United States of America v. Howard Oran Embry

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v.
HOWARD ORAN EMBRY,
Defendant - Appellee.
No. 14-30110
D.C. No. 1:14-cr-00021-SPW-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Susan P. Watters, District Judge, Presiding
Carolyn S. Ostby, Magistrate Judge
Argued and Submitted July 9, 2015
Portland, Oregon
Before: PREGERSON, N.R. SMITH, and OWENS, Circuit Judges.
The United States appeals the district court’s order adopting the findings and
recommendations of a federal magistrate judge and granting Howard Embry’s
motion to suppress evidence. We have jurisdiction under 18 U.S.C. § 3731. We
affirm.
FILED
SEP 15 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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1. “A search warrant is supported by probable cause if the issuing judge
finds that, given all the circumstances set forth in the affidavit before him . . . there
is a fair probability that contraband or evidence of a crime will be found in a
particular place.” United States v. Underwood, 725 F.3d 1076, 1081 (9th Cir.
2013) (alteration in original) (internal quotation marks omitted). “We give great
deference to an issuing judge’s finding that probable cause supports a warrant and
review such findings for clear error.” Id. at 1081 (internal quotation marks
omitted).
Police officers had no reason other than the uncorroborated, anonymous tip
to suspect that Embry was in recent receipt of a trafficking amount of marijuana.
“[A]n anonymous tip is entitled to little or no weight in a probable cause
evaluation if it is entirely uncorroborated and lacks any indication of reliability.”
United States v. Clark, 31 F.3d 831, 834 (9th Cir. 1994) (emphasis added).
Here, the anonymous tip was first conveyed to Embry’s apartment manager
who then relayed the information to the police officers. The anonymous tip
conveyed a paucity of information. The tip did not mention Embry by name, state
how the drugs arrived at his apartment, or explain how the informant acquired this
information. The anonymous tip did not describe any future movements that could
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be corroborated and the police officers did not corroborate the allegations made in
the tip.
When the officers arrived at Embry’s apartment they employed what they
call the “knock and talk” approach. In response, Embry opened the door of his
apartment and he engaged in a conversation with the officers. Embry
acknowledged that he had a medical marijuana card and possessed a personal-use
amount of marijuana, one ounce or less. The officer’s “knock and talk” does not
constitute independent corroboration because Embry’s confirmation that he had a
medical marijuana card and possessed a personal-use amount of marijuana is not
sufficient to confirm the anonymous informant’s statement concerning ten pounds
of marijuana. See Clark, 31 F.3d at 834 (“Mere confirmation of innocent static
details in an anonymous tip does not constitute corroboration.”); see also
Underwood, 725 F.3d at 1082 (holding that officers’ knowledge of personal-use
amount of marijuana “certainly does not indicate that [defendant] is an ecstasy
trafficker.” (emphasis in original)).
Because unreliable, uncorroborated tips are entitled to little or no weight
when determining whether there is probable cause to support issuance of a search
warrant, it was reasonable for the district court to excise the anonymous tip from
its probable cause analysis. Thus, the officers did not have probable cause to
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search for evidence of drug trafficking at Embry’s apartment.1 Thereafter, the
officers obtained a search warrant.
2. “Whether a search warrant describes items to be seized with sufficient
specificity is reviewed de novo.” United States v. Reeves, 210 F.3d 1041, 1046
(9th Cir. 2000). Here, the search warrant fails to meet the requirements of the test
set out in United States v. Spilotro, 800 F.2d 959, 963 (9th Cir. 1986), for
determining whether a warrant is “sufficiently precise.” As in Spilotro, the search
warrant here “authorize[d] wholesale seizures of entire categories of items not
generally evidence of criminal activity, and provide[d] no guidelines to distinguish
items used lawfully from those the government had probable cause to seize.” Id. at
964.
It is clear that the search warrant here was aimed at uncovering evidence of
drug trafficking, even though probable cause did not exist to support a search for
evidence of drug trafficking. The warrant permitted seizure of dangerous drugs,
“including but not limited to methamphetamine, cocaine, marijuana and ecstasy,
[and] Drug Paraphernalia as defined in” Montana statutes. It further authorized
seizure of “[b]ooks, records, receipts, notes, ledgers, and other papers relating to
1 Probable cause, if it existed, was limited only to Embry’s unlawful
possession of a personal use amount of marijuana without a permit.
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the transportation, ordering, purchasing, trafficking, possession, of controlled
substances.” It authorized seizure of all communications technology and records
used “to facilitate drug transactions with . . . customers and/or suppliers.” It
authorized seizure of all records of Embry’s travel. The warrant directed officers
to seize address books and other records of “persons to whom dangerous drugs
have been delivered to or obtained from,” as well as any records that could be used
to identify customers. It authorized seizure of all of Embry’s financial records.
The warrant even authorized the seizure of any and all photographs and digital
media that could store photographs. Officers were entitled under the search
warrant to seize Embry’s phones and all of his phone records. Lastly, the warrant
permitted seizure of any weapons found in the residence.
Because “the warrants here do not describe the items to be seized with
sufficient particularity,” the “warrants [are] invalid because of their general terms.”
Id.
3. The normal remedy for an overbroad warrant is to sever those portions
that are overbroad, but our precedent does “not allow severance or partial
suppression when the valid portion of the warrant is a relatively insignificant part
of an otherwise invalid search.” United States v. SDI Future Health, Inc., 568 F.3d
684, 707 (9th Cir. 2009) (internal quotation marks omitted). Given that the
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portions of the warrant aimed at trafficking are either inseparable from or
predominate over the mere possession allegations, we cannot employ severance in
this case and the warrant is invalid.
