Jensen v. Plilier, No. 04-55840 (3-9-06). Petitioner raises a Crawford issue. A declarant told his attorney that he had helped murder someone. The declarant was released and then subsequently murdered by petitioner. At trial, attorney testified to conversation. Deceased declarant's mother, acting as guardian ad lietum, waived attorney-client privilege. Petitioner argues that the testimony violated his right to confront under Crawford. the 9th finds it doesn't because the statements were not a result of interrogation or questioning, and hence not testimonial. The declarant had declared that he would never testify. Thus, this doesn't reach into Crawford's ambit of state actors or with an expectation of testimony. The 9th also found that even if Roberts applied, the state courts had found this to be reliable.

US v. Gourde, No. 03-30262 (3-9-06)(en banc). This is an important 4th amend. computer search case. The 9th, en banc, considers the probable cause to search a computer for child pornography in the context of an Internet website known as "Lolitagurls.com," that admittedly displayed child pornography. The 9th found probable cause because, essentially, the website had child pornography, evidence was presented on child pornographers, and the defendant here had access and wanted access to those images. The defendant had become a member of this group, and the membership was intentional and ongoing. The defendant could download the images if he wanted. This met the "fair probability" test that there was contraband. Employing the Gates' "totality of circumstances" test -- practicality, common sense, fluid and nontechnical conception of probable cause, and deference to the magistrate -- the search warrant was upheld.

The 9th characterizes defendant's argument against probable cause as transforming the standard to "near certainty." The dissents -- Reinhardt and Kleinfeld -- both see a laxness to 4th amendment analysis in this digital context, and because of the involvement of child pornography. Both of them point out the lack of any evidence that membership meant possession. Kleinfeld is especially acute as to the dangers of "membership" in a website that might be used for research (Loilta). Moreover, both dissents value the privacy of the computer.

Kleinfeld interestingly parades possible horribles of what may lay secretly in a computer (always interesting where examples come from).