Wednesday, July 21, 2010

U.S. v. Burkett, No. 09-30260 (7-20-10) (Hall with Wardlaw and Gould). The 9th affirmed the denial of a suppression motion. It was a stop on a highway for speeding, and the police officer had reasonable suspicion to "stop and frisk" the passenger due to his furtive movements while the driver was refusing to comply with instructions, his deceptive responses, and the strange way he opened the car door, and kept his arm by his side. All these factors justified, to an experienced officer, the possibility the defendant was armed and dangerous and so led to a pat down, where a weapon was found.

U.S. v. Lewis, No. 09-10058 (7-20-10) (Graber with Tashima and Bybee). This is the third go-around with this speedy trial violation. The 9th found in previous two appeals that there indeed was a violation because time slipped with superseding indictments and co-defendant issues. However, just because there is a violation, and a dismissal, does not mean that it is with prejudice. The district court weighed and balanced the seriousness of the offense (smuggling wildlife), the government reasons, and the prejudice to the defendant (different counsel) and came out with a dismissal without prejudice. The 9th gave this balancing great deference, and affirmed. By this time, the prejudice to the client with new counsel had dissipated given the two trials, three appeals, and extensive motion practice.


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