U.S. v. Snellenberger, No. 06-50169 (10-28-08) (en banc). Defendant challenges a prior conviction that renders him a career offender. The prior was a burglary, but the issue was whether it fit under a Taylor analysis (California's burglary statute is overbroad). Here, though, there was a clerk's minute entry that had defendant pleading nolo to count 1, which stated that he entered an inhabited dwelling etc. Defendant argued that the minute entry was barred by Shepard, and was unreliable. "Not so" stated the 9th per curiam, finding Shepard's list of documents to be used in a modified categorical approach to be examples, and not definitive. A minute entry is prepared by a court official, at the time, and was analogized to a court reporter. Moreover, it should be checked by counsel, and is part of the professional responsibility. "We therefore hold that the district courts may rely on minute orders that conform to the essential procedures described above in applying the modified categorical approach."

The per curiam opinion sidesteps whether the conviction was a generic burglary because the state statute failed to have the element of "unprivileged entry." See U.S. v. Navarro-Lopez, 503 F.3d 1063 (9th Cir. 2007) (en banc). The defendant failed to raise the opinion in his opening brief. In a concurrence, Judges Graber, Rymer, Kleinfeld, Hawkins, Gould, and Tallman argue that under these facts, under a plain error analysis, the acts were still a burglary.

Dissenting, M. Smith (joined by Kozinski, Reinhardt, and Thomas) argue that under Navarro-Lopez, the missing of an "unprivileged entry" element removes California burglary from a Taylor generic burglary. The state only requires "entry." Yes, this precludes burglaries from the most populous state from being used to ratchet up crimes, and affects a national approach, but isn't federalism wonderful? The modified approach cannot be used where, as here, the state statute contains no element of the potential risk of harm.

Practice tip: under this per curiam opinion, the issue of Navarro-Lopez's applicability to the California burglary statute is still open.

Case o' The Week: Ninth Uses Federal Statute for Federal Definition - and Government Objects, Estrada-Espinoza

Judge Sidney Thomas (left) authors a characteristically thoughtful opinion in an important en banc decision on the jurisprudential goo of the categorical / modified categorical sentencing analysis: United States v. Estrada-Espinoza v. Mukasey, __ F.3d __, 2008 WL 4615681 (9th Cir. Oct. 20, 2008), decision available here. In Estrada-Espinoza, a unanimous en banc Court holds that four different California statutory rape offenses are not aggravated felonies under 8 USC § 1001(a)(43)(A). This will be a lead decision for immigration practice and for illegal reentry cases. It is also, however, a particularly notable opinion for its approach on how to divine the "generic" federal definition of an offense.

Players: Decision by Judge Sidney R. Thomas – no dissents.

Facts: Estrada-Espinoza, 20 years old, courted Sonia, who was 15 or 16. Id. at *1. With both parents’ blessings, the pair eventually moved-in together. Id. He worked to support the couple and, eventually, the child they raised together. Id.

Three years later, he was convicted of several California statutory rape offenses. Id. The Department of Homeland Services tried to remove him; Estrada-Espinoza lost his challenges before the I.J. and the B.I.A. on the theory that the stat rape convictions were “aggravated felonies” under 8 USC § 1101(a)(43)(A). Id. at *1-*2. A three-judge Ninth panel denied review, and the case went en banc. Id. at *2.

Issue(s): “[W]e consider whether a conviction under any of four California statutory rape provisions – California Penal Code §§ 261.5(c), 286(b)(1), 288a(b)(1), or 289(h) – constitutes the aggravated felony ‘sexual abuse of a minor’ within the meaning of 8 USC § 1101(a)(43).” Id. at *1.

Held: “We conclude that each statute defines conduct that is categorically broader than the generic definition of ‘sexual abuse of a minor’ and grant the petition for review.” Id.

