USA v. Anthony Gray
Ninth Circuit Oral Argument
Ninth Circuit Oral Argument
Adam Sorensen argued in front of the U.S. Court of Appeals for the Ninth Circuit, where he briefed, argued, and won affirmance on behalf of the United States in an appeal regarding Fourth Amendment exclusion of evidence. Adam's argument begins at 10:19.
Unofficial transcript for users of mofo.com
Speaker 1 (00:02):
Good morning, counsel.
Kate Berry (00:04):
Good morning, your honors. May it please the court? My name is Kate Berry and I represent Anthony Gray. I’d like to reserve two minutes of my time for rebuttal.
Speaker 1 (00:13):
I’ll try to help you. Okay?
Kate Berry (00:13):
Thank you, your Honor. Nevada is part of a growing list of states that is legalized recreational marijuana. In a state where it is legal to transport, consume, or possess up to one ounce of marijuana per person, its faint smell is at best evidence that a legal substance may be present. Yet here, local deputies from the Washoe County Sheriff’s Office conducted an intrusive warrantless search of a car based only on the faint smell of marijuana.
Speaker 1 (00:50):
Let me just see if I understand this correctly. I looked this morning again at the statute, at one of the statutes involved, and this is Nevada Revised Statutes 453D.400 brand. It’s one of these wonderful long cites, and that says, “a person who smokes or otherwise consumes marijuana in a public place,” and then I omitted to me, “or in a moving vehicle, is guilty of a misdemeanor.” In this case, since the car in which gray was riding was stopped for a vehicle violation, the officer smelled marijuana in the car, and a dog alerted to the scent of marijuana, why wasn’t there probable cause? This statute says, “if he consumed it in the car that was moving,” that’s a violation. Had nothing to do with the quantity, had nothing to do with anything else. It just smelled. And the car, the dog alerted there was a moving violation of the car he was in. Do we take that into account?
Kate Berry (01:51):
There is no evidence in this case that either the driver or the passenger consumed marijuana in a moving vehicle. Deputy Spaulding saw the BMW pull out of a motel and stopped that car almost immediately. It is legal to smoke marijuana before getting in a car. It’s legal to smoke marijuana if it’s parked on private property, and it’s legal to transport marijuana in any fashion in that car.
Speaker 1 (02:20):
Admittedly, that could be the approach or the case, but it could also, could it not be that they had smoked marijuana in the car. Mr. Gray had smoked marijuana in the car?
Kate Berry (02:30):
It is possible, hypothetically, that one of those two gentlemen smoked marijuana in the car, but there’s no evidence in this record that supports that hypothetical.
Speaker 1 (02:41):
Well, again, I with respect, moving vehicle, smell of marijuana, anybody that’s ever smelled marijuana knows that’s marijuana, and you have a dog that’s alerted to marijuana before the car was searched, right?
Kate Berry (02:57):
Correct, Your Honor.
Speaker 1 (02:58):
So, I guess what I’m troubled with, yes, your explanation is one explanation for that, but with probable cause you don’t have to prove it. You just have to have evidence that a reasonable person looking at the situation thinks, “ah, you know, this is probably a violation of the law.” And based on the statute that I indicated here, moving violation, I mean, in a moving vehicle, smoking or consuming marijuana in the moving vehicle is a violation, right?
Kate Berry (03:26):
Correct, Your Honor.
Speaker 1 (03:27):
So why isn’t that probable cause?
Kate Berry (03:29):
In this case, the Deputy, Gamboa, who arrived on the scene afterwards noted specifically that it was a faint smell. There was no evidence that either gentleman had smoked marijuana in that car. No smoke was seen. There was no ash. There was no end of a joint. And Mr. Cannon, the car’s driver specifically said, “We haven’t smoked marijuana. Drug test us. If you’re concerned that we smoked marijuana in this car, drug test us.” And he offered that for himself and for Mr. Gray. And as the government conceded below, there was no concern in this case that the driver was under the influence. No field sobriety test was administered.
Speaker 1 (04:10):
By the way your client was a passenger.
Kate Berry (04:15):
That’s correct, Your Honor.
