U.S. v. Garcia-Villalba, No. 05-30506 (11-2-09). The 9th affirms the denial of suppression of evidence gathered by a wiretap. The DEA undertook an investigation of a drug conspiracy operation in Washington state. A wiretap was sought when, according to the affidavit, other means of investigation, such as surveillence, trash, and undercover operatives, hit a dead end. Lengthy affidavits were provided. The magistrate approved the affidavit for a fourth cellphone that hit the jackpot of evidence. That is being challenged here. The district court had found no probable cause, but held that there was a good faith reliance on the warrant. The panel (O'Scannlain joined by Kleinfeld and Berzon) determined there was sufficient probable cause in the details of the investigation, the particular locations, and the house. The 9th also determined that a wiretap was necessary, and that there was not a "cascading effect" by reliance on previous wiretaps applications for the one in question.

U.S. v. Liera, No. 07-50546 (11-4-09). In an appeal from alien smuggling, the 9th (Pregerson joined by Nelson and Thompson) hold that defendant's statements should be suppressed because of the delay in getting him before a magistrate. The 9th also holds a statement made by the mother of one of the smugglees as to the cost of smuggling was not a co-conspirator statement and should be precluded. The errors were not harmless. The defendant was stopped at the Calexico point of entry at 4:15 A.M. Two aliens were found in his truck, under the hood, in hidden compartments. The defendant, in his first interview, five hours after the arrest, said that he did not know of the aliens because he had borrowed the truck because his truck had flat tires. The recording devices for the interview, and for the interviews of the material witnesses, failed to work. Ten hours after the arrest, a go-ahead was given for a second interview. During the second interview, the defendant made statements about his cellphone's numbers. One entry was for "pollos" which he acknowledged was slang for "smuggled aliens." He said though that this refered to a neighbor of his who sold chickens. This second interview happened close to 3:00 P.M., the same time that the magistrate's court in El Centro, 15 miles away, was beginning. As a result, the defendant was not arraigned until 30 hours later. The 9th found the delay was a violation of McNabb-Mallory and 3501(c). This statute provides a 6-hour safe harbor for appearances, and allows for later appearances if the delay is reasonable. The Supremes reaffirmed the reasonableness test recently in Corley v. U.S., 129 S.Ct at 1563. The delay here was unreasonable because it was not a result of a shortage of personnel, or other exigency, but a result of a conscious decision to continue an interrogation. This was not harmless given the focus of the government on these second statements and the fact that the other evidence was not overwhelming. The 9th also held that the statement by a material witness about what his mother said was the rate for being smuggled was hearsay because the mother was not a co-conspirator.

Congratulations to Steve Hubacheck of the Federal Defenders of San Diego.