Of Note: While an important result, the Court’s ultimate holding that these California statutes do not meet the generic definition of “sexual abuse of a minor” is really a foregone conclusion, and takes a small corner of the opinion. Id. at *8. The case was really decided earlier in the opinion, with the far more interesting question of how the Court determines the “generic definition” to be used.

Recall that courts using the Taylor categorical approach typically look to federal common law to glean the “generic definition” of an offense. In Estrada-Espinoza, however, Congress “fortunately” defined the term at issue – “sexual abuse of a minor” – in another federal statute. Id. at *2-*3.

There’s nothing remarkable about turning to a federal statute for a definition, right? Right, except the statute used here is 18 USC § 2243 – the federal “sex abuse of a minor” offense. That’s a distinct federal crime; a crime that has nothing to do with the immigration statute at issue here, 8 USC § 1101(a)(43). This is precisely what the government hollered, when the Court adopted the elements of the § 2243 as the “generic” definition of “sexual abuse of a minor.” Id. at *5. As the government correctly observed, Section 1101(a)(43) turns to federal statutes for some definitions, and doesn’t for others (like "sex abuse of a minor"). Because “sex abuse of a minor” isn’t defined by cross-reference to another statute in § 1101(a)(43), the government claimed, the Court couldn’t troll the federal code fishing for a statutory definition of the “generic” crime. Id. at *6.

Au contraire, explains Judge Thomas – and hence the new rule. Section 1101(a)(43) has two categories of agg felony crimes. Id. The first category of agg felonies refer to a broad range of offenses. This category of agg felonies refers to other federal statutes for clarification.

The second category refers to specific crimes, already defined in criminal law. These have no need for enumerated cross-references. Id. Because “statutory rape” is in the second, “specific crime” category of aggravated felonies, there’s no bar to using other federal statutes for a definition. Id.

How to Use: This new approach bears some thought. Here, the “two category” approach to § 1101(a)(43) was critical, because the fed’s statutory definition of “sexual abuse of a minor” is narrower than the Cal Penal Code provisions. Does this approach impact other crimes labeled as agg felonies? How about “lewd and lascivious” offenses? See Cal. Penal Code § 288(a).

In United States v. Baron-Medina, 187 F.3d 1144, 1145 (9th Cir. 1999), the Ninth held that § 288(a) is an aggravated felony. In Baron-Medina, however, the three-judge panel expressly rejected Chapter 109A (18 U.S.C. §§ 2241-2248) of the federal code as a definition limiting the term, “sexual abuse of a minor.” Id. at 1146. Now, an en banc Ninth Circuit Court has expressly adopted the definition from within Chapter 109A as a generic definition that limits the term, “sex abuse of a minor.” Doesn’t the en banc Estrada-Espinoza opinion overrule the three-judge Baron-Medina decision?

For Further Reading: For a collection of our blogs on the Ninth’s “categorical” law, click on or copy and paste this into your browser:

http://circuit9.blogspot.com/search/label/Categorical%20analysis


Picture of Judge Sidney R. Thomas from http://www.ca9.uscourts.gov/ca9/Documents.nsf/judgewallace?OpenPage

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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U.S. v. Seljan, No. 05-50236 (10-23-08) (en banc). The short holding: letters can be read at POEs. This case involved border agents at an airport checking a FedEx package for currency. Letters were opened, some with small currency, and a few lines of the letter were scanned that indicated an interest in little girls. This lead to further investigation, and an eventual prosecution and conviction. The 9th (Clifton) allows such searches, and finds them reasonable given the currency requirements, and the so-called reasonableness of the plain view doctrine. A concurrence by Callahan would abandon any test for reasonableness, and allow everything to be read at the border. Kozinski dissents, arguing that the Founders valued thought and this permitting of perusal violates the spirit and form of the 4th amendment.