Speaker 1 (04:15):
What standing does your client have to complain about this since he didn’t have, the search of the vehicle, since he didn’t own the vehicle or have any interest in it?
Kate Berry (04:27):
Standing was never raised by the government either below or in the Ninth Circuit as an issue.
Speaker 1 (04:33):
Isn’t that jurisdictional?
Kate Berry (04:34):
It is jurisdictional, but because the government charged Mr. Gray with possession of the backpack, the firearm that was in the backpack, and the photographs that were in the backpack, the government conceded jurisdiction, or conceded that there was standing because Mr. Gray was charged with possession and ownership of those items, and he conditionally pled guilty to the possession of those items.
Speaker 1 (04:59):
So, he had ownership possession of the firearm and the other things that were in the backpack. He didn’t have possession in the car. But the question we’re talking about here is kind of the precedential question. You ever get to the backpack. You’re saying, understandably, “if there was no probable cause to stop the car and search the car, they would’ve never found the backpack in the first place,” for the poisonous tree your client’s off, right?
Kate Berry (05:24):
Correct, Your Honor.
Speaker 1 (05:25):
So, we still have to deal with the issue of is there probable cause? I admit it’s a close question, but in the case like this, where you have the statute that I’ve cited, the facts that we cited, why? What do we do with that? If it’s a close question does the government lose? And if so, what do you cite is the basis for that?
Kate Berry (05:47):
Well, I think we can all agree that the probable cause standard is more than it’s possible there was marijuana in that car. And navigating this question of whether there is probable cause in a recreational use state is a new question, but it’s one that is paramount to the Ninth Circuit because so many of the courts, or so many of the states that have legalized recreational marijuana are in the Ninth Circuit.
Speaker 1 (06:11):
Well, I admit that the recreational use is going to change things, no question. And if this were a question of could the dog tell what the quantity of marijuana was, of course there would be no basis for that. I get that. But here, it’s consume or what’s the exact language? It’s consumed or smoked marijuana in a moving vehicle. There was a scent, smoke hangs around a long time, moving vehicle, the dog alerts you. I gather, you admit, it is a possibility that there was probable cause. It’s not a strong one, but you agree with that?
Kate Berry (06:54):
I admit that it’s a possibility.
Speaker 1 (06:56):
Kate Berry (06:57):
That marijuana was smoked in that car. Although, it is my contention that there are not sufficient facts in the record to support that. And according to that.
Speaker 3 (07:05):
Why is that? What? Tell me why that is. If you stop a car and it smells of marijuana, I suppose it’s a strong smell, isn’t there probable cause to think that it was smoked in the car, which is a violation of state Law?
Kate Berry (07:23):
Marijuana has a strong smell.
Speaker 3 (07:24):
Kate Berry (07:25):
And one ounce of marijuana is a fairly substantial amount. And so, there were two occupants of this car. So, there could have legally been two ounces of marijuana in that car. For example, Nevada dispensaries—
Speaker 3 (07:39):
But my problem is the smoking of it in the car.
Kate Berry (07:43):
But the officer didn’t even indicate that the smell was burnt versus raw. There isn’t a single fact that suggests it was a burnt marijuana smell. There was smoke. In all of the courts that have considered this question, they’ve been state courts, a Washington State Court and the Colorado Court of—the Colorado Supreme Court, they’ve all found that in order to have probable cause to search a car. There has to be some indicia of criminality or that there’s actually contraband in that car. And they’ve laid out a number of factors that can give guidance to this court, such as extreme nervousness, disparate accounts from the driver and the passenger, the notation of multiple cell phones on the passenger seat. That’s guidance to this court as to what factors you need to be looking towards and in each—
Speaker 4 (08:32):
So, so forgive me for interrupting, but I, because your time is getting limited, I wanted to put one question that I had, which was presumably the purpose of this statute, which makes it unlawful to consume marijuana in a moving vehicle, is that it would impact the driver’s ability to be a good driver. So, the fact that there was a smell of marijuana doesn’t tell you anything about when the marijuana was smoked. And it could, and there’s no reason to infer that it was smoked while the vehicle was moving. Right?
