United States v. James Grant, III , 682 F.3d 827 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 11-50036
Plaintiff-Appellee, D.C. No.
v.  2:10-cr-00406-
JAMES GRANT, III, GW-1
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Argued and Submitted
March 8, 2012—Pasadena, California
Filed June 11, 2012
Before: Sidney R. Thomas, Kim McLane Wardlaw, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Berzon
6617
6620 UNITED STATES v. GRANT
COUNSEL
Sean K. Kennedy, Federal Public Defender, Matthew B. Lar-
sen (argued), Deputy Federal Public Defender, Los Angeles,
California, for defendant-appellant James Grant, III.
André Birotte Jr., United States Attorney, Robert E. Dugdale,
Assistant United States Attorney, Kristen A. Williams
(argued), Assistant United States Attorney, Los Angeles, Cali-
fornia, for plaintiff-appellee United States of America.
OPINION
BERZON, Circuit Judge:
James Grant III (“Grant”) was convicted for being a felon
in possession of a firearm. We consider in this case whether
UNITED STATES v. GRANT 6621
the basis for the search that resulted in Grant’s conviction was
so attenuated as to require suppression of the firearms evi-
dence found in the search. The district court held that there
was indeed a lack of probable cause to issue the warrant
authorizing the search, but invoked the good faith reliance
doctrine of United States v. Leon, 468 U.S. 897 (1984), to per-
mit use of the evidence. We agree as to probable cause but not
as to the application of the Leon doctrine, and so reverse.
I. Background
Detective Ryan Thompson (“Thompson”) obtained a war-
rant to search Grant’s home. Thompson sought to recover,
among other evidence, a firearm used in a homicide that had
occurred nearly nine months earlier. There was no indication
that Grant had been involved in the homicide. Thompson sus-
pected, however, that two of Grant’s sons had some connec-
tion to the murder or its aftermath.
As it turned out, the searching officers turned up nothing
pertinent to the homicide. But, they did find two firearms and
ammunition belonging to Grant. The government then
charged Grant, who had been convicted of a felony years
before, with being a felon in possession of firearms and
ammunition in violation of 18 U.S.C. § 922(g)(1).
Grant moved to suppress the firearms evidence as the fruit
of an illegal search, maintaining that there was no probable
cause for the issuance of the search warrant and that the Leon
doctrine did not apply. The district court denied the motion.1
1
The government seized Grant’s firearms and ammunition pursuant to
the first and second sections of the search warrant, which authorized sei-
zure of “[a]ny .357 or .38 caliber firearm” and “[a]ny .357 or .38 caliber
ammunition, gun cleaning paraphernalia, holsters, ammunition belts, origi-
nal box packaging.” Because the police did not seize any items pursuant
to the remainder of the warrant, we address the validity of only these two
sections.
6622 UNITED STATES v. GRANT
A. The Affidavit
To support his August 2009 application for the warrant to
search Grant’s home, Thompson submitted an affidavit con-
taining the following facts:
On January 2, 2009, police found a man’s body in Culver
City, California. The man had died from multiple gunshot
wounds. A witness who had heard the shots said that he saw
a black male, with a dark complexion and a thin build, flee the
area. Forensic tests on bullets recovered from the crime scene
indicated that they had all been fired from a single gun, which
most likely used a .38 Special or .357 Magnum cartridge.
During a search of the victim’s residence, Thompson dis-
covered an empty box for a BlackBerry cell phone but found
no phone in the residence, in the victim’s car, or at his work-
place. Using the International Mobile Equipment Identity
(IMEI)2 number inscribed on the box, Thompson obtained
phone records for the BlackBerry and discovered that, a few
weeks after the crime, a SIM card connected to a phone num-
ber ending in “4348” had been put into the BlackBerry for
approximately six minutes and then returned to a Nokia cell
phone. Months later, another individual activated a cell phone
number using the victim’s BlackBerry. The police conducted
a search of that individual’s residence; nothing in the affidavit
suggests that they found anything connecting him to the
homicide.
Upon investigating records associated with the “4348”
number, Thompson discovered that several members of the
“Inglewood Family” and “Centinela Park” gangs had called or
received calls from that number. Davonte Hatcher
(“Davonte”), one of Grant’s sons, was one of those gang
members. Thompson also learned that Davonte had been
arrested in Los Angeles on April 28, 2009 for assault with a
2
Each cell phone has a unique IMEI number.
UNITED STATES v. GRANT 6623
deadly weapon. According to the arrest report, Davonte had
pointed a six-inch revolver into the chest of the assault victim;
the weapon was never recovered.
Subsequently, Thompson obtained a warrant to search
Davonte’s cell phone, which was in law enforcement custody.
The search revealed that Davonte’s phone had been used to
call many of the same numbers as the “4348” number and that
it contained a photograph of a silver revolver. A firearms
expert identified the gun in the picture as “possibly a .357 cal-
iber,” which was consistent with the model suspected to have
been used in the homicide.
While investigating Davonte, Thompson learned that
Davonte has a half-brother, James Grant (“James”), who was
likewise an active “Centinela Park” gang member. James had
been in the vicinity when the police arrested Davonte in April.
Thompson noted that James, who is six feet tall and weighs
150 pounds, has a more slender build than Davonte and thus
more closely matched the description of the homicide suspect.