U.S. v. Flander, No. 07-30251 (10-23-08). This is an appeal from a dismissal of a conspiracy count to violate RICO for trafficking in contraband cigarettes on the Yakima Reservation. The 9th in U.S. v. Smiskin, 487 F.3d 1260 (9th Cir. 2007) held that the contraband cigarette trafficking act violated the Yakima Treaty of 1855 regarding trade. The defendant here, who had plead, moved to withdraw and the court granted it and dismissed the charge. The 9th (Tashima joined by Reinhardt and McKeown) reversed, because RICO is general jurisdiction, and trumps the treaty given that acts occurred outside the Reservation and amongst non-Indians.

Styers v. Schriro, No. 07-99003 (10-23-08). The 9th (per curiam) vacates and remands for constitutional error in that the state supreme court (Arizona) erred in conducting its proportionality review because it did not consider all mitigating evidence.

U.S. v. McTiernan, No. 07-50430 (10-21-08). What is a "fair and just" reason for withdrawing from a plea? Here, it is because the defendant alleges that he was not adequately advised that a key piece of evidence -- a recording -- might be suppressible for violating the wiretap statute. The defendant had plead to a false statement. This case arises from the prosecution of Anthony Pellicano (this was a high profile investigation of Hollywood surreptitious phone recordings). This key evidence was a phone recording made by Pellicano of another's conversation "for a criminal purpose." The defendant, who had accepted a deal, but because of, well, some alleged misstatements, was facing a government recommendation of incarceration, changed counsel before sentencing. The new lawyer moved to have the plea withdrawn because the defendant was not explicitly told about the wiretap statute and the odds of suppresion. The district court denied the motion. The 9th (Miner joined by Reinhardt and Berzon) vacated and remanded for a full evidentiary hearing. The standard to withdraw from a guilty plea is a "fair and just" reason. It is to be liberally construed. The purported reason here, odds of success of suppression, might be such a reason if the defendant was not informed. Previous counsel stated that he told the defendant about the wiretap statute, in general, but the 9th stated that because the declaration had no clarity or precision as to the specific statute or advice, there was a question of adequate informed consent. This is a case that emphasizes the liberality of "fair and just" and requires counsel to fully discuss, and adequately document, his or her discussions as to the plea, and chances of suppression. The fact that the defendant might be guilty, but seeking suppression, is not a bar and should not be considered.

U.S. v. Schales, No. 07-10288 (4-15-08). This was an appeal from several child porn convictions. The 9th rejects broad constitutional and evidentiary challenges, but remands to vacate one of the convictions because of double jeopardy. The defendant was convicted of receiving sexual exploitation of minors under 18 U.S.C. 2252(a)(2) and possessing material involving sexual exploitation of minors under 18 U.S.C. 2252(a)(4)(B). Possession is a lesser included offense of receipt. The court rejected the government's position that downloading and printing the material transformed it and made it a different offense.

Case o' The Week: Good Dictum on Victims, Armstead and 2B1.1 Victim Enhancements

Judge Tashima writes for a very good panel, and gives us welcome new rules on identifying "victims" for fraud and theft cases under USSG § 2B1.1. United States v. Armstead, __ F.3d __, 2008 WL 4570608 (9th Cir. Oct. 15, 2008), decision available here.

Players: Decision by Judge Tashima (left), joined by Judges Reinhardt and McKeown

Facts: Armstead lead a bank fraud conspiracy, doling out “packets” of stolen identity information to co-conspirators. Id. at *1. Using these packets, the crew would cash stolen checks, create credit accounts, and buy merchandise. Id. Armstead got 50% of the take, with the loss amount topping $400,000. Id. at *2.

After losing at trial, Armstead received a guideline sentence of 210 months. Id. That sentence included a four-level bump for over fifty victims. Id. at *6; see also USSG § 2B1.1(b)(2). Those victims included sixteen banks and victims of retail fraud, together with an unstated number of individuals and companies whose personal information was stolen by the conspirators. Id.

Issue(s): “Armstead contends that the district court erred by counting as victims those individuals and companies whose losses were not included in the loss calculation.” Id.

