In a dissent from a Ninth Circuit denial of en banc review in Lopez-Rodriguez v. Holder, case no. 06-70868 (9th Cir. Aug. 7, 2008, r’hng en banc denied March 27, 2009), a case concerning the application of the exclusionary rule to civil deportation proceedings, Judge Bea authors an opinion that puts his view of the panel decision — specifically,the reasoning by which the panel reached its decision — rather bluntly. In [INS v. Lopez-]Mendoza [, 468 U.S. 1032 (1984)], the Supreme Court clearly held the exclusionary rule does not apply to bar illegally procured evidence from admission in a deportation hearing. Mendoza, 468 U.S. at 1050 (holding that the “balance between costs and benefits comes out against…
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Supremes Grant Cert in Teen Student Strip Search Case
Remember all the blog coverage (and not just here) about school officials’ strip search of a 13-year-old Arizona student in a “zero-tolerance” motivated quest for that dreaded scourge, Ibuprofen? I covered the original decision upholding the search here, noted the grant of rehearing here, and the en banc reversal here. Here’s the en banc opinion: Redding v. Safford USD #1, case no. 05-15759 (9th Cir. (en banc) July 11, 2008). SCOTUS granted cert Friday afternoon, so there is sure to be another burst of blog coverage about the case. If you want to get up to speed while saving yourself some clicks, go straight to this synopsis by newly minted…
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It’s Now Official: It’s Not OK to Strip-Search a 13-Year-Old Girl for Ibuprofen
There was a lot of law blog coverage when a Ninth Circuit panel held that a strip search that required 13-year-old Savana Redding to expose her breasts and pubic region during a search for Ibuprofen did not violate her Fourth Amendment rights. As I wrote in my post, despite my gut- level reaction that the search was wrong, I found the majority opinion was well reasoned. Still, the dissent won me over; it was even better reasoned and, while both opinions centered around New Jersey v. TLO (1985) 469 U.S. 325, the dissent was better supported by authority. Along with my gut, that was enough, so I was among those happy to see en banc rehearing granted. In today’s en banc opinion, Redding…
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Reasonableness Governs Accidental Shooting Inquiry
Image via Wikipedia There’s an important legal point in Torres v. City of Madera, case no. 05-16762 (9th Cir. May 7, 2008). But before I could get to it, I had to get by my amazement at the facts, which are horrifying. This Section 1983 action was brought by survivors of an arrestee who, while handcuffed and in the rear seat of a patrol car (and screaming and kicking at the back window), was shot and killed by a police officer who mistakenly unholstered and fired her Glock semi-automatic pistol instead of her Taser M26 stun device. The Court of Appeals called her Glock (a Glock is pictured right, though…
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Maybe It’s Not OK to Strip Search a 13-year-old Girl for Ibuprofen After All
Last September, I covered (along with seemingly every other legal blogger) Redding v. Safford USD #1, case no. 05-15759 (9th Cir. Sept. 21, 2007), in which the Ninth Circuit held that a school’s strip-search of a 13-year-old girl for Ibuprofen, for crying out loud, was constitutionally permissible. Today, the Ninth orders rehearing en banc. For a round-up of coverage of the original opinion, see my original post.
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An Arrest Warrant is an Arrest Warrant is an Arrest Warrant
At least, when it comes to whether the police may enter a residence when executing it. In U.S. v. Gooch, case no. 06-30645 (9th Cir. Nov. 1, 2007), the defendant was convicted of being a felon in possession of a firearm. He was arrested when reaching for firearms during the execution of a warrant for the search of his residence. He claimed the search warrant was invalid because it was based on police officers’ observation of drug paraphernalia when they got out of their express van and entered the residence to execute an arrest warrant for Gooch’s roommate. Gooch contended that because the arrest warrant was only a misdemeanor bench…
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DNA Collection Survives Another Constitutional Challenge
DNA collection while on supervised release is constitutional, even if the terms of supervised release in your original sentence did not provide for it and the DNA Analysis Backlog Elimination Act (“DNA Act”), which mandates it, became effective only after you were sentenced. In United States v. Lujan, case no. 02-30237 (9th Cir. Sept. 25, 2007), the court rejects arguments that collection under these circumstances violates the Fourth Amendment and Ex Post Facto Clause, constitutes an unlawful bill of attainder, and violates the separation of powers. Lujan’s appeal was stayed pending the outcome in two other appeals, and the outcomes of those cases allow the Ninth to dispose easily of…
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OK to Strip Search 13-Year-Old Girl for . . . Ibuprofen?
One look at that blog headline and it’s no surprise Friday’s Ninth Circuit decision in Redding v. Safford USD #1, case no. 05-15759 (9th Cir. Sept. 21, 2007) has garnerd some attention in the legal blogosphere. Predictably, some of the reaction has been at a gut level. See, for example, California Appellate Report or Decision of the Day. This is a section 1983 action by the 13-year-old girl against the school officials and the district for an alleged violation of her Fourth Amendment rights by searching her for pills. The search was initiated after a student claimed to have become ill from some pills distributed by the plaintiff and pills…
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The Reasonableness of Airport Screening: Consent, 9/11, and Terrorism
Here’s an interesting Fourth Amendment case from the Ninth Circuit today. In United States v. Aukai, case no. 04-10226 (August 10, 2007), an en banc panel of the Ninth holds that the administrative search at airport screening, including enhanced secondary screening, is reasonable with or without consent once the person attempts to access the secure area of the airport, even if he says he no longer wishes to board a plane. Aukai, after passing through the metal detector and having his personal effects screened without event as part of his entry to the secure area of the airport, was subjected to secondary screening because he had no ID. This screening…