United States v. Grey
| Decision Date | 27 May 2020 |
| Docket Number | No. 18-50328,18-50328 |
| Citation | 959 F.3d 1166 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. Franz GREY, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Following Alexander v. City & County of San Francisco , 29 F.3d 1355 (9th Cir. 1994), abrogated on other grounds by County of Los Angeles v. Mendez , ––– U.S. ––––, 137 S. Ct. 1539, 198 L.Ed.2d 52 (2017), we hold that where, as here, law enforcement officers are asked to assist in the execution of an administrative warrant authorizing the inspection of a private residence, they violate the Fourth Amendment when their "primary purpose" in executing the warrant is to gather evidence in support of a criminal investigation rather than to assist the inspectors. Accordingly, we affirm the district court's order granting defendant Franz Grey's motion to suppress.
In October 2017, the City of Lancaster, California, Code Enforcement Division of the Department of Housing and Neighborhood Revitalization, began investigating defendant Grey for possible violations of the City of Lancaster Municipal Code. The investigation primarily focused on complaints from neighbors that Grey's property was "surrounded by tarps," that there was "a camera mounted on a 30-foot pole" and numerous lights on the roof of the house, and that there was "electrical wiring along the fence, which they were concerned meant the fence itself was electrified." The neighbors also suspected that Grey "was conducting an unlawful auto repair business at the property."
In November 2017, City of Lancaster Code Enforcement Officer Sam McNutt viewed Grey's property from the street and confirmed that "tarps surrounded the premises and covered much of the roof" and that "areas of fences/walls exceed the permissible height." McNutt was unable to observe most of the premises because the tarps and other materials obstructed a clear view. McNutt did not determine whether the electrical wiring along the fence was there to electrify the fence or to provide power for another purpose. McNutt also spoke with Grey at some point in November 2017, but was unable to elicit Grey's cooperation in correcting the alleged code violations. Grey did not respond to McNutt's attempts to contact him after their initial conversation. McNutt also spoke to the property owner, who said she had spoken with her tenant, Grey, and that he had refused to make the corrections that were needed to bring the property into compliance.
In January 2018, McNutt returned to inspect Grey's property from the street. Based on his observations, McNutt issued administrative citations to Grey on February 1 and March 2, 2018. Grey appealed the citations on March 12, 2018, and then made "continuous" phone calls and faxes to the City Clerk's office. Code Enforcement personnel expressed safety-related concerns about returning to the property due to Grey's multiple calls and faxes to the City Clerk's office and the electrical wiring along his fence.
In March 2018, Grey's code enforcement case was referred to Russell Bailey. Bailey is a reserve (part-time) deputy of the Los Angeles County Sheriff's Department ("LASD"). He had served as a deputy with the LASD for 38 years before becoming a managing member of a private consulting firm in 2017. Bailey's consulting firm has contracted with the City of Lancaster "to provide municipal compliance services related to quality-of-life issues" and "to provide general municipal code enforcement services." Bailey stated that his work for the City of Lancaster was not as a law enforcement officer.
On March 15, 2018, Bailey and Mike Kuper, another reserve LASD deputy and contractor, went to Grey's property at the request of the City of Lancaster Public Safety Director, Lee D'Errico. D'Errico told Bailey that the City had received a complaint from Grey's neighbor that Grey had electrified his fence. Upon arriving at Grey's property, Bailey saw a six-foot-high chain link fence surrounding the premises, tarps attached to the fence that obstructed the view of the property from the public right-of-way, a large canopy-type structure covering the driveway, a long pole extending from the roof of the residence with a video camera and a large light installed on top, and an electrical wire running along the top of the fence. Bailey and Kuper tested the fence and determined that it was not electrified.
During this March 15 inspection, Bailey went to Grey's property and spoke with Grey from outside the fence through a small hole in the tarp. Bailey identified himself and told Grey that he had come to talk about the fence. Grey told Bailey that he had "fortified" his residence because his neighbor had constantly harassed, intimidated, and threatened him, and that before erecting the fence, his neighbor had shot at his dogs with a pellet gun and his car had been vandalized. Grey also stated that the wire along the fence was connected to an audio alarm device inside his house. Bailey told Grey that the height and condition of the fence appeared to be a violation of the Lancaster Municipal Code and would need to be corrected.
During this conversation, Bailey also observed three cars parked in Grey's yard, including on unpaved portions of the premises. Bailey believed that the presence of the cars corroborated the neighbors' complaints that Grey was operating an unlawful auto repair business on the property. After their conversation with Grey, Bailey and Kuper drove to the rear of the property and observed a large tarp that had been installed such that vision into the rear yard was entirely obstructed. Bailey also took photos of the property documenting the fencing, tarps, canopy, and camera.
Based on his conversation with Grey, including Grey's statement about "fortifying" his house, and his observations of Grey's demeanor, Bailey believed that Grey would not agree to abate the conditions on his property and that Grey could pose a threat to City of Lancaster Code Enforcement officers. Bailey asked another LASD deputy about Grey, and that deputy told Bailey that LASD was already aware of Grey and had received several calls about his property, including about firearms being shot into the air.
