United States v. 186,416.00

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v. No. 07-56549

$186,416.00 IN U.S. CURRENCY, D.C. No.

Defendant.  CV-05-06703-SVW-

SH

UNITED MEDICAL CAREGIVERS OPINION

CLINIC, INC.,

Claimant-Appellant.



Appeal from the United States District Court

for the Central District of California

Stephen V. Wilson, District Judge, Presiding

Argued and Submitted

March 12, 2009—Orange, California

Filed October 20, 2009

Before: Michael Daly Hawkins, Marsha S. Berzon, and

Richard R. Clifton, Circuit Judges.

Opinion by Judge Clifton

14615

14620 UNITED STATES v. $186,416.00 IN U.S. CURRENCY

COUNSEL

Paul L. Gabbert, Santa Monica, California, for the claimant-

appellant.

Thomas P. O’Brien, United States Attorney; Christine C.

Ewell, Assistant United States Attorney, Chief, Criminal

Division; Steven R. Welk, Assistant United States Attorney,

Chief, Asset Forfeiture Section; P. Greg Parham (argued),

Special Assistant United States Attorney, Los Angeles, Cali-

fornia, for the plaintiff-appellee.

OPINION

CLIFTON, Circuit Judge:

California state law differs from federal law in its treatment

of the distribution and possession of marijuana for purport-

edly medical purposes. California has concluded that mari-

juana may have medicinal value, and under California law the

distribution and possession of “medical marijuana” is not ille-

gal. See Cal. Health & Safety Code § 11362.5(b)(1)(A)

(declaring that one purpose of a 1996 voter-approved medical

marijuana initiative is “[t]o ensure that seriously ill Califor-

nians have the right to obtain and use marijuana for medical

purposes”); id. § 11362.765 (exempting from criminal liabil-

ity individuals who perform certain actions involving medical

marijuana). The federal government has not recognized a

legitimate medical use for marijuana, however, and there is no

UNITED STATES v. $186,416.00 IN U.S. CURRENCY 14621

exception for medical marijuana distribution or possession

under the federal Controlled Substances Act, 21 U.S.C.

§§ 801-971. See Gonzales v. Raich, 545 U.S. 1, 14-15 (2005)

(explaining that the distribution or possession of marijuana is

a criminal offense under the Controlled Substances Act);

Raich v. Gonzales, 500 F.3d 850, 854-55 (9th Cir. 2007) (dis-

cussing marijuana’s status as a “Schedule I” controlled sub-

stance, a designation available only to certain substances

found to have “no currently accepted medical use in treatment

in the United States” (quoting 21 U.S.C. § 812(b)(1))).

This difference lies behind the civil forfeiture case before

us. The case concerns $186,416.00 in U.S. currency seized by

officers of the Los Angeles Police Department (“LAPD”) dur-

ing a search of the United Medical Caregivers Clinic

(“UMCC” or “Clinic”), a non-profit medical marijuana dis-

pensary owned by United Medical Caregivers Clinic, Inc.

Although the LAPD secured a state court warrant for the

search, the Department failed to inform the issuing court of

extensive evidence that UMCC may have been operating in

accordance with California’s medical marijuana laws. The

state court subsequently approved the release of the seized

currency to the United States, which then initiated a federal

civil forfeiture action against it. UMCC presented its own

claim to the currency. On UMCC’s motion the District Court

suppressed the currency as evidence, holding the search to

have been illegal. The District Court held, however, that the

government had sufficient evidence, independent of the cur-

rency itself and of any other evidence tainted by the illegal

search, to initiate the forfeiture action against the currency.

We conclude that the evidence relied upon by the District

Court was itself tainted by the illegal search and should be

suppressed, and that without the suppressed evidence the gov-

ernment lacked probable cause to connect the defendant cur-

rency to a violation of federal law. We thus reverse the

judgment of the District Court and remand for further pro-

ceedings.

14622 UNITED STATES v. $186,416.00 IN U.S. CURRENCY

I. Background

In early 2005 LAPD Sergeant Miguel Lopez began receiv-

ing complaints of marijuana smoking near the UMCC offices

on Wilshire Boulevard. Many of the complainants observed

that the individuals smoking marijuana carried the drug in

small brown paper bags.

