The Ninth Circuit has repeatedly affirmed searches of homes of suspected drug dealers even where there is no direct evidence linking the homes to illegal activity, because the presence of evidence in a drug dealer’s home is a reasonable inference to draw. See, e.g., United States v. Fannin, 817 F.2d 1379, 1381–82 (9th Cir.1987); United States v. Angulo–Lopez, 791 F.2d 1394, 1399 (9th Cir.1986); United States v. Peacock, 761 F.2d 1313, 1315 (9th Cir.1985). The government argues that this caselaw can and should be extended to drug users, especially since Inspector Lau stated in his affidavit that it is “common” for drug users to have additional drugs and paraphernalia at their residences.
Such an affidavit is available in every case. In effect, the government is looking for a bright-line rule that the police have probable cause to search the house of any person found with any amount of illegal drugs anywhere. This would be a significant extension of the case law, taking it beyond the bounds of what is permitted by the Fourth Amendment. The Ninth Circuit has held that “probable cause that a resident of the location has committed a crime is in itself insufficient to satisfy” the requirement that evidence probably will be found at the locations to be searched. See United States v. Fernandez, 388 F.3d 1199, 1254 (9th Cir.2004); United States v. Gil, 58 F.3d 1414, 1418 (9th Cir.1995). Drug dealing and drug using are categorically different crimes. To extend the exception in Fannin and Angulo–Lopez is to eviscerate the rule stated in Fernandez and Gil. See United States v. Lucarz, 430 F.2d 1051, 1055 (9th Cir.1970) (explaining that if mere probable cause to arrest a suspect also established probable cause to search the suspect’s home, there would be no reason to distinguish search warrants from arrest warrants). The search warrant in this case was facially invalid.
Read the full case here: United States v. Garcia, 809 F. Supp. 2d 1165 (N.D. Cal. 2011), https://casetext.com/case/us-v-garcia-335
Anton Vialtsin, Esq.
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