In the case entitled U.S. v. Grey, 2020 U.S. App. LEXIS 16788 (9th Cir. May 27, 2020), the Court of Appeals for the Ninth Circuit affirmed a district court’s order granting a criminal defendant’s motion to suppress evidence seized during a search of his property.  The Court held that when law enforcement officers are asked to assist in the execution of an administrative warrant authorizing the inspection of a private residence, they violate the Fourth Amendment when their “primary purpose” in executing the warrant is to gather evidence in order to support an ongoing criminal investigation, rather than to assist the inspectors with the administrative warrant.  The lone dissenting judge held that, regardless of the deputies’ subjective motives for being present during an inspection warrant, the correct inquiry is whether the deputies’ actions exceeded the permissible scope of a protective sweep.

Facts

In 2017, the City of Lancaster began to investigate Franz Grey for possible municipal code violations regarding his residence.  Looking at the home from the street, one could see multiple tarps that covered the house and that some of the fences and walls exceeded the permissible height.  There was also electrical wiring running to a metal fence.  Standing outside the property, it was difficult to determine, due to the multiple tarps and debris, if the fence was electrified or to determine if there were other municipal code violations.  A City code enforcement officer attempted to speak with Grey on more than one occasion, but Grey refused to assist him with any of his inquiries about his home and the possible code violations.

Several months later, the code enforcement officer issued administrative citations to Grey for property violations.  For the next several months, Grey appealed the citations and made continuous phone calls and sent multiple faxes to the City.  Code enforcement staff expressed safety concerns due to Grey’s incessant behavior and the unknown electrical wiring going to the fence.  In March 2018, two code enforcement officers went to the Grey house to ascertain if there were any specific municipal code violations.  Upon their arrival at the house, they saw the multiple tarps surrounding the premises, a large canopy structure covering the driveway, a large pole with a light attached and electrical wiring along the top of the fence.  They ultimately determined that the fence was not electrified.

During their visit to his property, Grey spoke with the code enforcement officers and admitted to “fortifying” his home due to problems with his neighbors.  One of the officers saw several parked cars on the property and believed Grey was running an unlawful auto repair business on his property.  The officer believed, based upon his conversation with Grey and his observations of the property, that Grey would not correct the violations and that Grey could pose a threat to code enforcement officers if they entered onto his property.  Soon thereafter, the code enforcement officer met with the City’s assistant city attorney and other members of the code enforcement team and it was decided that an inspection was necessary to determine if Grey’s property was safe.

Criminal Investigation

In 2018, one of Grey’s neighbors called the sheriff’s department to report that Grey had been firing a gun into the air on the July 4th holiday.  The neighbor also reported that Grey was exhibiting odd behavior by stringing up tarps on his property and installing flood lights.  The neighbor stated that Grey had shown him a large amount of methamphetamine and an AK-47 rifle, a Glock handgun, a snub-nose revolver, and parts to guns.  The neighbor also stated that he saw Grey fire guns on his property and had seen him carrying guns on his person.  He further relayed that Grey had installed a pole camera and that he might have electrified his fence.  He told the deputy that initially he did not want to get involved so that is why he did not report Grey to the authorities.  However, he believed Grey was the person who had made a false allegation of child abuse to the authorities so even though he thought Grey may be mentally ill, the neighbor was no longer going to tolerate his behavior.  The next day, the deputy went and spoke with other neighbors who stated Grey was “weird,” “unhinged,” “not all there,” and “strange.”  The deputy also met with the code enforcement team and they stated that Grey was “strange” and assumed he had a mental illness.

During his investigation, the deputy discovered that Grey had a criminal history of felony driving under the influence, multiple felony drug arrests and had been convicted of voluntary manslaughter.  The deputy also discovered that there had been calls for service to Grey’s house regarding the firing of a weapon.  The deputy filed a police report with his sergeant, in which he stated that he believed Grey was a felon in possession of a weapon and ammunition, and that he had fired weapons on his property.  He also felt that Grey was in possession of a controlled substance.  The report was approved by his sergeant.  However, at that time the sergeant did not feel there was enough probable cause to get either an arrest warrant for Grey or a search warrant of his residence.

LASO personnel later learned from the assistant city attorney that she was going to apply for an administrative warrant, and due to Grey’s possible possession of firearms, she was going to ask the sheriff’s department for a security detail to assist during the administrative search.  It was believed that Grey was not in compliance with the City’s municipal code and that the inspection warrant was necessary in order to determine whether dangerous condition existed on the property.  Furthermore, the assistant city attorney felt that deputies would be needed for the service of the warrant due to Grey’s possible interference with the inspection and that the deputies should be permitted to forcibly enter the property if Grey refused to allow the inspectors onto the property.  The inspection warrant was signed by a judge allowing the search and the use of the deputies during the inspection of the property.

Prior to the service of the inspection warrant, the deputies learned that the City had an inspection warrant signed by a superior court judge and was ready to be served.  Accordingly, the sergeant in charge of the criminal investigation of Grey filed an “operation plan” for the service of that warrant since it involved the use of deputy personnel.  It was also determined by the sergeant that if Grey was present during the inspection, he was to be arrested and to be questioned about the ongoing criminal investigation.

On May 3, 2018, the city inspectors and deputies went to Grey’s house to serve the inspection warrant.  In the past, the sheriff’s department usually only sent one deputy to assist with inspection searches. However, in this instance, they sent nine deputies.  Upon their arrival, Grey was contacted by the deputies.  They convinced him to open the gate and then placed him under arrest for negligent discharge of a firearm and felon in possession of a firearm.[1]  Grey was held in the back of a police car and was questioned regarding items that may be found in the house.  The purpose of the inspection warrant was not explained to him at that time.