Held: “We agree.” Id. “While other persons conceivably may have sustained pecuniary harm in the form of time and money spent procuring new identification and credit cards, opening new bank accounts, and mending their credit, those losses were not included in the calculated loss amount. Therefore, the district court erred by including those individuals in the number-of-victim calculations.” Id.

Of Note: As Arizona Defender Jon Sands noted in his blog post this week, in Armstead the Ninth joins the Second and Tenth Circuits with a rule on “victims” for guideline sentencing: a “victim” for Guideline § 2B1.1(b)(1) is a person or business that suffered pecuniary harm that is included in the actual loss calculations. Id. at *7.

What about individual victims who are immediately reimbursed for their losses by their banks? With another good rule, the Ninth joins the Fifth and Sixth Circuits: “A loss that is reimbursed immediately does not amount to a pecuniary harm because the ultimate loss cannot be measured in monetary terms. If, however, the reimbursement takes a longer period of time and requires a great deal of effort on the part of the individual, it is conceivable that the individual may suffer additional pecuniary harm that is not fully reimbursed. If that loss amount is included in the loss calculation, the victim associated with the loss should be included in the victim calculation.” Id. at *8.

How to Use: The “number of victims” bump is a big one: in this case, it added four offense levels. What’s the key to counting “victims” for this dangerous enhancement? Start with the loss calculation, explains the Court. Id. at *9. Judge Tashima goes to considerable lengths to distinguish an Eleventh Circuit case (Lee) and to emphasize that identifying victims begins with calculating loss. Id.

A court should analyze and quantify pecuniary harm when making the loss calculation, not when determining the number of victims. If a person suffered pecuniary harm beyond the amount by which the person was reimbursed, then that amount should be included in the loss calculation. Once a loss amount is included in the loss calculation, then the person associated with that loss should also be included in the victim calculation. If the temporary loss results in no additional pecuniary harm, then there is nothing to include in the loss calculation and thus no additional victim in the victim calculation.

Id. at *9.

For Further Reading: For the Party Line on calculating loss, the Sentencing Commission has a training manual available here. For a discussion on the developing circuit split on the meaning of “victim,” visit a Sentencing Law and Policy guest post here

For some of the – unfortunate – facts of the Armstead case itself, visit a newspaper article here.



Picture of the Honorable A. Wallace Tashima from http://www.downtown-los-angeles-jacl.org/us-supreme-court.html

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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U.S. v. Armstead, No. 06-30550 (10-15-08). What about a new TV series called "Loss," where a group of defendants, marooned in federal court, have to confront mysterious numbers of victims as they await sentencing and try to gather restitution? Oh wait, the 9th has already come up with that idea in a series of cases, this being the latest. Defendant was convicted on numerous counts of bank fraud involving a scheme of false identifications and bogus accounts. The court even sent in a special verdict as to whether he was a "leader or organizer." He was. At sentencing, the court found witnesses credible as to loss. However, when it came to a number of victims, the court shrugged and said that there were a lot (more than fifty). Not good enough, held the 9th (Tashima joined by Reinhardt and McKeown). The victims who suffered loss, as in contributing to the calculations, included 13 banks and 9 named individuals. True there were others, and they suffered time loss by having to get new identifications (driver's licenses) and checking accounts, but there was no pecuniary loss. That is what drives the guidelines' calculations and adjustments. Here the adjustment was too high. So, the 9th followed its recent decision in Pham, 2008 WL 4307567 (9th Cir. Sept. 23, 2008), as well as the 2nd and 10th, and the 8th (sort of). As for reimbursement, short-lived loses do not seem to count (Pham as well as Yagar in the 6th Cir. and Connor in the 5th Cir.). Reimbursement is not a bar to "victim-hood" but it depends on the amount of time, and whether additional losses occurred. The 9th parted company with the 11th Cir. in Lee, which would count as victims those who were fully reimbursed, but whose losses were neither short-lived nor immediately covered without regard to whether the losses were included in the calculations for loss. In this case, the +4 adjustment was in error, and a resentencing was in order. The 9th also held that the sentence had to be adjusted for the state sentence on the same conduct, especially since the state conduct was counted in the loss calculation under 5G1.3(b)(1).

