U.S. vs. Struckman, No. 08-30463 (5-4-10) (Berzon joined by Farris and D. Nelson). A neighbor calls about a man jumping a fence and being in a backyard. The police respond, go to the house, and see a man meeting the description: white, black jacket, red backpack. One officer jumped the fence, another smashed the padlock, and the man, complying, says "its my house." Do the police verify? No. They handcuff him, search him, and search the backpack. A weapon and an empty magazine is found. The defendant was a felon in possession. The district court upheld the warrantless search under Terry. After trial, the defendant received a 17-year sentence. The 9th reversed the suppression ruling, suppressed, reversed, and vacated. In a comprehensive opinion, the 9th said that Terry was inapplicable. The backyard was fenced, and next to the house, and so was the curtilage. There was no probable cause for burglary because under the state statute, there was no entry into the house, or burglary tools, or attempt. There might be reasonable suspicion, but probable cause and exigent circumstances are required for a house/curtilage search without a warrant. There was none here for burglary. However, there might be a weak case for probable cause for second-degree trespassing. Even if there was, the government still needed an exigent exception, specifically exigent circumstances (avoiding destruction of evidence, hot pursuit, officer safety, need to prevent escape). None of those existed here. Moreover, the police could have simply asked the defendant his name, and then verified that he indeed lived there. The 9th anticipates the cry about the needs of the police officers, but the 9th stresses that the Fourth Amendment protections are only available if the defendant has standing in a house/curtilage. The defendant had standing here: he was the homeowner standing in the curtilage. The police could have easily determined that he owne the house.

A good opinion and overview of house/curtilage Fourth Amendment warrantless protections.

U.S. vs. Stever, No. 09-30004 (5-4-10) (Berzon with Farris and D. Nelson). This is a paen to repeated discovery requests. Defense counsel wanted evidence that helped the defendant, was Brady, and was part of his defense. What did the defense want? Evidence that Mexican trafficking organizations had recently infiltrated Oregon, and were responsible for the surreptitious planting of 7000+ marijuana plants on defendant's 40 acre tract bordering Forest Service land. It looked pretty bleak for the defendant. He had contact with suspects who fled (leaving behind i.d.), tire tracks that matched his truck, and actions in taking the plot back from a neighbor who had been grazing cattle on it. However, these, and other pieces of circumstantial evidence, could be explained. The suspects had been previously hired to work on a generator; tire tracks matched 50% of the trucks in the area; and there was no direct tie to the defendant. Most important, there was evidence that traffickers were secretly growing marijuana in public and private lands. The defense asked for it, but the government said "no." The court, when asked to compel, said "no," too, and added that the defense could not raise the defense at all. On appeal, the 9th (Berzon writing again...see above) reversed the conviction. The 9th found that the request fell under Brady, and was part of Fed.R.Crim.P. 16, and that the denial of the defense violated due process. The 9th easily found error, and also found prejudice. The evidence was relevant, could be introduced (citing drug experts on traffickers), and was critical. An excellent case, with Crosby, to argue for the right to mount a defense, and to get the relevant evidence from the government.

Congratulations to AFPDs Bryan Lessley and Tonia Moro of FPD Oregon office.