On March 15, 2005, Lopez investigated and found a flyer

referring to “UMCC” and advising Clinic patrons to leave the

premises after purchasing marijuana. Lopez located the

UMCC facility and entered the building’s lobby. Once inside

he “immediately smelled the strong odor of marijuana” and

observed a number of people leaving the Clinic’s offices with

small brown paper bags.

UMCC staff admitted Lopez into its offices. While he was

there, at least three individuals appear to have told Lopez that

UMCC was a medical marijuana provider: Scott Feil,

UMCC’s chief executive officer; Gabriella Jaramillo, a man-

ager; and Michael Bryan, a security guard. Additionally,

Jaramillo provided Lopez with copies of UMCC’s corporate

papers and its City of Los Angeles Tax Registration Certifi-

cate, as well as with written information about California’s

medical marijuana laws. In a declaration filed later, Jaramillo

agreed with Lopez’s estimate that he viewed approximately

50 individuals purchasing marijuana from UMCC within a

45-minute period. She added that “[e]ach of these patients

was purchasing medical marijuana pursuant to a doctor’s writ-

ten recommendation” and that Lopez did not object to any of

the transactions.

Lopez called his watch commander to report the situation.

The LAPD applied for a search warrant to search the UMCC

facility. A Los Angeles Superior Court judge issued the war-

rant, and it was executed the same evening. During the search

LAPD officers seized $186,416.00 in U.S. currency from the

Clinic’s safe and from a cash register , along with about 209

UNITED STATES v. $186,416.00 IN U.S. CURRENCY 14623

pounds of marijuana, 21 pounds of hashish, and 12 pounds of

marijuana oil.

No criminal charges were filed against UMCC or any of its

employees, but the LAPD continued to hold the currency.

About two months later UMCC filed a motion in Los Angeles

Superior Court for return of the currency and other items

seized by the LAPD on March 15. Attached to this motion

was a declaration by Feil, the chief executive officer of

UMCC, executed on May 12, 2005 (“Feil declaration”).1

In his declaration Feil acknowledged the connection

between the currency and UMCC’s activities but insisted that

UMCC was, under California state law, a lawful medical mar-

ijuana provider. The declaration stated, among other things,

that “[a]ll cannabis products obtained or produced by UMCC

are only distributed to patient members of UMCC. . . . UMCC

does not allow the distribution of cannabis products to non-

patients or non-members[.]” Feil continued: “On March 15,

2005, the Los Angeles Police Department seized numerous

cannabis products, approximately $200,000 in currency, and

other items including security equipment. The materials

seized were all, to the best of my knowledge and belief, legiti-

mately used in the course of UMCC’s activities as described

above.”

In late August 2005, the state court ordered the release of

the seized currency from state court jurisdiction to allow the

initiation of federal forfeiture proceedings. An LAPD detec-

tive had presented this order for the state court’s approval.

On September 12, 2005, the federal government filed in

1

UMCC filed a second copy of this motion and the Feil declaration in

early August 2005, again in Los Angeles Superior Court, as attachments

to a motion entitled “Motion for Order To Show Cause Why the Court’s

‘Order for Release of Property Pursuant to Search Warrant for Federal

Forfeiture Proceedings’ Should Not Be Set Aside.”

14624 UNITED STATES v. $186,416.00 IN U.S. CURRENCY

District Court a complaint for forfeiture pursuant to 21 U.S.C.

§ 881(a)(6), alleging that the defendant currency was seized

from UMCC and was traceable to narcotics violations under

21 U.S.C. §§ 841, 846. UMCC claimed ownership of the cur-

rency and filed a motion to suppress all evidence seized pur-

suant to the state search warrant issued on March 15, 2005.

The District Court granted the motion to suppress, holding

that there had not been probable cause to issue the warrant for

a violation of state law. In considering probable cause under

state law, the District Court found that the warrant affidavit

submitted by the LAPD had been “misleading” and contained

“reckless” omissions of numerous relevant facts pertaining to

UMCC’s status as a medical marijuana dispensary.

UMCC subsequently brought a motion for summary judg-

ment in the federal civil forfeiture action, arguing that the

government lacked sufficient evidence to initiate the action

against the defendant currency. The District Court denied that

motion, holding in a reported decision that the government

had sufficient evidence to initiate its action, even in the

absence of all evidence excluded under the court’s prior sup-

pression ruling and the fruits of the suppressed evidence.

United States v. $186,416.00 in U.S. Currency, 527 F. Supp.