Thompson began investigating James, obtaining a warrant
to track James’s movements through GPS surveillance of his
phone. On June 5, the GPS surveillance led police officers to
a park, where gunfire erupted and James was shot in the arm.
An officer reported seeing James discard a firearm into a
nearby bush; the gun was later recovered and identified as a
.45 caliber Taurus semi-automatic handgun, a model dissimi-
lar from the one suspected to have been used in the January
homicide. The police detained James, who was then trans-
ported to a hospital, treated for his wound, and released the
same day. Thompson later obtained a search warrant to com-
pare DNA recovered from the shirt James wore to the hospital
with DNA recovered at the scene of the homicide; the DNA
did not match.
According to continued GPS surveillance, James traveled
to Adelanto, California, shortly after his release from the hos-
6624 UNITED STATES v. GRANT
pital and remained there until June 13. Thompson learned that
a woman with whom Grant had previously lived in Ohio, Tina
Benjamin (“Benjamin”), had a listed address in Adelanto.
Davonte’s mother, Sharon Hatcher (“Sharon”), also informed
Thompson that Grant lived in Victorville, California; as
Thompson noted in the affidavit, “Adelanto is located in the
general area of Victorville.” Furthermore, Thompson discov-
ered that Benjamin and Grant shared a post office box address
in Adelanto. Some time later, Davonte asked Djuane Fletcher,
another son of Grant’s, to call Grant at a telephone number
ending with “9999”; although the number was no longer in
service, it turned out to be registered to Benjamin.
In addition to tracking James, Thompson also continued to
investigate Davonte, whom he interviewed in jail about the
victim’s BlackBerry. Although Davonte initially denied hav-
ing pawned the phone, he admitted doing so after Thompson
showed him a receipt with his name on it. Thompson further
recorded in the affidavit:
We spoke with [Davonte] Hatcher more about the
phone and confronted him about the fact that we
knew his SIM card was put into this Blackberry Bold
cell phone two days before he pawned the phone.
Hatcher continuously told us he could not remember
who gave him the phone but suggested it was “prob-
ably one of the little homies” and provided us some
gang monikers of “Flintstone and Trouble” as two
gang members from “Inglewood Family 94 set” that
may have given him the phone. Hatcher said these
two subjects always have stuff for sale and although
he could not remember for sure, may have given him
this Blackberry Bold cell phone. Although Hatcher
could not remember exactly who gave him the
Blackberry Bold cell phone, he immediately stated
that there was no way his brother James Grant pro-
vided him with the cell phone.
UNITED STATES v. GRANT 6625
Shortly after his interview with Thompson, Davonte called his
mother, Sharon, and told her that “they [were] trying to find
out about a phone that was stolen.” When Sharon asked him
what the phone had to do with “this case,” Davonte replied
that the phone had nothing to do with the case for which he
was in custody, and instead involved a different incident.
Sharon visited Davonte in jail a few days later, and the two
had the following recorded exchange:
Sharon: So oh boy says he gonna charge for a cell
phone, that’s what he say?
Davonte: No, with the guns he found in the house.
Sharon: That’s what he want to charge you with,
he told me with receiving stolen property
Davonte: I don’t care he could do that.
Sharon: He told me receiving stolen property.
Davonte: That’s what he said?
Sharon: Hmm, mmm.
Davonte: He threatened me with the guns he found
at the house.
Sharon: He told me receiving, he know he can’t
do that that’s why he didn’t tell me that.
Like I said my dead step-father . . . .
Davonte: I already know.
Sharon: Yeah so . . . but how did that come
about?
6626 UNITED STATES v. GRANT
(For approximately ten seconds no words
are said, however, it sounds as though
Davonte is making some sort of hand
gestures or is doing some type of non-
verbal communication . . . Davonte
laughs after about ten seconds and con-
tinues talking with Sharon[.])3
Davonte
(Laughs): Remember when he had that for a whole
month.
Sharon: But it was there longer than that.
Davonte: Nah, I’m talking about when he had . . .
When me and my daddy had to go track
him down . . . .
Sharon: Hmm mmm.
Davonte: That’s when, after that, that’s when I got
it . . . .
Based on the forgoing, Thompson surmised that “it is pos-
sible Davonte and his father, James Grant III, were looking
for James.” Thompson further explained:
Based on the statements between Sharon and
Davonte Hatcher during the visit, coupled with
Hatcher’s statements in our interview about the fact
there was no way [James] gave him the Blackberry
Bold cell phone although he could not truly remem-
ber where he obtained the cell phone, I believe it is
possible [James] gave Hatcher the Blackberry Bold
cell phone that was stolen from the victim when the
homicide occurred.
3
This is an annotation by Thompson.
UNITED STATES v. GRANT 6627
Reciting the facts and inferences described above, Thomp-
son applied for a warrant to search the Adelanto residence for
guns and ammunition that could have been used in the homi-
cide. To support his conclusion that the evidence may be
found in the home, Thompson relied in particular on 1) the
various sources indicating that Grant lived in Adelanto with
Benjamin; 2) the GPS data showing that James visited Ade-
lanto after he was shot; and 3) his inference that Davonte’s
statement to his mother referred to James and to the Black-
Berry, and thus connected James to evidence from the homi-
cide. Thompson also noted that despite having executed
search warrants for “numerous residences associated with
[James], [Davonte], and other gang associates of theirs,” he
had not located any firearms that could possibly match the
one used in the homicide.
