Fourth Amendment; Strip Searches Restricted: Bull v. City and Co. of S.F., 539 F.3d 1193 (9th Cir. 2008)

Strip Searches Bull v. City & County of San Francisco 539 F.3d 1193 (9th Cir. 2008) August, 2008 [B]y disregarding jail administrators urgent concerns about serious contraband smuggling problems, I agree with the [dissenting judge] that we are potentially putting lives in the San Francisco detention system at serious risk. This quote reflects the opinion of a Ninth Circuit judge reluctantly concurring with the decision of another judge in the three judge panel. The author of the lead opinion denied San Francisco authorities the right to conduct body cavity searches of pre detention arrestees transferred to the general jail population unless evidence of reasonable suspicion or other limited conditions justifying a search exists. And this language from the same concurring judge in Bull: By effectively eliminating . . . security concerns from our calculus, we contradict Supreme Court precedent and common sense and take upon ourselves a rule unsuited for the courts . . . Judges must guard against the all-too-human tendency to believe that their individual solutions to often intractable problems are better and more workable than those of the persons who are actually charged with and trained in the running of the particular institution under examination; Bell v. Wolfish, 441 U.S. 520 (1979). No one doubts the serious invasion of privacy implicated in strip searches. But the privacy factor in jails and prisons differs substantially from any other category of search by public officials. The dissenting judge in Bull writes of the Ninth Circuits serious departure from the Supreme Court acknowledgment of this factor in its Fourth Amendment jurisprudence. San Francisco produced extensive and overwhelming evidence of drug smuggling in the jails and the inability to exercise control in the absence of searching authority. The Fourth Amendment requires all searches conducted by public officials must be reasonable but that word and its application are contingent on the context. The Supreme Court in Bell balanced the significant and legitimate security interests of the institution (jail) against the privacy interest of the inmates, and held a visual cavity inspection . . . can . . . be conducted on less than probable cause. Other language in Bell clearly recognizes the need for strip searches in jail facilities. Despite this clear approval of strip searches by the Supreme Court, the Ninth Circuit undertook its own analysis of institutional and privacy interests and basically ignored the Bell decision. Strip searches, according to the majority panel, violate our clearly established (by the Ninth Circuit) Fourth Amendment rights. The author of the lead opinion in Bull disposed of Bell in one paragraph and cites contrary Ninth Circuit precedent as authority for the following rule: Unless the pre detention inmate was arrested for weapons violations, drug offenses, violence, violation of probation or parole, or manifests individualized suspicion, and despite eventually housing them in the general jail population, jailors may not conduct strip searches. The lead opinion in Bull ignores the fact that those arrested in categories unrelated to those subject to search described above can also conceal weapons or contraband. The criminal record of an arrestee jailed for any offense is often unknown at intake. Similarly, whether an arrestee is on parole or probation is often unknown until time develops a record match. Gangs are notorious for intimidating other inmates in the prison population or demanding they obtain narcotics. The concurring judge in Bull is correct. The judiciary is the least equipped institution to render the kind of decision in Bull. Undoubtedly a rehearing or rehearing en banc will ensue if, for no other reason, based on the language of the concurring judge who felt bound by Ninth Circuit precedent but clearly expressed disagreement with the result. Bull squarely contradicts Supreme Court precedent, and the Justices should review this Ninth Circuit opinion unless withdrawn, amended, or reheard and reversed by itself or the full panel. Note: this case was submitted November 6, 2007 and decided August 25, 2008-nine months later. The Ninth Circuit has granted a rehearing en banc in this case: 558 F.3d 887 (9th Cir. 2009).

Immigration: Ninth Circuit Applies Exclusionary Rule to Illegal Immigration: Lopez & Gastelulm v. Mukasey, 536 F.3d 1012 (9th Cir. 2008)