2d 1103, 1107 (C.D. Cal. 2007). Specifically, the District

Court held that the Feil declaration “provided the Government

with sufficient untainted probable cause” to proceed, as the

declaration was not subject to suppression under any of a vari-

ety of theories. Id. at 1141-42. UMCC then consented to a

judgment forfeiting the currency to the government and filed

a timely appeal.

II. Discussion

UMCC argues on appeal that the District Court erred in

concluding that the government had probable cause to initiate

the forfeiture proceeding. The Clinic contends that the Feil

declaration was “the only possible basis for the Government

to establish probable cause” and that the court should not have

UNITED STATES v. $186,416.00 IN U.S. CURRENCY 14625

considered the declaration because it was tainted by the

unlawful search of UMCC’s offices. The government, in turn,

defends the District Court’s ruling that the government prop-

erly could rely on the Feil declaration to establish the defen-

dant currency’s alleged connection to marijuana activities

unlawful under federal law. In addition, the government offers

further evidence that it contends could support a determina-

tion of probable cause, even if it were unable to rely on the

Feil declaration.

A. Illegality of the Search

We begin by noting that the government does not contest

the District Court’s finding that the search by the LAPD was

unlawful despite the state court warrant, nor does it contest

the resulting suppression of the currency and other evidence

seized during that search. Accordingly, the District Court’s

August 2006 order quashing the search warrant and suppress-

ing the defendant currency is not before us. See, e.g., Spurlock

v. FBI, 69 F.3d 1010, 1018 (9th Cir. 1995).

There is a disagreement as to the nature of the search’s ille-

gality, however. When the District Court granted UMCC’s

suppression motion in August 2006, it did so on Fourth

Amendment grounds, citing United States v. Stanert, 762 F.2d

775, 780-81 (9th Cir. 1985), in which we held that “the Fourth

Amendment mandates that a defendant be permitted to chal-

lenge a warrant affidavit valid on its face when it contains

deliberate or reckless omissions of facts that tend to mislead.”

In its summary judgment order of August 2007, the District

Court reconsidered and instead described the warrant as

invalid not for a constitutional infirmity but for its failure to

meet the procedural requirements provided in Rule 41 for

obtaining a federal search warrant. $186,416.00 in U.S. Cur-

rency, 527 F. Supp. 2d at 1138. The court reasoned that the

LAPD had probable cause to believe that UMCC was operat-

ing in violation of federal narcotics law, even though it lacked

14626 UNITED STATES v. $186,416.00 IN U.S. CURRENCY

probable cause with regards to state law. Id. As such, the

LAPD’s only error, according to the District Court, was in

failing to comply with the procedural requirements of Rule

41, such as having a federal law enforcement officer request

the warrant and obtaining approval from a magistrate judge

unless none was reasonably available. Id.; see also Fed. R.

Crim. P. 41(b).

[1] We cannot approve this analysis. Rule 41 is inapplica-

ble to “searches conducted by state officers with state war-

rants issued by state judges, with minimal or no federal

involvement,” even if federal prosecution results. United

States v. Piver, 899 F.2d 881, 882 (9th Cir. 1990). The present

case fits this description. Only a “federal law enforcement

officer or an attorney for the government” can request a

search warrant under Rule 41, and no such individual was

involved in requesting the warrant at issue here. Fed. R. Crim.

P. 41(b).

[2] While there may have been probable cause to search

UMCC for a violation of federal law, that was not what the

LAPD was doing. Nothing in the documents prepared at the

time the warrant was obtained from the state court or in the

procedure followed to obtain that warrant supports the propo-

sition that the LAPD thought it was pursuing a violation of

federal law. Instead, it sought a warrant from a state court

judge, though, as the District Court found, it lacked probable

cause for a state law violation and failed to inform the state

court judge of relevant facts that supported the conclusion that

UMCC was not in violation of state law. The LAPD, a city

agency, never initiated the process of seeking a federal search

warrant from a federal magistrate or indicated that it was pur-

suing a violation of federal law.

[3] Accordingly, the search was not illegal simply because

it failed to comply with Rule 41 but because it violated

UMCC’s Fourth Amendment right against unreasonable

searches and seizures, in light of the absence of probable

UNITED STATES v. $186,416.00 IN U.S. CURRENCY 14627

cause under state law. See Piver, 899 F.2d at 882 (holding that

state warrants must adhere to federal constitutional standards).