B. Search of Grant’s Home
A judge on the California Court of Appeal issued a search
warrant for the Adelanto residence. Among other things, the
warrant authorized the police to search for and seize:
1. Any .357 or .38 caliber firearms.
2. Any .357 or .38 caliber ammunition, gun cleaning
paraphernalia, holsters, ammunition belts, original
box packaging and any receipts related to purchases
of these items.
Thompson and other officers conducted a search of the resi-
dence the following day and encountered Grant, who admitted
to living there. During the search, the officers did not find the
firearms they were searching for, but did discover two other
firearms—a “[s]ilver Smith & Wesson .45 caliber semi-
automatic handgun” and a “[b]lack, wood handled Charter
Arms .38 caliber revolver”—as well as ammunition and pack-
aging for the firearms and ammunition.
6628 UNITED STATES v. GRANT
In an interview following the search, Grant told Thompson
that he had brought the firearms to California from Ohio, and
that he had previously, in Ohio, been convicted for felony
possession of narcotics.
C. The Criminal Proceedings
A federal grand jury indicted Grant for violating 18 U.S.C.
§ 922(g)(1), which prohibits felons from possessing firearms
and ammunition. Grant moved to suppress the evidentiary use
of the guns and bullets, contending that they had been
obtained in an illegal search of his home. The district court
agreed that insufficient probable cause supported the search
warrant but determined that Thompson’s reliance on the war-
rant fell within the good faith exception set forth in United
States v. Leon, 468 U.S. 897 (1984). After the district court
denied his suppression motion, Grant pled guilty to the
§ 922(g)(1) charge on the condition that he could withdraw
the plea if we were to decide on appeal that his motion was
wrongly denied. Grant was sentenced to forty-six months
imprisonment.
II. DISCUSSION
Grant appeals the denial of his motion to suppress, contend-
ing that (1) the warrant was not supported by probable cause;
and (2) the officers’ reliance on the warrant did not fall within
Leon’s good faith exception. “We review de novo the district
court’s denial of a motion to suppress evidence,” United
States v. Krupa, 658 F.3d 1174, 1177 (9th Cir. 2011), and
address each of these arguments in turn.
A. Probable Cause
[1] Probable cause for a search requires a “ ‘fair probabil-
ity that contraband or evidence of a crime will be found in a
particular place,’ based on the totality of the circumstances.”
Dawson v. City of Seattle, 435 F.3d 1054, 1062 (9th Cir.
UNITED STATES v. GRANT 6629
2006) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)).
“The most convincing proof that the property was in the pos-
session of the person or upon the premises at some remote
time in the past will not justify a present invasion of privacy.”
Durham v. United States, 403 F.2d 190, 193 (9th Cir. 1968).
We review for clear error the decision to issue a search war-
rant, giving “great deference” to an issuing judge’s finding
that probable cause supports the warrant. Krupa, 658 F.3d at
1177.
The affidavit here provides no evidence suggesting that
Grant was involved in the January homicide. Nor does it link
Benjamin to the crime in any way. Instead, it relies on con-
nections between Grant and two of his sons, Davonte and
James, to conclude that evidence from the crime may have
been in the Adelanto home. The totality of the connections to
Grant, however, is decidedly weak, and does not amount to
probable cause to search his residence.
1. Davonte
Undoubtedly, the affidavit identifies a connection between
Davonte and the homicide. Not only were there calls made
between his phone and the number associated with the SIM
card that had been put into the victim’s phone shortly after the
crime, but Davonte also admitted that he had pawned the vic-
tim’s BlackBerry. In addition, he had been arrested for assault
with a revolver, and there was a picture of a silver revolver
that matched the profile of the potential murder weapon on his
phone. These facts sustain a fair inference that Davonte at
some point possessed the gun used in the homicide.
[2] But the affidavit does not support a reasonable infer-
ence that Davonte brought the gun or ammunition used in the
homicide to Grant’s home. The affidavit references only one
possible contact between Davonte and his father: Davonte
mentioned in his conversation with Sharon that he and his
“daddy had to go track him down” and “[t]hat’s when, after
6630 UNITED STATES v. GRANT
that, that’s when [Davonte] got it.” However, that conversa-
tion was entirely opaque; Davonte and Sharon did not say
who “him” was, what “it” was, or when whatever they were
talking about occurred. There was no mention of James, or of
any brother, in the conversation; the only reference to a “him”
other than Grant was to Sharon’s “dead step-father.”
At best—and this would be quite a stretch—Davonte’s con-
versation with Sharon may support a link between Grant and
the victim’s phone, given Sharon’s inquiry about a cell phone
earlier in the conversation. But by the time the police
searched Grant’s home, they had already accounted for the
phone as having been purchased by another individual. In
contrast, Davonte’s statement to Sharon provides no founda-
tion to support a connection between Grant and the gun used
in the homicide. The only guns mentioned in the conversation
were “the guns . . . found in the house,”4 on which the police
threatened to base charges against Davonte. These guns could
not have included the murder weapon, because the latter was
never found.
Furthermore, nothing in the affidavit suggests that Davonte
visited Grant’s home after the homicide. In fact, Davonte was
incarcerated from late April through the time of the search in
August.
[3] Without a link to Grant or his residence with respect to
the murder or the murder weapon, Davonte’s potential con-
nection to the homicide and possible possession of the gun at
some point are not sufficient to support a “fair probability,”
Dawson, 435 F.3d at 1062, that the gun was in Grant’s house
in August 2009.
