Monthly Archives: October 2012

U.S. v. Valenzuela-Espinoza, 697 F.3d 742 (9th Cir. 2012)

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The 9th Circuit has such a  heavy caseload it needs more judges, according to members of the court.  Part of the caseload includes cases completetly unnecessary for a decision.  In fact, useless.This case is an example.

Valenzuela-Espinoza was convicted in 2010  and appealed.  In 2012 the 9th Circuit panel  held federal agents had detained the defendant in excess of the federal minimum hours of arraignment subequent to arrest and reversed the conviction. But the defendant had been convicted, sentenced and deported to Mexico by the time this appeal was written.  He remained on supervisory release. What possible rationale justifies this opinion? How is the  court agent going to supervise this defendant in Mexico?.  And the time wasted on this  irrelevant case?

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

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In any business or profession, including law enforcement, people gain an intuition of certain conduct in the environment unknown to the average person.  Border Patrol agents qualify in this role in detaining or arresting individuals based on patterns of conduct they observe or confront.  Smuggling routes are  identified, transportation of drug practices become familiar, and conduct seemingly innocent to the inexperienced becomes relevant.  In Vega, exactly that scenario occurred.

Border Patrol officers observed a small truck driving on the freeeway inside the United States in excess of the normal traffic speed, weaving in and out of traffic, slowly approaching a closed checkpoint in a known smuggling corridor. The checkpoint was closed, and the driver resumed irregular driving and excessive speed.  According to the agent, the truck resembled other vehicles shaped to conceal contraband and it displayed Baja California license plates.  The officer stopped the truck and a subsequent search revealed drugs.

The average person reading this fact pattern would assume only a series of traffic violations (Border Patrol Agents lack  authority to stop cars for traffic violations).  Weaving in and out of traffic enables the driver to escape the view of any vehicle following it.  The condition of the truck was comparable to other vehicles carrying drugs obscuring vision of the passengers or contents of the vehicle.  Yet the officers, both veterans, could intuit from experience their conclusion the truck contained contraband.  How? Intuition- that proved to be confirmed.

Of course the 9th  Circuit in a 2-1 opinion saw it only as traffic violations and Vega will avoid trial.  Officers who work in specialized areas cannot always articulate the reason for their suspicions but what is it about this case which confirmed their judgment? When an officer observes conduct he believes consistent with the commission of crime but superficially innocent to the untrained person what is he supposed to do? The requirement of the Fourth Amendment and its exclusionary rule is deterrence of police misconduct.  What misconduct occurred in this case?

The Supreme Court has reversed the 9th Circuit so often in U.S. border cases that Vega should be added to the list.

Time for another rehearing en banc.

Lavan v. City of Los Angeles, 693 F.3d 1022 (9th Cir. 2012)

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Wrongful expansion of the Fourth Amendment is further illustrated in Lavan v City of Los Angeles, a case similar to the Ninth Circuit decision in Stone v. Powell disallowing enforcement of a city vagrancy ordinance. In Lavan, the Ninth Circuit again invalidated an ordinance prohibiting unattended personal property located on public walks. The City, in an effort to retain a semblance of order in a “skid row “neighborhood, posted orders informing everyone in the neighborhood of the ordinance and the days and time for its enforcement.

The tonnage of the property previously removed from sidewalks had been formidable, including human waste, vermin and used syringes in conjunction with clothes and other personal property. Under the ordinance, for any personal property subject to disposal, the owner could claim the contents in a designated facility at no cost. The carefully drafted ordinance attempted to provide pedestrians, motorists, and businesses from congestion, filth, disease and injury. No one was arrested; none was searched. Yet the Ninth Circuit 2-1 majority disallowed enforcement of the ordnance on ground it was a “seizure” of property. The court also worried about the loss of privacy.

This decision is a complete departure from the language and rationale of the Fourth Amendment and serves no deterrent on police officers. The ordinance attempts to balance the interests of unfortunate people, presumably homeless, with the interests of the public in safety and prevention of disease. No one denies the desolate conditions of skid row, and we deplore the of the conditions of its inhabitants, but this social problem is not criminal case, certainly not a search or seizure in the sense of the Fourth Amendment and its rationale.

