United States v. Franz Grey ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-50328
Plaintiff-Appellant,
D.C. No.
v. 2:18 cr 0412-CAS
FRANZ GREY,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Argued and Submitted April 12, 2019
Pasadena, California
Filed May 27, 2020
Before: A. Wallace Tashima and Jay S. Bybee, Circuit
Judges, and M. Douglas Harpool,* District Judge.
Opinion by Judge Tashima;
Dissent by Judge Bybee
*
The Honorable M. Douglas Harpool, United States District Judge for
the Western District of Missouri, sitting by designation.
2 UNITED STATES V. GREY
SUMMARY**
Criminal Law
Affirming the district court’s order granting a criminal
defendant’s motion to suppress evidence seized by Los
Angeles County Sheriff’s Department deputies, the panel held
that where, as here, law enforcement officers are asked to
assist in the execution of an administrative warrant
authorizing the inspection of a private residence, they violate
the Fourth Amendment when their “primary purpose” in
executing the warrant is to gather evidence in support of a
criminal investigation rather than to assist the inspectors.
Dissenting, Judge Bybee wrote that, given that there was
a California Superior Court inspection warrant authorizing
sheriff’s deputies to accompany the housing inspectors, the
deputies would have entered the defendant’s house regardless
of their subjective motivations, so the correct inquiry is
whether, once inside the home, the deputies’ actions exceeded
the permissible scope of a protective sweep.
**
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. GREY 3
COUNSEL
Hampton Hunter Bruton (argued), Attorney; United States
Department of Justice, Washington, D.C.; Nicola T. Hanna,
United States Attorney; L. Ashley Aull, Chief, Criminal
Appeals Section; United States Attorney’s Office, Los
Angeles, California; for Plaintiff-Appellant.
Sonam Henderson (argued), Deputy Federal Public Defender,
Office of the Federal Public Defender, Los Angeles,
California, for Defendant-Appellee.
OPINION
TASHIMA, Circuit Judge:
Following Alexander v. City & County of San Francisco,
29 F.3d 1355 (9th Cir. 1994), abrogated on other grounds by
County of Los Angeles v. Mendez, 137 S. Ct. 1539 (2017), we
hold that where, as here, law enforcement officers are asked
to assist in the execution of an administrative warrant
authorizing the inspection of a private residence, they violate
the Fourth Amendment when their “primary purpose” in
executing the warrant is to gather evidence in support of a
criminal investigation rather than to assist the inspectors.
Accordingly, we affirm the district court’s order granting
defendant Franz Grey’s motion to suppress.
4 UNITED STATES V. GREY
I. FACTS1
A. City of Lancaster’s Code Enforcement Efforts
In October 2017, the City of Lancaster, California, Code
Enforcement Division of the Department of Housing and
Neighborhood Revitalization, began investigating defendant
Grey for possible violations of the City of Lancaster
Municipal Code. The investigation primarily focused on
complaints from neighbors that Grey’s property was
“surrounded by tarps,” that there was “a camera mounted on
a 30-foot pole” and numerous lights on the roof of the house,
and that there was “electrical wiring along the fence, which
they were concerned meant the fence itself was electrified.”
The neighbors also suspected that Grey “was conducting an
unlawful auto repair business at the property.”
In November 2017, City of Lancaster Code Enforcement
Officer Sam McNutt viewed Grey’s property from the street
and confirmed that “tarps surrounded the premises and
covered much of the roof” and that “areas of fences/walls
exceed the permissible height.” McNutt was unable to
observe most of the premises because the tarps and other
materials obstructed a clear view. McNutt did not determine
whether the electrical wiring along the fence was there to
electrify the fence or to provide power for another purpose.
McNutt also spoke with Grey at some point in November
2017, but was unable to elicit Grey’s cooperation in
1
We ordinarily review a district court’s factual findings for clear
error. Because, however, the government does not challenge the district
court’s factual findings for purposes of this appeal, we recite the facts as
determined by the district court. See United States v. Grey, No. CR 18-
0412-CAS, 2018 WL 4403979, at *1–7 (C.D.Cal. Sept. 13, 2018).
UNITED STATES V. GREY 5
correcting the alleged code violations. Grey did not respond
to McNutt’s attempts to contact him after their initial
conversation. McNutt also spoke to the property owner, who
said she had spoken with her tenant, Grey, and that he had
refused to make the corrections that were needed to bring the
property into compliance.
In January 2018, McNutt returned to inspect Grey’s
property from the street. Based on his observations, McNutt
issued administrative citations to Grey on February 1 and
March 2, 2018. Grey appealed the citations on March 12,
2018, and then made “continuous” phone calls and faxes to
the City Clerk’s office. Code Enforcement personnel
expressed safety-related concerns about returning to the
property due to Grey’s multiple calls and faxes to the City
Clerk’s office and the electrical wiring along his fence.
In March 2018, Grey’s code enforcement case was
referred to Russell Bailey. Bailey is a reserve (part-time)
deputy of the Los Angeles County Sheriff’s Department
(“LASD”). He had served as a deputy with the LASD for
38 years before becoming a managing member of a private
consulting firm in 2017. Bailey’s consulting firm has
contracted with the City of Lancaster “to provide municipal
compliance services related to quality-of-life issues” and “to
provide general municipal code enforcement services.”
Bailey stated that his work for the City of Lancaster was not
as a law enforcement officer.
On March 15, 2018, Bailey and Mike Kuper, another
reserve LASD deputy and contractor, went to Grey’s property
at the request of the City of Lancaster Public Safety Director,
Lee D’Errico. D’Errico told Bailey that the City had received
a complaint from Grey’s neighbor that Grey had electrified
6 UNITED STATES V. GREY
his fence. Upon arriving at Grey’s property, Bailey saw a
six-foot-high chain link fence surrounding the premises, tarps
attached to the fence that obstructed the view of the property
from the public right-of-way, a large canopy-type structure
covering the driveway, a long pole extending from the roof of
the residence with a video camera and a large light installed
on top, and an electrical wire running along the top of the
fence. Bailey and Kuper tested the fence and determined that
it was not electrified.
During this March 15 inspection, Bailey went to Grey’s
property and spoke with Grey from outside the fence through
a small hole in the tarp. Bailey identified himself and told
Grey that he had come to talk about the fence. Grey told
Bailey that he had “fortified” his residence because his
neighbor had constantly harassed, intimidated, and threatened
him, and that before erecting the fence, his neighbor had shot
at his dogs with a pellet gun and his car had been vandalized.
Grey also stated that the wire along the fence was connected
to an audio alarm device inside his house. Bailey told Grey
that the height and condition of the fence appeared to be a
violation of the Lancaster Municipal Code and would need to
be corrected.
During this conversation, Bailey also observed three cars
parked in Grey’s yard, including on unpaved portions of the
premises. Bailey believed that the presence of the cars
corroborated the neighbors’ complaints that Grey was
operating an unlawful auto repair business on the property.
After their conversation with Grey, Bailey and Kuper drove
to the rear of the property and observed a large tarp that had
been installed such that vision into the rear yard was entirely
obstructed. Bailey also took photos of the property
documenting the fencing, tarps, canopy, and camera.
UNITED STATES V. GREY 7
Based on his conversation with Grey, including Grey’s
statement about “fortifying” his house, and his observations
of Grey’s demeanor, Bailey believed that Grey would not
agree to abate the conditions on his property and that Grey
could pose a threat to City of Lancaster Code Enforcement
officers. Bailey asked another LASD deputy about Grey, and
that deputy told Bailey that LASD was already aware of Grey
and had received several calls about his property, including
about firearms being shot into the air.
Bailey then met with D’Errico, Kuper and City of
Lancaster Assistant City Attorney Jocelyn Corbett. During
that meeting, Bailey learned that Grey’s case had been turned
over to Bailey by the Code Enforcement team because of a
concern for the team’s safety. As a result of this
conversation, Bailey, Corbett, and D’Errico decided that an
inspection was necessary to determine if the property was
safe and what further action was needed.
B. LASD’s Criminal Investigation
On April 4, 2018, one of Grey’s neighbors called the
Lancaster Community Appreciation Program (“LANCAP”)
team of the LASD regarding ongoing issues with Grey.
LASD Deputy Andrew Chappell contacted the neighbor and
the neighbor stated that Grey had shot a Glock handgun into
the air several times during the previous year’s Fourth of July
holiday. The neighbor reported that following the Fourth of
July, Grey’s behavior became “bizarre” and that Grey had
started to do “strange things” like stringing up tarps in his
backyard and installing flood lights that illuminated Grey’s
backyard along with the backyards of his neighbors. The
neighbor said he saw multiple pieces of heavy equipment in
the backyard of Grey’s house, including vehicle parts, firearm
8 UNITED STATES V. GREY
parts, and tools. Then in October 2017, according to the
neighbor, Grey showed him a large amount of
methamphetamine. Afterwards, Grey invited the neighbor to
his house several times and reportedly showed him an “old
and beat up” AK-47 rifle, a Glock handgun, a “snub nose”
revolver with a blued finish; many firearm parts, including
stocks, barrels, and slides to semi-automatic pistols, and
firearm ammunition. During one of these visits, Grey
allegedly loaded the AK-47 and shot it into the air multiple
times from his backyard. The neighbor also reported seeing
Grey carrying firearms on his person and keeping firearms in
the trunks of the vehicles parked on his property.
The neighbor reported that around December 2017, Grey
installed fencing in the front yard, along with a camouflage
tarp along the fence, as well as 30-foot poles with cameras
affixed to them. The neighbor reported that he was
concerned that the fence might be electrified because of an
electrical wire attached to the fence. The neighbor also
reported that he last saw Grey shoot a gun in his backyard in
early March 2018. The neighbor also complained of a
burning chemical smell from Grey’s property.
When asked why he had waited so long to report the
crimes, the neighbor said that he wanted to keep to himself
and tried to give Grey the benefit of the doubt, noting the
possibility that Grey was mentally ill. However, the neighbor
believed that in March 2018, Grey had made a false
allegation of child abuse to the Department of Children and
Family Services, and that was “the straw that broke the
camel’s back.”
