United States v. Adam Galliher ( 2021 )

FILED
NOT FOR PUBLICATION
NOV 22 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-30228
Plaintiff-Appellee, D.C. Nos.
6:18-cr-00011-BMM-1
v. 6:18-cr-00011-BMM
ADAM GALLIHER,
MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Brian M. Morris, District Judge, Presiding
Submitted November 10, 2021**
Portland, Oregon
Before: GRABER and CHRISTEN, Circuit Judges, and WU,*** District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable George H. Wu, United States District Judge for the
Central District of California, sitting by designation.
Adam Galliher, Jr., appeals the district court’s order denying his motion to
suppress all evidence derived from Deputy Sheriff Greg Holmlund’s investigatory
stop of Galliher. Galliher argues: (1) Holmlund did not have reasonable suspicion
to stop him; and (2) the attenuation doctrine did not apply to the evidence derived
from the stop.
The typical remedy for a Fourth Amendment violation by law enforcement
is suppression or exclusion of the evidence obtained as a result of the violation.
See Utah v. Strieff, 136 S. Ct. 2056, 2061 (2016). One exception to the
exclusionary rule is the attenuation doctrine: “Evidence [remains] admissible when
the connection between unconstitutional police conduct and the evidence is remote
or has been interrupted by some intervening circumstance, so . . . ‘the interest
protected by the constitutional guarantee that has been violated would not be
served by suppression of the evidence obtained.’” Id. (quoting Hudson v.
Michigan, 547 U.S. 586, 593 (2006)).
Whether the attenuation doctrine applies depends on: (1) “the ‘temporal
proximity’ between the unconstitutional conduct and the discovery of evidence”;
(2) “the presence of intervening circumstances”; and (3) “the purpose and
flagrancy of the official misconduct.” Id. at 2061–62 (quoting Brown v. Illinois,
422 U.S. 590, 603–04 (1975)). All factors need not weigh against suppression, and
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suppression is appropriate only when “its deterrence benefits outweigh its
substantial social costs.” Id. at 2061 (quoting Hudson, 547 U.S. at 591).
The government concedes the temporal proximity factor favors suppression
in this case. As for the presence of intervening circumstances, we look to the
Supreme Court’s recent decision in Strieff. There, the Court applied the
attenuation doctrine because an outstanding warrant broke the causal chain
between an unlawful stop of an individual leaving a suspected drug house and the
discovery of inculpatory evidence. Id. at 2063. The Court reasoned “the warrant
was valid, it predated [the officer’s] investigation, and it was entirely unconnected
with the stop.” Id. at 2062.
Here, after stopping Galliher to investigate whether he was a person of
interest, Holmlund discovered that Galliher had absconded from probation.
Holmlund relayed Galliher’s absconder status to on-the-scene probation and parole
officers. Galliher was arrested, and, consistent with the terms of his probation, the
probation and parole officers searched the vehicle he was in. They found drug
paraphernalia and a firearm.1 Galliher does not deny that he had absconded from
1
Relying on the items the probation and parole officers found during their
search, Holmlund later obtained and executed a search warrant for the vehicle and
found a loaded pistol, ammunition, plastic baggies, a digital scale, and two plastic
baggies containing methamphetamine.
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probation nor challenge that he was subject to arrest for absconding, and his
absconder status existed before Holmlund’s investigatory stop. The district court
correctly held that Holmlund’s discovery of Galliher’s absconder status was an
intervening circumstance that provided a lawful reason to detain Galliher,
independent of anything that had happened before.
Galliher next argues that the attenuation doctrine’s flagrant-misconduct
factor favors suppression. We disagree. Although Holmlund’s decision to
continue to detain Galliher was potentially unlawful after the probation officer
verified that Galliher was not the individual who ran earlier, we agree with the
district court that there was no flagrant bad faith here. The district court found that
Holmlund acted in response to: (1) a request for assistance from the on-the-scene
probation and parole officers; and (2) their description of a person of interest
whom Galliher resembled. The district court also found that Holmlund “conducted
a targeted search of the most logical area that the man who[m] probation initially
encountered may have gone to hide.” See United States v. Ceccolini, 435 U.S. 268,
279–80 (1978) (giving weight to a showing that officers did not conduct an illegal
search with the intent of locating the evidence at issue). We find no clear error in
the district court’s finding that Holmlund did not engage in flagrant or purposeful
misconduct.
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AFFIRMED.
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