Bailey then met with D'Errico, Kuper and City of Lancaster Assistant City Attorney Jocelyn Corbett. During that meeting, Bailey learned that Grey's case had been turned over to Bailey by the Code Enforcement team because of a concern for the team's safety. As a result of this conversation, Bailey, Corbett, and D'Errico decided that an inspection was necessary to determine if the property was safe and what further action was needed.
On April 4, 2018, one of Grey's neighbors called the Lancaster Community Appreciation Program ("LANCAP") team of the LASD regarding ongoing issues with Grey. LASD Deputy Andrew Chappell contacted the neighbor and the neighbor stated that Grey had shot a Glock handgun into the air several times during the previous year's Fourth of July holiday. The neighbor reported that following the Fourth of July, Grey's behavior became "bizarre" and that Grey had started to do "strange things" like stringing up tarps in his backyard and installing flood lights that illuminated Grey's backyard along with the backyards of his neighbors. The neighbor said he saw multiple pieces of heavy equipment in the backyard of Grey's house, including vehicle parts, firearm parts, and tools. Then in October 2017, according to the neighbor, Grey showed him a large amount of methamphetamine. Afterwards, Grey invited the neighbor to his house several times and reportedly showed him an "old and beat up" AK-47 rifle, a Glock handgun, a "snub nose" revolver with a blued finish; many firearm parts, including stocks, barrels, and slides to semi-automatic pistols, and firearm ammunition. During one of these visits, Grey allegedly loaded the AK-47 and shot it into the air multiple times from his backyard. The neighbor also reported seeing Grey carrying firearms on his person and keeping firearms in the trunks of the vehicles parked on his property.
The neighbor reported that around December 2017, Grey installed fencing in the front yard, along with a camouflage tarp along the fence, as well as 30-foot poles with cameras affixed to them. The neighbor reported that he was concerned that the fence might be electrified because of an electrical wire attached to the fence. The neighbor also reported that he last saw Grey shoot a gun in his backyard in early March 2018. The neighbor also complained of a burning chemical smell from Grey's property.
When asked why he had waited so long to report the crimes, the neighbor said that he wanted to keep to himself and tried to give Grey the benefit of the doubt, noting the possibility that Grey was mentally ill. However, the neighbor believed that in March 2018, Grey had made a false allegation of child abuse to the Department of Children and Family Services, and that was "the straw that broke the camel's back."
Deputy Chappell then generated a six-pack photographic lineup with Grey's photograph and showed the lineup to the neighbor, who identified Grey. The neighbor also identified the car driven by Grey and provided Deputy Chappell with photographs he had taken of Grey's front and back yard.
The day after Deputy Chappell's interview with the neighbor, Chappell drove by Grey's house with Deputy Danny Ornelas. As he drove by, he smelled a strong odor of a chemical-like substance coming from the house and observed the fence and tarp described by the neighbor. Deputy Chappell saw Grey in his garage, as well as several vehicles in the driveway and garage.
Deputy Chappell then contacted several other neighbors of Grey, who wished to remain anonymous and "collectively" told Chappell that Grey was "weird," "unhinged," "not all there," and "strange." The neighbors...
To continue reading
Request your trial
-
United States v. Coles
...464 U.S. at 294, 104 S.Ct. 641. Coles also notes, inter alia , the Ninth Circuit Court of Appeals’ decision in United States v. Grey, 959 F.3d 1166 (9th Cir. 2020), where, under the guise of a "protective sweep" before city officials executed a property inspection warrant, nine armed deputi......
- Stand Up for California v. U.S. Dep't of Interior
- Stand Up for California! v. United States Dep't of Interior
- Stand Up for Cal. v. U.S. Dep't of the Interior
-
Special needs' and other fourth amendment searches
...of the stop,” and it only occurred because officers intended to search for evidence of criminal activity. Id . at 29. In U.S. v Grey , 959 F.3d 1166 (9th Cir. 2020), the court suppressed evidence found by police called in to assist with a search that was authorized by an administrative warr......
-
Chapter 5 - §3. Exceptions to warrant requirement
...according to some regulatory scheme in furtherance of an administrative, not a law-enforcement, purpose. See U.S. v. Grey (9th Cir.2020) 959 F.3d 1166, 1177; U.S. v. Aukai (9th Cir.2007) 497 F.3d 955, 960. Although the administrative scheme cannot have a law-enforcement purpose, the fact th......
-
Table of Cases null
...(5th Cir. 2020)—Ch. 2, §2.1.1(2)(f)[7] U.S. v. Gray, 199 F.3d 547, 53 Fed. R. Evid. Serv. 28 (1st Cir. 1999)—Ch. 2, §9.1 U.S. v. Grey, 959 F.3d 1166 (9th Cir. 2020)—Ch. 5-A, §3.3.7(2)(d) U.S. v. Grigg, 498 F.3d 1070 (9th Cir. 2007)—Ch. 5-A, §3.2.2(1)(a) U.S. v. Grubbs, 547 U.S. 90, 126 S. C......
-
Review Proceedings
...Cir. 2021) (government may appeal order to suppress evidence found upon entry into house without consent under § 3731); U.S. v. Grey, 959 F.3d 1166, 1177 (9th Cir. 2020) (government may appeal order to suppress evidence found during an unreasonable search under § 3731); U.S. v. Trujillo, 99......