Case o' The Week: Right on Cue, Bybee Gets Confrontational

In a very good decision, Judge Bybee explains the application of the Confrontation Clause -- and mulls over the differences between cue balls and pool balls along the way. Slovik v. Yates, __ F.3d __, 2008 WL 4459083 (9th Cir. Oct. 6, 2008), decision available here.

Players: Decision by Judge Bybee, joined by Judges Canby and Kleinfeld.

Facts: Slovik, drunk, got into a bar brawl. Id. at *1. He tussled with the bartender, did backflips through the bar (?!?) and – most importantly – threw cue balls (or maybe pool balls) – at witness Featherstone (or maybe not). Id. & n.2. Whatever type of balls were thrown, no one was hit by them. Id.

Slovik went to trial at got 40 to life. Id. at *2. (Three Strikes in action). Id. Appeals and state and federal habeas petitions went nowhere: the habeas ultimately came to the Ninth. Id. at *3.

At trial, Slovik’s attorney asked the State’s central witness, Featherstone, whether he was currently on probation. Id. at *2. “No,” answered Featherstone. Id. Slovik’s attorney had a form that showed Featherstone was actually on five years of probation at the time for a DUI. The trial judge, however, shut down the cross because it would “be too time consuming.” Id.

Issue(s): Slovik contends “that his confrontation clause rights under the Sixth and Fourteenth Amendments to the United States Constitution were violated when a California trial court prevented him from asking questions on cross-examination that would establish that one of the prosecution’s key witnesses had likely lied under oath.” Id. at *1.

Held: “For the reasons explained below, we agree that Slovik was denied his confrontation rights and that the right was clearly established; accordingly, we reverse.” Id.

Of Note: One unintended consequence of Three Strikes laws is that suspects facing their third strike are more likely to react violently when approached by police officers. See Carlisle Moody, Thomas Marvell, Robert Kaminski, Unintended Consequences: Three Strikes Laws and the Murders of Police Officers, Nat’l Institute of Justice, 2002, available here.

Is another unintended consequence more-vigorous federal habeas review of Three Strike convictions that carry these draconian sentences? Of course, it goes without saying that the Slovik panel undoubtably viewed this case from a purely legal perspective, and surely would have reached the same result if Slovik had received an eighteen month sentence for a simple assault conviction. Still . . . there’s much talk in this opinion of Slovik’s “40 years to life” sentence – a fact that (technically) isn’t relevant to the confrontation clause analysis.

Equity still speaks, albeit quietly.

How to Use: There’s much to like in Slovik, and many useful quotes for cross-examination battles. One helpful reminder is that the confrontation clause analysis focuses on the one witness at issue, not the gestalt of the whole trial. Id. at *5. Here, the State complained that none of its witnesses were “picked from a Sunday school choir,” so any limitations on the Featherstone impeachment didn’t significantly alter the jury’s view of his credibility. Id.

Not so, countered the Ninth, because problems with other witnesses “bears no relevance in the confrontation clause analysis, which asks whether impeaching Featherstone would have produced a significantly different impression of Featherstone’s credibility.” Id. As the Court emphasized (quoting the Supremes in Van Arsdall), “the focus of the Confrontation Clause is on individual witnesses and thus the focus of the prejudice inquiry in determining whether the confrontation right has been violated must be on the particular witness, not the outcome of the entire trial.” Id.

Harmless error remains a hurdle on appeal, but for the trial court, Slovik’s emphasis on confronting the individual witness is a handy quote to have on hand when a judge tries to shut down defense cross-examination.

