1.    US v. Martinez-Hernandez, No. 16-50423(1-9-19) (Hurwitz w/Rawlinson & Melloy).

This is an appeal from a 1326 conviction.  The issue is whether a prior conviction is an aggravated felony as a “crime of violence.” The 9^th agrees that California Penal Code 211 robbery does not qualify as a COV. However, 211 robbery qualifies as a “generic theft offense” under 8 U.S.C. § 1101(a)(43)(G) and thus is an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii). The 9^th finds the California robbery statute indistinguishable from a Washington State statute that the 9^th addressed in Alvarado-Pineda, 774 US F.3d 1198 (9^th Cir. 2014), and found to be a categorical theft offense.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/01/09/16-50423.pdf

 

2.     US v. Johnson, No. 17-10252 (1-9-19)(Wallace w/Rawlison & Watford; Watford concurs).

In an appeal that raises a slew of 4^th amendment issues, the 9^th affirms convictions and sentences. Under US v. Smith, 389 F.3d 944 (9^th Cir. 2004)(per curiam), the 9^thallows a search incident to arrest before the actual arrest, so long as probable cause exists to make an arrest (even if for a different offense) and arrest follows quickly thereafter.  The 9^th also found that a smell of marijuana, baggies, and the actions of the defendant formed probable cause for an arrest for marijuana transportation. The 9^th allowed the search of the car under the automobile exception.  The subsequent search of the defendant’s home, under a warrant, was valid.

Watford grudgingly concurred.  Smith controls, but Watford would find that it is unsound.  He would adopt a more circumscribed approach, as the 7^th Circuit did. The police can always argue for inevitable discovery for an arrest; but the doctrine should not place the search before the arrest.

Hard fought appeal by Robin Packel and Gabriela Bischof of the FPD Office, Cal N. (San Francisco).

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/01/09/17-10252.pdf