September 30, 2014 CJS: Around the Circuit

U.S. Court of Appeals for the Ninth Circuit

A quarterly case summary digest of recent federal circuit court opinions

by Wayland Chang

United States v. Johnson, Nos. 10-50401, 10-50407 (9th Cir. Sept. 12, 2014) 2014 WL 4473957

An informant told police that she overheard several gang members planning an armored truck robbery. She identified the defendant as one of these men. The informant disappeared before trial and the government was unable to locate her for trial. She had received death threats from the gang shortly after the defense attorneys were permitted to disclose identity of the witnesses to the defendants.

Held: The trial court properly admitted testimonial hearsay under the forfeiture exception to the Confrontation Clause based on a preponderance of the evidence standard.

Under the Confrontation Clause of the US Constitution and Crawford v Washington, 541 U.S. 36 (2004), out-of-court testimonial statements may only be admitted if the witness is unavailable and there has been a prior opportunity for cross-examination. An exception to this rule is the “forfeiture” exception, where the defendant is responsible for the declarant becoming unavailable. The Fifth Circuit requires clear and convincing evidence to invoke the forfeiture exception. United States v. Thevis, 665 F.2d 616 (5th Cir. 1982). Other circuits require only a preponderance of the evidence. United States v. Jackson, 706 F.3d 358; Perkins v. Herbert, 596 F.3d 161 (2d Cir. 2010); United States v. White, 116 F.3d 903 (D.C. Cir. 1997); United States v. Houlihan, 92 F.3d 1271 (1st Cir. 1996); United States v. Mastrangelo, 693 F.2d 269 (2d Cir. 1982). The Federal Rules of Evidence codified the standard as preponderance of the evidence. The defendant argued that because Crawford limited testimonial hearsay, it would be appropriate to use a higher standard to protect constitutional right. The court disagreed, finding no intention in Crawford to impose a higher standard.

United States v. Nora, No. 12-50485 (9th Cir. Aug. 28, 2014) 2014 WL 4235955

Police officers attempted to have a consensual encounter with several men, including the defendant, standing on the front porch of a home. The officers attempted to stop the defendant when they saw he was armed with a handgun, but the defendant entered the home. Officers waited outside and summoned backup. They then surrounded the home. The officers ordered the defendant outside. Officers handcuffed the defendant and searched him, finding contraband. The defendant then made statements that controlled substances were inside the home. The officers obtained a search warrant and searched the home.

Held: Defendant’s arrest violated the rule of Payton v. New York, 445 U.S. 573 (1980). When police surrounded the defendant’s home and ordered him out at gunpoint there were no exigent circumstances.  Thus, the evidence seized from the resulting pat down and search of the home pursuant to a search warrant must be suppressed as fruit of the poisonous tree.

Payton v. New York, 445 U.S. 573 (1980) held that the Fourth Amendment forbids the arrest of a person inside his home unless the police have an arrest warrant or an exception applies. When a person is forced to exit his home because his home is surrounded by police and they order him to come out, even though the arrest of the person may occur outside of the home, it is treated as if the arrest was made inside the home. The government argued that exigent circumstance, an exception to the warrant requirement, applied in this case. The court found there were no exigent circumstances because the defendant was not an imminent threat to officers or to others. He did not aim the weapon at any officer nor threaten to use the weapon.  The defendant was not in an agitated state. The defendant presented no harm to the public because he was surrounded and could not escape. Lastly, exigent circumstances should only be found in the most extreme of minor offenses. The offense in this case, carrying a loaded firearm in public, in California is a misdemeanor, and did not warrant special treatment. 

United States v. Fowlkes, No. 11-50273 (9th Cir. Aug. 25, 2014) 2014 WL 4178298

Law enforcement officers had evidence that the defendant was a drug dealer. Officers conducted a pretextual traffic stop of the defendant and discovered drugs. They arrested the defendant and transported him to a jail. The defendant was then strip searched. While naked, the defendant made movements towards his buttocks, as if he was trying to push something in. Officers then used a stun gun on the defendant and handcuffed him. A plastic bag was seen sticking out of his buttocks. An officer, who had no medical training, and without waiting for medical personnel, then forcibly removed the bag, causing bleeding.

Held: When evidence is forcibly removed from an arrested and stunned person in custody by officers without medical training and without a warrant, it is an unreasonable search and violates the Fourth Amendment.

