Tuesday, September 22, 2009

U.S. v. Lemus, No. 08-50403 (9-22-09). It was a room with a view. The question was whether the police could search it as adjacent to the site of arrest to protect themselves? The 9th said "yes." The police had an arrest warrant for the defendant. They drove to his apartment, which was in a small complex, where other family members lived. They saw the defendant, and called out to him that they were there with a warrant. He started to back into his apartment. The police arrested him either in his living room or just entering, with the sliding door open. The police then looked into the living room, adjacent. One officer saw what he thought was a butt of a weapon sticking from the couch; he lifted the cushion, and it was a firearm. He then got a warrant. The defendant argued that his arrest was outside the living room, and the police could not conduct a warrantless search. The 9th (Bybee joined by Gould and Rawlison) held that the police could search the room as a precautionary matter without reasonable suspicion or probable cause. Buie, 494 US at 334. The search was in the area immediately adjoining the area of arrest and one from which an attack could be immediately launched. These conditions were present here. The weapon's butt was in plain view and could be discerned.

In re Complaint of Judicial Conduct, No. 08-90211 (9-22-09). Kozinski dismisses a complaint alleging judicial misconduct filed by a defendant. The defendant alleged that the court conducted improper ex parte communications by meeting with the probation officer. Kozinski stated that such communications were a normal part of the administration of justice, and not improper. See Canon 3A(4). What is of note, though, is Kozinski reiterating that judges must "advise defendants of any facts conveyed by probation officers during off-the-record communications, if the judge plans to rely on those facts during sentencing." U.S. v. Gonzales, 765 F.2d 1393 (9th Cir. 1985). This is a point that should be emphasized if there are such meetings; it may sometimes be forgotten in practice.


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