U.S. v. Rodgers, No. 10-30254 (9-7-11) (McKeown with Schroeder; dissent by Callahan).

In this automobile search case, a warrantless search was invalid because it was premised simply on probable cause to arrest a passenger or because the passenger could not provide identification. The defendant here was stopped in a high crime area driving a car with a different paint color than was stated on the car's registration. The driver (soon to be defendant) explained he painted the car, but did not yet have the money to change the registration. This was not an offense. His driver's license was in order. His passenger, though, appeared very young -- 11 to 12 -- and not the 19 she said. She also gave a name that resulted in an outstanding warrant. However, there was nothing she said or did that indicated there was contraband in the car, or she was hiding something, or that there was a danger. The police searched anyway, and found drugs and guns. The 9th considered it a close question whether the car could even be stopped for reasonable suspicion, but sidestepped that issue to reverse denial of the suppression motion because there was nothing in the record to support a particularized search of the car for any contraband or evidence related to the reason to arrest the young female passenger. The 9th brushed aside the explanation that if the girl was 19, as she said, of course she would have had identification with her. Dissenting, Callahan argues that it was reasonable to assume that some identification was in the car. The identification could support prosecution for false statement to the officer or obstruction.

Sivak v. Hardison, No. 08-99006 (M. Smith with Kozinski and Thomas).

In this capital habeas arising from a felony-murder conviction of a store clerk, the 9th grants sentencing relief. The petitioner's due process rights were violated when the state used jailhouse informants who lied. One admitted he was a habitual liar on the stand; the other committed perjury as to the benefits he received for testifying. Each informant said that the petitioner was the triggerman and had been involved with the murder (there was a co-defendant). There was overwhelming evidence of the petitioner's involvement at the guilt phase, but the testimony was prejudicial at the sentencing stage. The 9th also held that the claim was not procedurally barred, and that the petitioner had raised the issue.

Congratulations to Bruce Livingston and Colleen Ward of Federal Defender Services of Idaho.