Criminal Procedure,  Ninth Circuit

Elaborate Hoax Upheld as Constitutional Seizure

I was tied up with some things Friday and missed an early review of a Ninth Circuit opinion filed that day in which the court finds an elaborate hoax staged to seize a vehicle is constitutional. If you missed it, too, this teaser from the concurring opinion should interest you in U.S. v. Alverez-Tejeda, case no. 06-30289 (June 8, 2007);

The staged collision, “theft” of the car (and all of its contents), car chase and search of Alverez-Tejeda’s apparently innocent companion had the potential to spin out of control and exceed reasonable bounds. Nonetheless, on the record before us I agree with my colleagues that the agents’ ruse stayed within bounds (even if they pushed the envelope in some respects). Although we do not sustain the district court’s thoughtful analysis, I do not thereby mean to endorse this police action as a model for future creative seizures.

The staging is best described in the words of the opinion:

Ascension Alverez-Tejeda and his girlfriend drove up to a traffic light. As the light turned green, the car in front of them lurched forward, then stalled. Alverez-Tejeda managed to stop in time, but the truck behind him tapped his bumper. As Alverez-Tejeda got out to inspect the damage, two officers pulled up in a police cruiser and arrested the truck driver for drunk driving because he didn’t know the New York rules for driving while under the influence. The officers got Alverez-Tejeda and his girlfriend to drive to a nearby parking lot, leave the keys in the car and get into the cruiser for processing. Just then, out of nowhere, someone snuck into their car and drove off with it. As the couple stood by in shock, the police jumped into their cruiser and chased after the car thief with sirens blaring. The police then returned to the parking lot, told the couple that the thief had gotten away and dropped them off at a local hotel.

The whole incident was staged. DEA agents learned that one of the leaders of a drug conspiracy was dealing drugs out of his car and deduced from several intercepted calls and direct surveillance that Alverez-Tejeda, one of the conspiracy’s subordinates, was using the leader’s car to transport illicit drugs. The agents decided to stage an accident/theft/chase in order to seize the drugs without tipping off the conspirators. Every character in the incident, other than Alverez-Tejeda and his girlfriend, was either a DEA agent or a cooperating police

So how did this pass constitutional muster? Well, in the first place, the police didn’t actually search the car until they obtained a warrant. The parties agreed that the police had the right to seize the vehicle without a warrant. The agents staged this scenario to avoid breaching the anonymity of the investigation. Neither the physical force involved, nor the misrepresentations by the officers, nor the invasion of Alverez-Tejada’s presumably innocent companion’s Fourth Amendment rights, were so far outside the bounds of reasonableness under these circumstances so as to render the case unconstitutional.

A short post about the case at The Volokh Conspiracy has generated dozens of comments. Many of the early comments miss the point about why the police used the ruse.

Professor Martin at California Appellate Report has his usual pithy and wry analysis, starting with, “I’d swear that this case was a made-up law school hypothetical if I hadn’t actually read it in the advance sheets myself.” Hard to disagree with that.