and Submitted January 11, 2019 Pasadena, California
from the United States District Court for the Northern
District of California Vince Chhabria, District Judge,
Presiding D.C. No. 3:16-cr-00477-VC-1
Before: A. Wallace Tashima and Paul J. Watford, Circuit
Judges, and Eduardo C. Robreno, [*] District Judge.
WATFORD, CIRCUIT JUDGE.
agents may have violated California law when they executed
two search warrants issued by state court judges. California
law authorizes "peace officers" to execute search
warrants, but excludes federal law enforcement officers from
the definition of that term. This apparent violation of state
law, we conclude, does not render the warrants invalid under
the Fourth Amendment. One of the warrants, however, was not
supported by probable cause, and the evidence seized pursuant
to that warrant must be suppressed.
time of the events relevant to this appeal, defendants
Donnell Artis and Chanta Hopkins were alleged confederates
engaged in credit card fraud and identity theft. Both were
also fugitives from justice with outstanding warrants for
their arrest on state law charges.
and Hopkins came to the attention of Stonie Carlson, a
Special Agent with the Federal Bureau of Investigation
assigned to the Pacific Southwest Regional Fugitive Task
Force, a joint federal-state task force operating under the
direction of the United States Marshals Service. See
34 U.S.C. § 41503(a). Agent Carlson set out to find the
two men, both of whom were believed to be in or around
Oakland, California. Officers from the Oakland Police
Department informed Agent Carlson that Artis and Hopkins
could often be found hanging out at a particular liquor store
in Oakland, and Agent Carlson spotted Artis there one day.
When Agent Carlson and his partner tried to arrest Artis, a
brief scuffle ensued, during which Artis dropped his cell
phone. Artis broke away and managed to escape on foot,
leaving his cell phone behind. Agent Carlson returned to the
liquor store and retrieved the phone, a seizure rendered
lawful by Artis' abandonment of the phone when he fled
from agents attempting to arrest him.
capacity as a member of the fugitive task force, Agent
Carlson applied for a warrant to search Artis' cell
phone. Although he could have asked a federal magistrate
judge to issue the warrant under Federal Rule of Criminal
Procedure 41, Agent Carlson submitted the application to a
judge of the Alameda County Superior Court. Agent Carlson
later explained that he did so because Artis' outstanding
arrest warrants were for state law offenses and at the time
Agent Carlson was not contemplating filing federal charges
against Artis. For reasons unexplained in the record, Agent
Carlson did not predicate the warrant application on
Artis' status as a known fugitive, which would have
provided a basis to search his phone for information useful
in finding him. Instead, Agent Carlson's affidavit
recounted facts establishing probable cause to believe that
Artis was engaged (with Hopkins) in a conspiracy to commit
credit card fraud under state law. He requested permission to
search Artis' cell phone for evidence of that offense.
Alameda County Superior Court judge issued a warrant,
directed to "any peace officer in Alameda County,"
authorizing a search of Artis' cell phone for
"evidence of a crime"-in particular, for eight
specified categories of information, such as stored email and
text messages "[c]ontaining any references to fraud or
related criminal activity." Agent Carlson found that he
lacked the technical expertise to execute the warrant
himself, but after a few days' delay he enlisted the help
of a fellow FBI agent who was able to extract the relevant
information from Artis' phone. Based in part on that
evidence, the government charged Artis with the federal
firearms and identity-theft offenses he faces in this case.
days after obtaining the warrant to search Artis' phone,
but before he had been able to execute it, Agent Carlson
applied for a second search warrant, this one targeting
Hopkins. Agent Carlson again applied for the warrant in his
capacity as a member of the fugitive task force, and he again
submitted the application to an Alameda County Superior Court
judge rather than a federal magistrate judge. Agent Carlson
predicated the Hopkins warrant application solely on
Hopkins' status as a fugitive with an outstanding warrant
for his arrest. The application sought authorization to use a
cell-site simulator to track the location of a cell phone
assigned the number (832) 763-5555. Agent Carlson's
affidavit recounted facts establishing probable cause to
believe that Hopkins was then using the targeted cell phone.
Alameda County Superior Court judge issued a search warrant,
also directed to "any peace officer in the County of
Alameda," authorizing use of a cell-site simulator for a
period of 30 days to track the location of the targeted cell
phone. The warrant stated that federal agents "employed
by the United States Marshals Service are authorized to
assist in the service of this search warrant."
federal agent working as part of the fugitive task force
deployed the cell-site simulator in accordance with the
warrant. Through use of the device and additional
investigative work, task force agents determined that Hopkins
lived in a particular apartment building in San Francisco.
They arrested him as he left the apartment and found
incriminating evidence during a search incident to arrest.
That evidence formed the basis for a search warrant issued by
a San Francisco County Superior Court judge authorizing a
search of Hopkins' apartment. The apartment search
yielded much of the evidence underlying the federal
drug-trafficking and identity-theft charges filed against
Hopkins in this case.
and Hopkins filed separate motions to suppress that
challenged the validity of their respective Alameda County
Superior Court search warrants. Both motions argued that: (1)
the warrants were invalid because they were executed by
officials not authorized to execute warrants under California
law; and (2) the warrants were not supported by probable
conducting an evidentiary hearing at which Agent Carlson
testified, the district court granted both motions to
suppress. The court agreed with the defendants that
"under California law, federal law enforcement officers
are not permitted to execute search warrants issued by
California state judges." United States v.
Artis, 315 F.Supp.3d 1142, 1145 (N.D. Cal. 2018). The
court concluded that federal agents impermissibly executed
both warrants but recognized that suppression would not be
justified on the basis of this state law violation alone.
Id. at 1143-44. In addition, though, the court held
that neither warrant was supported by probable cause, and it
declined to apply the good-faith exception to the
exclusionary rule in view of a "string of errors"
embodied in the two warrant applications submitted by Agent
permitted under 18 U.S.C. § 3731, the government filed
an interlocutory appeal from the ...