B. Probable Cause To Institute the Forfeiture Action

The fact that the currency was seized by the LAPD unlaw-

fully does not necessarily mean that it cannot be subject to

forfeiture. See United States v. One (1) 1971 Harley-Davidson

Motorcycle Serial # 4A25791H1, 508 F.2d 351, 351 (9th Cir.

1974) (per curiam) (“The mere fact of the illegal seizure,

standing alone, does not immunize the goods from forfeiture.”

(internal quotation marks omitted)). The government may still

institute a forfeiture action if it can demonstrate probable

cause for doing so, based upon untainted evidence. See United

States v. $493,850.00 in U.S. Currency, 518 F.3d 1159, 1169

(9th Cir. 2008). The probable cause requirement is statutory.

Pursuant to 19 U.S.C. § 1615, which also assigns the burden

of proof in forfeiture proceedings, the government must show

that probable cause exists to institute its action. We recently

held that this requirement survived the enactment of the Civil

Asset Forfeiture Reform Act of 2000. $493,850.00 in U.S.

Currency, 518 F.3d at 1169.

[4] “The government has probable cause to institute a for-

feiture action when it has reasonable grounds to believe that

the property was related to an illegal drug transaction, sup-

ported by less than prima facie proof but more than mere sus-

picion.” Id. (internal quotation marks omitted). Probable

cause may be supported only by facts “untainted” by any prior

illegality. See United States v. Driver, 776 F.2d 807, 812 (9th

Cir. 1985). It may be based only upon information gathered

before the forfeiture action was instituted. $493,850.00 in

U.S. Currency, 518 F.3d at 1169.

We therefore must determine whether the government had

probable cause to file its complaint on September 12, 2005.

The government argues that probable cause was supported by

the Feil declaration and, alternatively, by its knowledge of

14628 UNITED STATES v. $186,416.00 IN U.S. CURRENCY

UMCC’s marijuana sales at the time the forfeiture action was

instituted, independent of any evidence tainted by the unlaw-

ful search. The District Court held that the Feil declaration

was admissible and by itself gave the government sufficient

probable cause for bringing this action. $186,416.00 in U.S.

Currency, 527 F. Supp. 2d at 1142. We review the District

Court’s determination of probable cause de novo.

$493,850.00 in U.S. Currency, 518 F.3d at 1164.

1. The Feil Declaration

In his declaration, Feil, UMCC’s CEO, admitted that

UMCC “distributed” marijuana. The declaration stated: “All

cannabis products obtained or produced by UMCC are only

distributed to patient members of UMCC.” Feil then linked

the defendant currency to the distribution of marijuana by

declaring that seized items were “used in the course of

UMCC’s activities as described above.” Because there is no

exception for medical marijuana distribution under the federal

Controlled Substances Act, 21 U.S.C. §§ 801-971, see Raich,

545 U.S. at 14-15, the Feil declaration would suffice to estab-

lish probable cause to believe that the money in question was

linked to sales of marijuana, if we conclude that the govern-

ment was permitted to rely on it.

UMCC argues that the government is barred from relying

on the Feil declaration because it is tainted by the unlawful

search conducted by the LAPD. We consider, then, whether

the Feil declaration must be excluded as the “fruit” of the

LAPD’s unconstitutional actions. See United States v. Crews,

445 U.S. 463, 470 (1980) (“[T]he exclusionary sanction

applies to any ‘fruits’ of a constitutional violation . . . .”). The

Fourth Amendment exclusionary rule applies to civil forfei-

ture proceedings. One 1958 Plymouth Sedan v. Pennsylvania,

380 U.S. 693, 696 (1965); United States v. $191,910.00 in

U.S. Currency, 16 F.3d 1051, 1063 (9th Cir. 1994), super-

seded by statute on other grounds as stated in United States

v. $80,180.00 in U.S. Currency, 303 F.3d 1182, 1184 (9th Cir.

UNITED STATES v. $186,416.00 IN U.S. CURRENCY 14629

2002). We review de novo the District Court’s refusal to set

aside the Feil declaration on these grounds. See United States

v. Crawford, 372 F.3d 1048, 1053 (9th Cir. 2004) (en banc).