Deputy Chappell then generated a six-pack photographic
lineup with Grey’s photograph and showed the lineup to the
UNITED STATES V. GREY 9
neighbor, who identified Grey. The neighbor also identified
the car driven by Grey and provided Deputy Chappell with
photographs he had taken of Grey’s front and back yard.
The day after Deputy Chappell’s interview with the
neighbor, Chappell drove by Grey’s house with Deputy
Danny Ornelas. As he drove by, he smelled a strong odor of
a chemical-like substance coming from the house and
observed the fence and tarp described by the neighbor.
Deputy Chappell saw Grey in his garage, as well as several
vehicles in the driveway and garage.
Deputy Chappell then contacted several other neighbors
of Grey, who wished to remain anonymous and “collectively”
told Chappell that Grey was “weird,” “unhinged,” “not all
there,” and “strange.” The neighbors reportedly feared Grey
and his “increasingly odd behavior.”
Deputy Chappell also contacted Code Enforcement
Officer McNutt, who showed Chappell his case file on Grey’s
house and told Chappell that Grey and his landlord had been
generally uncooperative. McNutt told Chappell that Grey had
refused to take down the fencing around the front of the
property despite three separate City-issued citations.
Deputy Chappell also contacted Deputy Kuper, who told
Chappell that he had gone to Grey’s property on March 13,
2018, and that Grey had acted very strangely, as if he had a
mental illness. Kuper also reported that Grey seemed
extremely paranoid and would talk to him only through a
crack in the gate at the driveway.
Deputy Chappell then checked Grey’s criminal history
and determined that Grey had been convicted of felony
10 UNITED STATES V. GREY
driving under the influence in 2008. Chappell also saw that
Grey had multiple drug-related arrests and that he had been
convicted of felonies in Louisiana and Pennsylvania,
including voluntary manslaughter.
Deputy Chappell also reviewed calls for service to Grey’s
address and saw that there were several calls for service in
which deputies had been dispatched to the location regarding
loud music being played. On October 25, 2017, deputies
were dispatched to Grey’s property because another neighbor
had reported a gun being fired into the air.
Based on his interview with the neighbor and his
subsequent investigation, Deputy Chappell formed the
opinion that Grey was a felon in possession of a firearm and
ammunition, that he was in the possession of a controlled
substance, and that he had negligently discharged firearms
multiple times. Deputy Chappell filed a police report dated
April 5, 2018, regarding Grey’s alleged possession of
firearms and ammunition, and the report was approved by
Deputy Chappell’s supervisor, Sergeant D. Wolanski, on
April 6, 2018. During the evidentiary hearing, Wolanski
testified that he did not believe the LASD had probable cause
to either arrest Grey or search his home at that time.
C. The Administrative Inspection Warrant
Assistant City Attorney Corbett said that she decided to
seek an inspection warrant for Grey’s property in late March
2018 because she thought it “was necessary to get behind the
tarps and other code-violating obstructions and see if there
were additional violations inside the house, particularly with
respect to obstructions for first responders.” On April 10,
2018, during an event at Lancaster City Hall, Corbett had a
UNITED STATES V. GREY 11
brief discussion with an LASD deputy and D’Errico about
Grey’s property and Corbett informed them that she was
going to obtain a warrant for that property. Also around this
time, Deputy Chappell told Sergeant Wolanski that the City
was going to apply for an inspection warrant for Grey’s
property and that the City had asked LASD to help with
security at the inspection because of “the way that the
property was situated” and “defendant’s suspected
involvement with guns.”
In late April, Corbett helped Bailey draft the warrant
affidavit. On May 1, 2018, the City filed an application for an
inspection warrant supported by Bailey’s affidavit in Los
Angeles County Superior Court. In the warrant affidavit,
Bailey detailed the City’s investigation into Grey’s alleged
Lancaster Municipal Code violations beginning in October
2017. Based on Bailey’s inspection on March 15, 2018, the
affidavit asserted the following violations of the Lancaster
Municipal Code: (1) maintenance of tarps or similar
coverings on, or over, any roof of any structure, except during
periods of active rainfall; (2) vehicles parked or stored on
unpaved portions of the premises; and (3) fences that exceed
the height allowances.
Bailey also stated that due to the obstructions, it was not
possible to determine whether the tarps, canopies, and other
structures and coverings hindered egress from the residence
in the event of a fire or emergency, which would violate the
municipal code. Bailey concluded that this would “pose a
very serious life safety hazard to the tenant and to emergency
responders.” Bailey also concluded that the conditions on
Grey’s premises violated the Lancaster Municipal Code
provision that prohibits any condition that constitutes a public
12 UNITED STATES V. GREY
nuisance, blight, or a health or safety hazard to the
community or neighboring properties.
Bailey also stated his belief that Grey would not
cooperate with any effort to bring his property into
compliance with the municipal code and that it may be
necessary for the City to undertake abatement actions to
eliminate the violations.
In his affidavit, Bailey stated: “In order to ascertain the
extent to which unlawful and potentially hazardous
conditions are present, and in order to determine the scope of
abatement actions that the City may need to undertake, it is
necessary for the City to conduct a comprehensive inspection
of the premises and residence.” Bailey requested an
inspection warrant “to authorize [himself] and City and
County personnel to enter the premises and to inspect and
photograph all yard areas as well as the interior areas of all
structures, to assess the extent to which hazardous conditions
are present, and to ascertain what abatement actions may be
necessary to eliminate such conditions and bring the property
into substantial compliance with the Lancaster Municipal
Code.”
In his affidavit, Bailey also sought: (1) the assistance of
LASD Deputies “to ensure that interference with same does
not occur”; (2) exemption from the 24-hour advance notice
requirement of the issuance of the warrant because of the
concern that Grey “may react inappropriately or violently”
upon learning of the warrant; (3) authorization to execute the
warrant in the absence of Grey, if he is absent; and
(4) authorization to forcibly enter yard areas on the premises
and the dwelling, if Grey refused access because “it is
unknown whether personnel executing the Warrant may be in
UNITED STATES V. GREY 13
jeopardy” as “it cannot be determined whether other persons
live in the residence, and in light of Grey’s odd behavior and
comments it is not known whether he may have undertaken
additional ‘fortifications’ in the yard areas or inside the
house.”
Later that same day, the Los Angeles County Superior
Court found cause to believe that municipal code violations
“exist, or may exist,” at Grey’s property and issued the
warrant. The warrant authorized the City to “make an
inspection of the interior and exterior areas of all structures”
and granted all of the additional requests made in Bailey’s
affidavit, including the assistance of LASD deputies in the
execution of the warrant, waiver of the 24-hour advance
notice requirement, and permission to forcibly enter the yard
areas and dwelling.
D. Grey’s Arrest and Execution of the Inspection
Warrant
After the inspection warrant was obtained, Deputy
Chappell was contacted and placed in charge of assisting the
City with the inspection warrant because he was the deputy
leading the criminal investigation of Grey. Sergeant
Wolanski testified that before the execution of the inspection
warrant, either Deputy Lopez or Deputy Chappell created an
operations plan because they were in charge of the criminal
investigation. Wolanski directed the deputies to arrest Grey
if they encountered him outside of the home while they were
helping with the inspection warrant. Wolanski also intended
to interview Grey about the criminal investigation during the
execution of the inspection warrant.
14 UNITED STATES V. GREY
On May 3, 2018, City employees and the entire Sherriff’s
LANCAP team, consisting of nine LASD deputies, went to
Grey’s house shortly before 10:00 a.m. Wolanski explained
that the LANCAP team provides security for City employees
in the performance of their duties, and thus they were there
that morning “to assist the City of Lancaster personnel with
executing an inspection warrant at that location by making
sure that the property was safe before inspectors began their
work.” Among the deputies present were Deputy Chappell,
his supervisor, Sergeant Wolanski, and Deputy Armando
Lopez. At least two officers, Sergeant Wolanski and Deputy
Lopez, were wearing body cameras that day, though the body
camera footage shows that they turned their body cameras on
and off at various times. At the evidentiary hearing, Corbett
testified that it is the City’s policy to have at least one LASD
deputy accompany an inspection but that she did not know
LASD planned to send nine armed deputies nor did she
request the presence of that many law enforcement personnel.
1. The Arrest
Sergeant Wolanski arrived at the property and waited
around the corner while another LANCAP deputy conducted
surveillance of the property. Soon after Wolanski arrived, the
other deputy saw Grey standing in his driveway. Wolanski
“made up a ruse” that the officers needed to inspect his
welding equipment and thus they needed Grey to open the
gate so they could inspect his equipment. Sergeant Wolanski
initially stated in his declaration that when Grey opened the
gate, another deputy placed him under arrest for negligent
discharge of a firearm and felon in possession of a firearm.
At the evidentiary hearing, however, Wolanski testified that
by “arrest” he “mistakenly meant detention.” There is no
body camera footage of this encounter. After handcuffing
UNITED STATES V. GREY 15
Grey, officers placed him in the back of a patrol car.
Sergeant Wolanski turned on his body camera and asked
Grey to identify himself for the camera. Grey sat handcuffed
and shirtless in the back of the patrol car while Wolanski
asked him if he had any large sums of cash or valuables in the
house, whether he had any weapons inside the house, and
whether he had anything in the house that was going to hurt
the officers. Grey answered no to all the questions and asked
Wolanski why he was searching the house. Wolanski did not
answer, shut the door to the car, and turned off his body
camera. Deputy Lopez stated in his declaration that he
arrived shortly after Grey’s arrest.
2. The Initial Search of the Inside of Grey’s
House
Around 10:00 that morning, “before executing the warrant
and as part of [their] orders to provide security for the
inspection, LASD deputies entered the house to look around
and determine whether there were other individuals or any
dangerous conditions inside the house that could harm City
of Lancaster inspectors when they executed the warrant.”
Before entering the house, Wolanski turned on his body
camera. The deputies drew their weapons and approached the
house. Using Grey’s keys, they entered the house with their
weapons drawn. The body camera captured an officer using
a flashlight attached to his gun to search behind and next to
the couch in the living room. The body camera turned off as
the officers started to move into the other rooms of the house.
