (noting
that prior circuit authority is still good law unless “clearly irreconcilable”
with an intervening Supreme Court case).
3798 UNITED STATES v. CHA
magistrate may be located at any hour to approve a warrant
application.” It is clear that the police errors here were much
more troubling than the negligence in Herring—the conduct
was in reckless disregard of the Fourth Amendment’s reason-
able seizure requirement.
[14] The police conduct here was also “sufficiently culpa-
ble that . . . deterrence is worth the price paid by the justice
system.” Herring, 129 S. Ct. at 702. The police seized the
Chas’ house for a minimum of 26.5 hours while Mr. Cha
waited outside for the majority of the time—even to the early
hours of the morning. The police refused to allow Mr. Cha to
enter his house accompanied by a police officer to retrieve his
diabetes medication for four hours. And, as the district court
found, none of this delay was “unavoidable”—the officers
had probable cause at 1 a.m., and Officer Perez could have
drafted the warrant application at least after the 12 p.m. brief-
ing. The officers, however, had a “nonchalant attitude” and
proceeded in a “relaxed fashion.”
Not only were the police errors deliberate and culpable,
they were systemic. Although the officers raided the Chas’
prostitution business at 1 a.m. Sunday, the officer tasked with
preparing the warrant application was told only to arrive at the
police station at noon. The investigating officers were sup-
posed to have their reports completed by 3 p.m., but they did
not finish them until 6:30 p.m.; it is unclear whether they
knew that the premises had been secured at all. Officer Perez
had a “personal preference” to read the reports, so he waited
until 6:30 p.m. on Sunday to begin drafting the warrant appli-
cation. And further delay was occasioned by the Chief Prose-
cutor, who asked to review the warrant application Monday
morning. Finally there was no departmental training or proto-
col instructing the officers that a warrant must be secured rea-
sonably quickly after a premises has been seized. As far as
this record shows, the “nonchalant attitude” that the district
court condemned was pervasive in the Guam law enforcement
apparatus.
UNITED STATES v. CHA 3799
VI
At oral argument, the United States asked us to remand to
the district court to allow the district court to address the Her-
ring analysis in the first instance if we concluded that the sei-
zure was unconstitutional. Remand is not appropriate or
necessary, however. First, at oral argument, the United States
relied on United States v. Monghur to argue that remand is
necessary. 576 F.3d 1008 (9th Cir. 2009). Monghur reversed
the district court’s conclusion that the police action was con-
stitutional and remanded for application of Herring, which
had been decided after the district court’s opinion. Id. at
1013-14. But after oral argument in this case, Monghur was
amended to vacate the order of suppression without remand-
ing for application of Herring. 588 F.3d 975 (9th Cir. 2009).
Thus, the case on which the United States relies no longer
supports its argument.
Second, Herring addressed a new question of law—
whether the exclusionary rule applies when police officers
negligently rely on a database error indicating that an arrest
warrant is still valid. Here, however, this court has already
concluded that the exclusionary rule is applicable where sei-
zures are unconstitutionally long. Dass recognized that exclu-
sion was necessary to deter unreasonable police behavior and
to provide for judicial determination of probable cause. 849
F.2d at 416. Herring does not require this Circuit to re-
analyze and re-balance each category of cases to which it has
applied the exclusionary rule over the past decades.
Third, we review de novo the district court’s decision to
suppress the evidence. The district court made sufficient fac-
tual findings to support the legal determination under Herring
that suppression was warranted and that the police conduct
was reckless and systemic. Our conclusion that deliberateness
and culpability are legal determinations is supported by the
Herring decision itself: the Supreme Court applied the district
3800 UNITED STATES v. CHA
court’s factual findings to determine that suppression was not
justified.
Fourth, Herring was decided before the magistrate judge
issued his report and recommendations. And in its objections
to the magistrate judge’s report, the United States made a
three-page, detailed argument that suppression was inappro-
priate under Herring. The district court reviewed these objec-
tions de novo but agreed with the magistrate judge that
suppression was the appropriate remedy. Thus, we decline the
United States’ invitation to remand for further litigation on
this issue.
VII
[15] We hold that the 26.5-hour seizure of the Cha resi-
dence was unreasonably long and that the district court cor-
rectly suppressed the evidence.
AFFIRMED.