Monday, October 30, 2006

US v. Mendez, No. 05-10205 (10-30-06). The 9th suppresses a gun found in a traffic Terry stop. The police stopped the car, had the defendant get out, and while running his out of state driver's license, engaged him in discussion about other activity: his gang membership (evidenced by a tattoo) and his prior record. The questions lead to asking the defendant whether he had a gun, to which he basically said "yes." On appeal, the gov't argued that the two factors of gang membership and prior record was sufficient particularized suspicion to ask about other criminal activity. The gov't didn't argue officer safety. The 9th (Reinhardt writing, joined by Paez), reasoned that gang membership and a prior record are not sufficient for allow further questions about activity outside thes cope of the traffic stop (expired temporary registration). The opinion takes each basis, discusses at length in Reinhardtian fashion, and reasons that the officers need more. Tallman, dissenting, clashes with the majority, accuses them of "pigeon-holing" the reasons, and not taking the "totality of circumstances." Tallman argues for the gov't (don't you like it when the court does that) that officer safety is at issue (although never raised), and this point, combined with the others, creates sufficient particularized suspicion. Can Tallman take this argument to the en banc? It is an interesting debate in approaches.


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