Kate Berry (09:25):
I agree, Your Honor. And I believe that if there was a concern about driver safety, they could have conducted the next steps that law enforcement always conducts when they’re concerned about driver safety, such as administering a field sobriety test. But no officer ever indicated a concern about driver safety, and in fact, the government has conceded that driver safety was not a concern in this case.
Speaker 1 (09:48):
Nor is the statute required to be the driver, just the consumption, smoking of it in the car. If it were just the driver, then I take the point, but in this case, there’s no requirement of that.
Kate Berry (10:00):
That’s correct, Your Honor but Mr. Gray also offered to take a drug test in this case.
Speaker 1 (10:05):
Okay. We’ll give you a little extra time on rebuttal. Your time is out. But—
Kate Berry (10:07):
Thank, Your Honor.
Speaker 1 (10:08):
We have gobbled up your time as we usually do. So anyway, we’ll have you back in a minute. Let’s hear from the government.
Adam Sorensen (10:20):
May it please the court, Adam Sorenson for the United States. I think this case really boils down to, to three points. First, the officers here had probable cause to believe that some amount of marijuana was in the car, and second, possession of any amount of marijuana is a federal crime. And third—
Speaker 4 (10:40):
Well, on that point, that was never meaningfully raised below. It wasn’t part of the judge’s decision. So, why haven’t you forfeited that argument?
Adam Sorensen (10:49):
Sure. So, it was not part of the judge’s decision. I would say that it was raised below. I would point you to—
Speaker 4 (10:54):
Adam Sorensen (10:55):
Page 224 of the record. In this is in the government’s response. Let’s see. Under the heading, The Detection of the Odor of Marijuana is Probable Cause. The government wrote that “the status of marijuana as contraband has not changed in these states,” referring to states that have legalized some uses or some consumption of marijuana, “despite certain amounts being legalized or decriminalized under federal law, marijuana remains illegal in any quantity.” So, I think it is fairly preserved.
Speaker 1 (11:28):
If, I know that doesn’t matter what the officers were thinking. But if it wasn’t raised other than in that pleading, can we really fairly consider that federal law was the issue? They were saying, “Oh, Schedule C, we got to stop this guy.” Is that why they were doing that?
Adam Sorensen (11:48):
As you said, I don’t think that the subjective mindset of the officers is relevant under Ren. And, I think more importantly, we are dealing with the federal Fourth Amendment and there’s no indication in any case law that I’m aware of that the Fourth Amendment or any court interpreting it has ever drawn a distinction between state laws and federal laws when considering what is probable cause.
Speaker 1 (12:08):
So, your position is, I gather, that in as your learned opponent says, “we’ve got all kinds of states within the Ninth Circuit that have now adopted or may soon adopt laws that permit limited amounts of marijuana use, possession, and so on, of marijuana for a variety of purposes to be perfectly legal.” But that hasn’t changed Schedule C in the federal law. Is it your position that regardless, let’s say medical marijuana use, let’s say that Mr. Gray desperately needed medical marijuana and he had a permit in California for medical marijuana, and the police stop him, you never mentioned federal law. Could he be chargeable from your perspective on that basis?
Adam Sorensen (12:56):
Well, I think that you have to separate that question into a few pieces. Okay, so, first, I think there’s no question that federal criminal laws apply throughout the United States by virtue of the supremacy clause. So, there’s no law or action that a state can do to remove from applicability a federal criminal prohibition. There’s several questions of federal pro—or state prosecutorial priorities, which is entirely fair game. And there’s yet another question of what states want to choose to authorize their officers to do, what remedies they want to give to them, and how they want to interpret their own constitution.
Speaker 4 (13:35):
Going back to whether the argument has been forfeited, there were those passing references that you mentioned, but I don’t see in the record where the government ever argued straightforward to the district court. Forget about the state law issue, judge. The federal law issue is dispositive or anything remotely like that. And the judge clearly didn’t understand the government to be raising that, or he presumably would’ve addressed in his opinion.
Adam Sorensen (14:07):
I don’t think it was articulated repeatedly. I think the main interest in the ruling based on the court’s questions seemed to be on some of the state law arguments. But I do think that the language that I cited to you at page 224 of the record, does speak for itself in plain terms that marijuana remains federally prohibited in any quantity.
