FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 09-10147

Plaintiff-Appellant, D.C. No.

v.  1:08-cr-00008-DDP

(JVEM) SONG JA CHA; IN HAN CHA,

Defendants-Appellees. OPINION 

Appeal from the United States District Court

for the District of Guam

Dean D. Pregerson, District Judge, Presiding

Argued and Submitted

October 14, 2009—Honolulu, Hawaii

Filed March 9, 2010

Before: Robert R. Beezer, Susan P. Graber and

Raymond C. Fisher, Circuit Judges.

Opinion by Judge Beezer

3779
COUNSEL

Lisa J. Stark, United States Department of Justice, Washington, D.C., for the plaintiff-appellant.

3782 UNITED STATES v. CHA
G. Patrick Civille, Civille & Tang, PLLC, Hagåtña, Guam;

Howard Trapp, Howard Trapp Inc., Hagåtña, Guam, for the

defendants-appellees.

OPINION

BEEZER, Circuit Judge:

Song Ja Cha (“Ms. Cha”) and In Han Cha (“Mr. Cha”)

were charged with the federal crimes of conspiracy, sex trafficking and coercion, and enticement to travel for the purpose

of prostitution in violation of 18 U.S.C. §§ 2, 371, 1591(a),

1594, and 2242. In the pretrial hearing before the magistrate

judge, the Chas moved to suppress evidence that had been

seized pursuant to a warrant at their house and adjoining business, the Blue House Lounge. The magistrate judge concluded

that, although the police had probable cause to seize these

premises while they obtained a warrant, the warrantless seizure was unreasonably long in violation of the Fourth Amendment to the U.S. Constitution. The district court agreed with

the magistrate judge’s conclusions, and the United States

brought an interlocutory appeal to this court. We conclude

that the seizure of the Cha residence, which lasted a minimum

of 26.5 hours, was constitutionally unreasonable and that suppression of the evidence was warranted. We therefore affirm.

I

It was Saturday evening, January 12, 2008, in Tamuning,

Guam, when Officers Manibusan and Laxamana pulled into

the parking lot of the Blue House Lounge karaoke bar to

investigate a report they had received earlier that evening.

Sonina Suwain (“Ms. Suwain”), who was from Chuuk, had

reported that the owner of the Blue House Lounge, Ms. Cha,

had Ms. Suwain’s passport and was refusing to return it.

When the officers arrived at the Blue House Lounge, Ms.

UNITED STATES v. CHA 3783
Suwain told the officers that two of her cousins from Chuuk,

Cindy and Vivian,1 were being held inside the Blue House

Lounge against their will.

Officer Manibusan sent Officer Tan, who had just arrived

with several other officers, into the Blue House Lounge to

find Cindy and Vivian so he could determine whether they

were there “on their own free will.” When Officer Tan

entered the lounge, the karaoke machine was playing and customers were drinking at the bar. He found Cindy waiting

tables. Officer Tan asked the bartender where he could find

Vivian, and the bartender pointed to several numbered doors

in the back of the restaurant. Officer Tan recognized these

rooms as “comfort rooms,” which are fairly common in

karaoke bars in Guam. In these rooms, customers “can buy

drinks and take the waitress into the room and watch TV or

sing songs or just chat.” Officer Tan heard a woman’s voice

coming from one of the comfort rooms and knocked on the

door. Vivian emerged looking disheveled, and a man stood

hiding behind the door with his pants “barely on”—unzipped,

unbuttoned, and unbuckled. 

Once Officer Tan and the two women were outside, the

women, crying, reported that they were being prostituted

against their will. They maintained that Ms. Cha kept their

passports and that if they refused to have sex with a customer,

Ms. Cha would refuse to feed them that night. Hearing this,

Officer Manibusan ordered Ms. Cha to close up for the evening even though the bar would normally stay open much

later. The officers interviewed each customer before the customer left the bar.

After all the customers left the establishment, Officer

Manibusan asked Ms. Cha to give him and a few other officers a “tour.” Other officers completed a detailed “scene

1

It was later determined that “Cindy” and “Vivian” were pseudonyms.

