Friday, February 23, 2007

US v. Mendez, 05-10205 (2-23-07). [Ed. note -- this is not an objective is our case] The 9th withdraws an opinion reversing a stop because an inference of a gang tattoo lead to a seizure and substitutes this affirmance. The new opinion is all the more dispiriting because it was written by Reinhardt (joined by Paez and Tallman). The defendant was pulled over. The cops then went beyond the traffic stop and began questioning defendant about gang affiliations, and his past life, based on a tattoo that an officer thought was gang related. The questioning eventually lead to a search of the car, where a weapon was found. On appeal, defendant's main argument was that the questioning went beyond the traffic stop. Murillo, 255 F.3d 1169 recognizes that questions may only be asked that are reasonably related in scope and justification for the initiation of contact. The Supremes in Muehler, 544 US at 101, state that mere questioning does not constitute a seizure unless it prolongs the stop. Muehler involved questioning during a building search, and this involved a traffic stop, on a road, in the night, with traffic whizzing past. The 9th finds no distinction. The 9th sidesteps (or steps over) the constitutional issue of questioning based tattoos and ethnicity (i.e. The Latin Kings) because the stop itself (8 minutes) was not prolonged. The 8 minute stop turned into a 57 month sentence. The 9th upheld the district court's findings of the time, and the fact that the police were not in fact dillydallying, or lying, as not clearly erroneous.

US v. Cruz-Escoto, No. 05-50892 (2-23-07). The 9th (Siler joined by Bea) affirms a 1326 conviction against challenges for insufficiency, instructions, jury selection, Batson, and exclusion of witnesses. The defense was of "official restraint" and the argument was that the geography of the land, with a channel leading past the Border Patrol, rendered the defendant always under the watchful eyes of the government. He asked for such an instruction, and the court denied. The 9th found that it was proper, but Tashima, dissenting, argues strongly that there was sufficient evidence to trigger such an instruction and it should have been given.


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