4
Presumably, “the house” referred to Davonte’s house.
UNITED STATES v. GRANT 6631
2. James
The references in the affidavit to a connection between
Grant and James likewise fail to establish a “fair probability,”
id., that the gun or ammunition from the homicide would be
found in Grant’s home.
The facts do support an inference that James visited Grant
for a week after he was shot in June. The GPS surveillance
data indicates that James traveled to Adelanto after being dis-
charged from the hospital. That Benjamin had her address
listed as being in Adelanto; that she and Grant shared the
same P.O. box address in Adelanto; that she and Grant had
previously resided at the same address in Ohio; that Grant was
said to live in Victorville, which is nearby; and that Davonte
had asked Djuane to call Grant at a number registered to Ben-
jamin, support an inference that Grant currently lived with
Benjamin at her Adelanto address. And individuals do fre-
quently seek care from family members after being injured. It
is therefore quite plausible that James went to Grant’s resi-
dence after being shot in the arm.
[4] The affidavit, however, fails to provide any tenable
connection between James and the gun. Without that link, an
inference that James brought the gun to Grant’s residence
when he visited is unreasonable.
First, the affidavit provides no reasonable basis for infer-
ring that James was involved in the homicide. According to
the affidavit, James’s DNA was not a match for the DNA on
the victim’s BlackBerry or jeans pocket, and although he may
have fit the description of the suspect as “Male, Black, dark
complexion, thin build,” that description was much too gen-
eral by itself to support an inference that James was the killer.
“Under the law of this Circuit, mere resemblance to a general
description is not enough to establish probable cause.” United
States v. Lopez, 482 F.3d 1067, 1073-74 (9th Cir. 2007)
6632 UNITED STATES v. GRANT
(quoting Grant v. Long Beach, 315 F.3d 1081, 1088 (9th Cir.
2002)).
Second, the affidavit does not support an inference that
James obtained the gun from another person following the
homicide. It specifically identifies only Davonte as a person
who was connected to the homicide and may have possessed
the gun, and provides no facts suggesting that Davonte gave
the weapon to James. Instead, the document relies heavily on
Davonte’s conversation with Sharon, in which Davonte made
the cryptic statement that he and his “daddy had to go track
him down” and “that’s when [Davonte] got it” (emphases
added). Even if it is plausible to think that “it” referred to the
victim’s BlackBerry given Davonte and Sharon’s earlier ref-
erence to a possibly stolen phone—again, a stretch, as the last
reference before that part of the conversation was to the guns
the police found in Davonte’s house, not the BlackBerry—it
is unreasonable, for reasons already indicated, to infer from
the conversation that “him” referred to James, without some
other basis for suspecting that James had the BlackBerry. That
Davonte asserted during his interview with Thompson that he
did not get the BlackBerry from James is surely not sufficient
to constitute such a basis. And even if it were, the district
court correctly observed that “[t]he problem is that the cell
phone is not the gun.” In other words, even if Davonte and
Sharon were talking about James, the conversation at best
links James only to the phone, not to the gun used in the mur-
der.
Other facts in the affidavit do suggest that Davonte and
James had a general association. The affidavit indicates that
Davonte and James were half-brothers, and were affiliated
with the same gang. It also states that Davonte was arrested
on an outstanding assault warrant in late April after confront-
ing a police officer who had approached James because James
was near the site of a reported burglary. These facts, however,
do not support a reasonable inference that James had, or that
Davonte gave James, the gun from the homicide.
UNITED STATES v. GRANT 6633
The affidavit links James to only one gun: a .45 caliber
Taurus semiautomatic recovered after the gunfight in early
June. Nothing in the affidavit connects James either to the sil-
ver revolver pictured in Davonte’s phone or to any other .357
or .38 caliber gun.
Moreover, if the affidavit had provided a basis for suspect-
ing that James was involved in the homicide or obtained the
weapon from Davonte, it does not sustain a reasonable infer-
ence that James kept the gun until June when he visited
Grant’s home and left it there. If James had been involved in
the homicide, then he would have had to have kept the gun
for over six months, from January 2 until June 5. If James had
instead received the gun from Davonte, he would still have
had to kept it from at least April 28, when Davonte was
arrested. The affidavit sets forth no basis for inferring that
James would have retained the murder weapon for such an
extended period of time, as opposed to getting rid of it.
It is also exceedingly speculative to think that James would
have brought the gun to the park in June and somehow held
onto it—despite discarding another gun, the .45 caliber semi-
automatic, into nearby bushes—when the police pursued and
detained him. Likewise, there is no reasonable basis for
believing that James would have kept the murder weapon for
six months, gone home to get it after he was discharged from
the hospital, taken it to Grant’s home, and left it there when
he departed. And even assuming that the affidavit plausibly
sets forth such an unlikely chain of events, it provides no facts
suggesting that the gun would still be in Grant’s home over
two months later, when the warrant was executed.
On this point, the case law on staleness is instructive. Infor-
mation offered to support a search warrant application
becomes stale when enough time has elapsed such that there
is no longer “ ‘sufficient basis to believe . . . that the items to
be seized are still on the premises.’ ” United States v. Lacy,
119 F.3d 742, 746 (9th Cir. 1997) (quoting United States v.
6634 UNITED STATES v. GRANT
Gann, 732 F.2d 714, 722 (9th Cir. 1984)). To avoid staleness,
“[t]he facts must show that the property to be seized was
known to be at the place to be searched so recently as to jus-
tify the belief that the property is still there at the time of the
issuance of the search warrant.” Durham, 403 F.2d at 194.
