CA1 remands a denial of a motion to suppress for lack of a record of validity of search

The FBI told defendant she might as well consent because New Hampshire Probation and Parole was going to order a search anyway (and did). Was this a reasonable mistake of fact that the good faith exception will overlook? Regretfully, an inadequate record was made on all of this, so the court orders a remand. United States v. Vázquez, 724 F.3d 15 (1st Cir. 2013):

Given the relative novelty of the issues as framed in a case involving a joint law enforcement exercise and the assertion of an independent and a derivative ground for the warrantless search, we address three additional questions that necessarily will arise below as a foreseeable product of our holding.

First, to what determination does the assessment of reasonableness apply: the determination of the facts, or the determination of what the law is, based on those facts? As at least two other sister circuits have noted, Rodríguez permits warrantless searches based only on a reasonable mistake of fact, not on a mistake of law. See United States v. Salinas-Cano, 959 F.2d 861, 865-66 (10th Cir. 1992); United States v. Whitfield, 939 F.2d 1071, 1073-75 (D.C. Cir. 1991); see also United States v. Harrison, 689 F.3d 301, 309-10 (3d Cir. 2012). In other words, Rodríguez “applies to situations in which an officer would have had valid consent to search if the facts were as he reasonably believed them to be.” Whitfield, 939 F.2d at 1074. Rodríguez does not permit an officer to search if his mistake is about the law — for instance, if he mistakenly believes that the Fourth Amendment authorizes a search when in fact it does not, even based on the facts as he understands them.

Second, who must have been reasonable in assessing the facts, the FBI agents who told Vázquez that New Hampshire Probation and Parole could and would search, or the state officers who so told the FBI? On the one hand, agents working in a team should be able to rely on facially plausible statements made by their colleagues without having to conduct due diligence on their own. On the other hand, it would create perverse incentives if unreasonable judgments by one officer directly involved in the arrest and search could be laundered by transmission through another officer as ipse dixit. The answer that best balances the considerations in this particular case is that the FBI agents were entitled to supplement their own knowledge of the facts by relying on the judgments of the state officers concerning the facts, provided that those judgments were themselves reasonable. Cf. United States v. Hensley, 469 U.S. 221, 231 (1985) (“[W]hen evidence is uncovered during a search incident to an arrest in reliance on a flyer or bulletin, its admissibility turns on whether the officers who issued the flyer possessed probable cause to make the arrest.”). See generally United States v. Ramirez, 473 F.3d 1026, 1032-37 (9th Cir. 2007) (describing “collective knowledge” doctrine).

Third, and perhaps ironically in view of the manner in which the issues were prioritized below, our ruling renders Vázquez’s consent irrelevant in this particular case because the threatened search by New Hampshire Probation and Parole used to secure consent was actually conducted simultaneously and coextensively with the consented search. If that search by New Hampshire Probation and Parole was valid, then as the government argued below, there is no need to rely on Vázquez’s consent. Conversely, if that search was unlawful on its own terms, it would only be because the facts as reasonably perceived by the officers did not as a matter of law justify the warrantless search. The consent here is thus truly derivative, and drops out of the equation altogether in determining the lawfulness of this particular search.

On remand, the district court will therefore need to decide whether the facts as reasonably understood by the officers and agents at the scene gave them the authority to search Vázquez’s residence without Vázquez’s consent. If so, the search was lawful. If not, the consent would not have validated the search because it would have been secured as a result of either an unreasonable assessment of the facts or a misapprehension of the law.

Once again, a judicial officer who’s a rubber stamp for the police. “FBI says the search is valid? Good enough for me.”