United States v. Royce Jobe ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-50204
Plaintiff-Appellant,
D.C. No.
v. 2:17-cr-00003-GW-1
ROYCE LEQUIENT JOBE,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Argued and Submitted May 17, 2019
Pasadena, California
Filed August 9, 2019
Before: Kim McLane Wardlaw and Andrew D. Hurwitz,
Circuit Judges, and Edward R. Korman, * District Judge.
Opinion by Judge Korman
*
The Honorable Edward R. Korman, United States District Judge
for the Eastern District of New York, sitting by designation.
2 UNITED STATES V. JOBE
SUMMARY **
Criminal Law
The panel reversed the district court’s order suppressing
evidence found on a laptop that was seized pursuant to a
State of California warrant and searched pursuant to a
federal warrant.
The panel accepted that there was insufficient probable
cause to seize the laptop, but held that a DHS special agent’s
affidavit supporting the state warrant contained sufficient
information to render his reliance on the state warrant to
seize the laptop reasonable.
The panel held that even assuming that the 21-day delay
between the seizure of the laptop pursuant to the state
warrant and the search of the laptop pursuant to the federal
warrant was unreasonable, suppression is not warranted.
The panel explained that the delay does not evince
negligence on the part of the special agent, let alone
deliberate and culpable misconduct; that the record does not
suggest recurring or systemic negligence; that the special
agent’s good-faith efforts to comply with the Warrant Clause
of the Fourth Amendment indicate that his conduct was not
“sufficiently culpable that such deterrence is worth the price
paid by the justice system”; and that there is no indication
that the special agent believed he was depriving the
defendant of a legitimate possessory interest.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. JOBE 3
COUNSEL
Bram M. Alden (argued), Assistant United States Attorney;
L. Ashley Aull, Chief, Criminal Appeals Section; Nicola T.
Hanna, United States Attorney; United States Attorney’s
Office, Los Angeles, California; for Plaintiff-Appellant.
Margaret A. Farrand (argued), Deputy Federal Public
Defender; Hilary Potashner, Federal Public Defender; Office
of the Federal Public Defender, Los Angeles, California; for
Defendant-Appellee.
OPINION
KORMAN, District Judge:
On or about October 26, 2016, Department of Homeland
Security (“DHS”) agents received a tip that marijuana was
being grown at an address in Van Nuys, California. The
tipper stated that shortly after Royce Jobe moved in next
door, “a brown privacy fence was constructed to hide the
view of the detached garage on the property,” “a strong smell
of marijuana” began emanating from the house, and there
had been “a lot of activity in the late evening at the house
including multiple vehicles arriving and individuals coming
and going.” On or about November 3, Special Agent Paul
Cotcher found that the utilities account associated with the
residence was not registered under Jobe’s name. Cotcher
prepared an affidavit outlining the information in the tip and
stating that power use for the property had spiked, Jobe had
prior convictions for possession of a firearm and marijuana,
and Jobe had a business registered as “420 Boutique,” a
reference to marijuana. The affidavit also stated that Cotcher
4 UNITED STATES V. JOBE
had observed “PVC piping, planters, and cooling fans”
attached to and around the garage.
Based on that affidavit, on November 21, a California
state judge issued a warrant authorizing a search of Jobe’s
residence and the seizure of certain property, including
“[a]rticles of personal property tending to establish and
document sales of [marijuana,] . . . including . . . hard
drives.” The next day, on November 22, Cotcher and other
officers executed the warrant and seized, among other items,
drugs, a pistol, Jobe’s laptop and other electronic devices.
The laptop was not searched at that time.
After the evidence was seized, Cotcher contacted the
United States Attorney’s Office (“USAO”) to ask whether
the case would be prosecuted federally. Over the next ten
days, Cotcher continued his investigation: He logged and
arranged for storage of seized evidence, obtained Jobe’s
rental application and lease agreement, interviewed a postal
employee who stated that Jobe mailed packages three to four
times a week, and interviewed individuals whose names
were tied to the utilities accounts Jobe used. On or about
December 1, Cotcher was informed that the case would be
prosecuted federally. He began drafting an affidavit in
support of a criminal complaint and a federal warrant to
search the laptop, which he completed on or about December
7. On December 12, twenty days after the laptop was seized,
the complaint was filed and the warrant was signed. That
same day, agents searched Jobe’s laptop. The laptop
contained messages indicating that Jobe had stolen credit
card and bank account information. He was charged with
identity theft, accessing devices without authorization, mail
fraud, and being a felon in possession of a firearm.
Jobe moved to suppress the evidence found on the
laptop. The district judge granted the motion, finding that,
UNITED STATES V. JOBE 5
while the state seizure warrant was supported by probable
cause, the government unreasonably delayed before
obtaining a second warrant to search Jobe’s computer. The
government timely appealed that order. We have jurisdiction
under 18 U.S.C. § 3731 and reverse.
