United States v. Travis Job
851 F.3d 889
| 9th Cir. | 2017Background
- Job was tried and convicted of (1) conspiracy to distribute methamphetamine and (2) possession with intent to distribute; sentenced to 365 months plus lifetime supervised release; appeal followed.
- Police encountered Job at a residence on Oct. 3, 2012; officers patted him down, seized a glass pipe and $1,450, and (after using his car key fob) searched his car and found 3.9 g methamphetamine and other items. Job was on probation with a search-waiver condition, but officers were unaware of the waiver at the time.
- In December 2012 officers executed a warrant at Job’s home and seized 56.4 g methamphetamine in the freezer, scales, pipes, and other items; environmental inspectors found methamphetamine residues and chemicals.
- Job moved to suppress the Oct. 3 person/car evidence and the December home search evidence; district court denied suppression without an evidentiary hearing and later denied requested jury instructions on lesser possession and multiple conspiracies.
- On appeal the Ninth Circuit held the Oct. 3 pat-down and car search were unconstitutional (officers lacked knowledge of the probation waiver and lacked reasonable suspicion/probable cause), but upheld the December warrant-based home search after excising tainted items from the affidavit.
- The court affirmed the conspiracy conviction (Count 1) as the Oct. 3 evidence was harmless for that count, vacated the possession-with-intent conviction (Count 5) because the illegally seized Oct. 3 evidence was not harmless there, and vacated the sentence for Rule 32 deficiencies and remanded for resentencing.
Issues
| Issue | Job's Argument | Government's Argument | Held |
|---|---|---|---|
| Validity of Oct. 3 pat-down of person | Pat-down unlawful: officers lacked knowledge of probation search-waiver and lacked reasonable suspicion for Terry stop/frisk | Stop/frisk justified by observed nervousness, bulging pockets, and officer safety/possible warrant service | Pat-down unlawful: officers lacked reasonable suspicion; waiver unavailable because officers didn’t know of it when they acted |
| Validity of Oct. 3 car search | Car search unlawful as fruit of unlawful pat-down and waiver was not known before search | Automobile exception based on seized pipe; alternatively, officers discovered probation waiver before car search | Car search unlawful: pipe was tainted fruit and record unclear when waiver was known; gov’t failed to prove lawful justification |
| Validity of Dec. 5 home search warrant | Warrant tainted by incorporation of unlawfully obtained Oct. 3 evidence; insufficient probable cause overall | Warrant supported by wiretap intercepts, pen registers, surveillance, informants; excise tainted material and magistrate still had probable cause | Warrant valid after excising tainted Oct. 3 material; home search lawful and evidence admissible |
| Sentencing guideline enhancements & Rule 32 findings | Challenges to three 2-level increases (§2D1.1(b)(5) importation; §2D1.1(b)(12) maintaining premises; §2D1.1(b)(13)(A) toxic discharge) and procedural Rule 32 defects | Court applied increases based on trial evidence and PSI; argued either defendant jointly involved or evidence supported findings | Vacated sentence and remanded: district court failed to make explicit Rule 32(i)(3)(B) findings resolving disputed facts; government failed to carry burden on specified enhancements on record |
Key Cases Cited
- United States v. King, 736 F.3d 805 (9th Cir. 2013) (held suspicionless probation search condition for violent felons permissible)
- Lara v. United States, 815 F.3d 605 (9th Cir. 2016) (distinguishing probationers convicted of nonviolent drug offenses and discussing expectation of privacy)
- United States v. Caseres, 533 F.3d 1064 (9th Cir. 2008) (search not justified where officers were unaware of parole search condition)
- Terry v. Ohio, 392 U.S. 1 (1968) (reasonable-suspicion standard for stop-and-frisk)
- Maryland v. Buie, 494 U.S. 325 (1990) (scope and limits of protective sweeps incident to arrest)
- Minnesota v. Dickerson, 508 U.S. 366 (1993) (limits on tactile searches during a frisk)
- United States v. Lustig, 830 F.3d 1075 (9th Cir. 2016) (application of exclusionary rule to derivative evidence)
- United States v. Nora, 765 F.3d 1049 (9th Cir. 2014) (tainted affidavit material may be excised; remaining facts assessed de novo)
- United States v. Fernandez, 388 F.3d 1199 (9th Cir. 2004) (drawing reasonable inference that narcotics evidence likely at drug dealers’ residences)
- United States v. Biao Huang, 687 F.3d 1197 (9th Cir. 2012) (interpreting §2D1.1(b)(5) importation enhancement language)