In Durham, for example, we held that an affidavit was stale
where it described the passing of a counterfeit note and pur-
chase of paper useable in counterfeiting ten months before the
warrant was issued, notwithstanding the affidavit’s descrip-
tion of the defendant’s involvement in counterfeiting activity
that may have occurred up to seventeen weeks preceding the
warrant’s issuance. See 403 F.2d at 194. Cf. United States v.
Dozier, 844 F.2d 701, 707 (9th Cir. 1988) (concluding that
five-month-old information regarding the presence of mari-
juana cultivation equipment in the defendant’s home was not
stale because “marijuana cultivation is a long-term crime and
the affidavit includes an experienced DEA agent’s opinion
that cultivators often keep the equipment at their residences
between growing seasons”). Although a “mere lapse of sub-
stantial amounts of time,” does not undermine a warrant if “a
continuing pattern or other good reasons” suggest that the evi-
dence sought remains in the location to be searched, Lacy,
119 F.3d at 745-46, a significant gap in time can diminish the
probability that the evidence will be uncovered in the search,
see Durham, 403 F.2d at 195. In other words, because evi-
dence can be moved or disposed of, the affidavit must support
an inference that it is presently in the residence to be
searched, regardless of its past position.
[5] The six-month gap between the homicide and James’s
visit to Grant’s house undermines any inference that if James
had been involved in the homicide, he maintained possession
of the gun during the entire period afterward and ultimately
brought it to Grant’s residence. Similarly, if James had
obtained the gun from Davonte, he must have done so before
Davonte was incarcerated in April. The time lapse between
Davonte’s incarceration and James’s visit to Adelanto also
UNITED STATES v. GRANT 6635
undermines an inference that James kept the gun until his trip
to Grant’s home. The additional two-and-a-half-month gap
between James’s visit and the search further diminishes the
likelihood that the gun was still in the house when the search
occurred, even if it had been there earlier. The affidavit pro-
vides no evidence of a “continuing pattern” or “other good
reasons,” see Lacy, 119 F.3d at 746, to support an inference
that a murder weapon brought into Grant’s home in early June
would remain there until the end of August. Such an inference
is especially unlikely given the ease of getting rid of a gun
sought by the police in a homicide investigation, and the
strong incentive to do so—whether by tossing it into a river,
throwing it into a trash can, or disposing of it in one of a mil-
lion other places.
[6] In sum, the affidavit does not establish a “fair probabil-
ity” that the gun or ammunition from the homicide would be
in Grant’s home nearly nine months after the murder. Daw-
son, 435 F.3d at 1062. Accordingly, we agree with the district
court that the warrant was not supported by probable cause.
B. Good Faith Reliance
Although the district court determined that the warrant
should not have issued in the first place given the lack of
probable cause, it nevertheless held that Thompson’s execu-
tion of the warrant fell within the Leon good faith reliance
exception. See United States v. Leon, 468 U.S. 897, 923
(1984). We review de novo the district court’s application of
the Leon exception. United States v. Luong, 470 F.3d 898,
902 (9th Cir. 2006).
[7] Suppression of evidence seized pursuant to a warrant
unsupported by probable cause is not appropriate if the gov-
ernment relied on the warrant in “good faith.” See Leon, 468
U.S. at 923. However, suppression “remains an appropriate
remedy” when a warrant is based on “an affidavit ‘so lacking
in indicia of probable cause as to render official belief in its
6636 UNITED STATES v. GRANT
existence entirely unreasonable.’ ” Id. (quoting Brown v. Illi-
nois, 422 U.S. 590, 611 (1975) (Powell, J., concurring));
accord Messerschmidt v. Millender, 132 S. Ct. 1235, 1245
(2012); Luong, 470 F.3d at 903. As the Supreme Court
recently explained, “the threshold for establishing this excep-
tion is a high one” because “ ‘[i]n the ordinary case, an officer
cannot be expected to question the magistrate’s probable-
cause determination.’ ” Messerschmidt, 132 S. Ct. at 1245(quoting Leon, 468 U.S. at 921). It is the role of the magis-
trate, after all, “ ‘to determine whether the officer’s allega-
tions establish probable cause and, if so, to issue a warrant
comporting in form with the requirements of the Fourth
Amendment.’ ” Id. (quoting Leon, 468 U.S. at 921). But if the
affidavit fails to “establish at least a colorable argument for
probable cause,” Luong, 470 F.3d at 903, it fits within the
“narrow exception” to Leon’s good faith reliance rule.
Messerschmidt, 132 S. Ct. at 1245.
[8] Here, the officers’ reliance on the warrant was “ ‘en-
tirely unreasonable,’ ” id. (quoting Leon, 468 U.S. at 923).
The affidavit simply does not set out any plausible connection
between Grant’s home and the gun or ammunition used in the
homicide.
First, there is nothing in the affidavit suggesting that Grant
had an independent connection to the homicide, nor is there
any ground for inferring that Davonte, who may have had
such a connection, visited Grant’s home between the homi-
cide and when he went to jail for the unrelated assault.5
In addition, any link through James was so weak as to be
unreasonable to rely on for probable cause. The affidavit set
forth no evidence suggesting that James was involved in the
homicide; James’s phone number was not among the numbers
5
If anything, Davonte’s attempt to have his brother Djuane call Grant
at a disconnected number suggests that Davonte and Grant did not have
a close relationship.