4. We have “refused to suppress evidence obtained under an invalid warrant
if the officers obtaining the warrant and performing the search relied in good faith
on the warrant’s validity.” Clark, 31 F.3d at 835. We “ask not what the executing
officer believed, or could have believed, but whether a reasonably well trained
officer would have known that the search was illegal despite the magistrate’s
authorization.” United States v. Luong, 470 F.3d 898, 902 (9th Cir. 2006) (internal
quotation marks omitted). “[T]he inquiry is one of objective reasonableness.”
Clark, 31 F.3d at 835.
Yet, the good faith exception cannot be used to rescue a search warrant that
is facially overbroad, such as the one at issue here.2 See Spilotro, 800 F.2d at 968.
5. Before applying the exclusionary rule, we consider “(1) whether
suppression would affect the group conduct that the exclusionary rule was
designed to punish, i.e., police misconduct; (2) the source of the error in the
2 We cannot apply the good faith exception here because the officers did not
act in good faith when they “seized evidence to the full extent of an overbroad
warrant” by seizing evidence of drug trafficking, when there was not probable
cause to support a search for evidence of drug trafficking. Cf. United States v. Luk,
859 F.2d 667, 677-78 (9th Cir. 1988)
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particular case and whether any evidence suggested that the source, e.g., issuing
magistrates, was inclined to ignore or subvert the Fourth Amendment; and (3) the
basis for believing the exclusion of evidence will have a significant deterrent effect
upon the source of the error.” Luk, 859 F.2d at 675 (internal quotation marks and
citations omitted). All three elements counsel in favor of applying the
exclusionary rule here.
Because of their reliance on the uncorroborated, anonymous tip, police
officers crafted a warrant for drug trafficking and carried out a search aimed at
uncovering evidence of drug trafficking. First, suppression would punish the
police officers’ misconduct. Second, all of the errors in this case arise from the
conduct of the police officers because the source of the error was the officers’
reliance on the uncorroborated, anonymous tip. Third, a decision affirming the
district court will have the significant deterrent effect on police misconduct that the
exclusionary rule is meant to provide.
AFFIRMED.
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United States v. Embry, No. 14-30110
OWENS, Circuit Judge, dissenting:
I respectfully dissent.
1. According to the majority, “Police officers had no reason other than the
uncorroborated, anonymous tip to suspect that Embry was in recent receipt of a
trafficking amount of marijuana.” Yet this ignores two crucial facts. First, the
apartment manager said that she smelled marijuana coming from the apartment.
Second, Embry admitted that he had marijuana, but only for his own use. No law
required the officers to buy Embry’s story. The law is specifically to the contrary;
police are not required to disprove a suspect’s innocent explanations. See, e.g.,
Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983) (“[I]nnocent behavior frequently
will provide the basis for a showing of probable cause . . . .”). Indeed, based on the
tip, they had every reason to disbelieve Embry. The majority never explains why
the officers had to fall for this bogus story.
Based on the tip, the smell, and Embry’s own words, the officers were
entitled to rely in good faith on the warrant’s validity. While these three facts
obviously do not establish beyond a reasonable doubt that Embry was trafficking
narcotics, probable cause requires far less. See Gates, 462 U.S. at 238, 246
(Probable cause exists if “given all the circumstances . . . , there is a fair probability
FILED
SEP 15 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
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that contraband or evidence of a crime will be found in a particular place. . . .
[P]robable cause does not demand the certainty we associate with formal trials.”).
The good-faith doctrine requires less still once a neutral magistrate judge has
issued a search warrant. See United States v. Leon, 468 U.S. 897, 923 (1984)
(officials may rely on a properly issued warrant unless it is “so lacking in indicia of
probable cause as to render official belief in its existence entirely unreasonable”
(quoting Brown v. Illinois, 422 U.S. 590, 611 (1975) (Powell, J., concurring in
part)) (internal quotation marks omitted)).
Imagine the following facts: An apartment manager receives a tip that an
apartment is being used to abuse children. She hears young children crying for
help. When the police talk to the tenant, he admits that there are young children in
his apartment (and they are not his), but says he is running a modeling agency for
minors who occasionally become scared and cry. Apparently the majority would
say that the officers, if they executed a search warrant based on these facts, would
be acting in bad faith. I know of no Supreme Court decision that supports this
approach.
2. The majority also invokes United States v. Spilotro, 800 F.2d 959 (9th
Cir. 1986), to sweep the severability issue off the Fourth Amendment chessboard.
Because the corroborated tip supported good faith reliance on the magistrate
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judge’s determination that there was probable cause of drug trafficking, the
majority’s conclusion that the warrant is facially overbroad cannot stand. And
even if the majority is correct that the officials were not entitled to rely on the
warrant as to drug trafficking because they witnessed only simple possession,
Spilotro does not apply because evidence of marijuana possession formed a
significant, severable part of the search warrant. See United States v. SDI Future
Health, Inc., 568 F.3d 684, 707 (9th Cir. 2009). “Because the record does not
reflect a flagrant general search,” any “violation [does not] require[] suppression of
all of the evidence seized.” United States v. Sedaghaty, 728 F.3d 885, 915 (9th
Cir. 2013).
We must apply the exclusionary rule in the rarest of occasions. See Hudson
v. Michigan, 547 U.S. 586, 591 (2006) (“Suppression of evidence . . . has always
been our last resort, not our first impulse.”). Obviously, this was not a perfect
investigation, but imperfection does not equal suppression. See Herring v. United
States, 555 U.S. 135, 144 (2009) (“[T]he exclusionary rule serves to deter
deliberate, reckless, or grossly negligent conduct . . . .”). We should reverse the
suppression order.
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