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LU Ref# CAI00001
January 1, 2018
Author Ref. No: Vol. 25 No. 2
LU Ref# CAI00001
January 1, 2018
Author Ref. No:   Vol. 25 No. 2

Robert Phillips
Deputy District Attorney, Retired

I contend that for a nation to try to tax itself into prosperity is like a man standing in a bucket and trying to lift himself up by the handle.” (Winston Churchill)
Search Warrants and the Seizure of Electronic Devices:
COURT CASE REFERENCE: United States v. Jobe (9th Cir. Aug. 9, 2019) 933 F.3rd 1074

(1) An officer’s objective and reasonable (i.e., in “good faith”) reliance upon a subsequently invalidated search warrant, unless the warrant is based on an affidavit so lacking in indicia of probable cause as to render official belief in the existence of probable cause entirely unreasonable, precludes the suppression of the resulting evidence.  (2)  An unreasonable delay in searching a defendant’s impounded property may result in the suppression of evidence recovered as a result of the search, but only if the delay was result law enforcement’s deliberate, or at least negligent, misconduct.
On October 26, 2016, a “tipster” reported to the Department of Homeland Security (“DHS”) that Royce Jobe (defendant) was growing marijuana at his residence in Van Nuys, California.  The tipster (apparently a neighbor) reached this conclusion from his or her observation of a new “privacy fence” that was built on the property, blocking the view of the detached garage, the strong smell of marijuana emanating from the garage, and increased activity late into the evening, with multiple vehicles and individuals coming and going.  DHS Special Agent Paul Cotcher was assigned to the case on around November 3rd.  Investigating, he determined that the electrical power (registered in someone else’s name) for the house had recently “spiked.”  Surveilling the property, he noted that “PVC piping, planters, and cooling fans” were attached to and around the garage. Agent Cotcher also discovered that defendant had a marijuana business (“420 Boutique”) registered in his name.  He also had prior convictions for possession of a firearm and marijuana.  Agent Cotcher obtained a state-issued search warrant authorizing a search of defendant’s residence and garage, with permission to seize certain property including “[a]rticles of personal property tending to establish and document sales of [marijuana].”  Without any explanation in the warrant as to why he thought computers might be involved, Agent Cotcher included a request for permission to seize any “hard drives” found at the residence.  The warrant was executed on November 22nd.  Among the items seized were drugs, a pistol, and defendant’s laptop, along with other electronic devices. The laptop was not searched at that time.  After execution of the warrant, Agent Cotcher contacted the U.S. Attorney’s Office asking if the case could be prosecuted federally.  He did not receive an affirmative answer until December 1st.  During that intervening time period, the investigation continued with Agent Cotcher collecting more evidence of defendant’s sale of marijuana from him home.  Upon hearing back from the U.S. Attorney, Agent Cotcher began drafting an affidavit in support of a criminal complaint and a federal search warrant for the laptop, not completing this work until December 7th.  On December 12th—twenty days after the laptop was seized—the complaint was filed and the warrant was signed. Agents immediately searched defendant’s laptop, finding stolen credit card and bank account information.  He was subsequently charged in federal court with identity theft, accessing devices without authorization, mail fraud, and being a felon in possession of a firearm.  Defendant moved to suppress the evidence found on his laptop.  The district court judge granted the motion, ruling that although the laptop had been lawfully seized (i.e., with sufficient probable cause), the government’s delay of 20 days before obtaining the federal warrant to search it was constitutionally unreasonable; a Fourth Amendment violation. The government appealed.