UNITED STATES v. GRANT 6637
connected to the “4348” SIM card, and his DNA did not
match the DNA on the victim’s phone or jeans pocket.
Furthermore, the affidavit provides no grounds for inferring
that James obtained the gun or ammunition used in the homi-
cide from Davonte. Thompson relied heavily on “[Davonte’s]
statements . . . about the fact there was no way [James] gave
him the Blackberry Bold cell phone although he could not
truly remember where he obtained the cell phone” to conclude
that it was possible that James had, in fact, given Davonte the
victim’s BlackBerry phone—and, presumably, the gun as
well. But an objective examination of the affidavit shows that
Davonte’s denial of James’s involvement was not sufficient to
implicate James. In response to Thompson’s inquiry about
who had given him the phone, Davonte replied that he could
not remember who had done so, but that it was “probably one
of the little homies” from the “Inglewood Family 94 set.” In
the context of Davonte’s trying to narrow down that set of
individuals, it was not particularly suspicious that he men-
tioned and eliminated James; ultimately, Davonte specifically
identified “two subjects,” from that same group of persons,
who “always have stuff for sale,” as the individuals who may
have given him the phone. Aside from Davonte’s denial that
James had given him the victim’s phone, the affidavit pro-
vides no reason to interpret Davonte’s reference to “him” in
the later, vague conversation with Sharon to mean “James”
and thus no grounds whatsoever—which would be weak any-
way, as “it” was also not identified—for inferring that evi-
dence from the homicide passed between Davonte and James.
In the end, the affidavit establishes with any substantial
degree of plausibility only two things connecting James to the
murder in any respect: First, James was associated with
Davonte through family and gang affiliation. Cf. United States
v. Garcia, 151 F.3d 1243, 1246-47 (9th Cir. 1998) (rejecting
a theory of “guilt by association” based on gang membership
alone); Mitchell v. Prunty, 107 F.3d 1337, 1342 (9th Cir.
1997) (reasoning that the defendant’s conviction rested on the
6638 UNITED STATES v. GRANT
faulty assumption that gang members usually act in a con-
certed fashion), overruled in part on other grounds by Santa-
maria v. Horsley, 133 F.3d 1242 (9th Cir. 1998) (en banc).
And second, James matched an extremely general description
of the suspect: “Male, Black, dark complexion, thin build.”
Thompson deduced in the affidavit that Grant’s home was
a reasonable target because police had not found evidence
from the homicide in other, more likely places. However, this
deductive reasoning provides a “colorable argument for prob-
able cause,” Luong, 470 F.3d at 923, only if it is plausible that
James or someone else (1) had the murder weapon at some
point and (2) brought it to Grant’s home. As discussed, noth-
ing in the affidavit supports either assumption. On the con-
trary, Thompson’s speculation on such a chain of events is
undermined by other facts.
In particular, the affidavit states that James disposed of a
.45 caliber hand gun immediately before being detained by
police in June. Nothing in the affidavit suggests that James
also had, at that time, possession of an additional firearm
matching the caliber of the weapon used in the homicide.
Moreover, it is exceedingly unlikely that James would retain
one weapon while discarding the other as he fled from the
police. James was also presumably searched for weapons
when he was detained; the affidavit does not indicate that the
police found any on him. Nor is it objectively reasonable to
assume in the alternative, with no basis for doing so, that after
being treated for his gunshot wound in the hospital and before
leaving for Adelanto, James would retrieve the firearm used
in the homicide and bring it to Grant’s home. Notably, James
was shot, detained, and taken to the hospital around 10:20 PM
on June 5, and the GPS tracking data showed that James was
already in Adelanto by 1:37 PM on June 6. This timing sug-
gests that James left for Adelanto either immediately after he
was discharged from the hospital or shortly thereafter.
Accordingly, the affidavit fails to support a reasonable infer-
UNITED STATES v. GRANT 6639
ence that if James ever had the gun, he brought it to Grant’s
residence.
[9] Finally, the affidavit provides no basis for concluding
that the sought-after evidence might be in Grant’s home
nearly nine months after the homicide and over two months
after James’s visit. Even if the gun used in the crime had
somehow made its way to Grant’s home, it was not objec-
tively reasonable for the officers to rely on an affidavit that
set forth no “continuing pattern or other good reasons,” Lacy,
119 F.3d at 746, for why the evidence would still be there.
The affidavit here is considerably weaker than the one chal-
lenged in Luong, in which we held that the good faith excep-
tion did not apply. 470 F.3d at 902-04. In Luong, the police
submitted an affidavit to support the application for a warrant
to search a residence visited by the defendant, a suspected
methamphetamine manufacturer. Id. at 900. Among other
things, the affidavit stated that the defendant and another indi-
vidual had left the residence and driven to a Home Depot, car-
rying “a red high pressure hose.” Id. After purchasing “a
small adapter fitting” for the hose, the two men drove back to
the residence. Id. The officer who authored the affidavit con-
cluded “by stating that she recognized the hose as a common
tool used with a vacuum pump during the production of
methamphetamine.” Id. A magistrate judge issued a warrant
within twenty-four hours. See id.In rejecting application of the Leon exception, we observed
that “[t]he affidavit does not assert that officers saw a vacuum
pump at the residence, only that such a pump is commonly
used with a high pressure hose.” Id. at 903. In addition, we
noted that “[t]here is also no evidence that the hose was
obtained from the backyard or the garage, or—despite seven
additional hours of surveillance—that the fitting purchased at
Home Depot was ever taken into the backyard.” Id. at 903-04.