Speaker 1 (14:25):
Does it make any difference that in this case, the problem isn’t the marijuana, it’s what it led to, which is a federal crime, i.e., a federal possession of felony possession of a firearm. Does that make any difference in whether we take a federal law regarding marijuana into account?
Adam Sorensen (14:44):
So, I think generally the inquiry—the probable cause inquiry is based on the facts known to a reasonable officer at the time of the search. And I think at a certain extent, it’s just as the Supreme Court has said, it doesn’t matter what you ultimately find when you conduct a search, the real question is what is known to a reasonable officer when they conducted the search. So, I think the sort of the nature of the violation that winds up in court should not affect the Fourth Amendment protections. And I think it sort of illustrates the arbitrariness of crafting a rule where the defendant’s reasonable expectation of privacy changes based on the identity of the officers who may be conducting the search. And I think this court’s recent decision in artists well articulates that principle, and it applies equally to this case. So, for example, if federal officers had been conducting this particular search, I do not take Mr. Gray to be arguing that they would not have probable cause to search for a violation of federal law. And--
Speaker 1 (15:43):
There’s clear case law to that effect, right? The scent of marijuana, and if this federal violation, we have found that is probable cause.
Adam Sorensen (15:52):
It is well established both in the Ninth Circuit and Supreme Court, that would establish probable cause. And I think once we all agree on that, all that’s really left is looking to the Supreme Court’s decisions in Virginia vs. Moore, California vs. Greenwood, Cooper vs. California, and a line of cases in the Ninth Circuit applying similar principle, which really simply says that violations of state statutory authority going beyond what the state has authorized an officer to do, doesn’t translate automatically into a violation of the Fourth Amendment. In fact, it’s irrelevant. So, the Supreme Court, for example, in Cooper said that the question here is not whether the search was authorized by state law. The question is rather whether the search was reasonable under the Fourth Amendment. And so, I think that principle applies equally in this case.
Speaker 3 (16:38):
So, if the local police don’t have probable cause but suspect that somebody has robbed the bank and they’re looking for the money from the—but they also know that the person has just gone to the dispensary and purchased an ounce of marijuana and has gone into his house, and it’s in his house, they can say, “Okay, we are now federal officers. We’re going to search for the marijuana. We have probable cause for that.” And then they go through the whole house and find what they were really looking for. So, you get this, this is a pretext. Do you think that’s perfectly all right?
Adam Sorensen (17:20):
Well, I guess I would want to separate the question into two pieces. I mean, first, as a Fourth Amendment matter, pretextual seizures and searches are permissible. And that’s the holding of Ren in the Supreme Court. And I think that’s well-established law. So, there’s no automatic Fourth Amendment problem with the pretext. But I also want to be careful to separate this out and to say that states are free to define the authority of their officers and to craft state remedies, either under statutes or their own constitutions to control the conduct of officers. And I’m not here to argue that the Fourth Amendment somehow prevents them from doing that. It’s just that those sorts of violations don’t translate into exclusion in of evidence in federal court under the federal Fourth Amendment.
Speaker 4 (18:08):
So, I’ve just taken a look at your “the government’s response to defendant’s motion to suppress,” and I must say it appears to be directed 99.9% towards whether this was valid under Nevada law. So, are you saying—supposing that what you—the passage you just read us, the one and only passage apparently referencing federal law was in a footnote that would be enough to preserve it?
Adam Sorensen (18:49):
I think a clear articulation of the principle is enough, but if you’re not convinced by that, I think there was also clearly probable cause under state law here—
Speaker 4 (18:57):
Well, we understand that.
Adam Sorensen (18:58):
And you would not need to reach that question, and I’m happy to address that for my remaining minute if you have questions on that front.
Speaker 1 (19:05):
Does anybody have any additional questions?