Luz Lopez-Rodriguez & Fabiola Gastelum Lopez v. Mukasey 536 F.3d 1012 (9th Cir. 2008) Under a variety of rationales, the Supreme Court has permitted certain types of administrative searches which did not lend their application to conventional Fourth Amendment analysis; Camara v. Mun. Ct. of San Francisco, 387 U.S. 523 (1967). The Court has sanctioned various warrantless searches of railroad employees, narcotic enforcement personnel, check points for drunk driving, border searches, customs and airport searches, and immigration searches. The Supreme Court has repeatedly criticized and reversed the Ninth Circuit for their decisions on border searches and immigration searches inside the United States, not on the ground of special needs but the right of a sovereign to preserve its territorial integrity. Yet, given the Ninth Circuit record on immigration appeals, deference to the INS is unlikely as illustrated in Luz Lopez-Rodriguez & Fabiola Gastelum Lopez v. Mukasey, 2008 WL 3168847. In October 2000, Immigration & Naturalization Service agents (INS; re named in 2003) received information that Gastelum had entered the country illegally and was living at a specific address. According to the immigration judge, Agents entered the house, without consent, and, after Gastelum lied about her nationality and birthplace, learned that she and Luz Lopez, another woman living in the house, were in the country illegally. Gastelum signed a declaration admitting her illegal entry and the agents filled out forms for deportation. The immigration judge ordered removal of both women. On appeal to the Ninth Circuit, a two judge majority panel agreed the entry to the home was without a warrant and lacked consent of either woman. Under the Fourth Amendment, an illegal entry to a residence causes any evidence thereafter seized inadmissible in a criminal proceeding, but the Supreme Court has ruled the Fourth Amendment exclusionary rule does not apply in deportation proceedings where the sole issues are identity and alienage-unless an egregious violation of the Fourth Amendment occurs; INS v. Lopez-Mendoza, 468 U.S. 1032 (1984). That decision did not deter the Ninth Circuit panel in Gastelum. Finding the entry to the residence in violation of the Fourth Amendment egregious, the panel excluded the deportation form executed by the agents and the Gastelum declaration she entered the country illegally, and dismissed the proceedings. The immigration form executed by the agents is neither contraband, drugs, stolen property, weapons or instrumentalities of crime. No evidence was seized from anyone or anywhere. The court cites no precedent for this decision, in effect, allowing two admittedly illegal aliens to continue to reside in the United States. And the court does not question why a simple year 2000 arrest was decided eight years later. This judicial use of the exclusionary rule to exclude evidence (INS forms and a declaration) is another example of its abuse already criticized by the Supreme Court. The only issue in deportation proceedings is identity and alienage. Identity in this case was undisputed and Gastelum not only lied to the agents but admitted her ineligibility to remain in the United States. According to the panel, the Fourth Amendment violation was egregious. This word has no boundaries, is highly subjective and establishes no standards other than the Ninth Circuit definition: evidence . . . obtained by deliberate violations of the Fourth Amendment, or by conduct a reasonable officer should [have known] is a violation of the Constitution. This statement will cause a chilling effect on immigration enforcement agents because it mirrors the law conferring immunity on police officers in civil cases. Immunity is invoked by public officials in proceedings alleging statutory violation of civil rights, not deportation proceedings. The dissenting judge in Gastelum, citing Lopez-Mendoza, 468 U.S. @ 1040-51, sounds this alarm, aware of the Ninth Circuit predilection for reversing immigration cases and denying immunity to police officers in cases alleging violation of Constitutional rights. The judge wrote: The Supreme Court determined that the high costs of the exclusionary rule rendered it too costly to apply in immigration proceedings . . . Our case law appears destined to import the exclusionary rule, with all of its attendant costs, back into immigration proceedings. This is not the first case the Ninth Circuit has written adopting an exception to an unambiguous Supreme Court rule. Here is their exception in Gastelum to the Supreme Court rule that the exclusionary rule is inapplicable in deportation proceedings: …[If] the agents committed the violations deliberately or by conduct a reasonable officer should have known;” Orhorhaghe v. INS, 38 F.3d 488 (1994). Given the number of Ninth Circuit decisions on the Fourth Amendment reversed by the Supreme Court, and innumerable decisions written by state and federal courts disagreeing on whether officers committed a violation of the Fourth Amendment, this decision is absurd. And the immigration judge saw no egregious violation either when she ordered deportation.

Ineffective Counsel (13 years after conviction): Moore v. Czerniak, 534 F.3d 1128 (9th Cir. 2008)