[5] We recognize, as have other courts, that the fact-

intensive nature of Fourth Amendment cases demands that

each be evaluated on its own facts. United States v. Fifty-

Three Thousand Eighty-Two Dollars in U.S. Currency,

$53,082.00, 985 F.2d 245, 248 (6th Cir. 1993); see also

Brown v. Illinois, 422 U.S. 590, 603 (1975) (“The question

whether a [criminal defendant’s] confession is the product of

a free will . . . must be answered on the facts of each case.”).

To apply the exclusionary rule to the unique set of facts pres-

ented here, we must consider the rule’s dual purposes: to deter

similar police misconduct in the future and to preserve the

integrity of the courts. See Dunaway v. New York, 442 U.S.

200, 217-18 (1979). We have observed that “[w]hether the

twin aims of deterrence and judicial integrity warrant applica-

tion of the exclusionary rule depends largely on the facts of

each case.” Crawford, 372 F.3d at 1054.

[6] Before beginning our analysis we note that the exclu-

sionary rule is particularly well-suited to advance both of

these goals in the context of civil forfeiture proceedings. Law

enforcement agencies today depend, at least in part, on the

proceeds of forfeiture actions to finance their activities. See

Mark J. Crandley, A Plymouth, A Parolee, and the Police:

The Case for the Exclusionary Rule in Civil Forfeiture After

Pennsylvania Board of Probation and Parole v. Scott, 65 Alb.

L. Rev. 147, 160 (2001). The Supreme Court has recognized

that, as a consequence, the government has a substantial

financial stake in drug forfeitures. See United States v. James

Daniel Good Real Prop., 510 U.S. 43, 56 n.2 (1993) (citing

a 1990 memorandum by the Attorney General urging United

States Attorneys “to increase the volume of forfeitures in

order to meet the Department of Justice’s annual budget tar-

get”). Given the government’s strong financial incentive to

prevail in civil forfeiture actions, the application of the exclu-

14630 UNITED STATES v. $186,416.00 IN U.S. CURRENCY

sionary sanction in these cases is likely to prove especially

effective in deterring law enforcement agents from engaging

in illegal activity.2 Applying the exclusionary rule in forfei-

ture proceedings also protects judicial integrity by ensuring

that the courts do not serve as a conduit through which the

government fills its coffers at the expense of those whose con-

stitutional rights its agents violated.

Moreover, the exclusion of evidence in forfeiture proceed-

ings is without the major societal cost associated with exclu-

sion in criminal cases: setting a criminal free. Justice

Cardozo’s famous critique of the exclusionary rule, that it

allows “[t]he criminal . . . to go free because the constable has

blundered,” does not apply to forfeitures. People v. Defore,

150 N.E. 585, 587 (N.Y. 1926). The only tangible cost to

society from excluding evidence in a case like ours is mone-

tary, a far less compelling reason to restrict the rule’s applica-

tion than the risk of freeing a guilty party.

[7] To determine whether evidence, such as the Feil decla-

ration, is subject to exclusion as the fruit of a constitutional

violation, we must ask whether the evidence has been

obtained “by exploitation of [the] illegality or instead by

means sufficiently distinguishable to be purged of the primary

taint.” Wong Sun v. United States, 371 U.S. 471, 488 (1963)

(internal quotation marks omitted). Challenged evidence is

not considered the fruit of lawless police conduct when the

connection between the illegality and the evidence becomes

“so attenuated as to dissipate the taint.” Id. at 491 (internal

quotation marks omitted).

[8] As a preliminary step, it is plain that the Feil declaration

2

One observer contends that “[t]he deterrence to police misconduct cre-

ated by the exclusionary rule in civil forfeiture is unique because forfeiture

plays a large role in modern police work, officers have a financial stake

in seized assets, and the proceedings themselves are quasi-criminal.”

Crandley, 65 Alb. L. Rev. at 178.

UNITED STATES v. $186,416.00 IN U.S. CURRENCY 14631

was the product of the LAPD’s illegal activity. See New York

v. Harris, 495 U.S. 14, 19 (1990). “There is no question of

‘attenuation’ until the connection between the primary illegal-

ity and the evidence obtained is established.” Crawford, 372

F.3d at 1058 (quotation marks omitted). As the Supreme

Court has recognized, “most cases begin with the premise that

the challenged evidence is in some sense the product of illegal

governmental activity.” Crews, 445 U.S. at 471. This case is

no exception. The LAPD’s illegal search revealed the defen-

dant currency and allowed for its seizure. Feil, in turn, sub-

mitted his declaration for the express purpose of securing the

return of the illegally seized currency. This being so, there

indisputably is a strong connection between the unlawful

search and the Feil declaration.

