The Fourth Amendment Prevails in Illegal Search of Family's Home
In a remarkable victory for the rights of citizens whose family members are suspected of criminal activity, the United States Court of Appeals for the Tenth Circuit decided that family relationships alone do not justify searches of homes, even when officers can convince a state district court judge to issue a warrant. Poolaw v. Marcantel, 2009 U.S. App. LEXIS 9483 (10th Cir. N.M. May 4, 2009).
The owners of the home illegally searched (in this case mere in-laws of the primary suspect), were related by nothing more than marriage. The criminal suspect was wanted for the tragic homicide of a sheriff’s deputy, with the innocent family members caught in the middle of the ongoing dragnet. The ruling is a victory for the cause of civil rights, the Constitution, and the rule of law.
Continued . . .
In addition to having their property unlawfully searched, (in what the court found were clear violations of the Fourth Amendment to the United States Constitution), one officer also ordered the stop of the criminal suspect’s sister-in-law’s car, based on little more than a familial relationship. In a striking and detailed opinion by Judge Lucero, the court held that a familial relationship was “insufficiently particularized to justify invading an individual's reasonable expectation of privacy.” Id. at 2. George L. Bach, Jr. argued the case (Jane Gagne and Philip B. Davis with him on the briefs), with the ACLU of New Mexico for the Plaintiffs-Appellees.
Background
Bernalillo County Sheriff’s deputy James McGrane was tragically shot and killed on March 22, 2006, while conducting a routine traffic stop. Investigators later determined that the stopped truck belonged to Michael Paul Astorga, who was already wanted in connection with the November 2005 homicide of Candido Martinez. A large manhunt ensued, following a determination that Astorga was the primary suspect in the shooting.
Sheriff’s Office investigators tracked Astorga to #31 Lark Road, about 15 miles from the scene of the homicide. Neighbors informed investigators that someone matching the suspect’s description had recently moved in with his pregnant girlfriend. After searching the area, officers discovered the truck Deputy McGrane had stopped the night of his death.
Investigators then sought out Marcella Poolaw “Astorga,” who was listed as the suspect’s spouse and emergency contact, following a prior arrest. Marcella was the daughter of Rick Poolaw, a retired New Mexico Police Officer. When she failed to turn up at her own registered address, Lieutenant Marcantel telephoned Rick Poolaw directly, whom he knew as an acquaintance. Rick informed Marcantel that she had spent the night on March 21 at Rick’s house (343 Calle Del Banco), but that she could not be located now, and had uncharacteristically called in sick to work. Rick Poolaw lived at the residence with his wife Cindy and daughter Chara.
Based on this information, BCSO investigator Hix prepared his affidavit for a search warrant, asserting what lawyers argued was a tenuous connection between Astorga and the Poolaw’s property. Hix asserted that a reasonable assumption could be made that Astorga may have hidden evidence in the home, due to the family connection.
A New Mexico judge issued the search warrant for the Poolaw residence based on the assumptions Hix offered. Sergeant Scott Baird supervised the search, but Marcantel was not present. During the search, Rick Poolaw (the retired officer) and Cindy were handcuffed outside their home and subjected to a humiliating search of their house and property. The search produced nothing of use in the investigation.
A few days later, Officer Marcantel learned that Rick’s daughter Chara had called her mother and asked whether she could "get in trouble" for having a gun. Relying on, "the fact that Chara was a loved one of Michael Paul Astorga's wife" and "her admission that she had a gun," Marcantel ordered her stopped to determine whether the gun was the McGrane homicide weapon. Chara was detained, handcuffed, and held in a squad car while her car was searched, without a warrant. After the gun found in her car was determined not to be the murder weapon, she was released. As a general statement of law in New Mexico, it was not illegal for the daughter to lawfully carry a weapon inside her car. See N.M. Stat. § 30-7-2(A).
Legal Claims
Alleging flagrant violations of the Fourth Amendment, civil liberties lawyers brought the §1983 action in Federal Court. Plaintiffs asserted that both the warrant to search the property and the stop of the Poolaw’s daughter Chara lacked probable cause, the District Court granted summary judgment in the Poolaw’s favor, denying the individual defendants’ claims of qualified immunity. The Federal Court found the information asserted by the officers "provided only inferences and assumptions of dubious reliability." Marcantel and Hix also argued that because they were not physically present during the time of the unlawful searches, they could not be held responsible for the acts they set in motion. The Tenth Circuit rejected the defense as well, finding that liability extended to those who provided information.
Confining the appellate review to the legality of Hix’s affidavit, the District Court reviewed the sufficiency of the warrant de novo, paying great deference to the probable cause determination made by the judge who issued the warrant. United States v. Perrine, 518 F.3d 1196, 1201 (10th Cir. 2008). Generally, reviewing courts will uphold a warrant if the issuing judge had a "substantial basis for . . . conclud[ing] that a search would uncover evidence of wrongdoing," citing Illinois v. Gates, 462 U.S. 213 (1983). The court also thoroughly reviewed holdings surrounding the Leon doctrine, which provides that evidence seized pursuant to a warrant issued by a neutral and detached magistrate, later found invalid, is admissible if the executing officer acted in objective good faith and with reasonable reliance on the warrant. See United States v. Leon, 468 U.S. 897 (1984). Leon applies a four-part inquiry to determine good faith reliance, whether “1) the issuing judge ‘was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth’; 2) the issuing judge ‘wholly abandoned his judicial role’; 3) the warrant was ‘so facially deficient--i.e., in failing to particularize the place to be searched or the things to be seized--that the executing officers cannot reasonably presume it to be valid’; and 4) ‘[the] affidavit [is] so lacking in probable cause as to render official belief in its existence entirely unreasonable.’ Id. at 923.
Holding that a mere familial relationship does not establish probable cause, and that reliance on familial relationship for imputing criminal behavior is unreasonable, the Tenth Circuit affirmed the District Court’s ruling, denying qualified immunity and granting summary judgment to Plaintiffs. In addition, “Chara's status as Astorga's sister-in-law and her conversation with Cindy about a gun did not establish a reasonable suspicion that she was committing or had committed a crime.” Mere ‘talk’ about guns, unconnected with criminal activity, does not establish reasonable suspicion.
In a vigorously written dissent, Judge O’Brien would have found that there was probable cause to search the property, there were no Constitutional violations, and because of the good faith reliance exception, the seizure of Rick and Cindy was lawful. In addition, he would have found enough reasonable suspicion to justify the stop of Chara Poolaw. According to Jane Gagne, attorney for the plaintiffs, the Poolaw defendants are seeking a rehearing of the case en banc.
Attorney Frances Crockett, who helped prepare the briefs at the District Court level, said this about the importance of the case: "They relied on many assumptions. Fortunately, our Constitution does not."
-Reporting by Derek Garcia for the Kennedy Law Firm
