Tuesday, October 20, 2009

U.S. v. $186,416 in Currency (9th Cir. - Oct. 20, 2009)

Here's a timely opinion. Particularly given the Obama administration's recent statement that it will generally no longer go after medical marijuana clinics as long as their activities are legal under state law. (Needless to say, the focal point of this exception is right here in California.)

The opinion by Judge Clifton highlights a variety of things; most particularly, the complexities that arise as a result of marijuana being legal (in certain settings) under state law but still illegal under federal law. As applied here, this creates for both doctrinal and practical difficulties in two settings: (1) in ascertaining the legality of searches, and (2) in assessing the validity of asset forfeitures.

Here, for example, the LAPD got a search warrant from a state court judge to raid a marijuana clinic in LA -- the United Medical Caregivers Clinic ("UMCC") on Wilshire. The problem being that in getting the warrant, the LAPD pitched the facility as just being a regular old place where you can buy pot, and didn't tell the judge any of the facts the LAPD knew that suggested that the place was providing weed legally under the Compassionate Use Act. So the state judge approved the warrant, but the district court (rightly) held that this warrant was invalid given the LAPD's deception, and hence the search was illegal under the Fourth Amendment.

So that solves any potential criminal liability. But what about the $186,000+ the LAPD seized from the place? UMCC wants it back, but the LAPD -- not surprisingly -- wants to keep it. It knows, however, that the warrant was no good, and also doesn't want to have to prove that the place was illegal under state law, since it probably wasn't.

So what does the LAPD do? It turns the money over to the feds. Who then file their own action to forfeit the cash under federal law, since -- remember -- marijuana's still illegal under federal law and hence the assets subject to forfeiture.

So UMCC seems like it's in trouble. But it responds: "I'm still entitled to my cash back because you got it -- and all the evidence against me -- from an illegal search." Which is true, of course. But the district court (Judge Wilson) says: "Not so, at least for forfeiture purposes. That UMCC may have been selling medical marijuana was admittedly relevant to whether a warrant for state law violations was proper, but clearly UMCC possessed chronic in violation of federal law. Given this fact, I don't think application of the exclusionary rule is proper." (There's some more stuff about some procedural complexities under Rule 41, but I'll leave this aside. You get the gist.)

UMCC then appeals to the Ninth Circuit. Which unanimously reverses. Judge Clifton authors the opinion and holds that, no, the exclusionary rule indeed applies here because even though there may have been a violation of state law, that's not what the warrant was based on: a state judge issues warrants for state violations, and for that, the warrant here was improper. Maybe a federal judge could have issued a warrant, but that didn't happen. So given that the warrant was improper and the search illegal, we're going to exclude the results of the search and give the cash back to UMCC.

Doctrinally, Judge Clifton's analysis makes sense. But he also makes a practical point that I found equally -- if not more -- compelling.

Recall who (effectively) lied to the state court judge in order to get the warrant. The LAPD. As well as who conducted the illegal search: The LAPD. Finally, who's likely to get the bulk of the proceeds from any permitted forfeiture? Yep, that same LAPD.

This matters. To Judge Clifton -- an eminently reasonable fellow -- as well as Judges Hawkins and Berzon, both of whom share Judge Clifton's keen (and important) understanding of the way the world actually works. Judge Clifton says:

"We are particularly concerned by the possibility that the LAPD might stand to profit from unlawful activity. It would be objectionable that any unit of government might profit from the LAPD’s actions, but even greater concern arises here from the suggestion in UMCC’s opening brief, not denied by the government, that the LAPD 'stands to receive up to 80% of any forfeiture obtained by the federal government in this case.' Although the record on appeal contains no indication of how any forfeiture proceeds might be divided between the federal government and the LAPD, we recognize the distinct and disturbing possibility that the LAPD could profit from its own illegal activity, were the government to prevail."

I hear ya. That'd matter to me as well. Generally, you shouldn't make money -- lots of it -- as a result of conducting an illegal search. Which is another reason, wholly beyond doctrine, why the illegality of the initial search should extend to the present forfeiture action.

So Judge Wilson gets reversed and UMCC gets its $186,000 back. Plus interest.

So there should be a good party on or around Wilshire Boulevard tonight.