Friday, June 16, 2006

US v. Faulkner, No. 05-10405 (6-13-06). Does the 4th amend. apply when someone is trying to enter Paradise? "Paradise" here is the BLM's Paradise Recreational Area. A ranger, in uniform with firearm, and car with lights, stopped motorists entering the area to inform hand out litter bags that informed them that campfires were not allowed, nor was alcohol, and please place litter in bag. The defendantstopped his car, and the ranger noticed a open can of alcohol, which lead to the discovery of a suspended license, and also of drug paraphernalia and marijuana. The driver was cited. He moved to suppress, which was denied. On appeal, the 9th (Tallman) applied Edmond (the DUI roadblock case). The first question was whether a stop occurred, and then whether the stop was for the purpose of general law enforcement or informational. If the former, than it was invalid; if the latter, then was it reasonable. The 9th held that a seizure did occur, but found that the stop was primarily informational. The panel looked at the warnings, the information imparted, the length of time, and so forth. All the factors tilted to informational. The 9th also looked to Lidster, which was the stop for information about a suspect. In a concurrence, Reinhardt agreed with the outcome, but would find that no stop or seizure occurred because of the length of time, circumstances, and ability to turn around.

Ortega-Mendez v. Gonzales, No. 03-74711 (6-15-06). The 9th (Berzon) holds that a battery under Calif. Penal Code 242 is neither categorically a "crime of violence" nor "domestic crime of violence" under 18 USC 16. The conviction for battery occurred in 1998, and the gov't cannot show that it is a crime of violence under a modified approach. The petitioner is therefore eligible for a cancellation of removal.


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