Thursday, May 31, 2012

U.S. v. Perea-Rey, No. 10-50632 (5-31-12) (Wardlaw with Goodwin and Sessions, D.J.).
The 9th finds a violation of the Fourth Amendment when agents entered into a curtilage and conducted a search and seizure.  The agents followed an alleged illegal defendant from the border to a house.  The agents saw him knock on the front door and then go around to a side door, and go in.  The agents then went into the carport, knocked, pulled guns and ordered people out.  The 9th found this violated the Fourth Amendment.  The agents should have gotten a warrant.  What about knock and announce, asked the government?  Doesn't work, answered the 9th.  The government cannot use consenual knock and announce as a subterfuge.  Subjective intent plays a role.  The agents here walked up to the side door, in the carport, rather than the front.  This opinion does a nice job of using the recent Jones case to explain this was an invasion of space and property, and also a violation of Katz.  Just being able to watch or see into the curtilage was not enough.  This is a great opinion for the curtilage overview and requirement for warrant.

Congratulations to Greg Murphy, Deputy Fed Defender of the Fed Defenders of San Diego.

U.S. v. Gomez-Hernandez, No. 10-10441 (5-31-12)(Tallman with Graber and Berzon).
In a 1326 sentencing, the 9th holds that an Arizona state conviction for "attempted aggravated assault" was a categorical crime of violence for the +16 adjustment under 2L1.2.  The 9th acknowledges that Arizona aggravated assault is not a crime of violence because the mens rea also encompasses recklessness; it is broader than attempt, which is a specific intent.  Attempted aggravated assault has no recklessness, and requires a weapon.  The 9th sees no conflict between attempted aggravated assault being a crime of violence, and aggravated assault not being a crime of violence.


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Monday, June 04, 2012 1:10:00 AM  

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