Friday, August 10, 2007

US v. Garcia, No. 05-30596 (8-10-07). I thought it was a mistake when, in the facts, the sentence was put at 1284 mos (170 years or a mere 145 with "good time"). A second reading proved it was correct: there was a lot of meth and a lot of adjustments. The 9th (Fisher) vacated three counts of the conspiracy because the counts alleged meth, but the evidence was only that "drugs" were bought. The 9th (Fisher joined by Kozinski and Tallman) acknowledged that illegal drugs are bad, but when there was also evidence of cocaine, the convictions could not be taken to refer to meth without more. The 9th also went on to stress that the court had discretion in sentencing with the advisory guidelines and should not feel bound by the guidelines.

US v. Aukai, No. 04-10226 (8-10-07). Imagine Tina Tuner singing "What's Love Got to Do With It?" Change "love" to "consent" and you get the gist of this opinion, without the music. Judge Bea, fronting an en banc chorus, writes that once a passenger proceeds into a secured airline terminal area, the constitutionality of the search does not depend on the passenger's consent. Once in, you can be searched. Here, the defendant did not have "ID" when he tried to board a plane. He was sent to a secured area for a secondary search. The magic wand buzzed, and he said that he decided to skip his flight. His flight from the flight was prevented, and a further search revealed a pipe used to smoke meth, and a further search incident to arrest revealed meth itself. The 9th held that administrative searches may not require consent, and the Supremes have so held in regulated fields (gun dealers) so long as the searches are regulated and specific. The 9th reasoned that in this age of terrorism, post 9/11, that it was reasonable to do away with consent once a passenger enters into a secured airline screening area. This is to prevent terrorists from probing detention systems, or planning attacks. The search procedures used by the airline were reasonable, minimally intrusive, and short. Concurring, Graber, joined by Hawkins and Wardlaw, cautione that the analysis is not furthered by references to terrorism and 9/11. The concurrence feels that the opinion may be taken to be limited to this ongoing "war on terror." The analysis, implied by the concurrence, is that the regulations and needs of security allow an administrative search once a passenger decides to pass through the detector or security point. . . . And so the Constitution keeps on turning.


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