Cindy’s real name is Simirina Samuel, and Vivian’s is Daileen Robert. 

3784 UNITED STATES v. CHA
check.” The officers’ tour extended into the Chas’ residence,

which was connected to the Blue House Lounge by a hidden

door. There, the officers found Mr. Cha asleep. They woke

him and forced him outside. 

With the “scene check” complete, Officer Manibusan

instructed the Chas to lock up. Mr. Cha did so and kept the

keys. All of the officers drove away, while the Chas escorted

the women in their car down to the police station. It was 1

a.m. Sunday morning.

The officers interviewed the women throughout the night.

Ms. Cha was not allowed to leave the precinct and was ultimately arrested at 6 a.m. Mr. Cha, however, remained free

throughout, leaving at least once to get Ms. Cha some food.

At about 8 a.m., Mr. Cha returned home to find a police

officer outside, guarding the house. He called his lawyer, Mr.

Van de veld, anxiously recounted the night’s events and told

Mr. Van de veld that “the police were still there and would

not allow him access to the premises.” Mr. Van de veld told

Mr. Cha that he would stop by as soon as he finished his golf

game. 

Around 12:45 p.m., Mr. Van de veld, with his golf buddies

in tow, arrived at the Cha residence. The officers informed

him that the Blue House Lounge and the Cha residence had

been “detained” since around midnight and that no one was

allowed to enter the premises. Mr. Van de veld left to drive

his friends home.

When Mr. Van de veld returned to the Blue House Lounge

at 2:30 p.m., Mr. Cha was still waiting outside. Mr. Van de

veld was concerned about Mr. Cha’s health because, earlier

that afternoon, Mr. Cha looked “pale and was perspiring

heavily.” Knowing that Mr. Cha had diabetes, Mr. Van de

veld asked if the police would allow Mr. Cha to find his insulin and glucose monitor inside the house. The police refused.

UNITED STATES v. CHA 3785
It was four hours later, at 7 p.m., when an officer finally

accompanied Mr. Cha into the house to get his medicine.

Afterward, Mr. Cha and Mr. Van de veld waited outside Mr.

Cha’s house until 1 a.m. Monday morning when Mr. Van de

veld went home to get some sleep. The record does not reveal

where Mr. Cha slept while his house was “detained” through

the night.

While Mr. Cha had been waiting outside his house all Sunday, the police had been back at the precinct preparing the

warrant application. At about 9:20 Sunday morning, Officer

Perez, who had not previously been involved in the case,

received a call from his supervisor and was told to come into

the office at noon for a briefing. At the briefing, Officer Perez

was tasked with preparing the warrant application. But it was

not until six-and-a-half hours later that he actually began

work on the application; he wanted to wait to receive and

review all the police reports first. 

So, while more interviews were conducted and the investigation continued, Officer Perez changed the caption on the

warrant application and updated his background information.

He “urgently” worked from 6:30 to 9:15 p.m. Sunday to finish

the application because, under a Guam ordinance, there was

a presumption against searches conducted after 10 p.m. But

when he found that he could not meet the 10 p.m. deadline,

he worked until 4 a.m. to finish the warrant application. And,

after he returned to work at 7:50 a.m. on Monday morning,

Officer Perez brought the application to the Chief Prosecutor,

who had made an unusual request to review the warrant application. Officer Perez then unsuccessfully searched for a magistrate judge throughout the morning. He finally found a

magistrate judge to issue the warrant at 10:25 a.m. Monday.

Even with the warrant in hand, the police did nothing with

the warrant for almost three hours. It was 1:15 p.m. when

Officer Perez finally called Mr. Cha’s lawyer and told him

that the search would be conducted at 2 p.m.—which hap3786 UNITED STATES v. CHA
pened to coincide with Ms. Cha’s 2 p.m. arraignment. Mr.

Van de veld requested that the police wait until after the

arraignment to begin the search, but the police refused. By the

time that Mr. Cha and Mr. Van de veld returned from the

courthouse, the police had already began the search at the

Blue House Lounge and Cha residence. The search concluded

at 1 a.m. Tuesday, when Mr. Cha was finally allowed back

into his house. An arrest warrant issued for Mr. Cha a few

weeks later, on February 7, 2008.