Sergeant Wolanski and Deputy Lopez stated that they
viewed firearms and ammunition in plain view during their
survey of Grey’s house. At the evidentiary hearing, Wolanski
testified that this “walk-through” took a “[v]ery short time”
16 UNITED STATES V. GREY
– “a couple of minutes,” but Lopez stated that it took 15 to
20 minutes to complete. Both Wolanski and Lopez testified
that they did not touch any items in the house during this
survey. After determining that the house was safe, the
officers went outside to await a criminal search warrant to
search Grey’s residence.
Deputy Lopez drafted the affidavit for the criminal search
warrant. In his affidavit, Lopez stated that “while assisting
the City of Lancaster with an abatement warrant . . . [he] saw
in plain view, multiple handguns (one of which was clearly
loaded), rifles, firearm parts, and ammunition while inside.”
Lopez also stated that he observed drug paraphernalia and a
large amount of an off-white crystalline substance resembling
methamphetamine in plain view. Lopez added that the
controlled substance was “in plain view on the coffee table of
the living room,” that “ammunition and firearm accessories
were seen on multiple tables throughout the location in plain
view,” and that “multiple firearms were seen on the floor and
on a desk inside of one of the bedrooms.” Based on these
observations and Grey’s status as a convicted felon, Lopez
sought a search warrant for Grey’s house. Id.
3. Execution of the Inspection Warrant
Bailey and McNutt remained outside and, after the
property was secured, they went inside to conduct the code
enforcement inspection. At the evidentiary hearing, Bailey
testified that this inspection began sometime between 10:00
and 11:00 a.m. The City found numerous public nuisance
conditions, including hazardous and non-permitted
construction, electrical extensions, and heating equipment,
and significant accumulations of junk throughout the
premises and inside the residence, which posed a fire hazard
UNITED STATES V. GREY 17
and impeded emergency egress through the house. Based on
these findings, the City issued an administrative order to
vacate Grey’s property on June 5, 2018.
4. Execution of the Criminal Search Warrant
Based on Lopez’s application and supporting affidavit, a
Los Angeles County Superior Court judge issued a search
warrant for Grey’s property that day. At approximately
2:00 p.m., LASD searched Grey’s property and found several
firearms, ammunition, and a large amount of currency.
5. LASD’s Interview of Grey
At some point after Grey’s initial arrest, Grey was
transported to the Lancaster Sheriff Station, where a detective
read Grey his Miranda rights and interviewed him about the
devices and powders found inside his home. Although the
record does not specify a time, the detective stated in his
report that he was called to the Sheriff Station because LASD
deputies located items they believed to be components of a
pipe bomb following the service of a search warrant.
Sergeant Wolanski and Deputy Lopez also interviewed Grey
about his possession of firearms and ammunition.
II. PROCEDURAL HISTORY
Grey was charged as a felon in possession of firearms and
ammunition, in violation of 18 U.S.C. § 922(g)(1) (Count 1),
and with possession of an unregistered firearm, in violation
of 21 U.S.C. § 5861(d) (Count 2).
Grey filed a motion to suppress evidence, arguing that
LASD’s initial search of his home violated his Fourth
18 UNITED STATES V. GREY
Amendment rights because LASD’s assistance in the
execution of the inspection warrant was a pretext to conduct
a criminal search, arrest, and investigation. Because the
subsequent search warrant was obtained as a direct result of
the initial unlawful search, Grey argued that all evidence
seized, and the fruits derived from that search, should be
excluded at trial. Following an evidentiary hearing, the
district court granted the motion to suppress. Grey, 2018 WL
4403979, at *8–12.
Relying on Alexander, the district court concluded that
LASD’s execution of the warrant was unreasonable under the
Fourth Amendment because “LASD used the administrative
warrant to enter defendant’s home without a criminal search
warrant for the purpose of gathering evidence for its criminal
case.” Id. at *9. The district court’s ultimate finding
regarding LASD’s purpose rested, in turn, on a number of
other factual findings. Specifically, the district court found:
(a) LASD had initiated a criminal investigation of
Grey on April 4, 2018, a month before the May 3, 2018
search;
(b) LASD had concluded that Grey was a felon in
possession of a firearm and ammunition, that he was in
the possession of a controlled substance, and that he had
negligently discharged firearms multiple times;
(c) LASD had concluded that it did not have probable
cause to arrest Grey or obtain a warrant to search his
home;
UNITED STATES V. GREY 19
(d) LASD knew that the City was going to obtain an
inspection warrant for Grey’s home and to request LASD
assistance at the inspection;
(e) LASD took no further action to investigate Grey
– or to develop probable cause for a search or arrest –
until the inspection warrant was executed;
(f) Deputy Chappell, who led the criminal
investigation, was also put in charge of assisting the City
with the execution of the inspection warrant;
(g) Sergeant Wolanski intended to interview Grey
about the LASD’s criminal investigation during the
execution of the inspection warrant and instructed LASD
deputies to arrest Grey;
(h) although the usual City policy was to have at least
one LASD deputy accompany the City during an
inspection, LASD sent nine armed deputies to assist with
this inspection warrant;
(i) LASD deputies arrested and questioned Grey
before initiating the search;
(j) the nine deputies spent 15 to 20 minutes (and
perhaps significantly longer) conducting the search 2;
2
As indicated, the LASD deputies made their initial entry into Grey’s
home at approximately 10:00 a.m. The fact that “timestamps on the
photographs LASD took of the inside of defendant’s home indicate that
the photos were taken at 10:40 a.m., suggest[s],” according to the district
court, “that the LASD’s initial entry of defendant’s home may have lasted
even longer than twenty minutes.” Id.
20 UNITED STATES V. GREY
(k) desk drawers were opened and closed and items
were touched and moved inside of the home at some point
before the criminal search warrant was executed; and
(l) the deputies took photographs of incriminating
evidence during their initial search. See id.
Because that search was unreasonable, the district court
concluded that evidence obtained thereby was inadmissible
under the exclusionary rule. See id. at *11. Further,
“[b]ecause the evidence gathered by LASD when they
initially entered defendant’s home served as the basis for the
criminal search warrant they obtained later that day, the
evidence LASD obtained pursuant to the search warrant is
also inadmissible under the exclusionary rule.” Id.
The government timely noticed this interlocutory appeal
of the district court’s suppression order.
III. STANDARD OF REVIEW
We have jurisdiction under 18 U.S.C. § 3731. “We
review de novo the district court’s ruling on a motion to
suppress and for clear error the district court’s underlying
findings of fact.” United States v. Evans, 786 F.3d 779, 784
(9th Cir. 2015).
IV. DISCUSSION
The Fourth Amendment protects “[t]he right of the people
to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” U.S. Const.
amend. IV. Ordinarily, a search or seizure inside a home
requires a criminal warrant supported by probable cause. See
UNITED STATES V. GREY 21
Md. v. Buie, 494 U.S. 325, 331 (1990) (“[A] search of
the house or office is generally not reasonable without a
warrant issued on probable cause.”); Payton v. New York,
445 U.S. 573, 586 (1980) (“It is a ‘basic principle of Fourth
Amendment law’ that searches and seizures inside a home
without a warrant are presumptively unreasonable.” (quoting
Coolidge v. New Hampshire, 403 U.S. 443, 477 (1971))).
Probable cause exists when “there is a fair probability that
contraband or evidence of a crime will be found in a
particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983).
The warrant and probable cause requirements, however,
are subject to exceptions. Under the administrative search
exception, “government investigators conducting searches
pursuant to a regulatory scheme need not adhere to the usual
warrant or probable-cause requirements as long as their
searches meet ‘reasonable legislative or administrative
standards.’” Griffin v. Wisconsin, 483 U.S. 868, 873 (1987)
(quoting Camara v. Mun. Court of City & Cty. of S.F.,
387 U.S. 523, 538 (1967)). As relevant here, “[a] judicial
warrant and probable cause are not needed . . . where the
search or seizure is in execution of an administrative warrant
authorizing . . . an inspection of residential premises to ensure
compliance with a housing code.” Ashcroft v. al-Kidd,
563 U.S. 731, 736–37 (2011) (citing Camara, 387 U.S.
at 535–38). In such circumstances, an administrative warrant
will suffice. See Camara, 387 U.S. at 538.
“As with any search, . . . the scope and execution of an
administrative inspection must be reasonable in order to be
constitutional.” Bruce v. Beary, 498 F.3d 1232, 1244 (11th
Cir. 2007). As the Supreme Court said in Maryland v. King,
569 U.S. 435, 448 (2013), “[e]ven if a warrant is not required,
a search is not beyond Fourth Amendment scrutiny; for it
22 UNITED STATES V. GREY
must be reasonable in its scope and manner of execution.”
Ordinarily, reasonableness under the Fourth Amendment is a
purely objective inquiry. See al-Kidd, 563 U.S. at 736; City
of Indianapolis v. Edmond, 531 U.S. 32, 47 (2000).
Administrative search and special needs cases, however,
present “[t]wo ‘limited exception[s]’ to this rule.” al-Kidd,
563 U.S. at 736 (quoting United States v. Knights, 534 U.S.
112, 122 (2001)). In these cases, “‘actual motivations’ do
matter.” Id. (quoting Knights, 534 U.S. at 122).
• In Edmond, 531 U.S. at 44–48, for example, the
Supreme Court held that the City of Indianapolis’
suspicionless vehicle checkpoint program was
unreasonable under the Fourth Amendment because the
program’s “primary purpose” was to interdict unlawful
drugs rather than to detect illegal border crossings or
drunk drivers. “Because the primary purpose of the
Indianapolis checkpoint program [wa]s ultimately
indistinguishable from the general interest in crime
control, the checkpoints violate[d] the Fourth
Amendment.” Id. at 48.
