Thursday, February 09, 2017

1.  US v. Loucious, No. 16-10121 (2-7-17)(Gould w/Clifton & Watford). The 9th reversed the suppression of a confession.  The defendant was a passenger in a car stopped for speeding. One thing led to another, and he was arrested on outstanding warrants.  He was given quasi Miranda warnings, with the formulation that he has the right to a presence of a lawyer during questioning. The defendant waived, and confessed.
The district court suppressed the statement.  The court reasoned that the defendant was not given the proper warning, because he was not told that he had a right to consult with a lawyer before questioning.

The 9th reversed.  The 9th reasoned that there was no set Miranda warnings, but that the rights had to be conveyed.  "Presence" inferred consultation.  The Miranda warnings were adequately conveyed here.
Tough loss for AFPD Wendi Overmyer of the Nevada FPD Office (Las Vegas).

The decision is here:

2. US v. Peralta-Sanchez, 14-50393 (2-7-17)(Bybee w/N. Smith; dissent by Pregerson). This appeal concerns whether an illegal reentry defendant's previous expedited removal was fundamentally unfair.  If it was, it cannot serve as a ground for illegal reentry.  The defendant argued that he was not allowed to hire counsel nor was he advised of his right for withdrawal of his application for admission.  The 9th held that there was no Fifth Amendment due process right to hire counsel.  Further, he was not prejudiced by the failure to inform him of withdrawal relief.
Dissenting, Pregerson argues that the expedited removal system is flawed.  It gambles with people's lives.  The process begins and ends with a Customs officer.  Surely, argues the dissent, having counsel at least to consult, is a way to make the process fair. The dissent would find that the right to consult was mandated.

The decision is here:


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