Opposition Brief — Groh v. Ramirez

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Bee Gouge Ue ate

No. 02-811 lian |

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Supreme Court of the United States

JEFF GROH, Special Agent with the

Bureau of Alcohol, Tobacco, and Firearms,

Petitioner.

JOSEPH R. RAMIREZ, JULIA L. RAMIREZ,

JOSHUA RAMIREZ, and REGINA RAMIREZ,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

BRIEF IN OPPOSITION

VINCENT J. KOZAKIEWICZ W.G. GILBERT, III

Attorney at Law Attorney at Law

4535 S. Five Mile Road Counsel of Record

Boise, Idaho 83709 15 South Idaho Street

208-362-7965 P. O. Box 345

Dillon, Montana 59725

Telephone: 406-683-6116

FAX: 406-683-6117

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

Whether the Ninth Circuit properly ruled that a law

enforcement officer violated clearly established law, and

thus was personally liable in damages and not entitled to

qualified immunity, when the law enforcement officer

leads a search of a home pursuant to a warrant that does

not describe the place to be searched or the items to be

seized and all supporting documents are sealed by the

issuing magistrate and unavailable for inspection by the

home owner?

Whether law enforcement officers violate the particularity

requirement of the Fourth Amendment when they execute

a search warrant that erroneously describes the place to

be searched as an entire ranch and the items to be seized

as a house, and the application and affidavit are not

attached to the warrant and are sealed by the Court?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED..................cccccsecssseesseeees i

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REASONS FOR DENYING THE WRIT.................... 4

I. THE NINTH CIRCUIT CORRECTLY HELD

THAT PETITIONER VIOLATED CLEARLY

ESTABLISHED LAW AND COULD NOT

HAVE REASONABLY RELIED ON THE

Il. THE NINTH CIRCUIT'S DECISION IN THIS

CASE IS CONSISTENT WITH THIS

COURTS DECISION IN LEON AND

DISTINGUISHABLE FROM CASES FROM

Sn II cctnescsasavcecsotencrecesncccesersesenenese 7

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ili

TABLE OF AUTHORITIES

Page

CASES

Bartholomew v. Pennsylvania, 221 F.3d 425 (3d Cir.

GREE EEE SRRe snes eeee mest wenn eee ee ee 10

Massachusetts v. Sheppard, 468 U.S. 981 (1984)............... 7

Procunier v. Navarette, 434 U.S. 555 (1978) ...................... 2

United States v. Beaumont, 972 F.2d 553 (5th Cir.

ia a i aati ateer tindilli 8

United States v. Cherna, 184 F.3d 403 (5th Cir.

1999), cert. denied, 529 U.S. 1065 (2000) ....................... 8

United States v. Curry, 911 F.2d 72 (8th Cir. 1990)............ 9

United States v. Kow, 58 F.3d 423 (9th Cir. 1995).............. 6

United States v. Leon, 468 U.S. 897 (1984)............... passim

United States v. McGrew, 122 F.3d 847 (9th Cir.

RR EEC ee ae 5, 6, 7, 10

United States v. Ortega-Jimenez, 232 F.3d 1325

EES vee ee ne Ee ne 10

United States v. Shugart, 117 F.3d 838 (5th Cir.),

cert. denied, 522 U.S. 976 (1997) ...............ccccccccecceeeeees 8,9

United States v. Simpson, 152 F.3d 1241 (10th Cir.

ELA nA a i)

United States v. Spilatro, 800 F.2d 959 (9th Cir

SE aL erent ree 6

United States v. Thomas, 263 F.3d 805 (8th Cir.

2001), cert. denied, 534 U.S. 1146 (2002)........................ 4

United States v. Towne, 97 F.2d 537 (9th Cir. 1993) .......... 6

United States v. Van Damme, 48 F.3d 461 (9th Cir.

RE ec hee Ee 5

TABLE OF AUTHORITIES -— Continued

CONSTITUTIONAL PROVISIONS

U.S. Const. amend IV

INTRODUCTION

Petitioner has requested a writ of certiorai to review

the judgment entered in this proceeding by the United

States Court of Appeals for the Ninth Circuit.

Petitioner grossly mischaracterizes the facts of this

case in an effort to mislead this Court and create an issue

where there is none. There was no application or affidavit

attached to the warrant in this case. The only documenta-

tion that was presented to Mrs. Ramirez at the time that

the agents from the United States Bureau of Alcohol,

Tobacco, and Firearms and Butte-Silverbow Sheriff’s

Department raided the Ramirez home and ranch property

was the search warrant. The warrant was facially invalid

in that it stated there was concealed on the ranch a two

story blue house. No reasonable officer could have believed

this to be a valid warrant. Based upon that warrant,

Petitioner and his entourage spent several hours conduct-

ing a general search of Respondents’ home, ranch build-

ings, and vehicles.

