Monday, September 20, 2010

U.S. v. Comprehensive Drug Testing, Inc.: Ninth Circuit Holds that the Government only has a Right to Specific Names in Search Warrant

ItalicThe Ninth Circuit Court affirmed in part and dismissed in part a ruling by the district court on Monday, September 13th. The Ninth Circuit held that the government had no right to retain seized drug-test results of professional athletes other than those specified in a search warrant.

The Major League Baseball Players Association ("players") and Major League Baseball came to an agreement on anonymous and suspicion-less urine sample drug testing of all players. Comprehensive Drug Testing, Inc. (CDT) an independent company, administered the sample tests for the members of the players. The results of the tests were maintained by CDT with the lists of players and their respective results and the company that actually performed the testing, Quest Diagnostics, Inc., kept the testing samples.

The government investigated the Bay Area Lab Cooperative (Balco), which it suspected of providing steroids to players and learned that ten players had tested positive in the CDT program. The government secured a grand jury subpoena in the Norther District of California that sought the drug-testing records as well as the specimens pertaining to Major League Baseball in CDT's possession. CDT and the players moved to quash the subpoena. The government next obtained a warrant in the Central District of California that authorized a search of CDT's facilities in Long Beach, California. This warrant was limited to records of the ten players for whom there was probable cause but the government seized and reviewed the records for hundreds of players in the Major League Baseball as well as those of many other individuals. The government also obtained a warrant from the District of Nevada for the urine samples from Quest's facilities. Finally, the government served CDT and Quest with a new subpoena in the Northern District for production of the same records it had just seized.

In response to the government's actions CDT and the players moved in the Central District under Fed. R. Crim. Proc., Rule 41(g), for return of property that had been seized there. Judge Cooper of the Central District ordered the property be returned, finding that the government did not follow the procedures specified in the warrant ("Cooper Order"). CDT and the players also moved in Nevada under Rule 41(g) for a return of property seized under warrants there. Judge Mahan of Nevada district court ordered the government to return the property it had seized except for those materials that pertained to the ten identified players ("Mahan Order"). Finally, CDT and the players moved under Rule 17(c) in the Northern District to quash the most recent subpoenas. Judge Illston of the Northern district granted the motion ("Illston Quashal").

The government appealed the orders. The appellate panel reversed the Mahan Order and Judge Illston's order, but found that the appeal from the Cooper order was untimely. The appelate court took the case en banc.

The court of appeals affirmed in part and dismissed in part, holding that the government had no independent basis to keep the seized drug-test results.The Court agreed with the appellate panel, dismissing the government's appeal of the Cooper Order. The Court noted, however, that the government was bound by the factual determinations and issues resolved against it by the final Cooper Order. Those included failure to comply with the conditions of the warrant that were designed to segregate information as to which the government had probable cause from that which it did not.


This case is: United States v. Comprehensive Drug Testing, Inc.; 9th Cir.; September 13, 2010; 05-10067

Wednesday, September 15, 2010

Ninth Circuit Decision Stands that GPS Devices can be Installed Without a Warrant

On August 12th, a panel of the Ninth Circuit Court voted to deny a petition for rehearing en banc a case which many consider a controversial ruling on the Fourth Amendment’s guarantee of privacy. The original ruling of United States v. Pineda-Moreno was decided in January of this year. In Pineda-Moreno, the Ninth Circuit Court affirmed a district court ruling that effectively allows law enforcement officers to secretly place a global positioning system (GPS) device on an individual’s car without securing a warrant from a judge. In the August 12th Order, Judge Kozinski issued a dramatic and scathing dissent of the denial of the rehearing on banc.

The facts of the case were as follows: in 2007 Drug Enforcement Administration (DEA) agents attached a GPS device to the underside of Juan Pineda-Moreno’s vehicle on several occasions over a four-month period based on suspicions that he was involved in a conspiracy to grow and distribute marijuana. On four of these occasions, the vehicle was parked on a public street in front of his home. On the other two occasions, the Jeep was parked in his driveway, a few feet from the side of his trailer. Once in place, the tracking devices recorded and logged the precise movements of the vehicle. On September 12, 2007, information from a mobile tracking device alerted agents that Pineda-Moreno’s vehicle was leaving a suspected marijuana grow site. Agents followed the Jeep, pulled it over, and smelled the odor of marijuana emanating from the car. His arrest and the discovery of additional evidence followed.

