Crime, Federal Judges, Shopping

On Kozinski And Costco

The mega-retailer counts federal judges among its fans.

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A Costco location (by Stu pendousmat via Wikimedia)

Who doesn’t love Costco? The membership-only warehouse club draws wide admiration as a retailer, an employer, and an investment.

It even counts federal judges among its fans. Back in 2014, for example, Justice Sonia Sotomayor was spotted shopping at a Costco in northern Virginia (where she bumped into Secretary Hillary Clinton, who was conducting a book signing there).

And then there’s Judge Alex Kozinski of the Ninth Circuit. The colorful jurist gives the mega-retailer some nice shout-outs in his dissent in United States v. Faagai, decided just yesterday.

The issue: whether probable cause existed to support a warrantless search of the defendant’s truck. Writing for himself and Judge Michael Daly Hawkins, Judge Carlos Bea concluded that under the totality of the circumstances, probable cause existed. The majority relied on this information (among other evidence):

[A]gents intercepted a text message from [defendant Jacob] Faagai to [co-conspirator John] Penitani in which Faagai said that he was going to Costco in Kapolei “to buy food for [his] house” and that if Penitani “gotta buy food for [Penitani’s] house,” they should meet at Costco. Special Agent Sze testified that he believed that Faagai was using “food” as a code word for “money.”

…. [As for t]he November 5 meetings, the circumstances suggest that they related to a drug transaction. The Costco in Kapolei where Faagai suggested that he and Penitani meet was located 24 miles away from where Penitani lived in downtown Honolulu. Moreover, there was another Costco located about a quarter of the distance away from downtown Honolulu. It is unlikely that Faagai and Penitani met at the Kapolei Costco to shop for food.

Makes sense. If I were on this panel, I might have voted to affirm Judge Susan Oki Mollway’s denial of the suppression motion (based not just on this, but other evidence too).

Sponsored

It’s a close case, though. Check out this rebuttal in Judge Kozinski’s dissent (citation omitted, emphasis added):

[T]here was no expert testimony or any other evidence supporting the speculation that food stood for drugs. Many people go to Costco to buy food. If talking about shopping for food at Costco were sufficient to justify a search, many of us would be searched by the police twice a week—thrice right before Thanksgiving.

Many people go to Costco to buy food — including Judge Kozinski. When Judge Kozinski hosts his famous movie nights — Kozinski’s Favorite Flicks, aka “KFF” — he and his assistant Donna Salter and his clerks shop for provisions at Costco. (I can attest that Donna’s salad, described in this Los Angeles Times article, is pretty darn delicious.)

Kozinski’s Costco connoisseurship continues (again, emphasis added):

The majority deems it “unlikely that Faagai and John Penitani met at the Kapolei Costco to shop for food” because there was another Costco much closer to downtown Honolulu. But as savvy shoppers know, not all Costcos are the same. For example, the Kapolei location is twenty years newer than its downtown Honolulu counterpart, and features a “fresh deli.” Compare Costco Wholesale, Find a Warehouse: Kapolei Warehouse, https://www.costco.com/warehouse-locations/kapolei-hi-1038.html (last visited July 14, 2017), with Costco Wholesale, Find a Warehouse: Iwilei Warehouse, https://www.costco.com/warehouse-locations/iwilei-honolulu-hi-687.html (last visited July 14, 2017). These are entirely innocent reasons for preferring the Kapolei store.

Sponsored

Thanks to the Kozinski clerks for those impeccably Bluebooked citations to the Costco website.

The closing paragraph of the dissent makes Judge Kozinski’s point perfectly:

Here’s what this case boils down to: Officers had a hunch that a drug transaction was going down. They saw nothing obviously suspicious, but got tired of waiting, watching and wiretapping. They then jumped the gun by executing a warrantless search. Until today, this was not enough to support probable cause, but going forward it will be. 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. That puts all of us at risk. Accordingly, I dissent, and I’m off to Costco to buy some food.

See you there, Your Honor!

P.S. This isn’t the only interesting writing about criminal law to come out of the Kozinski clan this week. Judge Kozinski’s son Wyatt, currently a student at UVA Law, has an interesting piece about corrupt police interrogation practices that can lead to false confessions. Surf over to The Crime Report and check it out: Third Degree Lite: The Abuse of Confessions.

Disclosure: I am a Costco shareholder — and buy some food there too.

United States v. Faagai [U.S. Court of Appeals for the Ninth Circuit]

Earlier: Caption Contest Winner: Hillary Clinton’s Hardest Choice?

DBL square headshotDavid Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.

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