Notably, we held that the good faith exception did not apply
in Luong notwithstanding that the police (1) observed the
6640 UNITED STATES v. GRANT
defendant with potentially incriminating evidence shortly
after he had left the residence; and (2) saw the defendant driv-
ing back toward the residence with additional, possibly
incriminating evidence a few hours before the search.
Here, in comparison, there was significantly less of a basis
for inferring that James, who was never connected to the mur-
der nor seen with the gun nor said by any witness to have pos-
sessed it, brought the gun to Grant’s home six months after
the homicide. If there was not sufficient indicia of probable
cause to apply the good faith exception in Luong, then there
certainly were not sufficient indicia to apply it here.
The government relies on United States v. Crews, 502 F.3d
1130 (9th Cir. 2007), in support of its position that we should
apply the good faith exception. But this case bears little
resemblance to Crews. In Crews, the police chased one of the
defendants to a location near an apartment, where they
arrested him for attempting to elude the police after he had
failed to pull over his vehicle. Id. at 1133. They also discov-
ered a .22 caliber revolver in a nearby bush. Id. The car that
the defendant had been driving was registered to his co-
defendant at the nearby apartment. Id. As felons, both defen-
dants were prohibited from possessing firearms. Id. Following
the chase and Crews’s release from custody, law enforcement
surveilled the apartment and observed the defendants entering
and leaving it several times. Id. 1133-34. Based on these and
other observations, the police suspected that they would find
further evidence in the apartment of the defendants’ being fel-
ons in possession of a firearm, and, within two weeks of the
arrest obtained a search warrant for that location. See id. at
1134. The warrant authorized police officers to search for
“.22 caliber ammunition, firearm cleaning kits, magazines,
receipts and other evidence of firearm possession, as well as
items of identification that would show dominion over the
places searched.” Id.We held in Crews that “[o]n its face, the affidavit was not
so lacking in indicia of probable cause as to render reliance
UNITED STATES v. GRANT 6641
upon it objectively unreasonable.” Id. at 1136. In so holding,
we reasoned that the affidavit sufficiently alleged a reasonable
nexus to the apartment through its references to: the defen-
dant’s arrest and discovery of the .22 caliber revolver nearby;
registration of his co-defendant’s car, which the defendant
had been driving, to the apartment address; police surveil-
lance of the defendants at the apartment; the officer’s state-
ment, based on his training and experience, that felons
convicted of drug crimes, such as the defendants, often keep
firearms for protection; and the officer’s documented experi-
ence that further evidence of firearms possession is often
found at a suspect’s residence. Id. at 1137. Based on this and
other information set forth in the affidavit, we held that the
affidavit presented a “colorable argument” for probable cause
and that the good faith exception therefore applied. Id.What is notable about Crews, in contrast to this case, is that
the location searched had several connections to the material
being sought: It was near where the gun had been found; the
defendant was seen at the location at a time close to when the
search was conducted; and the car the defendant had been
driving when the gun was found nearby belonged to a resident
of the place searched.
[10] Here, in contrast, the connections between the gun
and Grant’s house are entirely speculative. The relevant gun
was never known to be anywhere near Grant or Grant’s
house, and the person who may have visited Grant, James,
was also not known ever to have been anywhere near the gun.
Nor was there any evidence suggesting that Davonte, who
may have had a connection to the gun, was at Grant’s house
at any time after the murder, much less close to the time the
search occurred.
[11] The government also relies on Leon itself to argue
that the good faith exception should apply here. But the facts
of Leon diverge substantially from the facts of this case. In
Leon, although the government had received tips about sus-
6642 UNITED STATES v. GRANT
pected drug activity at a residence from “a confidential infor-
mant of unproven reliability,” the police subsequently
undertook an “extensive investigation” that corroborated this
information. 468 U.S. at 901. For example, the police
observed an automobile belonging to one of the defendants,
who had previously been arrested for possession of fifty
pounds of marijuana, arrive at the residence; the driver
entered the house and exited shortly afterward carrying a
small paper sack. Id. Subsequently, the police observed sev-
eral additional persons, at least one of whom had prior drug
involvement, arriving at the residence and leaving with small
packages. Id. at 902. The police also observed two of the
defendants board separate flights for Miami, and when the
two returned to Los Angeles together, the police found mari-
juana in their luggage. Id. In addition, cars parked in front of
the residence were determined to belong to those two defen-
dants. Id. Based on these and other observations, the police
applied for a warrant to search the residence for evidence of
drug activity, and the warrant issued a month after police had
first been tipped off by the confidential informant. See id. at
902-03. The affidavit in Leon thus described the police’s
repeated observations of potential drug activity at the resi-
dence shortly before the warrant issued; it also identified
direct evidence of drug possession by two of the defendants
associated with the residence. Here, there were no such indi-
cia of a nexus between the January homicide and Grant’s
home.
