United States v. Adam Galliher

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 22, 2021
• Docket: 20-30228
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION NOV 22 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-30228

Plaintiff-Appellee, D.C. Nos. 6:18-cr-00011-BMM-1 v. 6:18-cr-00011-BMM

ADAM GALLIHER, MEMORANDUM* Defendant-Appellant.

Appeal from the United States District Court for the District of Montana Brian M. Morris, District Judge, Presiding

Submitted November 10, 2021** Portland, Oregon

Before: GRABER and CHRISTEN, Circuit Judges, and WU,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable George H. Wu, United States District Judge for the Central District of California, sitting by designation. Adam Galliher, Jr., appeals the district court’s order denying his motion to

suppress all evidence derived from Deputy Sheriff Greg Holmlund’s investigatory

stop of Galliher. Galliher argues: (1) Holmlund did not have reasonable suspicion

to stop him; and (2) the attenuation doctrine did not apply to the evidence derived

from the stop.

The typical remedy for a Fourth Amendment violation by law enforcement

is suppression or exclusion of the evidence obtained as a result of the violation.

See Utah v. Strieff, 136 S. Ct. 2056, 2061 (2016). One exception to the

exclusionary rule is the attenuation doctrine: “Evidence [remains] admissible when

the connection between unconstitutional police conduct and the evidence is remote

or has been interrupted by some intervening circumstance, so . . . ‘the interest

protected by the constitutional guarantee that has been violated would not be

served by suppression of the evidence obtained.’” Id. (quoting Hudson v.

Michigan, 547 U.S. 586, 593 (2006)).

Whether the attenuation doctrine applies depends on: (1) “the ‘temporal

proximity’ between the unconstitutional conduct and the discovery of evidence”;

(2) “the presence of intervening circumstances”; and (3) “the purpose and

flagrancy of the official misconduct.” Id. at 2061–62 (quoting Brown v. Illinois,

422 U.S. 590, 603–04 (1975)). All factors need not weigh against suppression, and

2 suppression is appropriate only when “its deterrence benefits outweigh its

substantial social costs.” Id. at 2061 (quoting Hudson, 547 U.S. at 591).

The government concedes the temporal proximity factor favors suppression

in this case. As for the presence of intervening circumstances, we look to the

Supreme Court’s recent decision in Strieff. There, the Court applied the

attenuation doctrine because an outstanding warrant broke the causal chain

between an unlawful stop of an individual leaving a suspected drug house and the

discovery of inculpatory evidence. Id. at 2063. The Court reasoned “the warrant

was valid, it predated [the officer’s] investigation, and it was entirely unconnected

with the stop.” Id. at 2062.

Here, after stopping Galliher to investigate whether he was a person of

interest, Holmlund discovered that Galliher had absconded from probation.

Holmlund relayed Galliher’s absconder status to on-the-scene probation and parole

officers. Galliher was arrested, and, consistent with the terms of his probation, the

probation and parole officers searched the vehicle he was in. They found drug

paraphernalia and a firearm.1 Galliher does not deny that he had absconded from

1 Relying on the items the probation and parole officers found during their search, Holmlund later obtained and executed a search warrant for the vehicle and found a loaded pistol, ammunition, plastic baggies, a digital scale, and two plastic baggies containing methamphetamine. 3 probation nor challenge that he was subject to arrest for absconding, and his

absconder status existed before Holmlund’s investigatory stop. The district court

correctly held that Holmlund’s discovery of Galliher’s absconder status was an

intervening circumstance that provided a lawful reason to detain Galliher,

independent of anything that had happened before.

Galliher next argues that the attenuation doctrine’s flagrant-misconduct

factor favors suppression. We disagree. Although Holmlund’s decision to

continue to detain Galliher was potentially unlawful after the probation officer

verified that Galliher was not the individual who ran earlier, we agree with the

district court that there was no flagrant bad faith here. The district court found that

Holmlund acted in response to: (1) a request for assistance from the on-the-scene

probation and parole officers; and (2) their description of a person of interest

whom Galliher resembled. The district court also found that Holmlund “conducted

a targeted search of the most logical area that the man who[m] probation initially

encountered may have gone to hide.” See United States v. Ceccolini, 435 U.S. 268,

279–80 (1978) (giving weight to a showing that officers did not conduct an illegal

search with the intent of locating the evidence at issue). We find no clear error in

the district court’s finding that Holmlund did not engage in flagrant or purposeful

misconduct.

4 AFFIRMED.