For Further Reading: One of the Ninth’s Big Issues of late has been the Confrontation Clause. For a blog on the lead case on this critical subject, visit our blog here (discussing en banc Larson decision).

Steven Kalar, Senior Litigator N.D. Cal. F.P.D. Website at www.ndcalfpd.org

U.S. v. Maes, No. 07-10495 (10-10-08). It is not good to drive the wrong way on a one-way street, on VA property, especially when an officer can observe you. The stop lead to a citing, and a sighting of drug paraphernalia on the dash, and then a search that found drugs. Defendant was charged with drug possession under 21 U.S.C. 844. She argued that she should have been charged under the more specific regulation that refers to drug possession on VA property, 28 CFR 1.218(a)(7). The 9th (Clifton joined by Bea and Sedwick) held that a prosecutor has many quivers in her bow, and she can select the appropriate one. This is a prosecutorial function. Defendant failed to show that the regulations meant to supersede the general statute.

U.S. v. Lemoine, No. 06-50663 (10-9-08). A defendant pays his debt to society through incarceration and his debt to the victim through the MVRA and the Inmate Financial Responsibility Program. The court set certain restitution minimums ($25/quarter under the IFRP and $500 under SR). Oh yes, the total restitution was $2,835,126.88. The BOP decided that he could pay more ($132/month), and would receive certain incentives (i.e. UNICOR, etc.) if he did so. Defendant argued that this was a modification of the restitution order, and was not permissible because the court set the amount, and that it be under the IFRP. The 9th (Clifton joined by Tallman and Carroll) held that BOP could "voluntarily" encourage higher payments with incentives under the IFRP, and that it was mandated. Defendant was not in a protected class nor does the agency decision require strict scrutiny review; BOP's actions were rational in encouraging rehabilitation, and training and meeting the goals of restitution. BOP could play the voluntary IFRP tune, and the defendant would have to pay the piper.

U.S. v. Delgado, No. 07-50238 (10-7-08). "Sometimes the lights all shinin' on me / Other times I can barely see / lately it occurs to me what a long strange trip its been." The Grateful Dead might not have been surprised to discover that Truckin' was commercial, and that commercial trucking is a pervasively regulated industry that supports warrantless searches. The defendant with a codefendant were stopped in a commercial truck in Missouri by a commercial vehicle officer to check out their logs and rig. The log had some discrepancies, and there were some issues with the truck itself, and so an officer, with arresting authority, was called over. A consensual search of the truck followed, where drugs were found inside duffle bags. The 9th (Rawlison joined by Silverman and M. Smith) joined the other circuits in finding that commercial trucking was heavily regulated, and so, under New York v. Burger, 482 U.S. 691 (1987), permitted warrantless administrative searches given the myriad of statutory regulations involved, and the nature of the industry. The searches must advance the statutory scheme, necessary for regulation, and substitute for a warrant (i.e. purpose). This test was met here. As such, the "strange trip," with "lights flashing on me" will go for 46 months. The 9th also upheld venue as having been corroborated.

Slovik v. Yates, No. 06-55867 (10-6-08). This was a bar fight. Petitioner was asked to leave after one too many drinks, words were exchanged, and a fight ensued, ending with pool balls being thrown at the waitress and a bar patron. Another witness said that another bar patron had jumped on the petitioner that started the scuffle. Police ended up coming and petitioner was charged and convicted. A misdemeanor? Maybe a felony? Well, under the state's three-strikes provision, the petitioner got 35 to life (dangerous weapon, agg assault). At trial, petitioner asked the purported bar "victim" if he was on probation. He said "no." That was a lie. He was on 5-years probation for a DUI. When counsel attempted to confront him with the conviction, the court barred the questioning as collateral. The state courts found harmless error in the denial of the right to confrontation. The 9th (Bybee joined by Canby and Kleinfeld) granted the petition. The petitioner was confronting the witness, and exposing him as a liar. Given the conflicting evidence, and the issue of credibility, the error could not be harmless. Raise a glass to the Sixth Amendment.