DISCUSSION
“The fact that a Fourth Amendment violation occurred
. . . does not necessarily mean that the exclusionary rule
applies.” Herring v. United States, 555 U.S. 135, 140 (2009).
To trigger the exclusionary rule, police
conduct must be sufficiently deliberate that
exclusion can meaningfully deter it, and
sufficiently culpable that such deterrence is
worth the price paid by the justice system. As
laid out in [the Supreme Court’s] cases, the
exclusionary rule serves to deter deliberate,
reckless, or grossly negligent conduct, or in
some circumstances recurring or systemic
negligence.
Id. at 144. We review whether the exclusionary rule was
properly applied de novo. United States v. Luong, 470 F.3d
898, 902 (9th Cir. 2006).
I. The State Warrant
We begin with an assessment of the seizure of Jobe’s
laptop pursuant to the state warrant. The exclusionary rule
does not apply to an officer’s “objectively reasonable
reliance on a subsequently invalidated search warrant,”
unless the warrant was “based on an affidavit ‘so lacking in
indicia of probable cause as to render official belief in its
existence entirely unreasonable.’” United States v. Leon,
6 UNITED STATES V. JOBE
468 U.S. 897, 922–23 (1984) (quoting Brown v. Illinois,
422 U.S. 590, 610–11 (1975) (Powell, J., concurring in
part)). Even if an affidavit fails to establish probable cause,
“an officer cannot be expected to question the magistrate’s
probable-cause determination,” id. at 921, unless the
affidavit is “bare bones,” i.e., “it fails to provide a colorable
argument for probable cause,” United States v. Underwood,
725 F.3d 1076, 1085 (9th Cir. 2013).
We accept that there was insufficient probable cause to
seize the laptop. The state judge “lacked a substantial basis
for concluding that probable cause existed” to seize the
laptop because Cotcher’s affidavit did not mention a
computer or any electronic devices, much less state any facts
suggesting that Jobe’s laptop would likely contain evidence
of a marijuana growing operation. Id. at 1081 (internal
quotation and alteration marks omitted) (quoting Illinois v.
Gates, 462 U.S. 213, 238–39 (1983)). Nevertheless,
Cotcher’s affidavit supporting the state warrant contained
sufficient information to render his reliance on the warrant
reasonable. It laid out facts indicative of a large-scale
marijuana growing operation, including information from a
tipper that was corroborated by Cotcher’s own observations,
investigation, and experience. Given the apparent scale of
Jobe’s operation, as indicated by his having a registered
marijuana business and the substantial, consistent foot traffic
to his residence late at night, the affidavit provided “a
colorable argument for probable cause,” id. at 1085, to seize
items “tending to establish and document sales of
marijuana.” Cotcher reasonably relied on the warrant’s
authorization to seize digital devices, such as Jobe’s laptop,
that might contain such documents.
UNITED STATES V. JOBE 7
II. The Federal Warrant
Jobe argues that even if the seizure of the laptop under
the state warrant does not provide a basis for exclusion, the
twenty-day delay between that seizure and the subsequent
execution of the federal search warrant justifies suppression.
Even assuming that the delay was unreasonable, we
disagree.
The exclusionary rule has traditionally been driven by
one primary policy consideration: the deterrence of
unconstitutional acts by law enforcement. United States v.
Calandra, 414 U.S. 338, 348 (1974) (“[T]he [exclusionary]
rule is a judicially created remedy designed to safeguard
Fourth Amendment rights generally through its deterrent
effect . . . .”); see also Leon, 468 U.S. at 909. The rule effects
this goal in different ways, depending on the case. The most
common is preventing police from benefiting from evidence
obtained as a result of a constitutional violation, thereby
removing the incentive to violate the Constitution to obtain
evidence. See, e.g., United States v. Artis, 919 F.3d 1123,
1133–34 (9th Cir. 2019); United States v. Camou, 773 F.3d
932, 944–45 (9th Cir. 2014).
But in another category of cases, police misconduct
effectively bears no “fruit.” See United States v. Cha,
597 F.3d 995, 1003 (9th Cir. 2010). Unreasonable delays fall
into this latter category. See id. In those cases, “deterrent
value” is only “a necessary condition for exclusion, . . . not
a sufficient one. The analysis must also account for the
substantial social costs generated by the [exclusionary]
rule.” Davis v. United States, 564 U.S. 229, 237 (2011)
(quotation marks and citation omitted). Put another way, a
court must determine that “deterrence is worth the price paid
by the justice system” before suppressing evidence. Herring,
555 U.S. at 144.
8 UNITED STATES V. JOBE
Cha is our only prior decision addressing the issue posed
in Herring in the context of delays. See United States v.
Burgard, 675 F.3d 1029, 1035 (7th Cir. 2012) (so
recognizing). Cha laid out several guideposts to follow.