In a pretrial hearing, the Chas moved to suppress the evidence seized at their house and the Blue House Lounge. The

magistrate judge recommended and the district court concluded that the warrantless seizure of the Cha residence was

unconstitutionally long. The district court ordered the evidence suppressed.

II

The United States appeals the suppression of the evidence

pursuant to 18 U.S.C. § 3731, certifying that the evidence

suppressed constituted substantial proof of material fact in the

proceeding. We thus have interlocutory appellate jurisdiction

pursuant to that statute. We review de novo the district court’s

decision to suppress the evidence, and we review its factual

findings supporting that decision for clear error. See United

States v. Jones, 286 F.3d 1146, 1150 (9th Cir. 2002).

III

[1] It is undisputed that the police officers had probable

cause and that the officers were allowed to seize the Blue

House Lounge and Cha residence for a reasonable time while

they obtained a warrant. “Of course, a seizure reasonable at

its inception . . . may become unreasonable as a result of its

duration or for other reasons.” Segura v. United States, 468

U.S. 796, 812 (1984) (plurality opinion). Neither the Supreme

Court nor this Circuit has identified when a warrantless seiUNITED STATES v. CHA 3787
zure of a residence becomes unconstitutionally long. Here, the

police seized the Cha house for at least 26.5 hours—from 8

a.m. on Sunday, January 13, 2008 to 10:25 a.m. on Monday,

January 14, 2008.2 Under the circumstances of this case, the

duration of this seizure was too long under the Fourth Amendment. 

[2] The Supreme Court in Illinois v. McArthur set forth the

relevant test for determining the reasonableness of a seizure

of a residence. 531 U.S. 326 (2001). Under this test, we are

to “balance the privacy-related and law enforcement-related

concerns” using four factors: (1) whether the police had probable cause to believe that the defendant’s residence contained

evidence of a crime or contraband; (2) whether “the police

had good reason to fear that, unless restrained,” the defendant

would destroy the evidence or contraband before the police

could return with a warrant; (3) whether “the police made reasonable efforts to reconcile their law enforcement needs with

the demands of personal privacy”; and (4) whether “the police

imposed the restraint for a limited period of time”—in other

words, whether the “time period was no longer than reasonably necessary for the police, acting with diligence, to obtain

the warrant.” Id. at 331-32.

[3] Because the police officers had probable cause, the first

factor favors the government. But the other three factors favor

2The parties have argued at length regarding when the seizure occurred.

The Chas argued that the premises were seized at 1:30 a.m. Sunday, and

the government initially argued that the seizure did not occur until 9:22

a.m. In its brief and at oral argument, the government essentially conceded

that the seizure occurred at 8 a.m. See Appellant’s Br. at 25 (noting that

the police did not restrict access to the Blue House Lounge “until an officer was posted on the premises—no earlier than 8:00 a.m. Sunday”). The

district court adopted the Chas’ argument that the seizure occurred at 1:30

a.m. Sunday. We need not decide whether the premises were seized at

1:30 a.m., however. Even if the premises were seized at 8 a.m. as the government argues, the seizure would have lasted 26.5 hours. As discussed,

we hold that this length of time is constitutionally unreasonable. 

3788 UNITED STATES v. CHA
the Chas. The district court’s finding under the second factor

that the government did not have good reason to fear that Mr.

Cha would destroy evidence is not clearly erroneous. 

[4] The third factor weighs in favor of the Chas because

the government did not make “reasonable efforts to reconcile

their law enforcement needs with the demands of personal

privacy.” Id. at 332. In McArthur, the Supreme Court concluded that the third factor weighed against the defendant in

part because the officers allowed the defendant to enter his

trailer home accompanied by an officer whenever he wished.

Id. But the police did not allow Mr. Cha to enter his residence

even with police accompaniment for 11 hours after he sought

permission to enter his house and more than four hours after

the police were informed that Mr. Cha needed medicine for

his diabetes. 