• In Michigan v. Clifford, 464 U.S. 287, 294 (1984)
(plurality opinion), the Court, in addressing the Fourth
Amendment requirements applicable when fire inspectors
seek to enter a private residence to investigate a recent
fire, held that an administrative warrant will suffice if the
“primary object” of the search is to determine the cause
and origin of the fire but that a criminal warrant,
supported by probable cause, is required if the “primary
object” of the search is to “gather evidence of criminal
activity.” The Court held that “the object of the search
determines the type of warrant required.” Id.
UNITED STATES V. GREY 23
• In United States v. Bulacan, 156 F.3d 963, 973 (9th Cir.
1998) (as amended), we held that “when an
administrative search scheme encompasses both a
permissible and an impermissible purpose, and when the
officer conducting the search has broad discretion in
carrying out the search, that search does not meet the
Fourth Amendment’s reasonableness requirements.”
Applying this principle, we rejected a search scheme
applicable to persons entering a federal building because
the scheme’s purposes included not only a search for
weapons and explosives but also a search for illegal
drugs. See id. Similarly, in United States v. $124,570
U.S. Currency, 873 F.2d 1240, 1245–46 (9th Cir. 1989),
we invalidated an airport screening scheme because the
purposes of the scheme were to search not only for
weapons and explosives but also for drugs and U.S.
currency.
• In Alexander, 29 F.3d at 1360–61, where, as here, law
enforcement officers were called upon to assist in the
execution of an administrative warrant providing for an
inspection of a private residence, we held that the
officers’ actions would violate the Fourth Amendment if
their “primary purpose” in executing the warrant was to
make a criminal arrest rather than assist the inspectors.
• And in United States v. Orozco, 858 F.3d 1204 (9th Cir.
2017), where we considered the Fourth Amendment
requirements applicable to suspicionless inspections of
commercial vehicles, we held that “the presence of a
criminal investigatory motive, by itself, does not render
an administrative stop pretextual. Nor does a dual motive
– one valid, and one impermissible.” Id. at 1213
(citations omitted). Instead, we held that “a defendant
24 UNITED STATES V. GREY
must show that the stop would not have occurred in the
absence of an impermissible reason.” Id. (quoting United
States v. Maestas, 2 F.3d 1485, 1489 (10th Cir. 1993)).
We have applied this principle not only to suspicionless
commercial vehicle inspections but also to inventory
searches, see United States v. Johnson, 889 F.3d 1120,
1126–28 (9th Cir. 2018); United States v. Bowhay,
992 F.2d 229, 231 (9th Cir. 1993), border searches, see
United States v. Tsai, 282 F.3d 690, 694–96 (9th Cir.
2002), and, most recently, inspections of business
records, see Perez Cruz v. Barr, 926 F.3d 1128, 1143 (9th
Cir. 2019).
In the case before us, the district court applied Alexander,
holding that LASD’s execution of the warrant was
unreasonable under the Fourth Amendment because LASD’s
primary purpose in executing the warrant was to gather
evidence in support of its criminal investigation rather than to
assist the inspectors. See Grey, 2018 WL 4403979, at *9. On
appeal, the government argues that the district court should
have applied Orozco instead, and that LASD’s actions were
lawful under Orozco because LASD’s “impermissible motive
was not the but-for cause of the search,” because “the sweep
of Grey’s dwelling would have occurred regardless of the
deputies’ motivation to uncover criminal evidence.”
For the reasons that follow, we disagree with the
government’s contention and sustain the district court’s
application of Alexander.
Initially, we note that there appears to be little practical
difference between Alexander’s primary purpose test and the
Orozco test. In Perez Cruz, where we most recently applied
Orozco, we concluded that the Orozco test was satisfied
UNITED STATES V. GREY 25
because “the central purpose of the raid was not to find
documents [covered by the administrative warrant] but to
arrest undocumented workers.” Perez Cruz, 926 F.3d at 1143
(emphasis added). Our conclusion that “Perez Cruz has
satisfied the Orozco burden” was based on evidence showing
that “the agents were focused on the detentions, not the
search.” Id. at 1143–44 (emphasis added). It was sufficient
that the agents “understood the search for records to be of
much less significance – if any – as compared to the
detentions, interrogations, and arrests of workers” and that
“the search was of secondary concern to the agents.” Id.
at 1144–45 (emphases added). Perez Cruz’s “central
purpose” inquiry appears to be materially indistinguishable
from Alexander’s “primary purpose” test. But even assuming
that there is a material difference between the two tests, we
hold that the district court properly followed Alexander.
First, Alexander constitutes controlling circuit precedent
and is directly on point. Like the case before us, Alexander
concerned the situation in which law enforcement officers are
called upon to assist in the execution of an administrative
warrant providing for the inspection of a private residence.3
3
The Dissent attempts to distinguish Alexander on the ground that
there law enforcement “supplanted” the health inspector’s mission after
the inspection had started and “escalated” the inspection by “conducting
their own operation.” If anything, the factual distinctions make this case
stronger than Alexander. Here, LASD had no need to “escalate” the
situation because it controlled it from the outset, starting with Sergeant
Wolanski’s order to arrest Grey immediately even before the protective
sweep. (The Dissent says that “Grey was quickly detained outside, which
the deputies has the right to do.” But the district court found that what
Sergeant Wolanski ordered and what occurred was an arrest, not a
detention, as Wolanski later characterized his order.) And during the
LASD’s initial 20+ minute search, it had total control of the premises and
the city inspectors were not allowed entry into the premises until after the
26 UNITED STATES V. GREY
See Alexander, 29 F.3d at 1357–60. The Orozco line of
authority, by contrast, addresses circumstances far afield from
an administrative search of a private residence, i.e., a home –
border searches, inventory searches, and inspections of
commercial vehicles and commercial premises.
Second, Alexander is grounded in Supreme Court
precedent. Alexander derived its primary purpose test from
the Supreme Court’s decision in Clifford, which, like this
case, concerned administrative searches of private residences.
Clifford expressly adopted a primary purpose – or “primary
object” – test, holding that:
the object of the search determines the type of
warrant required. If the primary object is to
determine the cause and origin of a recent fire,
an administrative warrant will suffice. . . . If
the primary object of the search is to gather
evidence of criminal activity, a criminal
search warrant may be obtained only on a
showing of probable cause to believe that
LASD’s lengthy search had been completed. (Certainly, it is “appropriate
during a protective sweep [that] the City’s inspectors did not enter the
house.” But the Dissent overlooks the prolonged duration – 20 minutes
or more – of the LASD’s initial entry.) Thus, unlike in Alexander, no
mid-operation “escalation” by LASD was needed. Contrary to the
Dissent’s assertion, the LASD “did . . . supplant the City’s operation prior
to entering the house.” Dissent at 50.
As even the Dissent recognizes, the LASD’s search was more than a
“protective sweep,” which “is a quick and limited search of premises” that
“is narrowly confined to a cursory visual inspection of those places in
which a person might be hiding.” Dissent at 53 (quoting Buie, 494 U.S.
at 327).
UNITED STATES V. GREY 27
relevant evidence will be found in the place to
be searched.
Clifford, 464 U.S. at 294. Although Clifford was a plurality
opinion, we concluded in Alexander that “a majority of the
Justices subscribed to that part of the Clifford opinion on
which plaintiff relies.” Alexander, 29 F.3d at 1360–61 n.4.
We therefore treated the plurality opinion as controlling
Supreme Court precedent.
Third, even putting Alexander and Clifford aside, we
would hesitate to extend the Orozco test – applicable to
border searches, inventory searches, and commercial
inspections of vehicles and businesses – to an administrative
search or seizure involving a private residence. “Whether a
search is reasonable ‘is determined by assessing, on the one
hand, the degree to which it intrudes upon an individual’s
privacy and, on the other, the degree to which it is needed for
the promotion of legitimate governmental interests.’”
Samson v. California, 547 U.S. 843, 848 (2006) (emphasis
added) (quoting Knights, 534 U.S. at 118–19). “[T]here can
be no ready test for determining reasonableness other than by
balancing the need to search against the invasion which the
search entails.” Camara, 387 U.S. at 536–37 (emphasis
added).
Any determination of reasonableness in the circumstances
of this case, therefore, must account for the fact that “privacy
interests are especially strong in a private residence.”
Clifford, 464 U.S. at 296. As the Court explained in Payton:
The Fourth Amendment protects the
individual’s privacy in a variety of settings.
In none is the zone of privacy more clearly
28 UNITED STATES V. GREY
defined than when bounded by the
unambiguous physical dimensions of an
individual’s home – a zone that finds its roots
in clear and specific constitutional terms:
“The right of the people to be secure in their
. . . houses . . . shall not be violated.” That
language unequivocally establishes the
proposition that “[a]t the very core [of the
Fourth Amendment] stands the right of a man
to retreat into his own home and there be free
from unreasonable governmental intrusion.”
445 U.S. at 589–90 (alterations in original) (quoting
Silverman v. United States, 365 U.S. 505, 511 (1961)).
Where a private residence is involved, the Supreme Court has
repeatedly emphasized the importance of keeping criminal
investigatory motives from coloring administrative searches
and seizures. In Camara, for instance, the Court concluded
that municipal health and safety inspections of private
residences may be conducted with only an administrative
warrant in part because such inspections are not “aimed at the
discovery of evidence of crime” and therefore “involve a
relatively limited invasion of the urban citizen’s privacy.”
387 U.S. at 537. In Wyman v. James, 400 U.S. 309, 322–23
(1971), the Court upheld a program requiring home visits by
caseworkers as a condition for welfare assistance in part
because “[t]he home visit is not a criminal investigation, does
not equate with a criminal investigation, . . . is not in aid of
any criminal proceeding” and “is made by a caseworker . . .
whose primary objective is . . . the welfare, not the
prosecution, of the aid recipient.” In Abel v. United States,
362 U.S. 217 (1960), the Court upheld the use of an
administrative arrest warrant in a deportation case but
emphasized that its
UNITED STATES V. GREY 29
view of the matter would be totally different
had the evidence established . . . that the
administrative warrant was here employed as
an instrument of criminal law enforcement to
circumvent the latter’s legal restrictions,
rather than as a bona fide preliminary step in
a deportation proceeding. The test is whether
the decision to proceed administratively
toward deportation was influenced by, and
was carried out for, a purpose of amassing
evidence in the prosecution for crime.