Pineda-Moreno was indicted in November 2007 on one count of conspiracy to manufacture marijuana in violation of 21 U.S.C. § 846(a)(1) and (b)(1)(A)(vii) and one count of manufacturing marijuana in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(vii). Pineda-Moreno moved in the district court to suppress the evidence from the GPS devices, arguing that his Fourth Amendment rights were violated by attaching the GPS to his vehicle; his motion was denied. He entered a conditional guilty plea but reserved the right to appeal the denial of his motion to suppress.

On appeal, Pineda-Moreno presented several arguments with respect to the violation of his Fourth Amendment rights, each of which was considered separately by the court. First, Pineda-Moreno argued that agents violated his Fourth Amendment rights by entering his driveway and attaching the devices to the underside of his vehicle. In its decision, the Court relied on a ruling it had made in United States v. McIver, where the defendant argued that the placement of a device on the underside of his vehicle constituted an unreasonable “search,” violating his Fourth Amendment rights. United States v. McIver, 186 F. 3d 1119 (9th Cir. 1999). The Court rejected this argument, holding that the agents did not enter the curtilage of McIver’s home to attach the device and that the underside of his vehicle could not be “afforded a reasonable expectation of privacy” and therefore did not constitute a search.

According to the Court, the only difference in the instant case was that Pineda-Moreno’s car was parked within the “curtilage” of his home when the device was attached. Although the vehicle was parked in Pineda-Moreno’s driveway, the Court concluded that the driveway was on a “semi-private area.” The court ruled that “to establish a reasonable expectation of privacy in [his] driveway, [Pineda-Moreno] must support that expectation by detailing special features of the driveway itself…or the nature of activities performed upon it.” The Court decided that Pineda-Moreno’s driveway did not have any features to establish this privacy and this argument was therefore rejected.

Pineda-Moreno next argued that because of the time at which the agents entered his driveway (4:00 AM and 5:00 AM) he possessed a reasonable expectation of privacy. The court once again cited McIver, where the timing of the agents’ actions were immaterial to analysis of the case.

Pineda-Moreno also argued that even if the agents’ presence in his driveway did not violate his Fourth Amendment rights, attaching the tracking device to the underside of the vehicle did. Because the Court in McIver had previously addressed this argument and held that the undercarriage of a vehicle, as the exterior of a vehicle, is not entitled to a reasonable expectation of privacy, Pineda-Moreno’s rights were not violated.

Pineda-Moreno also took the position that his Fourth Amendment Rights were violated when a GPS device was attached to his vehicle while it was parked on the street in front of his home and in a public parking lot. McIver also provided precedent for this argument and the Court held that no violation occurs when a suspect’s vehicle is parked outside the curtilage of his home because there is a lack of reasonable expectation of privacy.

Pineda-Moreno’s final claim was that the agents’ use of mobile tracking devices to continuously monitor his location violated his Fourth Amendment rights because the devices are not generally used by the public. The Court rejected this argument as well, finding that the use of the device on Pineda-Moreno’s car was, for the purpose of obtaining information on the locations where Pineda-Moreno’s car traveled, information which could have been obtained by officers actually following Pineda-Moreno. Therefore, the agents use of the GPS device did not, according to the Court, constitute a search or violate his Fourth Amendment rights.

The Court ultimately concluded that because the Agents did not “search” Pineda-Moreno’s car, they would not comment on the district court’s conclusion that the agents had reasonable suspicion that he was engaged in criminal activity, and therefore affirmed the judgment of the district court.

Notably, in his dissent, Judge Kozinski accused the Court of “dismantle[ing] the zone of privacy we enjoy in the home’s cartilage and in public” and of “quickly making personal privacy a distant memory.” He also opined that that there is “something creepy and un-American about such clandestine and underhanded behavior.”

Other courts such as the U.S. Court of Appeals in Washington, D.C., ruled in a similar factual scenario in early August that monitoring an individual with a tracking device for an extended period of time requires a warrant. There has been a great deal of controversy in response to the Ninth Circuit’s decision from conservatives and liberals alike and this case is likely to reach the Supreme Court.

United States v. Pineda-Moreno can be found at: 591 F.3d 1212 (9th Cir. 2010) and 2010 WL 3169572 (C.A.9 (Or)).