[5] Under the fourth factor, the duration of the seizure in

this case was much longer than in McArthur—at least 26.5

hours instead of only two. And although the United States

argues that the police officers “were extraordinarily diligent

and worked tirelessly around the clock in their pursuit of a

search warrant,” Appellant’s Br. at 33, the McArthur test asks

only how long was reasonably necessary for police, acting

with diligence, to obtain the warrant. Here, even if the police

officers acted diligently during the seizure interviewing witnesses multiple times and drafting a meticulous warrant application, they took a much longer time than was reasonably

necessary to obtain the warrant. The government already had

probable cause by 1 a.m. Sunday. See Appellant’s Br. at 4, 15.

And the magistrate judge who authored the report and

recommendation—a magistrate judge in Guam and familiar

with warrant procedure there—admonished, “Police officers

on Guam know that when exigent circumstances are present

and there is an urgency to obtain a search warrant, a detached

magistrate may be located at any hour to approve a warrant

application.” 

UNITED STATES v. CHA 3789
Segura v. United States also supports the conclusion that

the seizure here was unreasonable. In Segura, the Supreme

Court concluded that a 19-hour warrantless seizure was reasonable under the circumstances. 468 U.S. at 798, 801. The

two Justices to expound on the seizure’s duration cited three

reasons why the seizure was reasonable. They noted that the

officers did not exploit the delay in obtaining the warrant, that

only eight hours of the delay was during the hours of 10 a.m.

to 10 p.m.—when they assumed judicial officers were not

readily available—and that both the defendants who had possessory interests in the residence were under arrest or in the

custody of the police during the entire occupation. Id. at

812-13 (plurality opinion).

[6] Here, although there was no evidence of bad faith, the

delay was much longer: at least 26.5 hours instead of 19.

Also, in Segura, the seizure occurred at night, and more than

half of the delay occurred before 10 a.m. the next morning. Id.

Here, however, the seizure occurred in the morning, and the

officers had all day Sunday to obtain the warrant before the

late-night-hour of 10 p.m.3 Also contrary to the assumption in

Segura, a judicial officer was available to the police even at

night. And, unlike the defendants in Segura, Mr. Cha was not

3The two Justices to reach the question in Segura noted that “more than

half of the 19-hour delay was between 10 p.m. and 10 a.m. the following

day.” Segura, 468 U.S. at 812-13 (plurality opinion). Because the apartment in Segura was seized at about 11:15 p.m. and the warrant was issued

at 6 p.m. the following day, there were eight hours between 10 a.m. and

10 p.m. The United States, here, attempts to argue that more than half of

the delay in this case was also at night. See Appellant’s Br. at 29, 33. This

analogy verges on the nonsensical. In any delay longer than a day, roughly

half of the time will always be between 10 p.m. and 10 a.m. Thus, it

makes more sense to read the Justices’ statement as pointing out the absolute numbers of non-late-night hours available to the police and not the

relative number of hours available. Here, the seizure took place at least

between 8 a.m. on Sunday and 10:25 a.m. on Monday. Thus, 12.5 hours

were between the hours of 10 a.m and 10 p.m. Moreover, assuming that

the seizure began at 8 a.m. Sunday morning, the initial seizure occurred

during daylight hours. 

3790 UNITED STATES v. CHA
under arrest or in the custody of the police but rather sought

entry to his residence. His possessory interests were therefore

quite strong instead of “virtually nonexistent.” Id. at 813.4 In

light of the Supreme Court’s discussion of the two-hour seizure in McArthur and the two Justices’ discussion of the 19-

hour seizure in Segura, Supreme Court precedent strongly

suggests that the length of the seizure at issue in this case was

unreasonable.5

[7] Ninth Circuit precedent also supports our conclusion

that the seizure was unreasonable. In United States v. Holzman, applying the Segura test, we concluded that the 13-hour

seizure of a hotel room was reasonable. 871 F.2d 1496,

1507-08 (9th Cir. 1989), overruled on other grounds by Horton v. California, 496 U.S. 128 (1990). The facts in this case

that distinguish Segura also distinguish Holzman. The seizure

here was much longer than the 13-hour seizure in Holzman.

