Search Based on Code Words OK; May Set Dangerous Precedent

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By Jessica DaSilva

Using code words, even when police don’t observe any objectively suspicious conduct, can still amount to probable cause, the U.S. Court of Appeals for the Ninth Circuit ruled ( United States v. Faagai , 2017 BL 314539, 9th Cir., No. 15-10621, 9/7/17 ).

But that decision defied circuit precedent and the requirements of probable cause, Judge Alex Kozinski wrote in dissent.

Police used a wiretap to intercept the communications of suspected methamphetamine trafficker John Penitani. They recorded conversations with Penitani and defendant Jacob Del Mundo Faagai about food shopping at Costco and returning borrowed tools, which police said were merely code for drug transactions.

Police did not witness any kind of hand-off or exchange of money, but they stopped Faagai’s car after he met with Penitani in a 7-Eleven parking lot on suspicion that the car had been involved in a robbery. Police searched the vehicle and found 50 grams of methamphetamine.

Based on the testimony of an agent that the phrases were code words, the Ninth Circuit affirmed the Faagai’s conviction.

Kozinski disagreed, and argued that without more, the exchanges literally could have been about going to Costco or borrowing tools.

The officers “saw nothing obviously suspicious, but got tired of waiting, watching and wiretapping. They then jumped the gun by executing a warrantless search,” Kozinski said.

“This is a green light for the police to search anyone’s property based on what officers subjectively believe—or claim to believe—about someone’s everyday conduct,” Kozinski wrote. “That puts all of us at risk. Accordingly, I dissent, and I’m off to Costco to buy some food.”

Judge Carlos T. Bea wrote the majority opinion, joined by Judge Michael Daly Hawkins.

Thomas M. Otake, Honolulu, represented Faagai. Chris A. Thomas from the U.S. Attorneys Office for Hawaii argued on behalf of the government.

To contact the reporter on this story: Jessica DaSilva in Washington at jdasilva@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

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