The question then becomes whether the attenuated basis

exception applies. We observe that UMCC does not dispute,

nor would there be grounds for doing so, that Feil’s declara-

tion was “voluntary,” in the sense pertinent to the Fifth

Amendment. Nevertheless, whether a statement is voluntary

is merely a “threshold requirement” for admissibility. Brown,

422 U.S. at 604. For the “causal chain” between the illegality

and the subsequent statement to be broken, the statement also

must be “sufficiently an act of free will to purge the primary

taint.” Id. at 602 (quoting Wong Sun, 371 U.S. at 486). To

guide this inquiry, the Brown Court identified several factors

relevant to whether a statement is sufficiently attenuated from

the illegality as to be admissible: “[t]he temporal proximity of

the arrest and the confession, the presence of intervening cir-

cumstances, and, particularly, the purpose and flagrancy of

the official misconduct.” Id. at 603-04 (footnotes and internal

citation omitted). The Court also emphasized that the Fourth

Amendment cannot turn on any single “talismanic test,” given

the diverse “possibilities of misconduct” that exist. Id. at 603.

With this in mind, we now determine “[w]hether the twin

aims of deterrence and judicial integrity warrant application

of the exclusionary rule” under the unique facts of the present

14632 UNITED STATES v. $186,416.00 IN U.S. CURRENCY

case. Crawford, 372 F.3d at 1054. Applying the factors put

forth by the Supreme Court in Brown, we consider, first, that

Feil executed his declaration on May 12, 2005, nearly two

months after the illegal search of UMCC. While this is a rela-

tively long time, “there is no ‘bright-line’ test for temporal

proximity” in an attenuation analysis. United States v. Reed,

349 F.3d 457, 463 (7th Cir. 2003). Rather, we must consider

whether intervening circumstances may have purged the Feil

declaration of taint from the illegal search. Brown, 422 U.S.

at 603-04.

[9] Under this factor, we do not find any intervening cir-

cumstances that would allow us to say that Feil made “an

unconstrained, independent decision that was completely

unrelated to the initial unlawful violation.” United States v.

Washington, 387 F.3d 1060, 1074 (9th Cir. 2004) (internal

quotation marks and brackets omitted). Far from making an

“unconstrained, independent decision” to file his declaration,

Feil had to offer a declaration of ownership on UMCC’s

behalf, or else UMCC would have lost all hope of rectifying

the “initial unlawful violation” by the LAPD. Id. This is so

because at the time UMCC filed its motion for return of the

seized currency in state court, with the Feil declaration

attached, such a filing appeared to be its only option for

regaining the currency unlawfully seized by the LAPD. Feil’s

declaration, therefore, was not only closely tied to the

LAPD’s illegal activity but was virtually compelled by it.

[10] In addition, when discussing the first two attenuation

factors, we have held that “[i]t is not enough for Fourth

Amendment attenuation that [a] statement be uncoerced; the

defendant’s ‘free will’ must also be sufficient to render inap-

plicable the deterrence and judicial integrity purposes that jus-

tify excluding his statement.” United States v. Perez-Esparza,

609 F.2d 1284, 1289 (9th Cir. 1979). Considering Feil in

place of “the defendant” referenced in our precedent, we con-

clude that Feil’s act was not one of free will that would over-

come our substantial interests in deterring official illegality

UNITED STATES v. $186,416.00 IN U.S. CURRENCY 14633

and upholding judicial integrity. As we have discussed, Feil

could obtain return of UMCC’s illegally seized money only

by asserting UMCC’s ownership interest in the currency,

thereby leaving his decision well short of being a product of

an “unconstrained” and “independent” free will. Washington,

387 F.3d at 1074. At the same time, substantial deterrence

interests will be served by refusing to allow the government

to rely on the Feil declaration, given law enforcement’s strong

incentive to prevail in forfeiture actions. The integrity of this

court also is served by our refusal to allow the government to

profit from illegal activity by law enforcement when such

activity produces incriminating evidence like the Feil declara-

tion.

[11] The third attenuation factor is “the purpose and fla-

grancy of the official misconduct.” Brown, 422 U.S. at 604.

