In United States v. Johnson, --- F.3d ---, No. 16-10184 (9th Cir. 2017), the Court affirmed the defendant's conviction for felon in possession.
The defendant was on Cal. parole subject to a broad 4th waiver. After his arrest, police searched his phone without a warrant, finding incriminating text messages.
The Court affirmed the denial of the defendant's motion to suppress. Distinguishing Riley and Lara, the Court held the warrantless search of the
defendant’s cell phone was constitutionally reasonable,
given his status as a parolee and his reduced expectation of
privacy.
The Court also rejected the defendant's argument about prolonged seizure of his phone.
Next, the Court considered whether the consent to search (given by the principal tenant) was valid. The Ninth considers five factors to assess whether consent was
voluntary:
(1) whether defendant was in custody; (2)
whether the arresting officers have their guns
drawn; (3) whether Miranda warnings have
been given; (4) whether the defendant was
told he has a right not to consent; and
(5) whether defendant was told a search
warrant could be obtained.
The Court affirmed the district court's finding of valid consent. But there is a helpful reminder: "The rule is that failing to object to police entry,
when no request for permission to enter was made, does not
constitute effective consent."
Other than the Fourth Amendment issues, the Court rejected the defendant's hearsay / Confrontation Clause argument. It found the subject statement was testimonial, but not offered for its truth.
The Court also considered, and rejected, the defendant's argument about expert ballistic testimony.
Finally, on the government's cross appeal, the Court vacated the defendant's sentence, finding the district court erred in concluding his prior Robbery (PC 211) conviction did not qualify as a crime-of-violence, career-offender predicate.
Moving on.
In United States v. Robertson, --- F.3d ---, No. 16-30178 (9th Cir. 2017), the Court affirmed the defendant's convictions for violating the Clean Water Act (CWA).
Much of the appeal turned on whether the dumping at issue fell within the CWA. That, in turn, required the Ninth to engage in a lengthy discussion of how to deal with fractured (split) Supreme Court opinions, and when intervening case law is clearly irreconcilable with prior precedent under Miller v. Gamie.
Additionally, the Court joined its sister Circuits in holding a criminal defendant cannot
challenge the sufficiency of the evidence at a previous trial
following conviction at a subsequent trial. Thus, the Court rejected the defendant’s argument that
the district court should have granted his motion to acquit
after the jury deadlocked at his first trial.
There was also discussion, and rejection, of the defendant's challenges to the government's expert.