Id. at 230. And in Clifford, the Court held that a criminal
warrant, supported by probable cause, is required “[i]f the
primary object of the search is to gather evidence of criminal
activity.” Clifford, 464 U.S. at 294. The government’s
invitation to apply Orozco to this context does not adequately
account for the heightened privacy interests at stake here. 4
The government argues, in essence, that the presence of
LASD’s criminal investigatory motive was harmless because
“the sweep of Grey’s dwelling would have occurred
regardless of the deputies’ motivation to uncover criminal
evidence.” We disagree. Under the Fourth Amendment,
reasonableness is determined by assessing the degree to
which a search or seizure “intrudes upon an individual’s
4
To the extent the Supreme Court has intimated that an Orozco-type
test should apply, it has done so in the context of inventory searches. See
Colorado v. Bertine, 479 U.S. 367, 372 (1987) (“In the present case, as in
Opperman and Lafayette, there was no showing that the police, who were
following standardized procedures, acted in bad faith or for the sole
purpose of investigation.” (emphasis added)). By contrast, in Clifford,
464 U.S. at 294, where the administrative search involved a private
residence, the Court applied a primary purpose test.
30 UNITED STATES V. GREY
privacy.” Samson, 547 U.S. at 848. Reasonableness
therefore accounts not only for the scope of a search or
seizure but also the “manner of [its] execution.” King,
569 U.S. at 448.
To be sure, when an impermissible motive has no effect
on the intrusiveness of an administrative search or seizure,
the Fourth Amendment is not offended. As we explained in
Bowhay, “suppression [is] not required when, even assuming
[a] questioned motivation is dominant, ‘the Fourth
Amendment activity undertaken is precisely the same as
would have occurred had the intent or motivation been
entirely absent from the case.” 992 F.2d at 231 (emphasis
added) (quoting Wayne R. LaFave, Search and Seizure
§ 1.4(e) at 92-3 (2d ed. 1987)). “When the police conduct
would have been the same regardless of the officer’s
subjective state of mind, no purpose is served by attempting
to tease out the officer’s ‘true’ motivation.” Id. In Bowhay,
the officer conducting an inventory search “had dual bona
fide motives: to search for ‘narcotics and weapons,’ and to
compile an inventory of the bag’s contents,” as required by
police department policy. Id. Under the circumstances of the
case, however, the “allegedly improper motive” had no
impact on “the police conduct”: “the department’s policy
was to search everything; the officer had no discretion.
Because of this, the presence of an investigative motive d[id]
not invalidate the inventory search.” Id.
When officers do have discretion, by contrast, the
presence of an improper motive may well have “a significant
distorting effect” on the scope of a search or seizure or the
manner in which it is executed. $124,570 U.S. Currency,
873 F.2d at 1245. In the case at bench, for instance, LASD’s
criminal investigatory motive plainly increased the intrusion
UNITED STATES V. GREY 31
on Grey’s privacy interests. But for LASD’s criminal
investigatory motive, Grey would not have been arrested
before commencement of the search. Nor would nine armed
deputies have descended on Grey’s home. And the deputies’
“protective sweep” would not have lasted 15 to 20 minutes,
perhaps longer. In the context of an arrest, the Supreme
Court has described a protective sweep as “a quick and
limited search of premises, incident to an arrest and
conducted to protect the safety of police officers or others,”
that “is narrowly confined to a cursory visual inspection of
those places in which a person might be hiding.” Buie,
494 U.S. at 327. The manner in which LASD executed the
warrant here was far more intrusive. Accordingly, we cannot
agree with the government that, when applied to the
Alexander-Clifford context, the Orozco rule adequately
“balanc[es] the need to search against the invasion which the
search entails.” Camara, 387 U.S. at 536–37. Further, in
arguing that Orozco should apply to these circumstances, the
government has offered no principled basis upon which to
distinguish Alexander. Under our case law, “[i]t is our
obligation . . . to reconcile [circuit precedent], if possible, so
as to avoid an intracircuit conflict,” not to create such
conflicts. See Edwards v. Marin Park, Inc., 356 F.3d 1058,
1065 (9th Cir. 2004). Applying Alexander here fulfills this
obligation.
For these reasons, we conclude that the district court
properly applied Alexander’s primary purpose test, rather
than Orozco, to the LASD conduct at issue in this case.
Where, as here, law enforcement officers are called upon to
assist in the execution of an administrative warrant providing
for the inspection of a private residence, the execution of the
warrant is consistent with the Fourth Amendment only so
long as the officers’ primary purpose in executing the warrant
32 UNITED STATES V. GREY
is to assist in the inspection. If the person challenging the
execution of the warrant shows that the officers’ primary
purpose was to gather evidence in support of an ongoing
criminal investigation, the conduct does not satisfy the Fourth
Amendment. See Alexander, 29 F.3d at 1360–61.
Where the execution of the warrant is no more intrusive
than it otherwise would have been, however, it makes no
sense to invalidate the search and suppress the evidence
because of the presence of an improper motive. See Bowhay,
992 F2d at 231. Thus, although we hold that the execution of
the warrant is presumptively unconstitutional where officers’
primary purpose is criminal investigation, the government
may rebut this presumption by showing that the improper
motive in fact had no impact on the intrusiveness of the
search. Where the government can show that the improper
motive did not affect the scope of the search or the manner in
which a warrant was executed, there would be no Fourth
Amendment violation. This approach comports with our
longstanding view that, “[t]o meet the test of reasonableness,
an administrative . . . search must be as limited in its
intrusiveness as is consistent with satisfaction of the
administrative need that justifies it.” Bulacan, 156 F.3d
at 967 (quoting United States v. Davis, 482 F.2d 893, 910
(9th Cir. 1973), overruled on other grounds by United States
v. Aukai, 497 F.3d 955, 960–61 (9th Cir. 2007) (en banc)).
Here, the district court properly applied Alexander. Its
finding that LASD’s primary purpose in executing the
warrant was to gather evidence in support of its criminal
investigation rather than to assist the City inspectors was not
clearly erroneous. See Grey, 2018 WL 4403979, at *9.
Although the district court did not use the exact words
“primary purpose,” that finding is the clear import of the
UNITED STATES V. GREY 33
court’s decision and is not clearly erroneous. The
government does not distinctly challenge that finding as
clearly erroneous, but even if it did so we would conclude
that there was no clear error. The existence of the ongoing
criminal investigation, LASD’s inability to establish probable
cause for a search or arrest on its own, LASD’s failure
independently to advance its own investigation pending the
administrative inspection, the involvement of the deputies
leading the criminal investigation in planning and executing
the operation, Grey’s arrest and questioning, the number of
deputies involved, and the duration and manner of LASD’s
“protective sweep” all support the district court’s finding.
That finding was not “illogical, implausible, or without
support in the record.” United States v. Hinkson, 585 F.3d
1247, 1263 (9th Cir. 2009) (en banc).
Moreover, in this case, we have the motives of two
separate and independent governmental entities at play – the
City of Lancaster’s Code Enforcement Division, and Los
Angeles County’s LASD.5 And the record, as well as the
district court’s findings, amply support that it was the motives
of the LASD that were dominant in the early phases of this
search, including Grey’s arrest and initial questioning, the
5
The City of Lancaster has no Police Department. Police services,
including law enforcement functions, in Lancaster are provided, by
contract, by the Los Angeles County Sheriff’s Department – the LASD –
which operates the Lancaster Station in the City of Lancaster. See
https://en.wikipedia.org/wiki/Lancaster,_California (last visited
02/15/2020); see also https://www.lakewoodcity.org/about/
history/lakewoodplan.asp (last visited 02/15/ 2020). Nothing in the record
indicates that any official of the City of Lancaster had any authority over
how the LASD carried out its law enforcement functions in the City of
Lancaster.
34 UNITED STATES V. GREY
initial entry into Grey’s home and the ensuing 20+ minute
search.6
Furthermore, this is not a case in which the government
has shown, or could show, that the execution of the warrant
was no more intrusive than it would have been absent
LASD’s criminal investigatory motive. Grey’s arrest, the
number of deputies involved and the length of the “protective
sweep” show that the criminal investigatory motive resulted
in a greater intrusion on Grey’s privacy interests than would
have occurred absent that motive. Arguably, the conduct at
issue here more closely resembled a criminal raid than an
administrative inspection. See Bruce, 498 F.3d at 1244.
Thus, it does not matter whether the City inspectors’
primary purpose may have been permissible – a question we
need not reach. Grey does not challenge the inspectors’
decision to obtain the warrant or the search conducted by the
inspectors following LASD’s initial search or sweep. He
instead challenges the County LASD’s execution of the
warrant. Under Alexander, therefore, we focus on LASD’s
motives. See Alexander, 29 F.3d at 1360–61.
Finally, nothing we say here should be construed as
questioning the City’s entitlement to the assistance of LASD
– or another law enforcement agency – in executing the
administrative warrant, to ensure the safety of its inspectors
and to prevent interference with the inspection. Under the
warrant, LASD could take actions reasonably necessary to
“assist in the execution of the Warrant to ensure that
interference with same does not occur.” But “an
6
This 20+ minute search by the LASD was made before the
Lancaster Code Enforcement Division’s administrative search.
UNITED STATES V. GREY 35
administrative search may not be converted into an
instrument which serves the very different needs of law
enforcement officials.” Id. at 1361. “Because administrative
searches are so easily diverted from their narrowly defined
purposes, government officials have an affirmative
responsibility to keep them from being misused.” Orozco,
858 F.3d at 1214. LASD could have fulfilled that
responsibility here by executing the warrant in a manner
consistent with the warrant’s administrative purpose rather
than using the inspection warrant as an opportunity to further
its ongoing criminal investigation.