The deputies entered Grey’s home after he was being held in the police car.  It was determined that they were in his house for about twenty minutes, or longer.  According to the deputies, the purpose of their entry into his house was to ensure that it was safe.  The deputies later on testified during the evidentiary hearing that they did not touch anything and that they observed in plain view multiple handguns, rifles, firearm parts, ammunition, drug paraphernalia and a large amount of white powder that resembled methamphetamine.  Based upon these observations, the deputies sought a criminal search warrant for Grey’s house.  After the house was made secure, the inspectors entered the house and discovered numerous violations of the municipal code, including hazardous conditions, non-permitted construction and fire hazards.  Several hours later, the deputies executed a criminal search warrant at Grey’s house.  During that time, Grey was transported to the sheriff’s station for questioning and to eventually be formally arrested.

Grey was charged in federal court as a felon in possession of firearms and ammunition and in possession of an unregistered firearm.  Grey filed a motion to suppress evidence arguing that the initial search of his home violated his Fourth Amendment rights since the deputies used a pretext (assist the code enforcement officers with their inspection warrant) to conduct a criminal search of his home.

The trial court agreed with Grey and ruled that the deputies used an administrative warrant to enter Grey’s home without a criminal search warrant for the purpose of gathering evidence for their criminal case.  The district court found several factors to support Grey’s contention.  These same factors were recited by the Court of Appeal in their decision:  1) there was a criminal investigation initiated at the same time the inspection warrant was being sought; 2) the deputies had already concluded that Grey had violated the law by having a gun and using it; 3) the deputies concluded that they did not have enough evidence to support an arrest or a search warrant; 4) the deputies knew they would be asked by the city to assist with the execution of the inspection warrant; 5) the deputies never took time to develop their criminal case further once they knew of the inspection warrant; 6) the same deputies that were conducting the criminal investigation were the same ones being used for the inspection (warrant) search; 7) the deputies expected to interview Grey during the inspection warrant; 8) sending nine deputies to the search showed it was for criminal purposes; 9) the deputies arrested and questioned Grey prior to searching his place; 10) the “protective sweep” took almost twenty minutes and items were touched and moved in the house and 11) the deputies took pictures of incriminating items while they were in his house for the protective sweep.  The trial court granted Grey’s motion to suppress the evidence.

Court of Appeals Analysis

In their decision affirming the lower court, the Court of Appeals explained the necessity of probable cause in order for a search warrant to be issued.  However, the necessity of probable cause is not required with administrative searches that are issued pursuant to a regulatory scheme as long as the searches meet reasonable legislative or administrative standards, i.e. an inspection of residential premises to ensure compliance with a housing code.  The determination regarding the reasonableness of the warrant is usually an objective inquiry, except in the case of administrative searches and special needs searches.  In these cases, the court will look for the “actual motivation” for the administrative search.  The court will attempt to ascertain the “primary purpose” of the search:  was the primary purpose of the search for a regulatory matter or was it for a criminal purpose?  Here, the Court determined that the deputies’ execution of the inspection warrant was unreasonable under the Fourth Amendment since their “primary purpose” in executing the warrant was to gather evidence in support of its criminal investigation, rather than to assist the inspectors.

The Government argued that even though the deputies had an “impermissible motive” for the search, the sweep of Grey’s home would have occurred regardless, and the criminal evidence would have been discovered.  Specifically, the deputies would have made the lawful observations when they were doing their protective sweep of the house.  The Court was not persuaded by the argument and found that the degree of the deputies’ search (protective sweep) was intrusive.  The Court further reasoned that their intrusiveness was motivated by their desire to find evidence of a crime and not a “quick and limited search of the premises…conducted to protect the safety of police officers or others.”

Significantly, the Court of Appeals focused upon the “primary object” or “primary purpose” test concerning administrative warrants for private residences.  The Court cited to the Supreme Court decision, Michigan v. Clifford (464 U.S. 287 (1984)), in which the Supreme Court held [i]f the primary object of the search is to gather evidence of criminal activity, a criminal search warrant may be obtained only on a showing of probable cause to believe that relevant evidence will be found in the place to be searched.”  More importantly, the Court of Appeals disagreed with the Government’s position particularly since this case involved the search of a person’s home where privacy interests are exceptionally high.  In addition, the Government was relied upon cases that did not involve private residences, but rather border searches, inventory searches, and commercial inspections of vehicles.

HOW THIS AFFECTS YOUR AGENCY

One of the important lessons to come from this decision is that a protective sweep is just that…a short-term sweep of the premises to ensure that there is no lurking danger.  Anything more than that, potentially makes a protective sweep an unreasonable and illegal search.  If the protective sweep in this case was short term and there was less indicia of this search being done to build a criminal case (making plans to arrest/detain the suspect, taking photographs during the sweep, filing an operation plan prior to the inspection search, inordinate amount of time for a protective sweep), the Court might have considered the deputies observations of the guns and the drugs as merely incidental to the administrative inspection. In turn, the   subsequently obtained criminal search warrant may have ultimately withstood the Court’s scrutiny.

As always, if you wish to discuss this matter in greater detail, please feel free to contact me or David Demurjian at (714) 446–1400 or via email at jrt@jones-mayer.com and drd@jones-mayer.com, respectively.

Information on www.jones-mayer.com is for general use and is not legal advice.  The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.

[1] Later on, during an evidentiary hearing, this was at issue regarding Grey’s status when he was initially contacted by the deputies at his home and was placed into the back of the police car prior to anyone entering the house.  During the hearing, the deputy stated that Grey was not arrested but rather was only being detained.  However, the sergeant admitted that in his report he stated that Grey was arrested when he was initially contacted that day.