United States v. Nancy Brown and Michael Kaliterna

Citation: 951 F.2d 999Docket: 90-50487

Court: Court of Appeals for the Ninth Circuit; February 20, 1992; Federal Appellate Court

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The United States Court of Appeals, Ninth Circuit, addressed the appeal by the United States Government against Nancy Brown and Michael Kaliterna, who successfully moved to suppress evidence obtained from their residences. The district court had determined that the search warrants lacked probable cause and that the officers involved did not act in good faith. The Government contended that the magistrate had sufficient grounds to establish probable cause for the searches based on affidavits and that the officers had a reasonable belief in the warrants' validity. The Court reversed the district court's order, concluding that the officers acted with a reasonable, good-faith belief in the warrants. 

The defendants, Brown and Kaliterna, were members of a narcotics and money laundering detection unit within the Los Angeles County Sheriff's Department. An investigation was initiated after an anonymous tip suggested that Majors team members were involved in criminal activities, including theft of seized funds. The investigation involved examining financial records and executing an undercover sting operation. During this operation, officers from the Majors 2 team surveilled an undercover setup at a hotel, where two officers entered a penthouse without a warrant, discovered, and took $30,000 from a bag planted by the undercover agents.

On the evening in question, members of the Majors 2 team, including Robert Sobel, Bauder, Brown, Garner, and Kaliterna, detained an undercover officer and brought him to a penthouse room where significant amounts of cash were present. Specifically, an athletic bag contained $18,000, and a garment bag held $450,000. Bauder seized the sack with the $18,000 and left the room, while only $450,000 of the $498,000 initially brought by the undercover officers was booked as evidence by the LACSD. The remaining $48,000, including the $30,000 seized by Bauder during his first entry, was unaccounted for, raising suspicions of corruption within the unit.

Federal agents sought search warrants for the residences of the Majors 2 team members who entered the room, supported by affidavits from Agent Hightower and Special Agent Dwayne Davidson. These affidavits included information suggesting a broader pattern of wrongdoing by the Majors teams, specifics implicating certain members, and evidence of retained money during the incident.

The affidavits featured testimonies from four informants, including an anonymous letter from the wife of a Majors team member alleging theft during operations, and an unidentified officer claiming it was common for team members to keep seized funds. Retired officer J.T. Jones reported suspicious investments by Majors members, while current officer Sal Munoz indicated ongoing theft of raid money since 1985, naming several officers who were no longer in the Narcotics Bureau.

Additionally, investigative reports detailed the financial behaviors of Majors 2 members Terrell Amers, Eufrasio Cortez, and Ronald Daub, who had made substantial purchases following large seizures. Allegations arose that Amers and Cortez misreported seized amounts to the Assistant U.S. Attorney. The affidavits confirmed Brown and Kaliterna's presence in the penthouse during the incident involving the $18,000 sack.

A magistrate issued search warrants for the residences of Brown, Kaliterna, and other members of the Majors 2 team, leading to the recovery of a significant amount of cash, including sting money from an undercover operation. Brown and Kaliterna faced indictments for theft and conspiracy, with Kaliterna additionally charged for filing a false tax return. The Government contends that the district court erred in its ruling on probable cause for the searches. It argues that evidence of theft by Majors 2 members and Brown's and Kaliterna's presence during a display of $18,000 substantiates the need for the warrants.

To assess the search warrant's validity, the court evaluates whether the magistrate had a substantial basis for finding probable cause. The Government claims that the affidavits provided sufficient grounds for believing all Majors 2 members engaged in corrupt activities, implying that Brown's and Kaliterna's membership alone warrants probable cause for searching their homes. The Government references United States v. Rubio, where mere membership in a group was deemed insufficient for probable cause unless linked to actual criminal actions. While the Government argues that the Majors 2 team's pervasive corruption qualifies it as "wholly illegitimate," the court disputes this by noting that the team's primary role was legitimate law enforcement against narcotics and money laundering, despite some members' criminal actions. Thus, the characterization of Majors 2 as wholly illegitimate does not hold.

A "conspiracy of corruption" in Majors 2, as alleged by the Government, does not establish probable cause implicating Brown and Kaliterna. The affidavits indicate only that they were part of a narcotics unit under investigation and that another team member removed sting money from a hotel room while they were present, without any evidence that Kaliterna observed the money being displayed or taken. The court found the affidavits insufficient to support the magistrate's probable cause determination. The Government's reliance on *United States v. Baron* is deemed inappropriate; that case involved clear actions related to drug delivery, which is not analogous to the situation with Brown and Kaliterna. The Government argued that Bauder could not have stolen $18,000 in sting money without Brown and Kaliterna's knowledge, but the court disagreed, asserting that Bauder's actions were part of his official duties and did not demonstrate their complicity in the theft. Thus, a connection between the defendants and criminal activity was not established. Additionally, the Government's assertion of a good-faith exception to the exclusionary rule was rejected by the district court, which stated that the affidavits lacked probable cause to an extent that no reasonable officer could have relied on them. The determination of an agent's good-faith reliance on a warrant involves both legal and factual considerations, subject to de novo review.

