United States v. Howard Embry

dissenting:

I respectfully dissent.

1. According to the majority, “Police officers had no reason other than the uncorroborated, anonymous tip to suspect that Embry was in recent receipt of a trafficking amount of marijuana.” Yet this ignores two crucial facts. First, the apartfnent manager said that, she smelled marijuana coming from the apartment. Second, Embry‘ adrnitted that he had marijuana, but only for his own use. No law required the officers to buy Embry’s story/ The law is specifically to the contrary; police are not required to disprove a suspect’s innocent explanations. See, e.g., Illinois v. Gates, 462 U.S. 213 , 243 n. 13, 103 S.Ct. 2317 , 76 L.Ed.2d 527 (1983) (“[Ijnnocent behavior frequently will provide the basis for a- showing' of probable cause.'...”). Irideed, based on the tip, they had every reason to disbelieve Embry. The majority never explains why the officers had to fall for this bogus story.

Based on the tip, the smell, and Embry’s own words, the officers were entitled to rely in good faith on the warrant’s validity. While these three facts obviously do not establish beyond- a reasonable doubt that Embry was trafficking narcotics, probable cause…

FILED

NOT FOR PUBLICATION

SEP 15 2015

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 14-30110

Plaintiff - Appellant, D.C. No. 1:14-cr-00021-SPW-

v.

MEMORANDUM*

HOWARD ORAN EMBRY,

Defendant - Appellee.

Appeal from the United States District Court for the District of Montana Susan P. Watters, District Judge, Presiding Carolyn S. Ostby, Magistrate Judge

Argued and Submitted July 9, 2015 Portland, Oregon

Before: PREGERSON, N.R. SMITH, and OWENS, Circuit Judges.

The United States appeals the district court’s order adopting the findings and

recommendations of a federal magistrate judge and granting Howard Embry’s

motion to suppress evidence. We have jurisdiction under 18 U.S.C. § 3731. We

affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. 1. “A search warrant is supported by probable cause if the issuing judge

finds that, given all the circumstances set forth in the affidavit before him . . . there

is a fair probability that contraband or evidence of a crime…

MEMORANDUM *

The United States appeals the district court’s order adopting the findings and recommendations of a federal magistrate judge and granting Howard Embry’s motion to suppress evidence. We have jurisdiction under 18 U.S.C. §.-3731. We affirm. > ’•'•••

1. “Á search "warrant is supported by probable cause if the issuing judge finds that, given all the circumstances set forth in the affidavit before him ... there is á fair probability that contraband or evidence of a crime will be found in a particular place.” United States v. Underwood, 725 F.3d 1076, 1081 (9th Cir.2013) (alteration in original) (internal quotation marks omitted). “We give great deference to an issuing judge’s finding that probable cause supports a warrant and review such findings for clear error.” Id. at 1081 (internal quotation marks omitted).

Police officers had no reason other than the uncorroborated, anonymous tip to suspect that Embry was in recent receipt of a trafficking amount of marijuana. “[A]n anonymous tip is entitled to little or no weight in a probable cause evaluation if it is entirely uncorroborated and lacks any indication of reliability.” United States v. Clark, 31 F.3d 831, 834 (9th…