Petitioner attempts to create an issue where none

exists by attempting to make this case out to be one in

which the affidavit was attached to the warrant that failed

to describe with particularity the items to be seized. This

is simply not the case. The application and affidavit that

Petitioner relies on in this case were placed under seal by

the Court and unavailable to Respondents or their attor-

ney. Respondents were denied their constitutional right to

be free from unreasonable searches and seizures. The

search was unreasonable because it was based upon a

warrant that failed to describe with particularity the place

to be searched and the items to be seized. Respondents

could not even challenge probable cause because the

application and affidavit were placed under seal. Even

when the Court finally unsealed the documents, the Court

ordered that Respondents could not contact any of the

witnesses to ascertain if Petitioner had lied in the applica-

tion.

The Ninth Circuit correctly found that Petitioner, as

the leader of the search team has a duty to make sure he

has a valid warrant before invading the sanctity of a

private home. The warrant in this case was facially invalid

because it completely failed to describe with particularity

the items to be seized. There is nothing new or novel about

requiring that a law enforcement officer make sure that

the warrant meets the particularity requirement. The fact

that a warrant is issued by a magistrate does not excuse

independent inquiry into its validity by the officers

executing it. A warrant, like the one in this case, “may be

so facially deficient — i.e., in failing to particularize the

place to be searched or the things to be seized — that the

executing officers cannot reasonably presume it to be

valid.” U.S. v. Leon, 468 U.S. 897, 923 (1984) Petitioner

cannot claim that he is being held accountable for failing

to “predict the future course of constitutional law.”

Procunier v. Navarette, 434 U.S. 555 (1978) The

particularity requirement has been in existence since the

adoption of the Fourth Amendment. This Court

determined in 1984 in Leon that if a warrant fails to

particularize the place to be searched or the items to be

seized, the executing officer cannot reasonably presume it

to be valid. Petitioner is precluded from establishing

qualified immunity by Leon, the case that first established

the “Good Faith Exception” because this Court in Leon

specifically recognized that it is not reasonable for an

officer executing a warrant to rely upon it if it fails to

describe the items to be seized. Petitioner is simply being

held accountable for violating a specific textual mandate of

the Fourth Amendment, something that every law

enforcement officer has had to honor since 1791. His

qualified immunity defense must fail because this Court

clearly articulated in 1984 in Leon that an officer cannot

reasonably presume a warrant is valid if it fails to

particularize the place to be searched or the items to be

seized.

Petitioner’s reliance on the “cure by affidavit” cases is

misplaced because there was no attached affidavit served

with the‘ warrant. The application and affidavit were

under court seal. This is not a case where an affidavit

containing particularized descriptions of the place to be

searched and the items to be seized was served along with

a warrant that, in the absence of an affidavit and/or

application, would be defective. The facially defective

warrant was not even shown to Mrs. Ramirez until the

search was concluded several hours after the rummaging

of her home began.

Petitioner violated clearly established law. As stated

above, the particularity requirement is spelled out in the

text of the Fourth Amendment. No officer since this

Court’s 1984 decision in Leon can claim “good faith” or

“reasonable reliance” when executing a warrant that does

not meet the particularity requirement. Petitioner plainly

acted incompetently in conducting this search. He care-

lessly typed the warrant and got Magistrate Holter to

issue it. Petitioner carefully protected his alleged wit-

nesses by getting the file sealed.

REASONS FOR DENYING THE WRIT

Petitioner is attempting to create issues where none

exist. The decision of the Ninth Circuit was based on

binding authority from this Court and ten years of Ninth

Circuit precedent. Petitioner violated clearly established

law by invading the sanctity of Respondents’ home pursu-

ant to a facially invalid warrant that did not describe with

particularity the items to be seized. This Court established

in Leon in 1984 that no officer could reasonably rely upon

such a warrant.

Similarly, Petitioner attempts to confuse the issue by

attempting to plate this case in the same category as those

in which deficiencies of a warrant were cured by attach-

ments to that warrant. Nothing was attached to the

warrant in this case.

I. THE NINTH CIRCUIT CORRECTLY HELD

THAT PETITIONER VIOLATED CLEARLY ES-

TABLISHED LAW AND COULD NOT HAVE

REASONABLY RELIED ON THE WARRANT

Petitioner conducted a general search of Respondents

ranch and home. The plain language of the Fourth

Amendment provides several means of attacking the

validity of a search warrant. The Fourth Amendment

states: “ ... and no Warrants shall issue, but upon prob-

able cause, supported by Oath or affirmation, and particu-

larly describing the place to be searched and the persons

or things to be seized.” Thus there are four requirements

for a warrant to be valid. Any one missing element will

render it invalid. The warrant in this case was invalid

because it did not describe either the place to be searched

nor the items to be seized. The Court need look no further

than the text of the Fourth Amendment to decide this case.