Except in exceptional circumstances, the Fourth Amendment requires a warrant before a person’s body may be searched for drugs. None of those exceptions apply in this case. There were no exigent circumstances, since there was no risk of evidence being destroyed, no chance of flight, and there was no medical emergency. The defendant was stunned, handcuffed, and surrounded by officers in a jail. The special needs doctrine allows searches for non-law enforcement purposes where a warrant would be impractical. In this situation, the government does have an interest in preventing contraband from entering a jail. However, obtaining a warrant was not impractical. The search of the defendant in this case was unreasonable. Officers intended to do a cavity search of the defendant even before the bag was visible. A cavity search is an intrusive search that violates the deepest levels of privacy. The manner of the search itself was unreasonable, violating standards of hygiene and medical training. In conducting the search, the officer did nothing to limit physical or emotional harm to the defendant. The officers did not attempt alternatives that would have been less damaging, such as summoning medical personnel.

United States v. Edwards, No. 13–50165 (9th Cir. July 31, 2014) 761 F.3d 977

Police received an anonymous 911 call that a young black man was shooting at cars. The caller gave a description of height, age, and clothing. Police responded and found a man matching the description, the defendant. Police drew their weapons and ordered defendant to kneel. The defendant was then handcuffed. An officer did a pat down search of the defendant and found a revolver.

Held: The conduct of officers in detaining defendant by approaching him with guns drawn ordering him to kneel, and handcuffing him, did not turn an investigatory stop into an arrest.

The defendant contended the officers’ conduct turned an investigatory stop into an arrest. Whether an investigatory stop has become an arrest is evaluated under the totality of circumstances. Two main parts of the detention are examined: 1) The intrusiveness of the stop and whether a reasonable person would have felt free to leave, and 2) the justification for the stop, such as fear for officer safety.  In this case, by approaching with guns drawn and handcuffing the defendant, the police were intrusive. However, the officers had legitimate safety concerns as the defendant matched the description of an armed suspect.

United States v. Liera-Morales, No. 12–10548(9th Cir. July 21, 2014) 759 F.3d 1105

The defendant smuggled a man into the United States, who was intending to join his mother already in the country. The defendant telephoned the mother, demanding ransom money and stating that otherwise her son would be killed. The mother contacted Immigration and Customs Enforcement (ICE) and told them about her phone conversation with her son’s captors. ICE agents attempted to arrange a recorded phone call between the mother and the captors, but were unable to get a recording. The mother received another phone call from the captors, about which she told agents. At trial, federal agents testified as to what the mother told them about the various phone calls.

Held: When a mother told federal agents about phone conversations she had with her son’s captors, it was meant to address an ongoing emergency, so it was non-testimonial and its admission did not violate the Confrontation Clause.

The Confrontation Clause prohibits admission of out-of-court testimonial statements unless the declarant is unavailable and there was a prior opportunity to cross-examine the declarant. Whether a statement is testimonial or non-testimonial may be determined by the primary purpose of the investigation. Statements made during an investigation directed at establishing the facts of an already committed crime would be testimonial. On the other hand, statements made to enable police assistance to meet an ongoing emergency are non-testimonial. In this case, the agents’ purpose was to respond to an ongoing hostage situation. The primary purpose of the attempted recording of the phone call was to help respond to the situation. That the recording would have helped in a future prosecution was a secondary purpose. The formality of a statement also determines whether it is testimonial or non-testimonial. Here, there were no indications of formality in this informal high-stress situation. Because the investigation was to respond to an ongoing emergency and there was no formality in the statements, the statements were non-testimonial.


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This case summary digest was promulgated by the Criminal Justice Section’s Young Lawyers Committee.  Any interpretations of the statutes, regulations, or other law cited; or regarding the courts’ opinions as to the legal issues addressed, are those of the authors and do not necessarily represent the official views of the American Bar Association.

The information provided in this digest is solely for educational and informational purposes, and does not constitute legal advice.  While every effort is being made to ensure that the case law is correct and current, this digest is published on a quarterly basis.  Because the areas of the law being examined are complex, voluminous, and constantly changing, users are cautioned to research and verify the accuracy of the summarized information independently and through an official source.  Links to the official webpage containing the original opinions for each federal circuit are provided with each summary.  Also, the status of the law as to any particular issue may vary from one circuit to the next.  Consequently, users are further cautioned to cross-reference a circuit’s holding with the case law from the user’s own jurisdiction.  The ABA takes no responsibility for any harm resulting from reliance on this digest.