Monthly Archives: August 2012

Mojica v. Holder, 132 S.Ct. 2679 (2012)

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In 2009 the 9th Circuit held the minor child could impute her father’s legal status who was a lawful permanent resident (amnesty); Mercado-v. Holder 580 F.3d 1102 (9th Cir. 2009).  Three years later the Supreme Court specifically rejected this case; Holder v. Martinez Gutierrez, 132 S.Ct., 2011 (2012. The 9th Circuit Mercado case is now invalid; Sawyers v. Holder, 2012 WL 2507513 (9th Cir. 2012.)

For three years the 9th Circuit precedent allowed the “imputation” doctrine to apply, wrongfully allowing children immigration status.  Compare this with the death penalty cases, often decades old, compelling subsequent cases in the 9th Circuit to apply the wrong law  upon reversal by the Supreme Court..

U.S. v. King, 687 F.3d 1189 (9th Cir. 2012)

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King was on probation at the time of his arrest and had waived his Fourth Amendment rights as a condition of probation. The Supreme Court had previously ruled warrantless searches and seizures of probationers did not violate the Fourth Amendment; Knights v. U.S., 534 U.S.112 (2001).  King’s motion to suppress evidence seized at his home at the time of his arrest was denied in district court. Affirmed on appeal. U.S. v. King, 672 F.3d 1133 (9th Cir. 2012 ).

In a curious per curiam en banc opinion joined by the entire panel, the 9th Circuit vacated its decision in King and simultaneously overruled numerous of its previous opinions on the issue of searches and seizures of parolees and probationers. According to the per curiam panel in King, the Supreme Court in Samson v. California, 547 U.S. 843 (2006), decided 6 years ago, requires overruling 9th Circuit precedent on probation searches.     

Here is the rationale: “[T]hese [overruled] cases conflict with the Supreme Court’s holding [in Samson] that  ‘parolees have fewer expectations of privacy than probationers’.”  According to the per curiam panel, their previous cases drew no constitutional distinction between probationers and parolees for purposes of Fourth Amendment analysis. But now, on rehearing King en banc,  Samson translates into giving probationers more privacy than parolees.  After 6 years of purported mistakes, the 9th Circuit in warrantless probation searches will now entertain motions to suppress evidence in Fourth Amendment cases under the rubric of “reasonable suspicion,” a requirement ostensibly attributable to Samson and inapplicable to parolees.

This sophstry is unprecedented.  The Supreme Court initially reversed the 9th Circuit Samson decision which had invalidated California law mandating parolees to surrender Fourth Amendment rights as a condition of parole. The Supreme Court case has been the law for 6 years. Now, in 2012, the 9th Circuit in King translates this parsed sentence in Samson to permit challenges to searches of probationers who have also waived Fourth Amendment rules as a condition of probation.

 Who uncovered this sophistic interpretation?  And why does the entire panel support this change?  The court (2-1) in King extensively summarized the facts and concluded the information given to police did not warrant either a finding of probable cause or “reasonable suspicion” to arrest King but held that finding is irrelevant under its interpretation because King had waived his Fourth Amendment rights.  

Why did the majority of the panel in King endlessly summarize the evidence in such detail, and find no “reasonable suspicion” to arrest King when the probation condition could have resolved the case in one sentence under formerly held 9th Circuit interpretation  (the original King did not cite Samson).  In fact, the dissenting judge agreed with the result that King had waived his rights but extensively disagreed with the finding of no “reasonable suspicion.”  

The answer lies in the Knights language of the Supreme Court in reversing a 9th Circuit panel who in its decision had required searches of probationers only with a warrant or probable cause. Said the Supreme Court in Knights: “The State has a dual concern with a probationer. On the one hand is the hope that he will successfully complete probation and be integrated back into the community. On the other is the concern, quite justified, that he will be more likely to engage in criminal conduct than an ordinary member of the community. The view of the Ninth Circuit Court of Appeals in this case would require the State to shut its eyes to the latter concern and concentrate only on the former.” The Supreme Court required only “reasonable suspicion” to arrest and search a suspect on probation who had waived his Fourth Amendment rights. 

The King decision is highly questionable. The per curiam decision appears sua sponte, unsubmitted by counsel, and, in a footnote, “suitable for decision without oral argument.” Now the case is remanded under the “new test” of privacy for probationers. Since the majority panelists found no “reasonable suspicion” for King’s arrest, they will now determine some lesser test for probationers.  Or grant a motion to dismiss. Give me Cert.  

