Monday, February 07, 2011

U.S. v. Krupa, No. 09-10396 (2-7-11) (Callahan with Wolle, Sr. D.J., S.D. Iowa; dissent by Berzon). Does a single photo of a nude teenager from "" on a computer give rise to probable cause to search a computer? The 9th finds it would, when taken in context of the surroundings -- a distraught mother wondering where her kids were, a house on a military base where the father of the kids is abroad, and the kids in the care of another male adult, with the house in disarray and 15 computers. These factors gave rise to a suspicion that justified a search warrant, which found more minor pornography. Dissenting, Berzon takes the majority to task for affirming the search warrant. Probable cause, Berzon notes, is not some "cloud" that follows a person around, and a person's idiosyncrasies, or quirks, should not trigger a search. Here, the single photo of a teen that might have been around 17, and the name of a web site. The other factors, such as the messiness, absence of father (although a note stating that the kids were in the care of the defendant, and the number of computers, does not lead to a conclusion that porn was contained in the computers. Berzon would also find that Leon's good-faith exception also did not apply as the affidavit was extremely bare-bones.

U.S. v. Fox, No. 08-30445 (2-7-11) (O'Scannlain with Tallman and Moskowitz, D.J., S.D. Ca). In Dillon, the Supremes over-ruled the 9th's decision in U.S. v. Hicks, 472 F.3d 1167 (9th Cir. 2007), which allowed a court to treat the Guidelines as advisory in a retroactive sentence modification proceeding. Dillon held that the court, in resentencing, was bound by the Sentencing Commission's Policy Statement which mandated that a sentence modification proceeding may not reduce the sentence below the amended Guideline range. This case had reduced the sentence below the retroactive amendmended Guideline range, and the 9th had taken it en banc. In light of Dillon, however, it was sent back to a three-judge panel for consideration of the challenges to the policy statement. The defendant argued that the policy statement failed to comply with the procedural requirements for a Guideline amendment. In other words, since the policy statement was like a Guideline, operated like a Guideline, and had the force of a Guideline (cf "walk like a duck....."), it was a de facto Guideline, and so it had to follow certain procedural steps for notice and comment. The 9th rejected this, finding that the Supremes had pretty much foreclosed the argument, and that the Guideline-light argument failed because policy statements were meant to interpret, which is what 1B1.10 did here.


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