The Holzman seizure took place at midnight, and the search

was conducted that same afternoon at 1 p.m. And the defendants were both under arrest in Holzman, whereas Mr. Cha

was not under arrest. See id. at 1499.

Cases that have allowed the seizure of packages for a longer period of time than involved here do not cast doubt on our

decision. See, e.g., United States v. Van Leeuwen, 397 U.S.

249, 253 (1970) (holding that seizure of package of stolen

4As the magistrate judge noted, this factor applies differently to Ms.

Cha because she was under arrest during the entire period, but the overall

analysis under McArthur and Segura would make the seizure unreasonable

as to Ms. Cha as well. 

5The United States relies heavily on a Guam Ordinance that provides a

presumption against searches between the hours of 10 p.m. and 6 a.m. See

Guam Code Ann. tit. 8, § 35.20(c). The government delayed much longer

than this time frame, however. Additionally, this section provides that

warrants cannot be executed between 10 p.m. and 6 a.m. “unless the court,

by appropriate provision in the warrant and for reasonable cause shown,

authorizes its execution [during these hours].” In view of this exception,

too, the United States’ reliance on this section is misplaced. 

UNITED STATES v. CHA 3791
coins for 29 hours was reasonable); United States v. Gill, 280

F.3d 923, 929 (9th Cir. 2002) (holding that six-day delay of

package was reasonable). That a package may be seized for

a longer period of time than a residence is logical given the

heightened constitutional protection “preserving the privacy

and sanctity of the home.” Payton v. New York, 445 U.S. 573,

588 (1980); see id. at 585, 589. “[A] man’s house is his castle,” id. at 596, 598, whether it is under siege by police officers prying into his possessions stored within or whether they

exclude him from its sanctuary. 

The poignant facts of this case demonstrate why Fourth

Amendment possessory and privacy interests are greatly

affected by the seizure of a dwelling. Mr. Cha was rendered

homeless for the duration of the seizure. When he left his wife

at the police station at 8 a.m., he went home only to find that

he was barred from entering. He then waited outside his house

for most of the day until 7 p.m. when an officer finally

accompanied him to retrieve his diabetes medicine. He then

waited outside his residence until at least 1 a.m. The next day

he waited outside as well, only to travel to his wife’s arraignment. The search began at 2 p.m., and he helped the officers

during the search that lasted until 1 a.m. Tuesday morning.

Only then was he allowed to return to his house—nearly 48

hours after being excluded.6

6The United States also cites Dixon v. Wallowa County to argue that we

have recognized a “crime scene exception” to the warrantless seizure rule

that would allow for warrantless seizures of unlimited duration. See

Appellant’s Br. at 41 (citing Dixon v. Wallowa County, 336 F.3d 1013 (9th

Cir. 2003)). We did not address the reasonableness of the seizure’s duration in Dixon. But more importantly, there is no “crime scene exception”

to the Fourth Amendment. “[S]earches and seizures inside a home without

a warrant are presumptively unreasonable.” Payton, 445 U.S. at 586. With

probable cause, the police may seize a residence for a reasonable period

of time to prevent the destruction of evidence while a warrant is obtained.

See McArthur, 531 U.S. at 337. The Fourth Amendment makes no further

distinction between a house and a “crime scene.” 

3792 UNITED STATES v. CHA
[8] Under Segura, McArthur, and Holzman, we conclude

that the 26.5-hour warrantless seizure of the Cha residence

was unreasonable.

IV

The United States argues that even if the seizure of the Cha

residence was unreasonable, the evidence seized pursuant to

the delayed warrant should not be suppressed because the evidence was not the “fruit” of the unreasonable seizure. See

Appellant’s Br. at 19-23.7 We agree that the fruit of the poisonous tree doctrine does not apply, but we hold the evidence

must be suppressed in this case as a direct result of the Fourth

Amendment violation. 

[9] It is clear that the evidence cannot be excluded as

“fruit” of the unreasonable seizure because the evidence was

not the “product” of the illegality and because the warrant

provided an “independent source” for the information. 

[10] Here, the evidence was not the “product” of the

unconstitutional action because the unconstitutional seizure

was not the “but for” cause of the discovery of the evidence.

