Tuesday, July 22, 2008

U.S. v. Caseres, No. 06-50546 (7-21-08). The 9th drew a line when it comes to car searches. The police were patrolling in an unmarked car when defendant (oops) made a right hand turn without signalling and the police thought that his passenger windows were tinted too dark. The police began to follow the car, lost him, and found him again. Defendant had parked his car a block and a half away from his house, and was walking to his home. The police approached him, and defendant said some not nice things. A foot chase preceded, which ended with defendant, exhausted, being arrested. The police then waited a bit before searching defendant's car incident to arrest. A firearm and ammunition was found, which was a problem because the defendant had a felony, and was on parole. On appeal from denial of the suppression motion, the 9th (Pregerson joined by Bright and Wardlaw) said, "Whoa, the police can't just search the car because the defendant was arrested outside." The 9th does find that there was no probable cause to arrest him fort he traffic violations because such a turn, if it did not interfere with traffic, was legal, and who knows about the tint? However, there was probable cause to arrest him for threatening an officer. The 9th then went to the car search, and reverses the district court and suppresses the evidence because of a bad search. The opinion goes through all the justifications the government offers -- search incident to arrest, inventory, parole -- and finds them wanting. The 9th keeps going back to the fact that the defendant had left the car, and was going home. The car was parked close to his house, on a residential street, and all the so-called justifications for search, close to the defendant upon arrest, or need to secure the vehicle, were not present. The opinion provides a nice overview of the state of car searches in the 9th, especially when distance and time separates the arrest from the search.

Congratulations to AFPD Jonathan Libby of the Central District of California (Los Angeles) for the win.

Houston v. Schoming, No. 06-15523 (7-22-08). Okay, let's get it out of the way: "Houston, we have a problem," says the 9th (Larson joined by Canby). The problem arises from an attorney conflict-of-interest. Petitioner was charged with various counts of attempted murder and firearms resulting from a long-running feud between the petitioner and the victim and his family, the Chadwicks. The petitioner moved for a continuance so he could retain a lawyer. The denial of that motion was not error given the timing,and lack of basis. However, the attorney's motion to be relieved because of a conflict will result in a granting of the petition. The public defender office had represented the state's star witness, Chadwick, in a prior shooting at Houston. The lawyer stated that he was conflicted -- he felt that Chadwick got a raw deal, that he was innocent, and that there was motive in Houston now shooting back. The state trial court denied, as did the state supreme court on the record, basing the denial on the fact that Chadwick had waived attorney-client, the public defender had not personally represented Chadwick, and the shootings were not factually related (!). The district court acknowledged that the facts were related, but denied the petition because Chadwick had waived. The 9th held that the focus should have included petitioner's right for a conflict free counsel, and counsel's own ambivalence in turning on a former client. This deserved an evidentiary hearing. In dissent, Smith expressed concern about floodgates being opened as defender offices are conflicted off matters (ed note: happens all the time -- that's why there are alternate defender offices, contract lawyers, or panels), and because there was no showing of prejudice: the evidence the petitioner points to, like polygraphs of the victim and parole status, were arguably precluded under state evidentiary rules.

Congratulations to AFPD Anne Traum of the District of Nevada (Las Vegas) for the win.


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