N.D.Cal.: Rule 17 subpoena for police S&S manuals wasn’t relevant to suppression hearing

A defense Rule 17 subpoena to the SFPD for its search and seizure procedure manuals is quashed. The Fourth Amendment question is objective reasonableness, and that stuff isn’t going to aid the court. United States v. Johnson, 2014 U.S. Dist. LEXIS 159788 (N.D. Cal. November 13, 2014):

B. Production of Category Two (copies of all SFPD orders, manuals, rules, regulations, and any other similar documents regarding searches and seizures of evidence from homes, as well as parole searches)

Rule 17(c) does not “allow a blind fishing expedition seeking unknown evidence.” Reed, 726 F.2d at 576-77. A “broad request” for documents “based solely on the mere hope that some exculpatory material might turn up” does not justify enforcement of a Rule 17(c) subpoena. U.S. v. Cuthbertson, 630 F.2d 139, 146 (3d Cir. 1980), cert. denied, 449 U.S. 1126 (1981).

Regarding Category Two of the October 15 Subpoena, Defendant claims that his subpoena requests SFPD manuals and regulations regarding proper home search procedures because they are “instructions police officers are given (or not given), and are therefore probative of their understanding of the circumstances and governing law when conducting their search at 905 Missouri Street.” Oct. 28 Opp’n at 7 (Docket No. 54). According to Defendant, this information “is needed to assess the officers’ claims that they were merely conducting a lawful consent search and only searched the home due to concerns regarding Mr. Johnson’s wellbeing.” Id.

However, “Whether a Fourth Amendment violation has occurred turns on an objective assessment of the officer’s actions in light of the facts and circumstances confronting him at the time, and not on the officer’s actual state of mind at the time the challenged action was taken.” Maryland v. Macon, 472 U.S. 463, 470-71 (1985) (internal citations and quotation marks omitted). The instructions given to the officers, as well as their motivation for searching Ms. McAlpine’s home, are not relevant to the Fourth Amendment analysis that this Court must undertake to resolve the motion to suppress. The Court is not interested in whether the SFPD officers followed department protocol, only whether they followed the Constitutional requirements of the Fourth Amendment. Ultimately, whether department protocol was followed has no bearing on whether Ms. McAlpine consented to the search of her home, or whether the officers had probable cause to believe Defendant lived in the house such that a parole search was authorized.

Additionally, Defendant has “not pointed to any substantial foundation for believing that the [documents sought] would furnish defensive matter.” Reed, 726 F.2d at 576-77. Despite the Ninth Circuit’s lenient application of the relevance prong, as demonstrated in United States v. MacKey, 647 F.2d 898, 901 (9th Cir. 1981), the Court is faced with the possibility that the requested documents may not contain any relevant, exculpatory information at all. As a result, the request for these materials appears to be a “broad request” for documents in the “mere hope” that they will contain exculpatory material, which amounts to little more than a “blind fishing expedition.” See Cuthbertson, 630 F.2d at 146; Reed, 726 F.2d at 576-77.

Because Category Two of the subpoena is not relevant and appears to be a blind fishing expedition, it fails to meet the Rule 17(c) subpoena standard articulated in Nixon. As a result, the Court does not need to reach the merits of the SFPD’s claim that the documents are protected by California Evidence Code section 1040, which potentially privileges the SFPD manuals and regulations as official information that should be barred from disclosure in order to protect the public interest. See SFPD’s Oct. 21 Mot. at 4-5 (Docket No. 47).