Thursday, July 16, 2009

U.S. v. Noster, No. 07-50391 (7-15-09). Let's start with the dissent first. Written by a district judge sitting by designation, it is a warning against vigilantism, and a rebuke of law enforcement. The dissent acknowledges that the defendant was a bad guy, and that he indeed had stockpiles of pipe bombs and guns. However, the way he was snagged -- with a police officer manufacturing a crime from delinquent payments on a truck, smacks of "ends justify the means." The defendant had made the down payment, and had made several months of payments before stopping for the past several months. Neither the bank nor the dealer had instituted theft proceedings yet. The police officer was only too willing to nudge them to do it. Under Herring, which involved a mistake of data entry, both the majority and dissents agree that purposeful violation of the 4th amendment called for exclusion. That, to the dissent, occurred here. For this reason, the judge dissented. The majority (Callahan joined by Ikuta) focused its analysis affirming the denial of suppression on the fact that the defendant had not made car payments, and the car was thus no longer his but GMAC's, and should have been repossessed. He had stopped making payments, absconded, and when the dealers and bank were informed of the defendant's track record and non-payments, all said that the truck was now the bank's property. The detective did investigation, interviewed witnesses, and got a car theft report, and then plastered the neighborhood with "look for this guy" notices. The truck was found by the dealer who sold it, and he called it in. The search followed, which was upheld based on probable cause for the theft. The subsequent search of the truck was a valid evidentiary search, based on probable cause. As such, the evidence of guns and bombs comes in, and the conviction for unregistered weapons is affirmed.

U.S. v. Olander, No. 08-30180 (7-15-09). The offense of receiving child porn, 18 U.S.C. 2252A(a)(2)(A) does not also require the element of "intent to distribute." The 9th (W. Fletcher joined by Bea and Ikuta) affirm the denial of the motion to dismiss indictment.


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