United States v. Martha Maffei

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 27 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10389
Plaintiff-Appellant, D.C. No.
4:18-cr-00174-YGR-1
v.
MARTHA JULIA MAFFEI, MEMORANDUM*
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Yvonne Gonzalez Rogers, District Judge, Presiding
Submitted October 16, 2020**
San Francisco, California
Before: McKEOWN and NGUYEN, Circuit Judges, and VITALIANO,*** District
Judge.
The United States appeals the district court’s order granting Martha Maffei’s
motion to suppress. The parties are familiar with the facts, so we do not repeat
*
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 Eric N. Vitaliano, United States District Judge for the
Eastern District of New York, sitting by designation.
them here. We have jurisdiction under 18 U.S.C. § 3731, and we affirm.
1. “We review the district court’s [suppression order] de novo and the
underlying factual findings for clear error.” United States v. Zapien, 861 F.3d 971,
974 (9th Cir. 2017) (per curiam) (quoting United States v. Rodriguez-Preciado,
399 F.3d 1118, 1125, amended by 416 F.3d 939 (9th Cir. 2005) (mem.)). The
district court did not clearly err in finding that there were not “significant
indications that [Michael] was under the influence of marijuana.” We therefore
affirm the district court’s finding that there was no probable cause to search
Maffei’s vehicle for evidence of driving under the influence of marijuana in
violation of California Vehicle Code § 23152(f).
2. We do not address whether there was probable cause to search Maffei’s
vehicle under federal law. We generally do not “consider an issue not passed upon
below.” Dodd v. Hood River Cnty., 59 F.3d 852, 863 (9th Cir. 1995) (quoting
Singleton v. Wulff, 428 U.S. 106, 120 (1976)). Here, the United States not only
failed to raise this issue below, it also specifically gave up two clear opportunities
to address it. During the suppression hearing, the district court specifically raised
the question of whether and how federal law would apply. The district court also
asked the parties if there was anything else the court should consider. The United
States made no arguments in response. The district court then invited
supplemental authority and briefing on topics discussed at the hearing, but the
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United States only advanced its state-law theory in post-hearing briefing.
Although the United States attempts to align this case with United States v.
Williams, 846 F.3d 303 (9th Cir. 2016), there is no reason to think that the
government affirmatively waived the opportunity to address the argument it later
raised on appeal in that case. We therefore find that the United States waived the
argument that probable cause was established based on federal law. See USA
Petroleum Co. v. Atl. Richfield Co., 13 F.3d 1276, 1280–84 (9th Cir. 1994)
(finding waiver of a predatory-pricing theory under section 1 of the Sherman Act
where the party only advanced a separate predatory-pricing theory before the
district court); see also United States v. Liew, 856 F.3d 585, 600 (9th Cir. 2017)
(finding an objection to certain jury instructions waived because the party agreed
to the jury instructions despite being aware of case law it eventually relied on to
challenge the instructions upon appeal).
3. The United States did not establish that the good-faith exception to the
exclusionary rule applies here, and we therefore affirm the order suppressing
evidence found in Maffei’s car without a warrant as well as evidence found in her
apartment with a warrant. When a search warrant is based on illegally obtained
evidence, we analyze “whether the police misconduct that led to discovery of the
illegally obtained evidence is itself subject to the good-faith exception.” United
States v. Artis, 919 F.3d 1123, 1133 (9th Cir. 2019).
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We conclude that the officer’s decision to search Maffei’s car is not subject
to the good-faith exception. The United States argues that the officer reasonably
relied on cases holding that the odor of marijuana alone establishes probable cause
to search a vehicle. But Proposition 64 clearly established that lawful cannabis
activity is no longer a “basis for detention, search, or arrest.” Cal. Health & Safety
Code § 11362.1(c). Given this clear change in California law, it was unreasonable
for the officer to rely on cases holding that the odor of marijuana alone establishes
probable cause to search the vehicle. See, e.g., United States v. Underwood, 725
F.3d 1076, 1087 (9th Cir. 2013) (determining that the good faith exception did not
apply because, among other reasons, the law was clear).
AFFIRMED.
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