If the 9th Circuit wants to review all its other cases wrongfully decided, start with the death penalty.  This circuit has reversed all death penalty cases except 3 since 2001. And the Supreme Court has reversed every one of those cases on grounds the 9th Circuit court misinterpreted AEDPA-just like the 9th Circuit misinterpreted King.

 

 

 

Maryland v. King, 133 S.Ct. 1 (2012)

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A Maryland law requires law enforcement agencies to collect DNA samples upon the arrest of anyone for certain crimes, including burglary and murder.  Based on collection of a DNA sample from King, the prosecutor charged and convicted him of rape committed in 2003. King, represented by the ACLU, sought a stay of the statute on the ground it violated KIng’ s right of privacy. The Maryland Court agreed, and the State sought cert. from the Supreme Court.

Citing a reversal of the 9th Circuit as precedent for granting cert. (New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 145,(1977),  Chief Justice Roberts, writing as the Circuit Judge,  summarized  both sides of the argument.  He granted a stay of the Maryland court decision, citing relevant grounds for the Court’s jurisdiction and the likelihood of a reversal of the state court.

The 9th Circuit had previously upheld a California statute similar to the Maryland law. Unsurprisingly, the court granted a rehearing; Haskell v. Harris, 2012 WL 3038593 (C.A.9).  Based on the Supreme Court order, the potential of a 9th Circuit reversal will probably be stayed pending disposition of the Maryland case.  If not for this Order by the Chief Justice, the 9th Circuit decision would probably have been reversed by the usual judges.

Although this is allegedly a Fourth Amendment case, collecting a DNA sample is no more intrusive than taking a routine blood sample.  The uncontradicted evidence establishes the value of DNA matches and far outweighs the argument of mistaken identity.  What possible right of privacy is involved in this simple test so valuable to identifying persons who have committed crimes.

 

U.S. v. State of Arizona, 689 F.3d 1132 (9th Cir. 2012)

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Although the Supreme Court held an Arizona statute limiting entry of illegal aliens could not be enforced, with the exception of one section, the 9th Circuit had originally reversed the entire statute; 641 F.3d 339 (9th Cir.2011).  In U.S. v. State of Arizona, (cited above) the 9th Circuit on remand transferred the case to U.S. District Court to enforce the Supreme Court mandate.

In the original litigation the U.S. sued the State of Arizona, arguing federal law preempted the state statute; Arizona v. U.S.  132 S.Ct. 2492 (2012).  Assuming the Supreme Court is correct, why should the federal government sue the state and its enforcement laws limiting illegal aliens?  Why not cooperate with the state instead of intimidating it?

Or, even assuming federal law preempts state law, the US government can ignore premption and not assert it.

In any event, add another case to the list of 9th Circuit reversals.  The record is now 18 out of 25. 

 

U.S. v. Valdes-Vega, 685 F.3d 1138 (9th Cir. 2012)

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In a 2-1 opinion a 9th Circuit panel ordered the release of a Mexican national who possessed 5 kilos of cocaine.  This opinion is another example of judicial naivete by certain judges.  In cases requiring experience as a law enforcement agent, particularly in border searches, the officer’s ability to identify evidence of narcotics is ignored by appellate judges, as noted by the minority judge in this case.A border agent observed defendant driving 90 mph in traffic moving at 70-80 mph.   The agent described an extremely erratic driving pattern, the driver weaving in and out of traffic. The truck, not designed for speed, raced through a closed checkpoint.  The driver operated a large truck with the ability to conceal illegal aliens and narcotics in an area of frequent smuggling.  The agent testified a truck is frequently used for concealment. As the dissent points out, the majority slices all the testimony individually and concludes none lead to a reason to stop the vehicle.  In fact, the officer’s experience led to the discovery of narcotics.Every Fourth  Amendment case is subject to a different perspective.  But the 9th Circuit rarely affirms the officer’s experience or else discounts the testimony.  The result is a glut of reversals by the Supreme Court, and the 9th Circuit leads all the other Circuits.  Every year. During this term, the Justices reversed the 9th Circuit 17 out of 24 cases. This case will add to the total when either reheard en banc or the Supreme Court grants cert.