Thursday, October 27, 2005

US v. Ortiz-Hernandez, No. 03-30355 (10-27-05). The 9th gives the finger(print) to the exclusionary rule. Defendant was suspected of drug dealing. Suspicion though didn't rise to probable cause. Did this stop the police? Nope. Defendant was arrested, and fingerprints were taken as part of an investigatory strategy. The defendant was then charged as a 1326 reentry. The district court suppressed the fingerprints and denied the gov't's motion to take other exemplars. The district court also indicated that the arrest had a racial profiling element. The 9th grudgingly affirmed the suppression ("this call a close one" "we cannot say that the district court clearly erred") but reversed the denial of exemplars, superficially citing Lopez-Mendoza that identity is never suppressible. The majority is Tallman and Reavley (from the 5th). W. Fletcher stridently dissents ("I respectfully but emphatically dissent"). Fletcher argues, correctly, that the majority eviscerates the exclusionary rule. It is the same fingers, but different fingerprint samples. Fletcher also goes through Lopez-Mendoza and shows that the majority misreads it: Lopez-Mendoza read carefully states that identity from an illegal arrest cannot be suppressed but other illegal activities can. Identity for jurisdiction cannot be suppressed. Fletcher uses the codefendant in Lopez-Mendoza (Sandoval-Sanchez) as an example for he could move to suppress identity evidence from other illegal activity. Fletcher also reads the 9th's decision in Garcia-Beltran, 389 F.3d 864 (9th Cir. 2004) as supporting the denial of the fingerprints. In Garcia-Beltran, the gov't arrested without probable cause, and had taken fingerprints for an investigatory purpose, and the 9th suppressed. The majority distinguishes here by stating that those were the original fingerprints and the ones here were a different set. Fletcher scoffs at this. He also cites the 8th Cir.'s in Gurvara-Martinez.

US v. LaFromboise, No. 03-35853 (10-26-2005). This is a habeas that has a twist. The petitioner got a sentence of 720 mos (but hey, it wasn't a life sentence). The 9th gave relief on three gun counts, and remanded. The gov't then entered into a cooperation deal, and the court dismissed the three counts. The judgment though was never amended. Months go by, and the petitioner then files a post-conviction challenge alleging the usual counts (IAC, prosecutorial misconduct, guidelines etc). The petition was filed though long after the one year statute from the time to file cert lapsed. The district court dismissed as untimely, rejecting an equitable tolling argument because of lack of access to law books (FCI-Florence library was flooded). The 9th looked at the lack of amended judgment and held that there was no final judgment, and so one had to be entered and then the clock starts ticking. (Paez). In dissent, Callahan argues that the clock started ticking when the gun counts were dismissed and that the court should be affirmed.

1 Comments:

Blogger Shari Allison said...

Plainly, reentry defendants are on the block and just can't get a break. Ortiz-Hernandez is a really bad decision by the Ninth Circuit, which unfortunately I am sure the Tenth will seize upon to badly decide a case we have pending on the same issue. How can it possibly be sanely argued that the second set of fingerprints is not as tainted as the first! Is en banc review being requested? Shari Allison, Las Cruces office

Friday, October 28, 2005 8:08:00 AM  

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