See, e.g., Segura, 468 U.S. at 815; United States v. Ankeny,

7The Chas argue that the government has waived this argument because

the government raised it for the first time in its objections to the magistrate

judge’s report and recommendations. A district judge has discretion to

consider new evidence or legal arguments made only in the objections to

the magistrate judge’s report, but “the district court must actually exercise

its discretion, rather than summarily accepting or denying the motion.”

Brown v. Roe, 279 F.3d 742, 744 (9th Cir. 2002) (internal quotation marks

omitted). Here, the district judge merely stated without elaboration that

“[u]pon said [de novo] review, the court finds that the objections to the

Magistrate Judge’s Report and Recommendations are not well-taken.”

This boilerplate language is not enough. See id. at 745. With no decision

to review for abuse of discretion, we conclude for ourselves that the argument should be considered because it involves a legal question and no further factual development is necessary. See Janes v. Wal-Mart Stores Inc.,

279 F.3d 883, 888 n.4 (9th Cir. 2002). 

UNITED STATES v. CHA 3793
502 F.3d 829, 836-38 (9th Cir. 2007) (not deciding whether

the execution of the search warrant in an allegedly violent

manner made the search unreasonable because the evidence

would have been discovered whether violence was used or

not). Because the police officers initially had probable cause,

it is irrelevant how long they seized the Cha residence

because the length of the seizure outside the house could

never lead to the discovery of the evidence.

In a similar vein, because the Chas do not argue the initial

entry and “scene check” of their residence was unconstitutional, the witnesses’ testimony derived from this entry provided sufficient probable cause for the warrant. The warrant

thus provided an independent source for the evidence, dissipating the taint from the unconstitutional action. See, e.g.,

United States v. Salas, 879 F.2d 530, 536-39 (9th Cir. 1989)

(holding sufficient evidence derived independently of, and

prior to, unconstitutional entry rendered warrant valid and not

tainted). Thus, the evidence was not excludable on the basis

of the fruit of the poisonous tree doctrine.

V

[11] Our analysis does not end there, however. Although

not excludable as fruit of the poisonous tree, the evidence

must be suppressed as a direct result of the constitutional violation. United States v. Dass holds that the exclusionary rule

is applicable to unreasonably long seizures. 849 F.2d 414, 414

(9th Cir. 1988). In that case, we specifically concluded that it

is irrelevant whether the evidence is the “product” or “fruit”

of the unconstitutional delay:

[W]e reject the government’s argument that it did

not benefit from the delay. The police established

probable cause at the moment of the dog sniff; therefore, it argues, the government’s “constitutional

position” did not change as the seizure continued.

Such a contention undercuts two goals of the fourth

3794 UNITED STATES v. CHA
amendment—deterring unreasonable police behavior

and judicial determination of probable cause. The

government’s theory would allow an unlimited

period of seizure without judicial intervention; to

accept its argument would nullify the seizure portion

of the search and seizure clause of the fourth amendment. This we will not do.

Id. at 415-16 (citations omitted); see United States v. Rodriguez, 869 F.2d 479, 486 (9th Cir. 1989) (“So long as the ‘seizure’ of the premises was supported by probable cause, and

not otherwise unreasonable, items subsequently seized under

the valid warrant are not directly excludable.” (emphasis

added)). McArthur and Segura also assumed the evidence

would have been excluded if the Court had concluded that the

seizures were unreasonable. See McArthur, 531 U.S. at 329

(reversing the trial court’s order granting suppression);

Segura, 468 U.S. at 804 (“The only issue here is whether [the]

drugs . . . should have been suppressed.”).

Finally, the Supreme Court’s recent decision, Herring v.

United States, does not change our decision to affirm suppression of the evidence. 129 S. Ct. 695 (2009). In Herring, police

officers arrested the defendant, relying on a warrant from

another county. Id. at 698. Although the warrant appeared to

be valid in the police database system, the warrant had been

recalled five months earlier. Id. Because of a clerical error,

the system had not been updated. Id. The defendant was

indicted for possessing drugs and a pistol, which were found

on his person when he was searched incident to his arrest

under the invalid warrant. Id. at 698-99. The Supreme Court

affirmed the district court’s and Eleventh Circuit’s decisions

to admit the evidence. Id. at 699.