In United States v. Leon, the Supreme Court established a good-faith exception to the exclusionary rule, allowing denial of a motion to suppress evidence obtained via an invalid search warrant if officers had a reasonable belief in its validity. The Court reasoned that penalizing officers for a magistrate's error does not effectively deter Fourth Amendment violations. This exception does not apply if the warrant is facially deficient, if an officer misled the magistrate through dishonesty, or if the magistrate failed in his judicial role. 

Defendants Brown and Kaliterna argue that the executing officers lacked good faith, asserting that a trained officer should know that mere association with criminal activity does not constitute probable cause. Brown contends that Agent Hightower misled the magistrate by not disclosing her brief membership in Majors 2, which she claims undermines the good faith rationale.

The review of the record reveals that the officers had reasonable grounds for believing the warrant was valid. The warrant was not facially deficient as it adequately described the location and items to be seized. There were no indicators that the magistrate was not neutral or detached during the warrant's issuance. The affidavits were based on a thorough three-month investigation involving multiple law enforcement agencies. Although the evidence did not establish probable cause, it provided reasonable suspicion that Brown and Kaliterna were connected to corrupt activities within the Majors 2 unit, which exhibited teamwork in both legitimate and unlawful operations.

Warrantless searches of a residence or hotel room are typically not justified if an arrest occurs outside, as established by Chimel v. California, which restricts such searches to areas within the arrestee’s immediate control. Vale v. Louisiana further specifies that an arrest must occur within a home for a search to be incident to that arrest. Additionally, United States v. Whitten clarifies that officers cannot lead arrestees to other locations to justify a search. Exceptions exist for exigent circumstances or when an officer accompanies an arrestee into a residence for specific purposes, as seen in Washington v. Chrisman, which upheld the reasonableness of such conduct under the Fourth Amendment. However, the current record does not indicate exigent circumstances or necessity for police entry into the penthouse room.

The investigation also highlights the officers’ good faith in seeking valid search warrants, as Agent Hightower initially targeted only those residences of officers present during a specific incident, rather than all members of Majors 2. He sought warrants for Cortez and Daub based on their prior purchases following the seizure of currency. Hightower consulted an assistant U.S. Attorney before applying for the warrants, reinforcing the good faith standard. Previous rulings emphasize that consultation with a government attorney is critical in establishing good faith, as seen in Ortiz v. Van Auken and United States v. Luk. These cases support the notion that approval from both a government attorney and a neutral magistrate negates the requirement for officers to disbelieve expert advice.

An officer's consultation with a government attorney is crucial, particularly when legal questions regarding the Fourth Amendment's search and seizure are unresolved at the time a warrant is issued. The court clarified that the "wholly illegitimate" organization exception, previously mentioned in the Rubio case, does not apply to a law enforcement unit suspected of corruption. Despite the unit's questionable conduct, the officers involved reasonably believed the searches were justified by probable cause, given that the crimes by Majors 2 could only occur with the complicity of all officers involved. The court also referenced Supreme Court precedents, noting that to establish qualified immunity in constitutional rights violations, officials must demonstrate "objective legal reasonableness" based on clearly established law at the time of their actions. If the law was not clearly established, officials cannot be expected to predict future legal changes. The Supreme Court case of Anderson exemplifies this principle, where an FBI agent was granted qualified immunity for a warrantless search due to unclear circumstances around exigent circumstances. The court concluded that the test for objective good faith from civil rights actions is relevant for assessing officers' good faith in issuing search warrants. Ultimately, because the law regarding probable cause and corrupt law enforcement units was unclear at the time, the officers could reasonably believe their actions were valid.

Agent Hightower's omission of Brown's employment start date does not negate a good faith finding regarding the warrant issued. There is no evidence suggesting Hightower or Agent Davidson intended to mislead the magistrate, despite the requirement that misleading information would invalidate good faith reliance according to *Leon*. The affidavit presented evidence of illegal activities by deputies Cortez and Daub over a two-year span, necessitating the identification of their membership in Majors 2 during that timeframe. The videotape confirmed Brown and Kaliterna were part of Majors 2 during the relevant period. Hightower's belief that three months was adequate for Brown to engage in corruption is deemed reasonable, considering her long-standing experience as a deputy since 1972. Crucially, Brown's illegal entry into the penthouse and her observation of $18,000 in stolen currency were pivotal to establishing probable cause. The court reversed the suppression order, affirming that the officers acted in good faith, as the warrants contained specific addresses and a detailed list of items to be seized, aligning with statutory violations. In contrast, a cited case showed deficiencies in warrant specificity. Additionally, Hightower initiated searches of Amers' residence only after substantial currency was discovered in other deputies' homes, with Officer John Dickenson consenting to the search of his residence.