Thursday, January 31, 2008

U.S. v. Snipe, No. 06-30215 (1-28-08). Home decorating/entertainment tips for criminal suspects: if the police pop over for a quick visit, it is not necessarily rude to hide the drugs. Here, the police received a call from a man screaming that he needed emergency help, he was hurt, and then the call was disconnected. The police were dispatched to the address of defendant's father. The police got there, noticed the door ajar, knocked, and entered. They noticed "a large amount of drugs" sitting on the table. The police ascertained that no one appeared in need of help, left, and got a warrant based on the drugs visible on the table. The subsequent search yielded drugs and guns. The defendant conditionally plead to being a prohibited possessor because of an obliterated serial number. The 9th (Bybee joined by Thompson and Kelinfeld) up held the search and sentence. The 9th noted that the precedential test for emergency laid out in Cervantes, 219 F.3d 882 (9th Cir. 2000), which has a subjective component (second prong). The Supremes in Brigham City v. Stuart, 126 S. Ct 1943 (2006), established the test being an objectively reasonable basis for an emergency and the scope was reasonable. In light of this, the 9th now adopts "a two-pronged test that asks whether: (1) considering the totality of the circumstances, law enforcement had an objectively reasonable basis for concluding that there was an immediate need to protect others or themselves from serious harm; and (2) the search's scope and manner were reasonable to meet the need." The facts here met this test, given the hysterical call, and the early morning time (5 am). The police received frequent emergency calls on regular lines. When the police arrived, they acted appropriately and the entry and search were reasonable. The police, familiar with the home, noted a strange car outside, and that the door was slightly open. Of course, the two pronged test can be loosely interpreted and applied, and so the police can find reasons to suspect harm and really, who is to say that the search was not reasonable when there is a concern for safety, etc. (there may be guns anywhere, even in sock drawers). It will be interesting, in a pessimistic way, to see how this works out. The 9th also affirmed the sentence as being reasonable.

Hess v. Parole Board, No. 06-35963 (1-29-0). The 9th upheld the Oregon parole statute as to dangerousness against a vagueness challenge. The petitioner had been serving a sentence in Oregon since 1984. When he came up for appeal, a psychioatrist diagnosed him as a pedophile and suffering from a personality disorder (the mental Axis of Evil). His behavior, though, had been fine except he did not go to the "counseling" in prison. The board took the report, and victim testimony, into consideration and denied parole. The courts, and the 9th, found that the statute was not unconstitutionally vague beccause it sets standards for parole consideration, including review of a psychological report, and the determination was for the safety of the community.


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