In United States v. D.M., --- F.3d ---, No. 16-50243 (9th Cir. 2017), reversing the decision below, the Court held the defendant was eligible for
a sentence reduction under Guidelines Amendment 782, which lowered the
recommended sentence for drug offenses.
First, the Court determined the appeal was not moot. Although the defendant had been released from custody, the district court could still reduce his term of supervised release.
Second, under U.S.S.G. § 1B1.10(b)(2)(B), the district court could consider a
number of departures when calculating a sentencing reduction where the defendant has previously provided substantial
assistance. The court was not limited to consideration only
of the departure attributable to substantial assistance.
In other words, if at the original sentencing, the defendant received a departure for substantial assistance, as well as other departures, the district court could consider all of them as part of any reduction: "a court [can], when
implementing USSG § 1B1.10(b)(2)(B), [] consider
departures that resulted in the previous sentence that were not
directly attributable to substantial assistance." This is distinguished from sentencing reductions, when there was no substantial assistance.
In United States v. Faagai, --- F.3d ---, No. 15-10621 (9th Cir. 2017), the majority affirmed the district court's denial of a suppression motion. The majority agreed there was probable cause to believe that
contraband would be found in the defendant's truck, and thus the search
was permissible under the automobile exception. Part of this purported probable cause came from calls where the defendant and his alleged drug supplier discussed going to Costco.
Here is the end of Judge Kozinski's dissent:
The majority strings together a sequence of events like beads on a strand, but doesn’t explain how any of them provide probable cause that Faagai was carrying drugs in his car when he was stopped. Nor do my colleagues reckon with a long line of our cases holding that police suspicions lacking objective evidence are insufficient to establish probable cause. Instead, they fall back again and again on their dubious theory of code words, treating words like “food” and “tools” as nefarious. There’s a vicious circularity to this logic: With the luxury of hindsight, anything at all that Faagai and Penitani might’ve discussed can simply be labeled “code for drugs.”
Here’s what this case boils down to: Officers had a hunch that a drug transaction was going down. They saw nothing obviously suspicious, but got tired of waiting, watching and wiretapping. They then jumped the gun by executing a warrantless search. Until today, this was not enough to support probable cause, but going forward it will be. This is a green light for the police to search anyone’s property based on what officers subjectively believe—or claim to believe—about someone’s everyday conduct. That puts all of us at risk. Accordingly, I dissent, and I’m off to Costco to buy some food.