Adam Sorensen (19:08):
I would like to address very briefly the U.S. currency case, because I think it’s really the only precedent that my friend has cited in support of the rather novel proposition that the Fourth Amendment looks to a difference between federal and state violations. And I think it’s really important to look at that case carefully and understand what it’s saying. So, I think the best reading of that case is that it’s about the sufficiency of an affidavit in a very particular context and not really about the sufficiency of probable cause based on facts. So, in that case, you had state officers applying for a state warrant before a state judge, and they made material omissions of fact, which essentially hid the fact from the judge that the conduct they were describing would’ve been lawful under state law in that very narrow context where the state judge presumably would have no reason to automatically think that the officers were investing in a violation of federal law.
Adam Sorensen (20:04):
That the decision in the U.S. currency says, well, the officers in that case should indicate so that the magistrate can apply the facts to the relevant law, what law they think has been violated. I don’t think that that ruling translates at all to the warrantless search context where there’s no X-anti indication of what law you think has been violated. And I think it would be—sort of—it wouldn’t make much sense to articulate a rule where officers had to have in their subjective mindset or say out loud what particular statutory provision they thought had been violated. And also, I see my time is almost up.
Speaker 1 (20:40):
It’s gone. It’s gone. That when the red light is on, it means the trap door is yawning beneath your feet.
Adam Sorensen (20:46):
<Laugh>, Thank you. We’d ask the go we’d asked the court to affirm.
Speaker 1 (20:48):
Thank you very much.
Kate Berry (20:58):
Thank you. I’d like to briefly address the federal jurisdiction issue. So, the government never argued below that federal law was a dispositive issue. It was raised in Mr. Gray’s motion to suppress in his moving brief as a separate section that the fact that marijuana was legal under federal law had no impact on this case. And the government never responded to the argument.
Speaker 1 (21:22):
Let me as you this, council, I think I know the answer, but I want to be sure. Do you have case law that says that if the government doesn’t raise the federal issue at all, that it goes away? In other words, it’s a legal issue. Would it go away? In other words, could if they had never raised it before the trial court, but it was an independent ground, would it still be viable? Or is it just gone?
Kate Berry (21:50):
I don’t have a case available on that point. I’d be happy to provide further briefing if it would assist the court. I frankly think there is no federal marijuana issue in this case, regardless. These were local deputies conducting a local traffic stop. They were not trained in federal law. They were not authorized to enforce federal law. They were not deputized to enforce federal law.
Speaker 1 (22:13):
I get all of that, but I think perhaps here it was your opponent, not you, but I thought there was an agreement that this was a clear violation under federal law, right?
Kate Berry (22:23):
Possession of marijuana remains illegal under federal law. Yes.
Speaker 1 (22:26):
So, in that situation, the case becomes a lot less difficult, right? Smells, marijuana, the dog alerts any amount doesn’t matter. So that’s probably a tighter—so I admit, our primary thrust here is state law, but I’m not sure I know at the top of my head that the federal aspect of this just goes away, anymore than the fact that the felony and possession issue is the ultimate issue. And that’s clearly a federal statute.
Kate Berry (22:54):
The fact that he’s, Mr. Gray, has been charged and convicted of a federal statute and that he was in federal court means that the federal Fourth Amendment applies to this case.
Speaker 1 (23:05):
But everything, yeah.
Kate Berry (23:06):
And we of course, agree that that is the standard in this case. The fact that this was a local deputy conducting a local traffic stop means that this was not a federal case. This was not a joint task force. These were not DEA agents investigating federal law. According to the government’s argument, local deputies from the Washoe County Sheriff’s Office can just park themselves outside a dispensary and search and arrest anybody who walks out. Perhaps they could even raid a dispensary.
Speaker 1 (23:35):
I think we have—
Speaker 4 (23:36):
Parties will all the time make a strategic decision at the district court level. We’re going to make argument X, we’re not going to pursue argument Y. And I thought the law was pretty clear that then when they get up on appeal, they can’t say, “oh, you know, judge you can, or panel, you can affirm on the grounds of argument.” Why isn’t that a classic waiver?
Kate Berry (24:12):
I agree, your honor, this is not a jurisdictional question. This is a substantive legal question that the government did not raise below.
Speaker 1 (24:19):
And on that alphabetical thing, we will say, why not? And thank you very much for your testimony.
Speaker 4 (24:25):
Speaker 1 (24:27):
Thank you all. The case just argued is submitted. A very interesting case. Very interesting case.