Monday, June 25, 2007

US v. Garner, No. 06-10417 (6-18-07). Do despicable acts, committed 35 years before the present offense, still constitute a pattern? Yes, at least when it comes to sex. Defendant was sentenced to 262 months on child pornography charges. The court gave a 5-level enhancement for engaging "in a pattern of activity involving the sexual abuse or exploitation of a minor." The pattern was sexual abuse of two of his own or step-children. Despite being three and a half decades old, the 9th (Hawkins joined by B. Fletcher and Siler) finds no due process problem. The 9th comments that the guidelines do not have a temporal limitation, but is purposely broad. The argument that it is a due process violation fails, according to the 9th, because this use of prior patterned conduct is not an arbitrary distinction. The Commission, reasons the 9th, could decide to punish more severely those have previously engaged in sexual exploitation of children. The 9th also comments that recidivism is high among sex offenders. As for the second argument about reasonableness, the 9th finds that on these facts, the decision is not unreasonable given the expressed needs to protect the community and children.

US v. Washington, No. 06-30386 (6-19-07). The 9th suppresses evidence because a voluntary consent of search of person turned involuntary, and became a seizure which lead to an unconsensual search of a car. The 9th (Gould joined by Paez and Rawlison) focused on the fact that defendant did what he was told in his initial encounter with the police. The defendant was in a car, and the police came up and wanted to ask him questions. He said "sure," and then consented to a search of himself. The police at this time did a thorough search, and position themselves in a way that he was blocked from his car. The 9th also looked at the circumstances of race relations in Portland, where there had been racial tensions between the police and the African American community, and pamphlets had been distributed on how to act without risking being shot (the defendant was aware of the pamphlets and acted accordingly). The circumstances were such that the 9th concluded that the defendant did not feel free to leave after the consensual search and therefore the consent to search the car was not consensual. This opinion does a nice job of applying the five factors for consent set out in Soriano, No. 361 F.3d 494 (9th Cir. 2004).

Congratulations to AFPD Lisa Hay of D.Oregon for the nice win.

US v. Ankeny, Sr., No. 05-30457 (6-19-07). The 9th affirms suppression of evidence but remands for resentencing because the convictions were multiplicitous and material errors occurred. In this case, Portland police invaded defendant's home, firing in flash-bang devices that gave defendant second and third degree burns, shooting out ten windows with rubber bullets, and lighting a mattress on fire, breaking doors, and causing $14,000 of damage. Defendant argued that the search was unreasonable. The majority (Graber and Tashima) said "so what," because there was no Fourth Amendment violation because the police had a valid warrant, and suppression had to be tied to the Fourth Amendment. There was a nexus between the warrant and the evidence, and the search (guns in chairs etc). Any remedy for unreasonableness could be sought through 1983 and a Bivens action. Reinhardt dissented on this point, vigorously arguing that the police action was so over-the-top and excessive that it was unreasonable and that suppression was called for. His concern was that a warrant would excuse any search. The majority responds that this interpretation is too strident, and that the warrant had a strong nexus to the contraband. The 9th all found that Hudson, the recent Supremes case on knock-and-announce, foreclosed finding suppression as a remedy. The 9th held that the gun counts were multiplicitous because the indictment did not allege that the weapons were alleged to have been purchased or possessed separately or at different times. The 9th also found that the priors all qualified. The court erred in applying the career offender to all counts and should have only been applied to the unregistered shotgun.


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