9th Circuit Criminal Law News - U.S. Ninth Circuit
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Las Vegas is set to become the focal point for a Fourth Amendment issue that's as brazen as it is kooky.

Suspecting several high rollers staying at Caesars Palace were engaged in an illegal bookmaking operation, the feds allegedly cut off Internet access to their $25,000-per-night private villa, then posed as repairmen to enter the villa, snoop around, and use that snooping as the basis for a subsequent search warrant.

Given that the Ninth Circuit is a perennial contender for most frequently reversed, it was not a huge surprise to see the Supreme Court toss one of their decisions in the shredder. It was a bit surprising, however, to see it happen so quickly -- before oral arguments began, and on the same day the Court released an orders list clearing much of its summer cert. petition backlog.

Why did the Supreme Court give the Ninth Circuit the quick and swift rejection, like a gowned and gaveled Dikembe Mutombo? It's the much-maligned Antiterrorism and Effective Death Penalty Act (AEDPA), and more specifically, the Ninth Circuit's completely botched application of its review standard.

Yesterday, we (again) brought you the tale of Tio Sessoms, a then-teenaged suspect who kinda-sorta asked for counsel. The en banc Ninth Circuit, on its third take on the case, granted habeas relief for the second time, after a Supreme Court cert. grant and summary reversal.

This time, a majority of the Ninth Circuit held that Sessoms' two statements ("There wouldn't be any possible way that I could have a -- a lawyer present while we do this?" and "Yeah, that's what my dad asked me to ask you guys ... uh, give me a lawyer.") were an unambiguous exercise of his right to counsel.

Chief Judge Alex Kozinski "reluctantly" dissented. Four other judges also dissented across two more opinions.

Why? One word: deference.

In 1999, a then-19-year-old burglary and murder suspect named Tio Dinero Sessoms was interrogated by police officers. They did not advise him of his Miranda rights, and after a bit of overly polite small talk, Sessoms stated, "There wouldn't be any possible way that I could have a -- a lawyer present while we do this?"

The detectives began to parry his question, which led Sessoms to meekly mention that his father "asked me to ask you guys ... uh, give me a lawyer."

If that was an unambiguous request for counsel, questioning should have stopped. But the trial court and California appellate courts held that the two statements were not unambiguous (the first was a question, the second was a statement about his father's advice) and let his subsequent incriminating statements into the trial and his conviction to stand.

Now, on its third take on the case, an en banc Ninth Circuit has granted habeas relief.

The only thing I know about NCIS is that my mom loves it (the TV show, that is). And I love to see Mark Harmon working a steady job.

But today, the Ninth Circuit ruled that the real-life NCIS exceeded the scope of its authority by investigating civilian child pornography. Cue David Caruso. Oops, wrong show.

Sheriff's deputies at the Long Beach jailhouse understandably don't want drugs circulating around the facility. So when Mark Fowlkes was brought in on drug and weapons charges, and officers allegedly peeped a portion of a plastic baggie poking out of his rectum, they were understandably concerned.

Their response, however, crossed the line into a Fourth Amendment violation when they Tased him, five officers held him down, and Sgt. Michael Gibbs, with gloved hands, used his thumb and forefinger to remove a bloody, golf ball-sized bag from Fowlkes' rectum.

The Ninth Circuit, holding that the evidence should be suppressed, called the search "brutal and physically invasive," as well as "degrading and dangerous."

Who could've predicted this? Perhaps anyone who has been watching the string of executions that have been carried out over the past few months -- a series of cruel and unusual science experiments using novel combinations of drugs often sourced from unregulated compounding pharmacies. Isn't this exactly why death row inmates are fighting for access to information on drugs and the execution team?

And so it goes again: witnesses say that the inmate spent the next two hours gasping for air before finally succumbing to the drugs. Meanwhile, his lawyers raced to the courthouse to file a mid-execution stay, hoping to end the unusual, and possibly cruel, punishment being doled out to Joseph Rudolph Wood.

Here's another interesting death penalty ruling out of the West Coast.

The Ninth Circuit just did what a number of other courts have refused to do: forced a state to turn over information on the source of execution drugs and the credentials of the executioners, while granting a stay of execution in the interim.

In dissent, Judge Jay Bybee calls the inmate's First Amendment right of access claim "novel" and argues that the right of access dispute, which would apply to all citizens and not just to the inmate, does not justify delaying an execution more than two decades in the making.

In 2010, Los Angeles officials gathered for a "Town Hall on Homelessness," a forum where Venice residents complained about the prevalence of homeless individuals sleeping in their cars. City officials and high-ranking LAPD officers attended, assured residents that they would reemphasize enforcement of an existing ordinance prohibiting living in one's car.

How? They formed a task force of twenty-one officers that were to use Section 85.02 to cite and arrest homeless people who were in violation of the statute. As part of this enforcement, officers ticketed or arrested a man waiting to volunteer at his church, a woman driving her RV through Venice, and a guy waiting out a rainstorm in his car, amongst others. None were caught sleeping in their vehicles, and some of them even had proof that they slept elsewhere, such as a local shelter.

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Arizona: the proving ground for state immigration and abortion laws.

We've seen a lot of movement on Arizona abortion cases lately, and on Monday, the Supreme Court declined to intervene in an ongoing challenge to the state's illegal immigrant harboring statute, which means the injunction, which currently blocks enforcement of the state law, will remain in place during the litigation.

An en banc challenge to a related law, which prohibits bail for illegal immigrants, was recently argued before the court and is awaiting a decision.