Tuesday, August 02, 2011

U.S. v. Stanley, No. 10-50206 (8-2-11) (Trott with Rymer; dissent by Beezer).

The 9th holds that an ex-girlfriend, whom has not lived with the ex-boyfriend for years and was dating someone else, can give consent to search a computer given to the ex-boyfriend by his parents, and which the ex-boyfriend only gave the ex-girlfriend limited access. Oh yes, the ex-girlfriend testified that she also never gave consent. Why the holding? Well, the 9th looks at the record by the district court, which credits the agent's testimony, and, it seems, discounts the testimony and evidence by the defense. The authority to consent rested heavily on the ex-girlfriend's possession of the computer for two years. The computer held child porn. The government had to go with consent because the warrant was lapsed. In dissent, Beezer argues that the facts and common sense undercut the majority's analysis. He examines the facts, would find clear error, and would find that the ex-girlfriend had limited authority over the computer, was not a joint owner, and could not consent.

Lee v. Lampert, No. 09-35276 (8-2-11) (en banc) (Thomas writing with a concurrence by Kozinski).

The 9th holds that a credible showing of "actual innocence" under Schlup equitably tolls the statute of limitations bar imposed by AEDPA. However, the petitioner here failed to present such credible evidence. Kozinski, concurring, notes that the decision as to whether actual innocence can excuse AEDPA should be put off for another day and another decision because under the facts here, the petitioner presented no credible evidence.


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