When applying for a warrant to search UMCC, the LAPD was

aware of extensive evidence to suggest that the Clinic may

have been operating in compliance with California law per-

mitting medical marijuana sales. Nevertheless, in its warrant

affidavit, the LAPD omitted any reference to this evidence

when applying to a state magistrate for a search warrant under

state law. The District Court properly found that the warrant

affidavit omitted the following undisputed facts:

• that Lopez [the first officer to arrive at UMCC]

and other officers at the clinic were repeatedly

told that UMCC was a valid medical marijuana

dispensary under California’s medical marijuana

laws, and were handed copies of the relevant stat-

utes and associated literature;

• that patients who entered the clinic held letters

from physicians recommending marijuana for

their ailments;

• that while LAPD officers were on the scene,

approximately fifty patients obtained marijuana

14634 UNITED STATES v. $186,416.00 IN U.S. CURRENCY

with doctor’s letters and without objection from

the officers;

• that Lopez was voluntarily buzzed in by UMCC

staff, who were polite and cooperative throughout

the encounter;

• and that Lopez was shown UMCC’s incorpora-

tion papers and a copy of its City of Los Angeles

Tax Registration Certificate for a retail business.

By omitting these facts, the LAPD misled a state judge into

perceiving UMCC’s conduct as criminal when, in fact, it was

probably legal under California law. This is no trivial distinc-

tion under California narcotics law. While designated owners,

operators, or employees of medical marijuana clinics are not

subject to state criminal liability for certain marijuana-related

offenses, see Cal. Health & Safety Code §§ 11362.7,

11362.765, individuals not covered by California’s medical

marijuana laws still face prison time if convicted of, among

other offenses, selling marijuana or possessing it for sale, id.

§§ 11359, 11360. Under California law these two situations

differ dramatically, and the difference hinges entirely on

information the LAPD failed to provide the state magistrate.

In short, the LAPD simply ignored copious evidence of

UMCC’s compliance with state law and failed to inform the

state court judge of it.

[12] This police misconduct is both highly objectionable

and closely connected to the Feil declaration. The LAPD’s

omission of crucial information from the warrant affidavit

enabled its illegal search of UMCC’s offices and its seizure

of the defendant currency. This, in turn, led directly to Feil’s

declaration as, without a statement of ownership, UMCC

would have been left without legal recourse to regain the cur-

rency that was illegally taken from its possession. Because

this unbroken “causal chain” links the initial illegality and

Feil’s subsequent statement, the Feil declaration is not “suffi-

UNITED STATES v. $186,416.00 IN U.S. CURRENCY 14635

ciently an act of free will to purge the primary taint” from the

LAPD’s unlawful actions. Brown, 422 U.S. at 602 (quoting

Wong Sun, 371 U.S. at 486).3

[13] 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 govern-

ment 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

3

The government cites United States v. Raposa, 84 F.3d 502 (1st Cir.

1996), as an example of a court holding that a voluntary statement was

“sufficiently an act of free will to purge the primary taint” of a prior illegal

search. Id. at 505 n.7 (quoting Wong Sun, 371 U.S. at 486). In Raposa, a

criminal defendant succeeded on a motion to suppress cocaine found in his

apartment as the fruit of an illegal search, but subsequently agreed to plead

guilty to a separate charge of heroin possession. Through his attorney, the

defendant submitted to the federal probation officer for inclusion in his

pre-sentence report (“PSR”) a signed statement in which he voluntarily

admitted ownership of the cocaine that had been suppressed. Id. at 503-05.

The First Circuit held that the exclusionary rule “clearly could not have

barred the district court from considering the defendant’s voluntary state-

ments as set forth in the PSR.” Id. at 505. Indeed, the “[d]efendant [did]

not and could not credibly argue that the statements recounted in the PSR

constituted a fruit of the illegal search conducted on the day of his arrest,”

for the statements were voluntarily submitted and were provided after the

ruling on the suppression motion. Id. at 505 n.7.

Feil likewise made a voluntary statement regarding ownership, but

Feil’s statement was made before the decision on the suppression motion,

was directly aimed at remedying the illegal seizure of the currency, and

so was tightly linked to the illegal seizure, as we have discussed. In

Raposa, in contrast, the defendant’s statements in the PSR were not so

motivated. Accordingly, we do not consider the reasoning in Raposa to be

relevant to the present case.

