CA9: “What is probable cause?” “What do you want it to be?”

Under the totality of circumstances, there was probable cause to search defendant’s truck under the automobile exception. Judge Kozinski dissents, finding nothing remotely approaching probable cause and finding this a dangerous case for the citizenry. United States v. Faagai, 2017 U.S. App. LEXIS 17287 (9th Cir. Sept. 7, 2017):

Probable cause requires “facts indicat[ing] that [law enforcement officers] will find what they are looking for in the place to be searched.” United States v. Johnson, 256 F.3d 895, 906 (9th Cir. 2001) (en banc). This is not a high standard but the government came nowhere close to meeting it here.

The government’s entire case rests on four meetings between Faagai and John Penitani, a suspected meth dealer. Despite observing most of these meetings and assiduously wiretapping Penitani’s phone, officers never saw a handoff of money or contraband, nor heard an explicit mention of drugs. In fact, they saw and heard nothing objectively suspicious.

The most probative evidence supporting the search was a conversation between Penitani and Faagai where they discussed meeting at Costco to buy food. Agents testified that they “believed [food] to be a code” for drugs. But there was no expert testimony or any other evidence supporting the speculation that food stood for drugs. …

. . .

The majority strings together a sequence of events like beads on a strand, but doesn’t explain how any of them provide probable cause that Faagai was carrying drugs in his car when he was stopped. Nor do my colleagues reckon with a long line of our cases holding that police suspicions lacking objective evidence are insufficient to establish probable cause. See, e.g., United States v. Cervantes, 703 F.3d 1135, 1139 (9th Cir. 2012); Johnson, 256 F.3d at 905; United States v. Vasey, 834 F.2d 782, 788 (9th Cir. 1987). Instead, they fall back again and again on their dubious theory of code words, treating words like “food” and “tools” as nefarious. There’s a vicious circularity to this logic: With the luxury of hindsight, anything at all that Faagai and Penitani might’ve discussed can simply be labeled “code for drugs.”

Here’s what this case boils down to: Officers had a hunch that a drug transaction was going down. They saw nothing obviously suspicious, but got tired of waiting, watching and wiretapping. They then jumped the gun by executing a warrantless search. Until today, this was not enough to support probable cause, but going forward it will be. This is a green light for the police to search anyone’s property based on what officers subjectively believe—or claim to believe—about someone’s everyday conduct. That puts all of us at risk. Accordingly, I dissent, and I’m off to Costco to buy some food.

“What is probable cause?” “What do you want it to be?” See Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 393-94 (1974) (concluding that a “sliding scale approach … converts” the Fourth Amendment into “one immense Rorschach blot,” which can “only produce more slide than scale” and “means in practice … that appellate courts defer to trial courts and trial courts defer to the police”) quoted in the Treatise at §§ 2.01 n.96 & 2.15 n.2.