U.S. v. McCarty, No. 09-10504 (8-3-11) (Hawkins with McKeown and Rawlinson). The TSA is charged with searching for explosives or security threats. Dense materials, including stacks of photographs, pose an alert. Explosive sheets can be hidden amidst photographs. So, when a TSA officer starts rifling through photographs, and the photographs are of minor children, nude, when does the search for weapons end and an investigation into a crime begin? The district court in Hawaii concluded that the officer went beyond an administrative search when she was looking through the photographs, and then started reading newspaper clippings and ads. Moreover, the district court found her not credible as to her state of mind. The 9th does not see it quite that way. It reversed the suppression and remanded. The search was undertaken pursuant to a legitimate administrative scheme; the search was properly cabined; and there was no programmatic secondary motive (a secondary subjective motive is not relevant for Fourth Amendment analysis). Here, she was looking through the photographs to ensure that there were no sheet explosives hidden; her subjective intention -- that she wanted to know what the nude photos were about -- did not matter because she was following administrative orders. Still, some of the stuff viewed was beyond the scope. On remand, looking at the probable cause that existed at the time, in the mind of the officer, the court must consider all the photos lawfully viewed as part of the proper administrative search. The court must determine what materials if any were not properly viewed or read, and cannot consider them if they are fruit of the poisonous tree. The court must also consider whether suppression is appropriate.

U.S. v. Houston, No. 07-50478 (8-3-11) (Rymer with Callahan and Ikuta). In a RICO appeal from an Aryan Brotherhood "war" against another prison gang, the 9th looked at whether a Brady violation occurred because of late disclosure. The disclosure was written notes by the AUSA which did not contain mention of a defendant's involvement by a witness was deemed not material. The defense could cross examine on it, and did, and had other ammunition, too. Likewise, the 9th found no perjury by the witness. There may have been an inference of falsity, but not certainty. The 9th also held that there was no evidentiary basis to require a duress instruction. The defendants had time to alert others, or to seek help, and the planning went on for an extended period.

Close, et al. v. Thomas, No. 10-35850 (8-3-11) (Paez with Fisher and Gould). The 9th held that BOP acted within its agency discretion in setting forth the priorities for an inmate's eligibility for the Residential Drug Abuse Treatment Program. The BOP looks to how close the inmate is to release as one factor in eligibility. The BOP does not have to count the year off the inmate would receive in placing him on the eligibility. The 9th does stress the enormous demand for the program, and the need for BOP to try to meet the demand.