Ninth Circuit Blog: Good Citations No. 1

I am trying out a new feature for the Ninth Circuit Blog: short blurbs on case excerpts that may or should become part of our litigation vocabulary. Just some passing thoughts on selections from the massive volume of cases churning through the courts. Not a lot of detail but maybe worth a citation in a pending brief or a note for future reference. If you spot a worthy case, please email it my way.

The Supreme Court’s Randolf decision (linked here) provides a trove of material for briefs on consent searches. Justice Souter writes for a 5 to 3 majority, holding that a defendant’s refusal to consent to a search overrides a third party’s consent. But the starting point of the analysis is likely to help in almost all consent cases by pointing to the seriousness and narrowness of the exception to the warrant requirement: "To the Fourth Amendment rule ordinarily prohibiting the warrantless entry of a person’s house as unreasonable per se, one ‘jealously and carefully drawn’ exception recognizes the validity of searches with the voluntary consent of an individual possessing authority" (citations omitted).
In the midst of a long and complicated opinion on jurisdiction under the Maritime Drug Law Enforcement Act, Judge Pregerson writes for the Ninth Circuit in Perlaza on the Fifth and Sixth Amendments. The court holds that the jurisdictional predicates of the MDLEA must be submitted to the jury and proved beyond a reasonable doubt. At pages 2591-92, the court notes that, in "limited circumstances," "facts not formally identified as elements of the offense charges" are subject to constitutional trial rights. The court goes on to provide language helpful to our reasonable-doubt-at-sentencing arguments: based on Winship, "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged," followed by the common law formulation of elements as "facts legally essential to the punishment to be inflicted."
In a case upholding as reasonable a 77-month sentence for being present in the United States after deportation, there is some solace in the methodology. In Rodriguez-Rodriguez, the Ninth Circuit does three things worthy of notice: 1) contrary to the trend criticized here, no use or mention is made of any presumption that a guideline sentence is reasonable; 2) the totality of the § 3553(a) factors are evaluated as indicated in Cantrell; and 3) the rule of parsimony – requiring the court to impose a sentence sufficient but not greater than necessary – is expressly part of the reasonableness review.
And if the government is arguing against appellate jurisdiction to review within guidelines sentences, the First Circuit en banc in Jimenez-Beltre found the government's position to be "hopeless" in light of language in Booker making clear that reasonableness review is available regardless of whether the sentence is within or outside the Guidelines range;
In a district court decision litigated by AFPD Lisa Hay, Judge King granted a motion to suppress statements and evidence in United States v. Spurk, 2005 WL 3478195 (D.Or. Dec. 20, 2005). The confrontation of the defendant in a front yard constituted custody, requiring suppression of the fruits of interrogation conducted without Miranda warnings, and the contents of a backpack on a nearby bench were not close enough to be searched incident to arrest.