Ayala v. Wong, 693 F.3d 945 (9th Cir. 2012)

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In a case authored by a judge who has never tried a criminal case, never presided over a criminal case, and has reversed every case on the death penalty for the last decade, the 2-1  9th Circuit panel majority wrote a case unquestionably warranting an en banc hearing.  If Ayala v. Wong is not reheard and the panel reversed, the Supreme Court will reverse on a petition for cert.

The California Supreme Court, on automatic appeal, upheld the conviction and death sentence of Ayala and denied his  Batson motion. At the trial, the prosecutor had contended his trial strategy would be compromised by disclosure of his reason for excusing several minority jurors.  The trial court agreed and the hearing on the motion was held in camera.

The state court  agreed that, absent a compelling reason, the hearing of a Batson motion should be in the presence of counsel and client. The court concluded the trial court had committed error in permitting the in camera hearing, but the mistake was not prejudicial to the defendant.  The court also  regarded the loss of questionaires submitted by potential jurors not called  by the court was not prejudicial.  

On habeas corpus the majority three judge panel overruled the 1985 California state court conviction on grounds the questionnaires of potential jurors were lost, and the trial court permitted the prosecution to explain in camera the rationale for excusing minority jurors.  The missing questionnaires, filled out by potential jurors prior to voir dire but never called by the court, were lost (probably disposed of because of their irrelevance).   The  transcript of voir dire, their questionaires, and the transcript of the ex parte explanation by the prosecutor, were all available.   

Ayala argued the unavailability to read the questionnaires of jurors who were never called would have assisted him in filing his Batson motion.  The Supreme Court has never written a case holding failure to produce jury questionnaires is per se reversible error.  Absent any Supreme Court precedent, AEDPA requires a federal court on habeas corpus to extend deference to the state court. 

The majority panel appears to concede this deference in some cases but not in Ayala because the state court “might have fiolated federal constitutional rights.”  The court determined the test is de novo but in a footnote agrees not in another context.  That aside, the majority opinion that the loss of questionnaires of jurors who were never seated or even called prejudiced Ayala’s case.  Jury questionairs are nothing more than a routine list of  basic questions,  undetailed and rarely useful in voir dire.  Written answers to routine questions are no substitute for juror appearance, voice, understanding, equivocation or other intangible characteristics impossible to achieve from a questionnaire.

Ayala had the questionnaires of the seated jurors and the  transcript of the voir dire.  This evidence is more than  sufficient to support filing a Batson motion, regardless of its validity.  The Ayala decision is nothing more than speculative and unsupportedby evidence, reversing a conviction occurring in 1985.  The prosecution is unlikely to re try a case two decades old. 

Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012)

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Nothing parallels the decision in Fourth Amendment jurisprudence comparable to Melendres v. Arpaio, 2012 WL 4358727 (9th C.A.) Plaintiffs filed a class action and sought an injunction prohibiting officers from detaining or arresting Latinos without commission of a crime or probable cause to arrest and solely on the basis of race. In other words, every Latino could challenge his detention or arrest on grounds of his ethnicity. Because most detentions and arrests occur in cities and counties of a state, the federal court will now determine in every case of an arrested or detained Latino whether reasonable suspicion or commission of a crime or probable cause exists, or that race was the only factor.

Because of the heavy Latino population in Arizona, the case load of the district will be swamped with cases alleging a violation of the injunction, and the district court forced to determine whether every detention or arrest of a Latino was based on race. In every case the issue of detention or probable cause becomes secondary to resolution of the race issue and presumably res judicata to a state case filed in state court. This court decision will not only intrude on state sovereignty, but subject to appeal in the Ninth Circuit. The underlying state case will be stayed during the appeal. The Fourth Amendment was never intended to apply its language to this type of case. And the decision includes stopping motorists for traffic violations.

The Ninth Circuit only approved the “limited injunction” issued by the district court. It concluded the plaintiffs, who may never be detained or arrested, could experience a future arrest or detention subject to the injunction.. Using the injunctive power of a federal court to determine whether one of the plaintiffs will be detained or arrested in the future is not the basis for enjoining a future speculative injury. The facts alleged of potential injury violates the jurisdictional requirement for standing.