[12] The Herring Court explained that Supreme Court

cases apply the exclusionary rule to “deliberate, reckless, or

grossly negligent conduct, or in some circumstances recurring

or systemic negligence.” Id. at 702. It concluded that because

UNITED STATES v. CHA 3795
the exclusionary rule is triggered only if police conduct is

“sufficiently deliberate that exclusion can meaningfully deter

it, and sufficiently culpable that such deterrence is worth the

price paid by the justice system,” id., the marginal deterrence

of excluding evidence that was the result of isolated, “nonrecurring and attenuated negligence” did not “ ‘pay its way,’ ”

id. at 702, 704. The Court noted that it was “crucial to [its]

holding” that the Eleventh Circuit concluded that the police

error was merely negligent and that the “question presented

treat[ed] the error as a ‘negligen[t]’ one.” Id. at 700 & n.1.

Because Herring only applies to isolated police negligence,

it does not bar suppression here because the police conduct

was deliberate, culpable, and systemic.

The police conduct was sufficiently deliberate. The United

States cites Herring and argues that application of the exclusionary rule is not justified in this case because “the police did

not engage in intentional misconduct when they seized the

premises.” Appellant’s Br. at 23. This argument misses the

mark. Herring holds only that the conduct triggering application of the exclusionary rule cannot be merely negligent

because it must be sufficiently deliberate that it can be

deterred. Herring, 129 S. Ct. at 700 & n.1, 704. Herring

emphasizes that the standard is “objective, not an ‘inquiry into

the subjective awareness of arresting officers.’ ” Id. at 703.

The case applies the good-faith standard espoused in United

States v. Leon—“ ‘whether a reasonably well trained officer

would have known that the search [or seizure] was illegal.’ ”

Id. (quoting United States v. Leon, 468 U.S. 897, 922 n.23

(1984)); see United States v. Gonzalez, 578 F.3d 1130, 1132

(9th Cir. 2009) (noting that Herring employs Leon’s good

faith standard). 

Herring’s emphasis on an objective reasonableness standard is paramount here where the officers made a mistake of

law, rather than a mistake of fact. In Herring, the police officers made a mistake of fact—whether an arrest warrant

3796 UNITED STATES v. CHA
existed for the defendant. Here, the officers made a mistake

of law—they did not realize that a seizure must last “no longer than reasonably necessary for the police, acting with diligence, to obtain the warrant.” McArthur, 531 U.S. at 332. 

Our precedent distinguishes between mistakes of fact and

mistakes of law because mistakes of law can be deterred more

readily than mistakes of fact. In United States v. Lopez-Soto,

we concluded that “there is no good-faith exception to the

exclusionary rule for police who do not act in accordance with

governing law.” 205 F.3d 1101, 1106 (9th Cir. 2000). We

emphasized that “[t]o create [such] an exception . . . would

defeat the purpose of the exclusionary rule, for it would

remove the incentive for police to make certain that they

properly understand the law that they are entrusted to enforce

and obey.” Id.8

[13] The Guam police officers’ deliberate conduct in this

case demonstrates why mistakes of law can and should be

deterred. Officer Perez testified that he was never taught at

the police academy that “ ‘time was of the essence’ once the

police have secured a premises” or “that the police had to act

with deliberate haste to obtain the warrant.” See McArthur,

531 U.S. at 332. Indeed, the United States argues that “Officer

Perez . . . did not know that he had a duty to diligently pursue

the drafting and eventual approval of the warrant by a

detached magistrate.” Appellant’s Br. at 23. The Guam police

department’s failure to know the governing law was reckless

behavior; the police officers were a far stretch from Leon’s

“reasonably well trained officer.” In fact, the magistrate judge

found that the officers involved should have known that when

“there is an urgency to obtain a search warrant, a detached

8Herring did not discuss mistakes of law, and our cases holding that the

good-faith exception does not apply to mistakes of law are still good law.

See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc) (noting

that prior circuit authority is still good law unless “clearly irreconcilable”

with an intervening Supreme Court case). 

