Tuesday, July 01, 2008

U.S. v. Davis, No. 07-30219 (6-30-08). The 9th (N. Smith joined by Tallman and Clifton) address curtilage in a remote rural homestead in Oregon growing marijuana. Applying the Supremes test (been there, "Dunn" that) for curtilage, the 9th holds that the facts that lead to probable cause (smell of green growing marijuana, humid air coming from a remote pipe, unprotected space), all weighed against the observations made by law enforcement being in the curtilage. The 9th also held that a relative who happened on the scene, and admitted that he "knew everything" was properly subjected to a Terry stop, although a tin of hashish oil was suppressed.

Note: Growing marijuana has certainly gone upscale. The homestead was 40 acres; had a workshop, with a freezer, refrigerator-freezer, shower, bathroom, barbecue pit outside, and a walk-in 700 bottle wine cellar.

U.S. v. Mayer, No. 07-30274 (6-30-08). The 9th, with the same line-up as above (N. Smith joined by Tallman and Clifton), hold that Oregon's first degree burglary is a categorical crime of violence for ACCA purposes. The 9th also affirms the search and seizure of the defendant for probable cause (a telephone call that of his whereabouts with some collaborating evidence that he did in fact live at the site), and his probationary status.

U.S. v. Harrell, No. 07-10238 (6-30-08). The 9th (Brunetti joined by Reinhardt and Fisher) order the government to return forfeited property, such as satellite receivers, smartcards, computers , hard drives and more, because they are not illegal, and have not been modified for an illegal purpose, and were not proceeds of an illegal scheme. The government had charged the defendant with pirating signals. The case was dismissed after the court granted the defendant's suppression order. The government here failed to show that the property was altered or designed for illegal purposes.

Congratulations to FPD Dan Broderick for getting the stuff back.


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