Because we affirm the district court’s suppression order
on this ground, we need not address Grey’s argument that the
warrant itself was invalid under state law. Nor need we
address whether LASD exceeded the scope of the warrant by,
for example, arresting Grey or opening drawers and moving
items during the initial search. See McCarty, 648 F.3d at 834
(explaining that a valid administrative warrant does not
“provide[] carte blanche to the searching officers to snoop to
their hearts’ content without regard to the scope of their
actions”). We hold only that LASD’s execution of the
warrant was unreasonable under Alexander, and hence that
the district court properly granted Grey’s motion to suppress
evidence.
The district court’s order granting Defendant Grey’s
motion to suppress evidence is
AFFIRMED.
36 UNITED STATES V. GREY
BYBEE, Circuit Judge, dissenting:
Franz Grey was a difficult neighbor. Multiple neighbors
complained to housing officials in Lancaster, California (the
City) about the tarps, floodlights, and electrified fence that
Grey had erected to enclose his property. Neighbors
complained to the Los Angeles Sheriff’s Department (LASD)
as well. They were concerned that Grey was shooting an AK-
47 and other weapons into the air, that there were strange
chemical smells emanating from his property, and that Grey
seemed paranoid and unhinged. Deputies learned that Grey
had prior felony convictions, including for drug-related
crimes and manslaughter. When the City obtained an
administrative warrant to inspect his house for code
violations, the warrant authorized deputies to accompany the
officials to ensure their safety. While conducting a protective
sweep of Grey’s home, the LASD deputies seized evidence
found in plain view. The majority holds that the deputies
violated the Fourth Amendment the moment they entered
Grey’s home because they subjectively intended to gather
evidence of criminal activity rather than assist the health
inspectors. Maj. Op. at 3. Accordingly, the majority affirms
the district court’s order suppressing the evidence seized by
the LASD deputies.
In my view, that conclusion is contrary to basic Fourth
Amendment principles. Given the inspection warrant from a
California Superior Court, which authorized LASD to
accompany the housing inspectors, the deputies would have
entered Grey’s house regardless of their subjective
motivations. Instead, the correct inquiry is whether, once
inside the home, the deputies’ actions exceeded the
permissible scope of a protective sweep. Because the district
court did not address the scope of the search, I would vacate
UNITED STATES V. GREY 37
the suppression order and remand for further proceedings. I
respectfully dissent.
I
The Fourth Amendment, made applicable to the states
through the Fourteenth Amendment, protects our right “to be
secure in [our] persons, houses, papers, and effects, against
unreasonable searches and seizures.” U.S. CONST. amend.
IV. The question in this case is whether LASD’s protective
sweep and ensuing inspection of Grey’s house was an
“unreasonable” search. The Supreme Court has provided the
general rule:
Fourth Amendment reasonableness is
predominantly an objective inquiry. We ask
whether the circumstances, viewed
objectively, justify [the challenged] action. If
so, that action was reasonable whatever the
subjective intent motivating the relevant
officials. This approach recognizes that the
Fourth Amendment regulates conduct rather
than thoughts, and it promotes evenhanded,
uniform enforcement of the law.
Ashcroft v. al-Kidd, 563 U.S. 731, 736 (2011) (alteration in
original) (internal quotation marks and citations omitted); see
also City of Indianapolis v. Edmond, 531 U.S. 32, 45–47
(2000); Whren v. United States, 517 U.S. 806, 814 (1996);
Perez Cruz v. Barr, 926 F.3d 1128, 1138–39 (9th Cir. 2019).
There are, however, “[t]wo ‘limited exception[s]’ to this
rule . . . where ‘actual motivations’ do matter.” al-Kidd,
563 U.S. at 736 (second alteration in original) (citation
38 UNITED STATES V. GREY
omitted). Those exceptions are special-needs searches and
administrative searches. Id. Only the latter exception is
relevant here, as that exception applies to “an inspection of
residential premises to ensure compliance with a housing
code.” Id. at 736–37 (citing Camara v. Mun. Court of City &
Cty. of S.F., 387 U.S. 523, 535–38 (1967)).
Administrative-search cases fall into one of two
categories. First are those where the administrative scheme
results in searches conducted without discretion or suspicion.
See Edmond, 531 U.S. at 35–36. Second are those in which
the administrative scheme gives individual officers discretion
as to who or what to search. See United States v. Orozco,
858 F.3d 1204, 1207–08, 1210 (9th Cir. 2017).
The majority seems to overlook the difference between
these two lines of cases, instead suggesting that they all
support an inquiry into the subjective motivations of
individual officers. See Maj. Op. at 22–24. Because that is
mistaken, I will review these two categories of
administrative-search cases before explaining where Grey’s
case belongs.
A
When a search is conducted pursuant to an administrative
scheme that does not grant discretion to the government
official, we examine the purposes behind the search “at the
programmatic level.” Edmond, 531 U.S. at 46. We do not
“probe the minds of individual officers acting at the scene.”
Id. at 48.
The quintessential case applying this principle is Edmond.
There, the Supreme Court addressed whether a vehicle
UNITED STATES V. GREY 39
checkpoint program intended to discover the possession or
transport of drugs violated the Fourth Amendment. Id. at 34.
Under the program, officers stopped a predetermined number
of vehicles; the officers had “no discretion to stop any vehicle
out of sequence.” Id. at 35. As a result, the Supreme Court
looked only to the purpose of the checkpoint program itself,
and not to the motivations of the individual officers. The
Court concluded that, because the “primary purpose” of the
program was “to uncover evidence of ordinary criminal
wrongdoing,” the stops and searches violated the Fourth
Amendment. Id. at 41–42.
Thus, when the programmatic purpose of an
administrative scheme violates the Fourth Amendment, no
search conducted pursuant to that scheme is constitutional.7
But what if the programmatic purpose of an administrative
scheme complies with the Fourth Amendment? In that
instance, the inquiry shifts. We still do not examine the
subjective motivations of the government official. See United
States v. McCarty, 648 F.3d 820, 833 (9th Cir. 2011)
(“[W]here a warrantless search is conducted pursuant to a
lawful administrative scheme with a constitutionally
7
On several occasions, we have struck down administrative schemes
because their programmatic purposes contravened the Fourth Amendment.
See United States v. Bulacan, 156 F.3d 963, 973 (9th Cir. 1998) (holding
that regulations authorizing federal officers to search an individual’s
belongings for narcotics upon entry to a federal building violated the
Fourth Amendment); United States v. $124,570 U.S. Currency, 873 F.2d
1240, 1245–47 (9th Cir. 1989) (holding that an administrative scheme that
awarded airport officials $250 if they identified passengers carrying large
quantities of cash and reported them to the United States Customs Service
violated the Fourth Amendment). But these cases have no relevance here.
Grey does not argue that the administrative scheme under which the
inspection warrant was issued is facially unconstitutional.
40 UNITED STATES V. GREY
permissible motivation, the subjective motive of the
individual conducting the search will not invalidate the
search.” (internal quotation marks omitted)). Instead, we ask
whether “the searcher’s actions [were] cabined to the scope
of the permissible administrative search.” Id. at 834–35.
Only if the objective actions of the searching official exceed
the permissible scope does the official’s subjective intent
become relevant. Id. at 835.
We have applied this analysis on several occasions. In
McCarty, Transportation Security Administration (TSA)
officials searched a traveler’s luggage. Id. at 824. Under the
governing administrative scheme, “TSA screens all luggage,”
and individual TSA officials “do not have the discretion or
ability to stop the [screening] machines.” Id. In those
circumstances, we did not question the propriety of the initial
search of the defendant’s bag. Instead, we examined the TSA
official’s actions to determine if they “exceeded the scope of
the administrative search.” Id. at 835. Ultimately, we found
that some of the official’s actions did “extend the scope of the
search beyond what was necessary,” so those portions of the
search violated the defendant’s Fourth Amendment rights. Id.
at 836.
Our decision in United States v. Tsai, 282 F.3d 690 (9th
Cir. 2002), is in accord. There, an Immigration and
Nationalization Service (INS) agent searched the defendant’s
valise at the border. Id. at 693. Because “the Fourth
Amendment requires neither individualized suspicion nor a
warrant” for a “routine border search[],” the only question
was whether the search’s “degree of intrusiveness” exceeded
the scope of the “administrative purposes of enforcing the
immigration laws.” Id. at 694 (internal quotation marks
omitted). Because the search of the defendant’s valise fell
UNITED STATES V. GREY 41
well within the permissible scope, the search was
constitutional even though the INS agents who searched the
bag were subjectively motivated by an “investigative
purpose.” Id. at 696.
Finally, in United States v. Bowhay, 992 F.2d 229 (9th
Cir. 1993), we considered an inventory search of the
defendant’s bag following his arrest. The police department’s
“standard procedure” was that “everything [be] inventoried.”
Id. at 230. Because “the officer had no discretion,” his
admission that he searched the defendant’s bag based partly
on a motive to investigate rather than merely inventory was
irrelevant. Id. at 231. We noted that “[w]hen the police
conduct would have been the same regardless of the officer’s
subjective state of mind, no purpose is served by attempting
to tease out the officer’s ‘true’ motivation.” Id. Thus, we
held that the search of the defendant’s bag did not violate the
Fourth Amendment. Id.
The common theme running through these cases is that,
when an administrative scheme results in suspicionless or
discretionless searches, the subjective motivations of the
searching officers are irrelevant. Instead, the proper inquiry
is whether the officers’ actions exceeded the scope of the
administrative scheme. If they did, the search is likely
unconstitutional. If they did not, the search is constitutional,
regardless of what the officers may have intended when
conducting the search.
The only case I am aware of appearing to depart from
these principles is United States v. Johnson, 889 F.3d 1120
(9th Cir. 2018) (per curiam). There, Portland police officers
conducted an inventory search of the defendant’s vehicle and
belongings following his arrest. Id. at 1123. The police
42 UNITED STATES V. GREY
department’s policy required officers to conduct this
inventory search and authorized them “to seize the items
found for safekeeping.” Id. at 1127. Despite the officers’
lack of discretion, we analyzed the subjective motivations of
the officers. We held that the search violated the Fourth
Amendment “because the officers themselves explicitly
admitted that they seized items from the car in an effort to
search for evidence of criminal activity.” Id. We also noted
that the officers did not seize everything in the car, but only
those items that appeared to be relevant to the defendant’s
suspected criminal activity, which was inconsistent with the
purpose of the department’s policy that a defendant’s
belongings be taken for safekeeping. See id. at 1128 & n.1.