14636 UNITED STATES v. $186,416.00 IN U.S. CURRENCY

prevail. Under federal forfeiture statutes, the Secretary of the

Treasury is permitted to transfer forfeited property to “any

State or local law enforcement agency that participated

directly or indirectly in the seizure or forfeiture of the proper-

ty.” 19 U.S.C. § 1616a(c)(1)(B)(ii). The LAPD would qualify

to receive forfeited funds under this provision, should the fed-

eral government elect to make such a transfer.

[14] Accordingly, we exclude the Feil declaration as tainted

by the unlawful search and hold that the government may not

rely on it to establish probable cause for instituting its forfei-

ture action.4

2. Other Government Evidence

[15] The burden thus falls on the government to show that

it had probable cause to institute a forfeiture action against the

defendant currency, independent of the tainted and suppressed

evidence. $493,850.00 in U.S. Currency, 518 F.3d at 1169;

Driver, 776 F.2d at 812; One (1) 1971 Harley-Davidson

Motorcycle, 508 F.2d at 351 (holding that evidence may be

introduced in a forfeiture proceeding if it was “derived inde-

pendently” of an unconstitutional seizure of the res). In other

words, the government must demonstrate that at the time it

instituted the forfeiture action it had “reasonable grounds,”

separate from evidence connected to the illegal seizure of the

defendant currency, for believing that the cash money was

related to an illegal drug transaction. $493,850.00 in U.S.

Currency, 518 F.3d at 1169; One (1) 1971 Harley-Davidson

Motorcycle, 508 F.2d at 351. The evidence the government

offers us fails to meet this standard.

4

Having excluded the Feil declaration on Fourth Amendment grounds,

we need not reach UMCC’s other arguments against permitting the gov-

ernment to rely on the declaration, specifically that the government should

be judicially estopped from so relying and that the declaration should be

set aside on a rationale similar to that employed in Simmons v. United

States, 390 U.S. 377 (1968), and Safarik v. United States, 62 F.2d 892 (8th

Cir. 1933).

UNITED STATES v. $186,416.00 IN U.S. CURRENCY 14637

[16] The government points to the knowledge of UMCC’s

marijuana sales that it gained from LAPD officers’ observa-

tions on the day of the search, independent of the search itself.

These observations include Sergeant Lopez’s receipt of a flyer

advertising UMCC, his perception of the scent of marijuana

inside the UMCC building, the individuals he saw leaving the

Clinic with brown paper bags (as consistent with complaints

of marijuana smokers in the neighborhood holding such

bags), the statements that employees of UMCC made to

Lopez indicating that the Clinic sold marijuana, and another

officer’s corroborating observations. Although, taken

together, this evidence may indicate, as the government con-

tends, that UMCC was selling marijuana, the evidence does

not reference the defendant currency and thus cannot alone

establish any connection between UMCC’s marijuana sales

and the currency.

[17] According to the government, however, we must con-

sider this evidence in conjunction with the lack of evidence

suggesting that UMCC had any source of revenue apart from

marijuana sales. On this logic, there was probable cause to

believe that “any money found on the premises at UMCC rep-

resented proceeds of sales of marijuana, and was therefore

forfeitable.” Yet under our precedent we cannot consider in a

forfeiture proceeding the amount of currency that the govern-

ment illegally seized. $493,850.00 in U.S. Currency, 518 F.3d

at 1165 (citing $191,910.00 in U.S. Currency, 16 F.3d at

1059, 1065). This being so, we are left without a clue as to

whether currency of an unknown amount discovered at

UMCC was indeed revenue from the Clinic’s operations or

was, for instance, a small amount of personal cash that an

employee had acquired elsewhere and kept in a locked drawer

at work. Because we are precluded from considering how

much currency the LAPD illegally seized, we cannot agree

with the government that the mere presence of currency, of

any amount, at UMCC established probable cause to find that

such currency was connected to marijuana sales. See

$493,850.00 in U.S. Currency, 518 F.3d at 1165. Accord-

14638 UNITED STATES v. $186,416.00 IN U.S. CURRENCY

ingly, the government has failed to show that it had probable

cause to institute its forfeiture action against the defendant

currency.

III. Conclusion

[18] Having determined that the government failed to show

probable cause, we reverse the District Court’s denial of

UMCC’s motion for summary judgment and order the District

Court to enter judgment for UMCC.

REVERSED and REMANDED.