UNITED STATES v. CHA 3797
magistrate may be located at any hour to approve a warrant

application.” It is clear that the police errors here were much

more troubling than the negligence in Herring—the conduct

was in reckless disregard of the Fourth Amendment’s reasonable seizure requirement.

[14] The police conduct here was also “sufficiently culpable that . . . deterrence is worth the price paid by the justice

system.” Herring, 129 S. Ct. at 702. The police seized the

Chas’ house for a minimum of 26.5 hours while Mr. Cha

waited outside for the majority of the time—even to the early

hours of the morning. The police refused to allow Mr. Cha to

enter his house accompanied by a police officer to retrieve his

diabetes medication for four hours. And, as the district court

found, none of this delay was “unavoidable”—the officers

had probable cause at 1 a.m., and Officer Perez could have

drafted the warrant application at least after the 12 p.m. briefing. The officers, however, had a “nonchalant attitude” and

proceeded in a “relaxed fashion.” 

Not only were the police errors deliberate and culpable,

they were systemic. Although the officers raided the Chas’

prostitution business at 1 a.m. Sunday, the officer tasked with

preparing the warrant application was told only to arrive at the

police station at noon. The investigating officers were supposed to have their reports completed by 3 p.m., but they did

not finish them until 6:30 p.m.; it is unclear whether they

knew that the premises had been secured at all. Officer Perez

had a “personal preference” to read the reports, so he waited

until 6:30 p.m. on Sunday to begin drafting the warrant application. And further delay was occasioned by the Chief Prosecutor, who asked to review the warrant application Monday

morning. Finally there was no departmental training or protocol instructing the officers that a warrant must be secured reasonably quickly after a premises has been seized. As far as

this record shows, the “nonchalant attitude” that the district

court condemned was pervasive in the Guam law enforcement

apparatus.

3798 UNITED STATES v. CHA
VI

At oral argument, the United States asked us to remand to

the district court to allow the district court to address the Herring analysis in the first instance if we concluded that the seizure was unconstitutional. Remand is not appropriate or

necessary, however. First, at oral argument, the United States

relied on United States v. Monghur to argue that remand is

necessary. 576 F.3d 1008 (9th Cir. 2009). Monghur reversed

the district court’s conclusion that the police action was constitutional and remanded for application of Herring, which

had been decided after the district court’s opinion. Id. at

1013-14. But after oral argument in this case, Monghur was

amended to vacate the order of suppression without remanding for application of Herring. 588 F.3d 975 (9th Cir. 2009).

Thus, the case on which the United States relies no longer

supports its argument.

Second, Herring addressed a new question of law—

whether the exclusionary rule applies when police officers

negligently rely on a database error indicating that an arrest

warrant is still valid. Here, however, this court has already

concluded that the exclusionary rule is applicable where seizures are unconstitutionally long. Dass recognized that exclusion was necessary to deter unreasonable police behavior and

to provide for judicial determination of probable cause. 849

F.2d at 416. Herring does not require this Circuit to reanalyze and re-balance each category of cases to which it has

applied the exclusionary rule over the past decades. 

Third, we review de novo the district court’s decision to

suppress the evidence. The district court made sufficient factual findings to support the legal determination under Herring

that suppression was warranted and that the police conduct

was reckless and systemic. Our conclusion that deliberateness

and culpability are legal determinations is supported by the

Herring decision itself: the Supreme Court applied the district

UNITED STATES v. CHA 3799
court’s factual findings to determine that suppression was not

justified. 

Fourth, Herring was decided before the magistrate judge

issued his report and recommendations. And in its objections

to the magistrate judge’s report, the United States made a

three-page, detailed argument that suppression was inappropriate under Herring. The district court reviewed these objections de novo but agreed with the magistrate judge that

suppression was the appropriate remedy. Thus, we decline the

United States’ invitation to remand for further litigation on

this issue.

VII

[15] We hold that the 26.5-hour seizure of the Cha residence was unreasonably long and that the district court correctly suppressed the evidence.

AFFIRMED.

3800 UNITED STATES v. CHA