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Friday, September 3, 2010

People v. Bradford: Court Determines that Security Guards Can be Victims of Robbery Due to 'Special Relationship' with Stores

The California Court of Appeals determined on Wednesday, September 1st, that security guards at a shopping mall can be victims of a robbery although they are not the owners of the stolen property and are not directly employed by the store that owned the property. The court determined this based on the evidence that the guards had a 'special relationship' with the store and had the duty and authority to retrieve its stolen property. Additionally, the court rejected the defendant's claims that the jury instructions on this point were incorrect and his mid-trial motion for self-representation under Faretta v. California (1975) 422 U.S. 806, (Faretta).

Richard Gary Bradford stole six bottles of perfume from Victoria's Secret and was noticed by the shift manager, Nina Paiz, walking out of the store with the perfume. Paiz spoke with two security guards, Steven Conyers and Arthur Sandoval, and reported Bradford's actions. Conyers and Sandoval followed Bradford and contacted him just inside another store. After speaking with him briefly in an attempt to retrieve the property, Conyers told Bradford he was placing him under citizen's arrest. Bradford brandished a knife from his pocket, waved it at the guards, and ran away. The guards chased him outside and Conyers tackled him. Bradford once again took a knife from his pocket. Sandoval grabbed his hand to prevent Bradford from stabbing Conyers and forced Bradford to drop the weapon. Bradford was turned over to the Fairfield police and convicted on two counts of second degree robbery with knife use enhancements, one count of assault by means likely to cause great bodily injury. The guards were both named victims of the robbery and Conyers was named the victim of the assault count.

The Defendant's appeal sought to argue three main points: the question of Conyers and Sandoval constituting robbery victims; the instruction given to the jury as defective because it did not advise the jury that it needed to find a 'special relationship' that imbued the guards with the authority or responsibility to protect the property before it was stolen; and that the trial court improperly denied the defendant's motion for self-representation.

In regard to the first point, the court concluded that, as shown in People v. Scott, individuals other than employees can be victims of robbery if they have a 'special relationship' with the owner of the property such that they had the authority or responsibility to protect the stolen property on the owner's behalf. [People v. Scott, (2009) 45 Cal. 4th]. In this case, Conyers and Sandoval did have a 'special relationship' with the property owner through their contractual obligation to provide security to all of the businesses at the mall. Furthermore, Paiz specifically asked Conyers and Sandoval for assistance in recovering the stolen property, which, was determined in People v. Bekele, when the owner of stolen property gave "implied authority to a co-worker to prevent a theft of his personal property." [People v. Bekele (1995) 33 Cal. App. 4th 1457 (Bekele)]. The defendant also argued that the guards are akin to police officers, who are not recognized as victims of robbery. The court disagreed with this argument because unlike police officers relations with the general public, the guards did have a 'special relationship' with the theft victim by virtue of their employment.

In response to the second point the court concluded that while the instructions given to the jury did not advise the jury to find 'a special relationship' it did require a determination that they find the guards to be "representatives" of the store with express or implied authority over the property. The court contended that this instruction was in fact more stringent than finding a 'special relationship.' Therefore, it was reasonable to conclude that the jury found a 'special relationship' between the store and the guards having determined that the guards were "representatives."

The court also rejected the defendant's third point. According to Faretta, the right to self-representation is absolute. Absolution holds if a request to do so is knowingly and voluntarily made and is asserted a reasonable time before the trial begins. [People v. Doolin (2009) 45 Cal.4th 390]. If not, requests for self-representation are subject to the trial court's discretion. [People v. Windham (1977) 19 Cal. 3d 121, 127-129 (Windham)]. The factors the trial court should consider: the defendant's reasons for the motion, the quality of defense counsel's representation, the defendant's proclivity to substitute counsel, the length and stage of the proceedings, and the disruption or delay that might reasonably be expected to follow if the motion were granted. The defendant in this case filed his motion after the close of evidence, but before the closing arguments began. The court found that in this case the defendant's motion was not timely. The defendant's reason for seeking self-representation was dissatisfaction with his counsel's representation, which the court found to be of good quality. Additionally, the defendant had shown himself to be disruptive to the court by, for example, speaking out inappropriately.
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This case is: People v. Bradford; Sept. 1, 2010; No. A125040.