Thursday, March 01, 2012

U.S. v. Bolivar, No. 11-30055 (2-29-12) (Graber with Tashima and Rawlinson).

The probation officer searched a probationer's apartment. Nothing unusual there. In looking through a closet, though, filled with clothing of the boyfriend, a backpack was seen. Inside was a sawed off shotgun that belonged to the boyfriend, a prohibited possessor. The boyfriend became the defendant here. He moved for suppression, arguing that the probation officer lacked probable cause to conduct a warrantless search of the backpack. After all, the probation officer had consent to search the apartment, but not belongings that were not the probationer's. The 9th affirmed the search. It held that the standard was one of "reasonable suspicion" and that it was met here. There is precedent that indicated that probable cause might be required in some searches, Motley v. Parks, 432 F.3d 1072 (9th Cir. 2005) (en banc), but that higher standard for warrantless searches of probationers related only to residences. Was that the actual home of the probationer? The "downstream" search afterwards was gauged by reasonable suspicion.

U.S. v. White, No. 07-10460 (2-29-12) (Wallace with M. Smith and Rakoff, Sr. D.J.).

Should the court have ordered a competency hearing sua sponte of the defendant in this RICO gang prosecution? The 9th holds that it was not an abuse of discretion for the court not to order such a hearing. The court had determined the defendant to be competent after an evaluation at FCI Butner. The court had ample time to observe the defendant and gather information from counsel and interact with the defendant. There was evidence of delusions, but on the whole, the court did not abuse its discretion. The defendant was on trial for serious charges, and this may have been a tactic. In addition, the court did not abuse its discretion in determining that the defendant could have assisted counsel if he chose.

Towery v. Brewer, No. 12-15381 (2-28-12) (per curiam by McKeown, Berzon and Rawlinson).

Editorial note: This is an Az FPD case

The State intends to execute petitioner on March 8th. In carrying out the execution, the State changed its protocol, when it discovered that one of the three drugs to be used was expired. Other changes also occurred, such as barring counsel from seeing the client after 9:00 PM the night before. The 9th expressed exasperation with the State, chastising the Az Department of Corrections for its shell game, and wondering whether it needed to step in to manage each execution given the lack of trust with the State. Alas, though, the 9th will give the State one more chance to follow its protocols, with modifications, as the Baze standards can be met, and other constitutional challenges fall short of what is required for the granting of a preliminary injunction.

Moormann v. Schriro, No. 08-99035 (2-27-12) (Schroeder with McKeown and Rawlinson).

Petitioner faced impending execution. He filed an 11th hour petition for stay and permission to file a successive habeas. He argues that his counsel effectively abandoned him by lack of effective representation. The 9th rejects the argument, finding that his counsel was active, and although there may be claims of serious negligence or ineffectiveness, there was not abandonment. The petitioner was executed on February 29, 2012, at 10:33 A.M.


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