and Submitted May 17, 2019 Pasadena, California
from the United States District Court for the Central
District of California D.C. No. 2:17-cr-00003-GW-1 George H.
Wu, District Judge, Presiding
M. Alden (argued), Assistant United States Attorney; L.
Ashley Aull, Chief, Criminal Appeals Section; Nicola T.
Hanna, United States Attorney; United States Attorney's
Office, Los Angeles, California; for Plaintiff-Appellant.
Margaret A. Farrand (argued), Deputy Federal Public Defender;
Hilary Potashner, Federal Public Defender; Office of the
Federal Public Defender, Los Angeles, California; for
Before: Kim McLane Wardlaw and Andrew D. Hurwitz, Circuit
Judges, and Edward R. Korman, [*] District Judge.
panel reversed the district court's order suppressing
evidence found on a laptop that was seized pursuant to a
State of California warrant and searched pursuant to a
panel accepted that there was insufficient probable cause to
seize the laptop, but held that a DHS special agent's
affidavit supporting the state warrant contained sufficient
information to render his reliance on the state warrant to
seize the laptop reasonable.
panel held that even assuming that the 21-day delay between
the seizure of the laptop pursuant to the state warrant and
the search of the laptop pursuant to the federal warrant was
unreasonable, suppression is not warranted. The panel
explained that the delay does not evince negligence on the
part of the special agent, let alone deliberate and culpable
misconduct; that the record does not suggest recurring or
systemic negligence; that the special agent's good-faith
efforts to comply with the Warrant Clause of the Fourth
Amendment indicate that his conduct was not
"sufficiently culpable that such deterrence is worth the
price paid by the justice system"; and that there is no
indication that the special agent believed he was depriving
the defendant of a legitimate possessory interest.
KORMAN, DISTRICT JUDGE.
about October 26, 2016, Department of Homeland Security
("DHS") agents received a tip that marijuana was
being grown at an address in Van Nuys, California. The tipper
stated that shortly after Royce Jobe moved in next door,
"a brown privacy fence was constructed to hide the view
of the detached garage on the property," "a strong
smell of marijuana" began emanating from the house, and
there had been "a lot of activity in the late evening at
the house including multiple vehicles arriving and
individuals coming and going." On or about November 3,
Special Agent Paul Cotcher found that the utilities account
associated with the residence was not registered under
Jobe's name. Cotcher prepared an affidavit outlining the
information in the tip and stating that power use for the
property had spiked, Jobe had prior convictions for
possession of a firearm and marijuana, and Jobe had a
business registered as "420 Boutique," a reference
to marijuana. The affidavit also stated that Cotcher had
observed "PVC piping, planters, and cooling fans"
attached to and around the garage.
on that affidavit, on November 21, a California state judge
issued a warrant authorizing a search of Jobe's residence
and the seizure of certain property, including
"[a]rticles of personal property tending to establish
and document sales of [marijuana, ] . . . including . . .
hard drives." The next day, on November 22, Cotcher and
other officers executed the warrant and seized, among other
items, drugs, a pistol, Jobe's laptop and other
electronic devices. The laptop was not searched at that time.
the evidence was seized, Cotcher contacted the United States
Attorney's Office ("USAO") to ask whether the
case would be prosecuted federally. Over the next ten days,
Cotcher continued his investigation: He logged and arranged
for storage of seized evidence, obtained Jobe's rental
application and lease agreement, interviewed a postal
employee who stated that Jobe mailed packages three to four
times a week, and interviewed individuals whose names were
tied to the utilities accounts Jobe used. On or about
December 1, Cotcher was informed that the case would be
prosecuted federally. He began drafting an affidavit in
support of a criminal complaint and a federal warrant to
search the laptop, which he completed on or about December 7.
On December 12, twenty days after the laptop was seized, the
complaint was filed and the warrant was signed. That same
day, agents searched Jobe's laptop. The ...