The warrant served after the search of the Ramirez home

and ranch was one, two-sided sheet of paper. No descrip-

tion of the items sought by Petitioner during the several

hour general search was written within the four corners of

that document.

Petitioner’s claim of qualified immunity must fail

because such a claim is inconsistent with this Court’s

decision in U.S. v. Leon, 468 U.S. 897 (1984). The warrant

in this case is exactly like that described in Leon. It was

“ ... 80 facially deficient — i.e., in failing to particularize

the place to be searched or the things to be seized — that

the executing officers cannot reasonably presume it to be

valid.” U.S. v. Leon, 468 U.S. 897, 923 (1984).

Petitioner, like any other law enforcement officer,

should have known about this Court’s decision in Leon by

March 4, 1997. Additionally, any law enforcement officer in

the Ninth Circuit should have known there was no excep-

tion to the particularity requirement via an affidavit

unless that affidavit was attached to and referenced by the

warrant. United States v. McGrew, 122 F.3d 847 (9th Cir.

1997) is controlling in that circuit. Although McGrew was

decided six months after the raid in this case, the Court

recognized the long-standing rule in the Ninth Circuit,

stating:

The well settled law of this circuit states

that a “search warrant may be construed with

reference to the affidavit for purposes of satisfy-

ing the particularity requirement if (1) the affi-

davit accompanies the warrant, and (2) the

warrant uses suitable words of reference which

incorporate the affidavit therein.” Hillyard, 677

F.2d at 1340; see also United States v. Van

Damme, 48 F.3d 461, 466 (9th Cir. 1995) (invali-

dating warrant on these grounds); United States

v. Towne, 997 F.2d 537, 544-47 (9th Cir. 1993)

(reaffirming rule and discussing other cases do-

ing same); Spilatro, 800 F.2d at 967 (holding that

affidavit could not cure overbroad search war-

rant because it was not attached to it).

McGrew, at 849. The violation of the innocent Respon-

dents’ constitutional right to be free from unreasonable

search and seizure is apparent. The warrant was invalid.

It did not describe the place to be searched or the items to

be seized with particularity or at all. No affidavit was

attached to and/or referenced in the warrant. Construing

the warrant in the light most favorable to the Petitioner

would only allow him and his cohorts to search the ranch

for a two story blue house that is visible from Interstate

15.

The Ninth Circuit recognized that there are circum-

stances in which a warrant that fails the particularity

requirement may be validated by the affidavit in support

of the warrant. If the affidavit is served with the warrant

and the warrant refers to the affidavit, the affidavit may

be incorporated by reference. Otherwise it is invalid and

the executing officers cannot claim “good faith.”

Although dicta in Towne, supra, suggested

that the good faith exception might be available

when the agent who drafted the affidavit is pre-

sent at the search or when the agents confine

their search to the scope of the affidavit, Kow

subsequently squarely held that such facts, even

if true, cannot establish good faith. See Kow, 58

F.3d at 428-30. The agents must either serve the

affidavit with the warrant or list with particular-

ity its relevant directives on the warrant itself.

Otherwise, the good faith exception is not avail-

able because (1) the requirement of attaching af-

fidavits to general warrants has been the clear

law of this circuit for over a decade, forec!osing

any “reasonable belief” to the contrary; and (2)

no matter how aware the officers are of the limits

of their search, the person being searched (the

second aim of the rule) is still completely unaided

when agents fail to produce a document explain-

ing the parameters of the search.

McGrew, at 850. Petitioner violated clearly established law

of the Ninth Circuit and is not entitled to qualified immu-

nity.

II. THE NINTH CIRCUIT’S DECISION IN THIS

CASE IS CONSISTENT WITH THIS COURT’S

DECISION IN LEON AND DISTINGUISHABLE

FROM CASES FROM OTHER CIRCUITS

As stated above, this Court recognized in Leon that a

warrant could he so facially defective that the executing

officers could not reasonably believe it to be valid. In this

case anyone who would have read the warrant should

have known it was invalid. Massachusetts v. Sheppard,

468 U.S. 981 (1984) did not specifically address the “cure

by affidavit” rule that has been adopted by the lower

courts although a more detailed affidavit accompanied the

defective warrant. However, this Court did observe that “if

the judge had crossed out the reference to controlled

substances, and written ‘see attached affidavit’ on the

form, and attached the affidavit to the warrant, the

warrant would have been valid.” Jd. at 990 n. 7. This

statement by this Court is the precursor to the “cure by

affidavit” rule adopted by the Ninth Circuit and others.

The cases cited in McGrew established well before 1997

the rule thaf in order for an affidavit to be used to support

an otherwise overbroad warrant, the affidavit must be

referenced in and attached or accompany the warrant

while the search is being executed.