In short, we concluded that the search “would not have
occurred” but for the officers’ criminal-investigatory motive.
Id. at 1128.
Frankly, Johnson is difficult to reconcile with our prior
case law. Indeed, despite dealing with nearly identical facts,
Johnson neither cited nor discussed our previous decision in
Bowhay. Because the Portland officers had no discretion to
choose whether to perform the inventory search, the
subjective motivations of the officers should have been
irrelevant. The only inquiry ought to have been whether the
officers exceeded the scope of the inventory-search
justification. I can only explain Johnson’s result by the
officers’ unabashed admission that the police department’s
inventory-search policy was merely pretext for the officers’
other motivations. Accordingly, I read Johnson to establish
that even a discretionless search within the scope of the
governing administrative scheme can violate the Fourth
Amendment when the searching official admits that the
search was motivated solely by reasons unrelated to the
administrative justification. If that circumstance is not
UNITED STATES V. GREY 43
present, the analytical approach reflected in McCarty, Tsai,
and Bowhay applies, and subjective motivations are
irrelevant.
B
When an officer conducts a search under an
administrative scheme that grants the officer discretion as to
who or what to search, we examine the “actual motivations”
of the officer to determine whether the administrative
justification for the search was merely a “pretext” masking an
“impermissible reason” for the search. Orozco, 858 F.3d
at 1210, 1213 (internal quotation marks omitted). The search
is unconstitutional only if it “would not have occurred in the
absence of an impermissible reason.” Id. at 1213 (internal
quotation marks omitted). In other words, a search warrant
is required if the “primary object of the search is to gather
evidence of criminal activity.” Michigan v. Clifford, 464 U.S.
287, 294 (1984); see also Perez Cruz, 926 F.3d at 1141
(noting that the Fourth Amendment is violated if the “primary
purpose” of the search is unrelated to the justifications for the
governing administrative scheme). But if the searching
officer had dual motives—“one valid, and one
impermissible”—the search is constitutional. Orozco,
858 F.3d at 1213; see also 3 WAYNE R. LAFAVE, SEARCH
AND SEIZURE 902 (5th ed. 2012) (noting that “pretext arises
out of the fact that the evidence is found in a search which
would not have occurred at all”).
Orozco is our clearest example of this analysis. There, we
analyzed whether a stop and search made under Nevada’s
Commercial Vehicle Safety Plan was pretextual when
Nevada highway patrol troopers stopped and searched
Orozco’s truck after receiving a tip that it was carrying illegal
44 UNITED STATES V. GREY
drugs. 858 F.3d at 1207–08. Under Nevada’s administrative
scheme, officers could stop commercial vehicles “[t]o enforce
the provisions of laws and regulations relating to motor
carriers, the safety of their vehicles and equipment, and their
transportation of hazardous materials and other cargo.” Nev.
Rev. Stat. § 480.360(4). The scheme did not, however, allow
stops and searches for “criminal investigatory purposes, such
as drug interdiction, for which reasonable suspicion or
probable cause is lacking.” Orozco, 858 F.3d at 1206. We
held that, to prove that the stop and search was unreasonable,
Orozco had to “come forward with objective evidence to
suggest that the intrusion was not made for the purpose of
enforcing the administrative inspection scheme.” Id. at 1213.
In other words, the defendant had to show that “but for the
officers’ belief that [the defendant] might be carrying drugs,
the stop never would have happened.” Id. at 1210 (emphasis
added). Ultimately, we concluded that “the only purpose of
the stop” of Orozco “was to investigate criminal activity” and
“[t]here was no secondary administrative purpose at all—only
a charade to camouflage the real purpose for the stop.” Id.
at 1216; see id. at 1213 (“[T]he manner in which the stop
itself was conducted strongly suggests that it was wholly
pretextual.” (emphasis added)); id. at 1214 (referring to “the
Assistant U.S. Attorney’s oral concession that, but for the tip,
the officers would not have stopped the defendant’s truck”).
Accordingly, we held that the stop violated the Fourth
Amendment. Id. at 1216.
We reached a similar conclusion in Perez Cruz. Working
from an anonymous tip, Immigration and Customs
Enforcement (ICE) agents obtained a search warrant for
employment-related documents and arrest warrants for eight
employees at a Los Angeles factory. 926 F.3d at 1133–34.
Nearly 100 armed and uniformed ICE agents entered the
UNITED STATES V. GREY 45
factory and detained all the employees. Id. at 1134. They
allowed employees with work authorization to leave, but
rounded up and interrogated the remaining 130 workers,
including Perez Cruz, before bussing them to a detention
facility in downtown Los Angeles. Id. In his removal
proceedings, Perez Cruz challenged his detention on Fourth
Amendment grounds. Id. We had little difficulty holding
that ICE’s operation would not have occurred but for the
agents’ improper motives. Internal memoranda demonstrated
that ICE “intended from the outset to turn the execution of
[the search and arrest] warrants into quite a different
operation than a search for employment records,” and that
ICE anticipated making 150–200 arrests, bringing two buses
and five vans to transport employees to detention facilities.
Id. at 1133–34. We found that “the central purpose of the
raid was not to find documents but to arrest undocumented
workers.” Id. at 1143. In other words, the raid would not
have occurred but for ICE’s investigatory motive. See id.
Accordingly, the detention of Perez Cruz violated the Fourth
Amendment. Id. at 1146.
Finally, our decision in Alexander v. City & County of
San Francisco, 29 F.3d 1355 (9th Cir. 1994), abrogated in
part on other grounds by County of Los Angeles v. Mendez,
137 S. Ct. 1539 (2017), applies these same principles. In that
case, health department officials obtained an inspection
warrant authorizing them to forcibly enter Henry Quade’s
house based on complaints of seeping sewage and
accumulated refuse. Id. at 1357–58. One police officer
accompanied the health officials to assist in executing the
warrant. Id. at 1358. When they arrived at Quade’s house,
they noticed that Quade had nailed his door shut and
barricaded himself in the house. See id. As the police officer
looked through a window, Quade yelled that he was “going
46 UNITED STATES V. GREY
to get [his] gun and use it.” Id. At that point, the officer’s
intention “shifted from assisting in the execution of the
warrant to arresting Quade.” Id. at 1363. The officer
“radioed for reinforcements,” consisting of a “tactical team”
and a “team of hostage negotiators.” Id. at 1358. After an
hour of attempted negotiations, two officers broke through
the front door with a battering ram, and seven other officers
entered the house with guns drawn. Id. Quade appeared at
the top of the staircase brandishing a handgun. Id. When
Quade pointed the gun at the officers and pulled the trigger,
the officers opened fire, shooting and killing Quade. Id. The
executor of Quade’s estate brought suit under 42 U.S.C.
§ 1983 for unlawful entry to effect an arrest. The officers
argued that their entry into Quade’s residence was justified by
the administrative inspection warrant. We disagreed, holding
that the officers could not post-hoc “convert[]” the
administrative warrant “into an instrument which serves the
very different needs of law enforcement officials.” Id.
at 1361. Because the officers’ “primary purpose in storming
the house was to arrest Quade rather than to assist the health
officials in executing the inspection warrant,” the officers
violated the Fourth Amendment when they entered Quade’s
home. Id. at 1360. What had started as a housing inspection
became something very different. As the police captain
explained to the press after the incident: “we could have been
waiting all day long . . . . we felt that rather than keep traffic
blocked up and the streets blocked all day long we would try
to go in and arrest him.” Id. at 1358–59.
In short, we look to the primary purpose of a search
conducted under an administrative scheme only when the
searching officer had discretion as to who or what to search.
The search is unconstitutional only if the search would not
have occurred but for the officer’s impermissible motive.
UNITED STATES V. GREY 47
***
With the foregoing analytical principles in mind, I will
now explain how I believe those principles should be applied
to the search that occurred at Grey’s home.
II
Relying primarily on Alexander, the majority concludes
that the LASD deputies violated Grey’s Fourth Amendment
rights the moment they entered his house because their
subjective motivation for doing so was to search for evidence
of criminal activity. I disagree with that conclusion. In my
view, the subjective motivation of the LASD deputies is
irrelevant. From their perspective, they were responding to
a request to provide police protection for housing officials.
Any secondary motives were of no consequence. The search
of Grey’s home amounted to a discretionless search, bringing
their actions within the ambit of cases like McCarty, Tsai, and
Bowhay. Thus, the proper inquiry is whether the deputies
exceeded the scope of a protective sweep or the inspection
warrant once inside Grey’s home. And that is an objective
inquiry. Because the district court did not address the scope
of the search, I would vacate the suppression order and
remand to allow the district court to conduct this fact-bound
analysis in the first instance.
As I noted above, the subjective intent of a searching
officer who conducts a discretionless search pursuant to a
lawful administrative scheme is irrelevant unless the officer
exceeded the permissible scope of the administrative scheme.
See McCarty, 648 F.3d at 834–35. At first blush, the
protective sweep conducted by the LASD deputies in this
case may seem qualitatively different than the discretionless
48 UNITED STATES V. GREY
search of all luggage in McCarty or the inventory search in
Bowhay. But upon closer examination, the search at issue
here is essentially the same as those in McCarty and Bowhay
for one reason: the LASD deputies had no discretion.
Under the City’s administrative inspection scheme, City
health officials have discretion as to who or what to search.
Indeed, as Jocelyn Corbett stated, the City attempts to obtain
inspection warrants primarily when “there is a reasonable
basis to believe that the residence contains code violations.”
