9th Circuit panel considers whether federal agents may go to state courts for search warrants

Federal law enforcement officers in California may soon be barred from obtaining search warrants in state court, depending on how the 9th U.S. Circuit Court of Appeals rules in a case argued in Pasadena Friday.

Federal statutes outlining the powers of the U.S. Marshals Service gave its agents the authority to request warrants in superior court, an assistant U.S. attorney told a three-judge panel of the court during the hearing.

But the judges seemed unconvinced, indicating that they were prepared to affirm a San Francisco-based U.S. district judge's ruling barring them from making the requests in state court.

"I don't think the United States can tell the State of California, 'You must allow our officers to be treated as peace officers for purposes of your criminal justice system,'" Judge Paul J. Watford told Merry Jean Chan, of the U.S. attorney's office for the Northern District.

"There's nothing in the supremacy clause that dictates that," continued Watford, a former federal prosecutor.

U.S. District Judge Vince Chhabria ruled in July that California law precluded federal officers from using its courts to obtain search warrants.

Considering a motion to suppress evidence obtained in a joint federal-state task force search, Chhabria noted the text of California law, which says warrants are to be issued "to a peace officer in his or her county." The state statute defining "peace officer" does not list federal agents, the judge observed.

"California law prevents state judges from issuing search warrants to federal law enforcement officers, which means that federal law enforcement officers are not permitted to execute such warrants," Chhabria wrote, adding that he published his opinion to "put the relevant actors in the criminal justice system on notice."

On Friday, Chan said the ruling was wrong and that the special FBI agent deputized as a U.S. marshal involved in the underlying case had not done anything wrong by asking Alameda County judges to issue a search warrant for a suspect's cell phone.

"There was no error on his part because he was a deputized U.S. Marshal, so he had the authority and he had the belief that he ... was basically empowered with all the powers of a state sheriff," she told the panel.

The U.S. attorney's office cited the U.S. Justice Department's interpretation of federal statutes authorizing U.S. marshals to "exercise the same law enforcement powers as those of a sheriff in the host state" and said the Constitution's preemption clause made irrelevant California statutes saying otherwise.

Apparently unmoved by that position, Watford responded that Chhabria's published opinion regarding the limit of state court warrant-granting abilities was "exactly right." United States v. Artis, 18-10246 (9th Cir., filed Nov. 22, 2016).

The panel, which also included Senior Circuit Judge A. Wallace Tashima and Senior U.S. District Judge Eduardo C. Robreno, visiting from Pennsylvania, spent a considerable amount of the argument mulling the probable cause, or lack thereof, and the admissibility of evidence obtained. Chhabria had ruled in favor of the defendant's suppression motion.

No judge asked the defendant's lawyers, John J. Jordan and Steven F. Gruel, to address the government's objections to Chhabria's state court warrant request ruling.