Nor does the Supreme Court’s recent decision in Messer-
schmidt support application of the Leon doctrine here. See 132
S. Ct. 1235. In Messerschmidt, the police executed a warrant
to search a residence for evidence of firearms and gang affili-
ation materials belonging to a suspect involved in what the
affidavit described as a “spousal assault and an assault with
a deadly weapon.” Id. at 1247. The victim of the assault told
the investigating officer that the suspect had fired a sawed-off
shotgun at her and also informed the officer about the sus-
pect’s gang affiliation. Id. at 1241. Based on this and other
UNITED STATES v. GRANT 6643
information, the investigating officer obtained a warrant
authorizing a search for “[a]ll handguns, rifles, or shotguns of
any caliber” and “[a]rticles of evidence showing street gang
membership or affiliation with any Street Gang” Id. at 1242.
Despite the warrant’s potential overbreadth in authorizing
the search of all firearms when there was information about
only a particular one, the Court held that the Leon exception
applied. Id. at 1246-47. In so holding, the Court reasoned that
the suspect, a known gang member, had just fired the sawed-
off-shotgun in public five times in an attempt to murder the
victim on the asserted ground that she had “called the cops on
him”; under these circumstances, it was reasonable to con-
clude that the suspect owned other firearms as well. Id. at
1246. In addition, the court noted that California law allows
a magistrate to issue a search warrant for items “in the posses-
sion of any person with the intent to use them as a means of
committing a public offense,” Cal. Penal Code § 1524(a)(3)
(West 2011), and that the warrant application specifically ref-
erenced this provision as a basis for the search. Messer-
schmidt, 132 S. Ct. at 1246. Based on the suspect’s already
having attempted to murder the victim and his yelling “I’ll kill
you” as she tried to escape from him, a reasonable officer
could believe that seizure of any firearms in the suspect’s pos-
session was necessary to prevent further assaults on the vic-
tim. Id.The Messerschmidt Court also held that the good faith
exception applied despite the warrant’s potential overbreadth
in authorizing the search of all gang-related evidence. Id. at
1247-49. “A reasonable officer,” the Court explained, “could
certainly view [the suspect’s] attack as motivated not by the
souring of his romantic relationship with [the victim] but
instead by a desire to prevent her from disclosing details of
his gang activity to the police.” Id. at 1247. Gang evidence
could thus help to establish motive for the crime and could
support bringing additional charges against the suspect. Id. In
addition, the Court noted that the gang evidence might prove
6644 UNITED STATES v. GRANT
helpful in impeaching the suspect or rebutting his defenses at
trial; for example, evidence that he had ties to a gang that uses
guns like the one used in the assault would be relevant to
establish that he had access to that type of weapon. Id. at
1248. Finally, the Court explained that given the suspect’s
known gang affiliation, a reasonable officer could conclude
that gang paraphernalia found at the residence would help to
demonstrate the suspect’s connection to evidence found there.
Id.As this summary indicates, Messerschmidt concerned
whether the police relied in good faith on a warrant to search
for a wide variety of evidence when the warrant alleged a
seemingly narrow crime. In other words, the legal challenge
in that case rested on the warrant’s purported overbreadth
rather than its lack of any nexus to the residence searched.
Similarly, Groh v. Ramirez, 540 U.S. 551, 557 (2004), which
the Court in Messerschmidt took pains to distinguish, con-
cerned not whether the warrant application established proba-
ble cause to search the particular location at all, but whether
the warrant and warrant application properly specified the
items seized.
[12] Here, in contrast, the problem is much more basic: it
concerns whether Thompson relied in good faith on a warrant
to search Grant’s home at all. In other words, was there a
plausible connection between Grant’s house and any evidence
of the murder? Accordingly, there is no need here to compare
the warrant with the warrant application, as there was in
Messerschmidt, to determine the proper scope of the search.
By reading the warrant application alone with an eye toward
finding some reasonable connection between Grant’s house
and evidence of the murder, one can ascertain that none of the
facts recited, voluminous though they were, supply that con-
nection.
A reasonable officer would know that probable cause is not
supplied by stating everything one knows about a particular
UNITED STATES v. GRANT 6645
item one would like to find to solve a murder case, if the mass
of facts simply does not plausibly connect the place searched
to the item sought. Here, as discussed, none of the facts in the
affidavit, singly or en masse, provide a reasonable basis from
which to infer that the gun was in Grant’s home. Unlike in
Messerschmidt, where the police could reasonably assume
that the evidence they were seeking was associated with the
crimes alleged—and had reason to believe that it was in the
plaintiff’s residence based on the victim’s direct statements to
that effect, see 132 S. Ct. at 1241—it is clear from the face
of the warrant application that Thompson had no plausible
reason at all to believe the gun was in Grant’s home, ever, but
most certainly not at the time the warrant was obtained. Here,
the magistrate so “obviously erred,” id. at 1250, in approving
the warrant that the officers executing it could not have relied
on it in good faith.
***
[13] We hold that the warrant to search Grant’s home did
not issue upon probable cause. The underlying affidavit sim-
ply did not establish a “fair probability,” Dawson, 435 F.3d
at 1062, that the gun and ammunition associated with the
homicide would be found there, or even provide a “colorable
argument for probable cause,” Luong, 470 F.3d at 903. Leon’s
good faith exception to the officers’ execution of the warrant
therefore does not apply either. Accordingly, we reverse and
remand to the district court for further proceedings consistent
with this opinion.
REVERSED AND REMANDED.