In other words, the City’s officials determine whether a
residence needs inspection and, if it does, apply for an
administrative warrant. As a result, the subjective
motivations of the City officials are relevant under Orozco
and Alexander. If the officials’ primary goal were to use the
administrative inspection warrant to investigate Grey’s
criminal activity, the search would violate the Fourth
Amendment. But Grey does not challenge the City officials’
subjective motivations; instead, he challenges only those of
the LASD deputies. As a result, I accept as true Corbett’s
declaration stating she “did not intend for the inspection to
aid law enforcement in any way,” and that “[n]o one from
LASD ever asked me to get an inspection warrant to aid in
their criminal investigation.” There is no evidence to the
contrary.
Unlike the discretion City officials have in seeking an
administrative warrant, the LASD deputies here had no
discretion. “Every time” the City obtains an inspection
warrant, they “have at least one Los Angeles County Sheriff’s
deputy accompany the inspector to clear the premises.” In
Grey’s case, Corbett requested LASD assistance because she
“had concerns for the safety of” the health inspector, and
“because it is [the City’s] policy to have law enforcement
UNITED STATES V. GREY 49
accompany the City personnel who will be executing the
[inspection] warrant.” The warrant specifically authorized
“Los Angeles County Sheriffs deputies [to] assist in the
execution of the Warrant to ensure that interference with
same does not occur.” The LASD deputies did not choose to
search Grey’s house based on their own investigation; they
were not there on their own initiative. Rather, they merely
complied with the City’s request for assistance. In short, the
search of Grey’s house was not the result of an exercise of
discretion by the LASD deputies.
Alexander does not compel a contrary conclusion. To be
sure, Alexander also involved law enforcement officers aiding
health officials in the execution of an administrative
inspection warrant. But in that case, the law enforcement
officers “supplanted” the health agency’s “mission” once the
situation escalated. Alexander, 29 F.3d at 1361. The officer
accompanying the health officials called in additional
reinforcements for the purpose of entering the home to arrest
the defendant. See id. at 1362. At that point, the police
officers were no longer assisting the health officials execute
an inspection warrant. Instead, the officers were conducting
their own operation, putting their subjective motivations in
play. We rightly rejected the officers’ post-hoc attempt to
justify their entrance into the defendant’s house under the
guise of the administrative inspection warrant.
The situation here is entirely different. No escalation
occurred once the LASD deputies and City health officials
arrived at Grey’s house. To the contrary, Grey was quickly
detained outside, which the deputies had the right to do. See
Dawson v. City of Seattle, 435 F.3d 1054, 1565–66 (9th Cir.
2006); Ganwich v. Knapp, 319 F.3d 1115, 1120–21 (9th Cir.
2003). The deputies then entered the house to conduct a
50 UNITED STATES V. GREY
protective sweep. And as is appropriate during a protective
sweep, the City’s inspectors did not enter the house until after
the sweep was completed—a necessary step for their own
protection. The LASD deputies simply did not supplant the
City’s operation prior to entering the house. Instead, their
entrance was in furtherance of the City’s execution of the
inspection warrant. Thus, Alexander has little purchase here.
At bottom, LASD’s actions amounted to a discretionless
search. Because the search was discretionless, the subjective
motivations of the deputies as they entered Grey’s house are
irrelevant. See Bowhay, 992 F.2d at 231. Indeed, under
Bowhay, it is irrelevant if the deputies had “dual bona fide
motives.” Id. The LASD deputies were lawfully on Grey’s
premises to protect housing officials by conducting a
protective sweep. That is their job—to protect—and we must
treat it as nondiscretionary. No police department in the
country would have refused to respond to a housing official’s
request backed by a court-issued inspection warrant. Because
LASD deputies had not only a right, but a duty to conduct a
protective sweep of Grey’s house, the only question is
whether the deputies exceeded the permissible scope of a
protective sweep incident to execution of the administrative
inspection warrant.
The majority says that it does not address the scope of the
search. Maj. Op. at 35. But in reaching its conclusion that
the search here violated the Fourth Amendment, the majority
cannot help but consider whether the officers exceeded the
permissible scope of a protective sweep that is conducted in
connection with an inspection warrant. For example, the
majority faults the deputies for spending fifteen to twenty
minutes inside Grey’s home because that is arguably
inconsistent with the definition of a protective sweep. Id.
UNITED STATES V. GREY 51
at 31, 33–34. Similarly, the majority announces a burden-
shifting framework under which a search is constitutional if
the government demonstrates that the officers’ “improper
motive did not affect the scope of the search or the manner in
which [the] warrant was executed.” Id. at 32. Rather than
affording the government the opportunity to make that
showing, however, the majority concludes that the
government neither “has shown” nor “could show[] that the
execution of the warrant was no more intrusive than it would
have been absent LASD’s criminal investigatory motive.” Id.
at 34. Thus, despite contrary assurances, the majority
considers whether the deputies exceeded the permissible
scope and finds that they did.
The majority’s inability to avoid addressing the scope of
the protective sweep only demonstrates the flaws in its
analysis.8 The burden-shifting framework articulated by the
majority confirms that the real question is whether the
officers’ actions went beyond the permissible justifications
for a protective sweep. Indeed, under the majority’s test, the
search at issue here would be constitutional, even though the
deputies’ primary goal was to search for evidence of criminal
activity, so long as the deputies’ objective actions were no
more intrusive than necessary to conduct a protective sweep
and execute the inspection warrant. That is the exact test
used in cases like McCarty, Tsai, and Bowhay to analyze
searches that are conducted without discretion. In short, the
majority effectively subscribes to the analysis I have
8
We can test the majority’s position by asking, “what should LASD
have done differently?” Declined to help the housing officials? Recused
itself? And what should LASD do in the future when it is asked to support
an administrative warrant, if it has previously received complaints about
the subject?
52 UNITED STATES V. GREY
articulated, but has substituted an analysis of the deputies’
subjective motives for what should be an objective inquiry.9
9
Even if we should be analyzing the subjective motivations of the
LASD deputies, the majority’s conclusion that the deputies had a criminal-
investigatory motive does not follow from the facts the majority cites. For
example, the majority emphasizes that LASD sent nine deputies to assist
the City health officials. Maj. Op. at 31. But why does the presence of
nine officers clearly demonstrate a motive to investigate criminal activity
in this context? Nine deputies seems like a big group to me, but I am not
a law enforcement officer, and that number may well have been justified
by the atypical threats posed by Grey and his fortified home. And if the
presence of nine deputies clearly demonstrates a criminal investigatory
motive, how many deputies should LASD have sent to avoid such a
finding? Five? Three? The majority provides no guidance as to what is
appropriate. Nor could it, as the Fourth Amendment places no cap on the
number of officers that may conduct a protective sweep. In these
circumstances, we have no business second-guessing how many officers
LASD should have sent.
The majority also cites the fact that the deputies conducting the sweep
were the same individuals involved in Grey’s criminal investigation. Id.
at 33. But once the City requested LASD’s assistance, the question of
which deputies would accompany the health officials is largely irrelevant
to why the search took place. In any event, LASD did not have to build
a wall between deputies who knew of the complaints against Grey and
deputies who did not. See Abel v. United States, 362 U.S. 217, 228, 230
(1960) (“[T]o hold illegitimate, in the absence of bad faith, the
cooperation between I.N.S. and F.B.I. would be to ignore the scope of
rightful cooperation between two [agencies] . . . concerned with
enforcement of different areas of law . . . . The test is whether the
decision to proceed administratively . . . was influenced by, and was
carried out for, a purpose of amassing evidence in the prosecution for
crime.”). LASD knew that Grey had multiple felony arrests and a
conviction for manslaughter, and that neighbors had heard gunshots and
seen various firearms, including an AK-47. Thus, LASD’s decision to
send multiple officers who were involved in Grey’s criminal investigation
was not just reasonable, it was the smart thing to do. Assigning deputies
with no knowledge of the complaints against Grey or his criminal record
would have been dangerous and irresponsible.
UNITED STATES V. GREY 53
There is some evidence that the LASD deputies may have
exceeded the scope of a protective sweep while inside Grey’s
house. “A ‘protective sweep’ is a quick and limited search of
premises” that “is narrowly confined to a cursory visual
inspection of those places in which a person might be
hiding.” Maryland v. Buie, 494 U.S. 325, 327 (1990). Yet
one deputy testified that they were in Grey’s home for fifteen
to twenty minutes, and time stamps on photographs suggest
the deputies were in the house for up to forty minutes.
Additionally, the district court accepted evidence that the
deputies may have opened desk drawers and touched and
moved some items, which is impermissible during a
protective sweep. See Cuevas v. De Roco, 531 F.3d 726, 735
(9th Cir. 2008) (per curiam) (holding that by opening “at least
one drawer,” an officer “exceeded . . . the limits of a lawful
protective sweep”). If the LASD deputies’ actions went
beyond conducting a protective sweep, those actions likely
violated the Fourth Amendment. See McCarty, 648 F.3d at
836 (noting that the Fourth Amendment is violated when the
Finally, the majority faults LASD for “fail[ing] independently to
advance its own investigation pending the administrative inspection.”
Maj. Op. 33. But LASD had already determined that it lacked probable
cause for a criminal search warrant. This is a laudable, measured
judgment. Why this fact clearly demonstrates an investigatory motive
escapes me. In our Fourth Amendment cases, we have never required law
enforcement to adhere to a specific time line when conducting a criminal
investigation. And for good reason. Law enforcement officials, not
judges, are in the best position to determine which investigations to
prioritize. Is it possible that LASD took no further investigatory steps
because it was hoping to use the inspection warrant to search for evidence
of criminal activity? Yes. But equally plausible is the fact that the
investigation of Grey was less important than other active investigations,
so LASD chose to put Grey’s investigation on the back burner. There is
no evidence LASD was pushing the City’s housing inspectors as a cat’s
paw to serve its own investigatory purposes.
54 UNITED STATES V. GREY
searching officer’s actions are “more extensive and intrusive
than necessary” under the governing administrative scheme).
Ultimately, the district court did not consider the scope of
the search. I disagree with the majority’s decision to
implicitly conduct this analysis for the first time on appeal
while also considering the subjective motivations of the
officers. Thus, I would vacate the suppression order and
remand to allow the district court to conduct the appropriate
analysis in the first instance.
I respectfully dissent.