June, 2020

Ninth Circuit: Fourth Amendment Violated
Where Primary Purpose of
Officer Assistance in Execution of
Administrative Ordinance Inspection
Warrant Was to Gather Evidence

After defendant’s neighbors notified authorities regarding suspected ordinance violations occurring on defendant’s property, authorities were successful in obtaining an administrative ordinance inspection warrant that included the assistance of deputies in the execution of the warrant, waiver of the 24-hour advance notice requirement, and permission to forcibly enter the yard areas and dwelling. Defendant was arrested during the execution of the warrant, a criminal search warrant was obtained, and defendant was charged with gun offenses. The Ninth Circuit affirmed the district court’s grant of defendant’s motion to suppress holding that the execution of the administrative warrant violated the Fourth Amendment because the primary purpose in executing the warrant was to gather evidence in support of a criminal investigation. The investigatory motive plainly increased the intrusion on the homeowner’s privacy interests where but for the criminal investigatory motive the homeowner would not have been arrested before commencement of the search, the deputies’ protective sweep would not have lasted 15 to 20 minutes or longer, and the administrative warrant would have been executed with no more than one deputy, rather than nine armed deputies. United States v. Grey, ___ F.3d ___ (CA 9, 05-27-2020, WL 2745322).

Tenth Circuit: Government Was
Collaterally Estopped to
Relitigate Suppression Motion and
Change-in-Law Exception Did Not Apply

After defendant was charged with possession of child pornography, his motion to suppress was granted on the ground that the warrant was void ab initio for authorizing a search of property outside the magistrate judge’s jurisdiction. The government appealed the suppression order but withdrew its appeal without filing a brief. Later, in a case involving a defendant in a different state, the Tenth Circuit reversed an order suppressing child-pornography evidence obtained in reliance on the same FBI search warrant at issue in this case. The government re-indicted defendant, and the Tenth Circuit held that the government was collaterally estopped from relitigating defendant’s suppression motion, even though the district court dismissed the first indictment against defendant without prejudice before jeopardy attached, where the district court had granted defendant’s motion to suppress after full briefing and argument by the parties in the first prosecution and the government appealed the district court’s ruling but chose to dismiss its appeal without briefing. The change-in-law exception to collateral estoppel did not apply where the case involving the other defendant did not change any governing legal principle but merely applied long-established ones. United States v. Arterbury, ___ F.3d ___ (CA 10, 06-09-2020, WL 3058078).