First, the analysis is objective in nature. See Cha, 597 F.3d
at 1005; see also Herring, 555 U.S. at 145. We must consider
“whether a reasonably well trained officer would have
known that the search was illegal.” Leon, 468 U.S. at 922
n.23. The greater the distance between the actions of a
“reasonably well trained officer” and the actions of an
officer in a particular case, the more likely it is that exclusion
is the proper remedy. See Cha, 597 F.3d at 1005 (“[T]he
police officers were a far stretch from Leon’s ‘reasonably
well trained officer.’”).
Cha and Herring also explain that suppression is
warranted “to deter deliberate, reckless, or grossly negligent
conduct.” Herring, 555 U.S. at 144. We summarized the
misconduct in Cha as follows:
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. . . .
[N]one of this delay was “unavoidable”—the
officers had probable cause at 1 a.m., and . . .
could have drafted the warrant application at
least after the 12 p.m. briefing. The officers,
however, had a “nonchalant attitude” and
proceeded in a “relaxed fashion.”
UNITED STATES V. JOBE 9
Cha, 597 F.3d at 1005–06. Such facts demonstrate more than
sufficient culpability that exclusion is worth the costs.
Herring, 555 U.S. at 144; see also Leon, 468 U.S. at 911
(“[A]n assessment of the flagrancy of the police misconduct
constitutes an important step in the calculus.”).
Cotcher’s behavior is far-removed. There is no
indication that Cotcher deliberately tarried or received
insufficient training. Rather, immediately after seizing the
laptop, he contacted the USAO about prosecuting the case
federally. During the ten days between that initial contact
and being told that the USAO would handle the case—a
period which included the Thanksgiving holiday—Cotcher
continued with his investigation. Once the USAO responded
to his inquiry, he began drafting a detailed and lengthy
affidavit in support of a federal search warrant, which he
finished less than a week later and then transmitted to an
Assistant U.S. Attorney. Jobe contends that Cotcher could
have prepared an affidavit even without hearing from the
USAO. But it is USAO policy to review warrant applications
prior to their submission to a magistrate, so a reasonable
officer in Cotcher’s position could have believed that he
could not submit his warrant application until the USAO
decided to proceed. While Cotcher could have been more
efficient in preparing an application, his delay does not
evince negligence, let alone deliberate and culpable
misconduct.
Even if police conduct is not “deliberate, reckless, or
grossly negligent,” “recurring or systemic negligence” alone
may warrant deterrence through exclusion. Herring,
555 U.S. at 144. Here, however, the record does not suggest
that such conduct will recur. Indeed, if there were evidence
of repeated delays, Cotcher’s behavior would no longer
10 UNITED STATES V. JOBE
qualify as “isolated police negligence.” Cha, 597 F.3d at
1004.
More significantly, Cotcher obtained one warrant before
seizing Jobe’s laptop and a second warrant before searching
it, whereas the officers in Cha waited until after the home
had been seized to obtain any warrant. Cotcher’s good-faith
efforts to comply with the Warrant Clause of the Fourth
Amendment indicate that his conduct was not “sufficiently
culpable that such deterrence is worth the price paid by the
justice system.” Herring, 555 U.S. at 144. Critically, there
are no allegations that the affidavit presented to the
magistrate to obtain the federal search warrant omitted or
misrepresented any information. See Leon, 468 U.S. at 923
(“Suppression . . . remains an appropriate remedy if the
magistrate or judge in issuing a warrant was misled by
information in an affidavit that the affiant knew was false or
would have known was false except for his reckless
disregard of the truth.”). Nor does Jobe challenge that
probable cause supported the federal warrant. See id. (“Nor
would an officer manifest objective good faith in relying on
a warrant based on an affidavit ‘so lacking in indicia of
probable cause as to render official belief in its existence
entirely unreasonable.’” (quoting Brown, 422 U.S. at 610–
11 (Powell, J., concurring in part))).
Nor is there any indication that Cotcher believed he was
depriving Jobe of a legitimate possessory interest. Rather, he
reasonably believed that the laptop was lawfully seized
pursuant to the state warrant. We have previously held that a
twenty-one-day delay between the seizure of a laptop and
obtaining a warrant is reasonable where the laptop is
lawfully seized pursuant to an individual’s consent. See
United States v. Sullivan, 797 F.3d 623, 634 (9th Cir. 2015).
UNITED STATES V. JOBE 11
Jobe’s reliance on United States v. Dass, 849 F.2d 414
(9th Cir. 1988), is misplaced. That case involved delays of
between seven and twenty-three days in obtaining warrants
to search hundreds of packages that were seized without a
warrant at a post office in Hawaii. Id. at 414. Here, the initial
seizure of the laptop was pursuant to a warrant.
The order granting Jobe’s motion to suppress is
REVERSED.