D.N.M.: Conflict of laws between circuits: Apply the law where the search occurred, subject maybe to good faith understandings [?]

In a search that took place in Arizona conducted in part by New Mexico officers, the court considers the conflict of laws question of which circuit’s law should apply: the circuit where the search occurred. At bottom, however, the court finds no material difference between the law of the two circuits and does not suppress the search. United States v. Maley, 2019 U.S. Dist. LEXIS 212585 (D. N.M. Dec. 10, 2019):

However, several district courts have held that where, as here, a court in one circuit is considering the propriety of law enforcement officers’ actions in another circuit, the court should apply the law of the circuit where the officers’ challenged conduct occurred, i.e., the “lex loci.” See, e.g., United States v. Kennedy, No. CRIM. 13-240, 2014 U.S. Dist. LEXIS 159802, 2014 WL 6090409, at *5 (W.D. Pa. Nov. 13, 2014) (Sixth Circuit law applied to search and seizure that occurred in Sixth Circuit but was challenged in Third Circuit); United States v. Gates, No. CRIM. 08-42-P-H, 2008 U.S. Dist. LEXIS 102989, 2008 WL 5382285, at *7 (D. Me. Dec. 19, 2008), aff’d, 709 F.3d 58 (1st Cir. 2013) (Fourth Circuit law applied to traffic stop that occurred in Fourth Circuit but was challenged in First Circuit); United States v. Barragan, 589 F. Supp. 2d 1012, 1015-16 (S.D. Ind. 2008) (Ninth Circuit law applied to electronic surveillance that occurred in Ninth Circuit but was challenged in Seventh Circuit); United States v. Longo, 70 F. Supp. 2d 225, 261 (W.D.N.Y. 1999) (Sixth Circuit law applied to electronic surveillance that occurred in Sixth Circuit but was challenged in Second Circuit); United States v. Gerena, 667 F. Supp. 911, 914-24 (D. Conn. 1987) (First Circuit law applied to electronic surveillance that occurred in First Circuit but was challenged in Second Circuit); see also United States v. Ozuna, 129 F. Supp. 2d 1345, 1354 (S.D. Fla. 2001), aff’d, 48 F. App’x 739 (11th Cir. 2002) (adopting “lex loci” approach in cases involving conflicts among federal circuits). In choosing to follow the lex loci approach, courts have generally reasoned that officers should be able to rely on their understanding of the law as their circuit has interpreted it. Kennedy, 2014 U.S. Dist. LEXIS 159802, 2014 WL 6090409 at *5; Gates, 2008 U.S. Dist. LEXIS 102989, 2008 WL 5382285 at *7; Ozuna, 129 F. Supp. 2d at 1354; Gerena, 667 F. Supp. at 918; see also United States v. Restrepo, 890 F. Supp. 180, 191 (E.D.N.Y. 1995) (where parties raise “problem of inter-circuit conflicts of law,” lex loci approach is “sensible” because officers should be able to rely on their understanding of the law in their circuit); cf. Barragan, 589 F. Supp. 2d at 1015-16 (applying lex loci as law of “the forum where the warrant was authorized”).

In the present matter, the officers’ challenged conduct occurred in Arizona, which would seem to indicate that the Court should apply Ninth Circuit law to determine its propriety. However, about half of the officers who engaged in the challenged conduct were employed in New Mexico; the arrest warrant the officers were attempting to execute was issued in New Mexico; and, the investigation leading to the arrest warrant’s issuance occurred in New Mexico. These circumstances muddy the waters regarding which law should apply. Arguably, New Mexico officers who tried to execute a New Mexico arrest warrant arising out of a New Mexico investigation should have been able to rely on their understanding of the law as the Tenth Circuit has interpreted it.

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