Moore v. Czerniak, [Warden] 534 F.3d 1128 (9th Cir. 2008). See, Blog entry, August 1, 2009 Note: this opinion was withdrawn and published as 574 F.3d 1092 (9th Cir. 2008). Randy Moore and others beat Kenneth Rogers until he bled, stripped him, bound him in duct tape, placed sin in the trunk of a car, drove him to a remote location, and forced him to march up a hill at gunpoint. While marching Rogers through the woods, Moore shot Rogers-accidentally he said-through the temple. Moore confessed the details to his older brother Raymond and his girlfriend. He then talked to police, [not while in custody], corroborating the evidence the police had already obtained. These facts, taken verbatim from the dissenting judges opinion in this case, are undisputed and provided by Moore himself. Before the prosecution sought his indictment, defense counsel negotiated a plea bargain with the prosecutor in which Moore obtained the lowest sentence available under Oregon law for felony murder. But according to the Ninth Circuit panel majority (2-1), counsel should have made a motion to suppress Moores confession. Had counsel done that, said the majority panel, he would be in a better position to negotiate a plea other than the harsh sentence he recieved. (The appropriate sentence for Moore, based on kidnapping and murder, was the death penalty.) The majority focuses on failure of counsel to file a motion to suppress Moores confession on the grounds the police violated Miranda and promised him leniency. Neither the Oregon courts reviewing the conviction, and holding an evidentiary hearing, nor the U.S. District Court reading Moores petition for habeas corpus thought so; State v. Moore, 951 P.2d 204 (1997). Both these courts noted that prior to his confession to police, Moore had confessed to his brother and girlfriend. In an evidentiary hearing in state court, the brother repeated the essence of the confession and there is no indication he and the girlfriend would not testify for the prosecution. Nevertheless, for purposes of the appeal, the majority and the dissent assumed the confession to police inadmissible; 951 P.2d 204 (2001). The dissenting judge contends the majority again display a total misunderstanding of criminal law and procedure: The majority . . . reflect an almost willful ignorance of the record evidence and the realities of criminal defense representation. In the first place, the prosecution had not indicted Moore, enabling him to plead without the necessity of an Information that would have alleged, burglary, kidnapping, and felony murder. Secondly, a co-defendant refused to accept any plea bargain, went to trial, and the jury found him guilty; third, if counsel wanted to suppress the confession to police by motion, the prosecution would have resisted and obviously withdrawn the plea agreement; fourth, a trial for felony murder and kidnapping is subject to the death penalty. Other than the multiple confessions, the evidence is overwhelming. A co-defendant led police to the location of the weapon used by Moore; police seized the car used in the kidnapping containing duct tape concealing the license plates; several other witness saw Moore leave a house with Rogers and other co defendants. Lastly, the defense attorney in his affidavit explained all the options available to the defendant prior to entering the plea. The legal issue is applicability of the seminal Supreme Court case in Strickland v. Washington, 466 U.S 668 (1984) holding a defendant is entitled to effective counsel, not just a sham representation. In Moore, counsel presented an affidavit at a post conviction hearing outlining his representation. The dissent notes counsel is an experienced criminal defense lawyer and does not limit his remarks to Moores confession. Counsel explains in detail that the two confessions of Moores brother and his girl friend adequately supported the prosecution. Brushing aside the Antiterrorism & Effective Death Penalty Act (28 U.S.C. 2254) requiring deference to state court decisions, the majority faults counsel for not moving to suppress the confession, citing a Supreme Court case acknowledging the importance and devastating evidence of a confession; Arizona v. Fulminante, 499 U.S. 279 (1991). An obvious truism, except Moore never cited the case in his brief on appeal, and in any event the confession in Fulminante concerned a post conviction confession after trial, not prior to a plea agreement. The majority ignores the leading case on ineffective counsel when a plea is taken and the Supreme Court has reminded the Ninth Circuit on more than one occasion, particularly when reviewing a state court conviction on habeas corpus, that second guessing and ruminating about alternatives available to counsel is forbidden to an appellate court; Hill v. Lockhart, 474 U.S. 52 (1985). Here is the Supreme Court test, ignored by the majority, to set aside a plea bargain on grounds of ineffective counsel: . . . the defendant must show that there is a reasonable possibility that, but for counsels errors, he would not have pleaded guilty and would have insisted on going to trial (italics in original); Hill, 474 U.S. @ 59. There is no evidence Moore wanted to go to trial in any state or federal record. As the dissent points out, now a lawyer representing a defendant must file any motion possible before entering a plea. The prosecution is unlikely to regard this tactic as an inducement to reduce a plea. In Moore, assuming the prosecution can retry the case after thirteen years, it will probably seek the death penalty. Deservedly so. The murder occurred in 1995, affirmed on appeal by the Oregon courts, and Moores petition for habeas corpus denied in a U.S. District Court. On appeal of that decision to the Ninth Circuit, the court heard argument in 2005 and filed its decision in 2008. Thirteen years between conviction and decision. A decision skewered by the dissent and a clear candidate for a rehearing by the full court. As of December, 2008 the Oregon Attorney General has taken no action.