Case o' The Week: Ninth Listens to Doubting Thomas, Comprehensive Drug Testing Goes En Banc

Too infrequently can we post good news in this blog. Today we do: Justice Thomas's dissent must have caught someone's eye, because United States v. Comprehensive Drug Testing went en banc on Friday the 30th. See order here.

Players: Judge Sidney Thomas, with a dissent that sparked an en banc call.

Facts: As part of the ND Cal USAO’s office on-going fascination with steroids in baseball, way back in 2002 the feds started issuing subpoenas for various records. United States v. Comprehensive Drug Testing, 513 F.3d 1085, 1089 (9th Cir. 2008) (decision now en banc). One of these subpoenas was to drug testing companies for test results for all Major League Baseball players. Id. at 1090. The feds also obtain warrants for search of computer equipment. Id. at 1092. The fifth search warrant was for seizure of all electronic data regarding drug testing, specimens, athlete identification numbers, and drug test results. Id. at 1093 & n.20. Subpoenas and warrants were quashed in three jurisdictions: the government took a consolidated appeal.

Issue(s): (Among dozens in this 60+ page Judge O’Scannlain opinion)” “We must decide whether the United States may retain evidence it seized from Major League Baseball’s drug testing administrator, and enforce an additional subpoena, as part of an ongoing grand jury investigation into illegal steroid use by professional athletes.” Id. at 1090.

Held: “The record, illuminated by caselaw, illustrates that the subpoenas to CDT and Quest, which covered the same evidence as the contemporaneous search warrants, were not unreasonable and did not constitute harassment. The order of the Northern District of California quashing the May 6 supboenas is reversed.” Id. at 1116. (But, opinion thankfully went en banc on September 30, 2008!)

Of Note: Judge Thomas begins his remarkable dissent to the panel's decision by quoting “one of the three extremely able district court judges who rejected the government’s argument . . . ‘What happened to the Fourth Amendment? Was it repealed somehow?” Id. at 1116-17 (Thomas, J., dissenting).

As Judge Thomas correctly explains, “the majority invents a new justification for approving the seizures. It holds that the boilerplate terms of a computer search warrant justify both the seizure of massive amounts of confidential medication information about persons not suspected of any criminal activity and the subsequent warrantless search of the information.” Id. at 1117. The dissent warns that the “consequences of this decision are profound,” fearing the “unprecedented easy access” of the government to “confidential medical and other private information about citizens who are under no suspicion of having been involved in criminal activity.” Id. at 1117.

Maybe not surprisingly, we find Judge Thomas’s reasoning persuasive – and thankfully, so do enough Ninth Circuit judges to trigger an en banc call. As we’ve noted before, Judge Thomas is one of the most savvy jurors in the Ninth – maybe in the country – on the interplay between the Fourth Amendment and technology. His dissent in Kelly identified exactly the dangers of using old Fourth Amendment analogies when addressing searches of modern technologies (and he worked in a Monty Python plug in while he was at it). See blog on United States v. Kelley, March 1, 2007, at http://circuit9.blogspot.com/2007_03_01_archive.html

How to Use: Who knows? Cross your fingers for a hard-fought en banc battle, and anticipate much amicus interest (Electronic Frontier Foundation?)

For Further Reading: Comprehensive Drug Testing is one of the handful of lead cases on the evolving (or devolving) intersection of technology and the Fourth Amendment. For a very thoughtful article on the decision that will hopefully soon be reversed, see Aaron Seiji Lowenstein, Search and Seizure on Steroids: United States v. Comprehensive Drug Testing and Its Consequences for Private Information Stored on Commercial Electronic Databases, http://works.bepress.com/cgi/viewcontent.cgi?article=1000&context=aaron_lowenstein


Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org


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