Petitioner attempts to create an issue where none

exists. This is not a case where an affidavit was attached

to afacially invalid warrant. Thus any case that Petitioner

cites for the proposition that an attached affidavit cures a

defective warrant provides no support to his case. In fact

none of the cases cited by Petitioner are on point.

The Fifth Circuit cases are factually different from

this case. The Fifth Circuit in United States v. Cherna, 184

F.3d 403, 412 (5th Cir. 1999), cert. denied, 529 U.S. 1065

(2000) recognized that it was not a case where non-

attachment of the affidavit made the warrant so obviously

defective that the officers could not reasonably have relied

on it. The Court stated, “First, Attachment B, expressly

mentioned in the warrant and attached thereto, referred

to Smitherman’s affidavit and described in considerable

detail twenty-six categories of evidence to be seized.” Jd. In

United States v. Beaumont, 972 F.2d 553 (5th Cir. 1992)

the affidavit of the applicant accompanied the facially

defective warrant. In Beaumont, the detailed affidavit was

attached and in Cherna there was a detailed attachment

that also referenced the detailed affidavit. Both are sig-

nificantly more particular than a warrant that claims that

there is a two story blue house concealed on a ranch! Even

the warrant in United States v. Shugart, 117 F.3d 838 (5th

Cir. 1997) came closer than the warrant here. The agents

in Shugart seized evidence related to methcathinone

production based on a warrant that “contained boilerplate

provisions obviously intended for use in cases involving

possession with intent to distribute narcotics.” Id. at 844.

The Eighth Circuit cases are no help to Petitioner’s

case. In United States v. Curry, 911 F.2d 72 (8th Cir. 1990)

the Court stated that the “well-established rule” in that

circuit was “that the affidavit must both accompany the

warrant and be incorporated into it.” Jd. at 77 n. 4. The

Court noted that these requirements were not met, How-

ever, “the application and affidavit were in actuality a

single three-page document, entitled ‘Application for

Search Warrant and Supporting Affidavit.’ ... this docu-

ment was attached to the warrant, which was labeled as

page four. The issuing magistrate signed both the warrant

and the application/affidavit form.” Petitioner’s Applica-

tion and Affidavit in this case were not attached, and in

fact were allegedly under seal, at the court. Despite the

“seal” the Petitioner was able to produce the face page

subsequent to the search. The Petitioner was also allowed

to supplement his application with an additional affidavit.

United States v. Thomas, 263 F.3d 805 (8th Cir. 2001) was

similar to Curry, a case where no address was on the

warrant. The warrant in Thomas contained the wrong

address for the house to be searched. In Thomas, the

correct house was under surveillance at the time the

officer went to get the warrant.

The warrant in United States v. Simpson, 152 F.3d

1241 (10th Cir. 1998) mistakenly described the items to be

seized as concealed upon the person, but subsequently

described the premises to be searched. Thus the warrant

itself provided the officer and the homeowner a description

of the place to be searched and the items to be seized. The

Court adopted a standard of “practical accuracy rather

than technical precision.” The Tenth Circuit used this

standard again in United States v. Ortega-Jimenez, 232

F.3d 1325 (10th Cir. 2000). In that case the Court inter-

preted the term “present and arriving” in the warrant to

include persons that had left the scene prior to the receipt

of the warrant. Here again the storage unit was under

surveillance at the time an officer went to get a search

warrant. The defendant had already left the storage unit

prior to the officers obtaining the warrant, but arrived and

left while the officers were watching the unit waiting for a

fellow officer to return with a warrant. The Court relied

upon the unattached affidavit to clarify with “practical

accuracy” the meaning of the term “present and arriving”

to include the defendants that came to the unit while it

was under surveillance and an officer was applying for the

warrant. These cases are factually dissimilar to the

present case that authorized a search for a two story blue

house.

Finally, the Third Circuit supported the position of the

Ninth in Bartholomew v. Pennsylvania, 221 F.3d 425 (3d

Cir. 2000). Qualified immunity was granted because it was

not the clear law of that Circuit at the time that a lack of

particularity in a search warrant cannot be cured by

reference to underlying affidavits that have been placed

under seal. This is not the case in the Ninth Circuit. The

Ninth Circuit specifically acknowledged in McGrew that

good faith would not apply in these circumstances because

the “cure by affidavit” rule in that circuit that required

incorporation and accompaniment was well established

“for more than a decade”.

CONCLUSION

The petition is without merit. It wrongfully claims the

affidavit was attached to the warrant when it was served.

The Petitioner’s search of the Rameriz house was unlaw-

ful. Such a search has been unlawful since Leon in 1984.

The Ninth Circuit clearly followed the precedent estab-

lished in the Circuit for more than a decade, that a defec-

tive warrant cannot be cured by an affidavit not served

with the warrant. There is no good faith immunity defense

available to the Petitioner. The petition should be denied.

Respectfully submitted,