Appearing for the Defendant, $186,416.00: Medical Marijuana, State Law, and the Fourth Amendment

Deven Desai — Wed, 21 Oct 2009 14:25:29 +0000

The Ninth Circuit just issued an opinion about the interplay between state law enforcement, federal law enforcement, the Fourth Amendment, and state law.

The LAPD obtained a warrant to search a licensed medical marijuana facility. The LAPD did not, however, tell the judge that the place to be searched was licensed. The search proceeded. Around 209 pounds of marijuana, 21 pounds of hashish, and 12 pounds of marijuana oil were seized along with $186,416.00. The facility wanted the money back, but it had been turned over federal law enforcement and forfeiture proceedings were started. If forfeited, the city stood to gain about 80 percent of the money. The Ninth Circuit The Ninth Circuit’s ruling (pdf) has the full details. This passage seems to sum up the problem and the way in which the LAPD erred.

While there may have been probable cause to search UMCC for a violation of federal law, that was not what the LAPD was doing. Nothing in the documents prepared at the time the warrant was obtained from the state court or in the procedure followed to obtain that warrant supports the proposition that the LAPD thought it was pursuing a violation of federal law. Instead, it sought a warrant from a state court judge, though, as the District Court found, it lacked probable cause for a state law violation and failed to inform the state court judge of relevant facts that supported the conclusion that UMCC was not in violation of state law. The LAPD, a city agency, never initiated the process of seeking a federal search warrant from a federal magistrate or indicated that it was pursuing a violation of federal law.

I defer to Fourth Amendment scholars as to whether this ruling makes sense. Nonetheless, it seems that the federal government’s new policy might mean that state or local government that wants the federal government involved in going after medical marijuana facilities will have to persuade the federal government that a facility is not complying with state law. That requirement seems to match what the Ninth Circuit is saying state and local law enforcement groups should do with state judges in the first place.

I See Code: Plain View and Computer Searches

Deven Desai — Thu, 27 Aug 2009 13:01:15 +0000

The Ninth Circuit has taken a swat computer searches and the plain view doctrine (pdf). I have not yet read the entire opinion but Orin Kerr has a series of posts about the decision here. And Shaun Martin, for whom I have a ton of respect as well, covers the case here. Shaun’s post captures how well-written the opinion is: “In my dreams I could write an opinion this good. It’s clear. It’s concise. It provides meaningful, systemic guidelines. It’s just. It’s got a keen sense of both the practical way the world works as well as the dangers inherent in certain conduct. In short, it’s exactly what I want in a wide-ranging opinion that makes meaningful precedent. … If you only read a dozen Ninth Circuit opinions this year, this should be amongst them.”

Dan and others will likely have more to say, so stay tuned, folks. As Orin notes, “This is really new territory, so it will be interesting to see how it plays out. I suspect we’ll find out soon, as there are a lot of these cases.” In the interim, here are three paragraphs worth reading:

The point of the Tamura procedures is to maintain the privacy of materials that are intermingled with seizable materials, and to avoid turning a limited search for particular information into a general search of office file systems and computer databases. If the government can’t be sure whether data may be concealed, compressed, erased or booby-trapped without carefully examining the contents of every file—and we have no cavil with this general proposition—then everything the government chooses to seize will, under this theory, automatically come into plain view. Since the government agents ultimately decide how much to actually take, this will create a powerful incentive for them to seize more rather than less: Why stop at the list of all baseball players when you can seize the entire Tracey Directory? Why just that directory and not the entire hard drive? Why just this computer and not the one in the next room and the next room after that? Can’t find the computer? Seize the Zip disks under the bed in the room where the computer once might have been. See United States v. Hill, 322 F. Supp. 2d 1081 (C.D. Cal. 2004). Let’s take everything back to the lab, have a good look around and see what we might stumble upon.

This would make a mockery of Tamura and render the carefully crafted safeguards in the Central District warrant a nullity. All three judges below rejected this construction, and with good reason. One phrase in the warrant cannot be read as eviscerating the other parts, which would be the result if the “otherwise legally seized” language were read to permit the government to keep anything one of its agents happened to see while performing a forensic analysis of a hard drive. The phrase is more plausibly construed as referring to any evidence that the government is entitled to retain entirely independent of this seizure.

To avoid this illogical result, the government should, in future warrant applications, forswear reliance on the plain view doctrine or any similar doctrine that would allow it to retain data to which it has gained access only because it was required to segregate seizable from non-seizable data. If the government doesn’t consent to such a waiver, the magistrate judge should order that the seizable and non-seizable data be separated by an independent third party under the supervision of the court, or deny the warrant altogether.

Concurring Opinions » Fourth Amendment

Appearing for the Defendant, $186,416.00: Medical Marijuana, State Law, and the Fourth Amendment

I See Code: Plain View and Computer Searches