Today brings the first criminal cases of 2019.
First, in United States v. Torres, --- F.3d ---, No. 15-10492 (9th Cir. 2019), the Court upheld the constitutionality of 18 USC 922(g)(5) (possession of firearms by an alien unlawfully
present in the United States), against a Second Amendment challenge.
The case was decided under intermediate scrutiny.
Here's the conclusion: "The present state of the law leaves us unable to conclude
with certainty whether aliens unlawfully present in the United
States are part of 'the people' to whom Second Amendment
protections extend. Nonetheless, assuming that unlawful
aliens do hold some degree of Second Amendment rights, those rights are not unlimited, and the restriction in
§ 922(g)(5) is a valid exercise of Congress’s authority."
Next, in United States v. Martinez-Hernandez, --- F.3d ---, No. 16-50423 (9th Cir. 2019), the Court affirmed the defendants' illegal reentry convictions. The defendants brought collateral challenges to their predicate deportation orders under 8 U.S.C. 1326(d). They argued their prior convictions under
CPC § 211 no longer qualified as aggravated-felony crimes of violence under § 1101(a)(43)(F).
The Ninth Circuit agreed with that argument, but held it did not matter because the 211 robbery convictions qualified as a generic theft offense under 8 U.S.C.
§ 1101(a)(43)(G), and thus were aggravated felonies under 18
U.S.C. § 1227(a)(2)(A)(iii).
The Court, therefore, found the prior removal orders were valid. Notably, it reached this conclusion despite the fact that the defendants were not charged with being removable for having a theft offense, only on the basis of a crime of violence. This case therefore is somewhat of a departure from prior cases focusing exclusively on whether the individual was "deportable as charged."
Finally, in United States v. Johnson, --- F.3d ---, No. 17-10252 (9th Cir. 2019), the Court affirmed the district court's denial of the defendant’s motion to suppress evidence recovered from
the warrantless searches of his person and car and the search (with a warrant) of his house.
The meat of the opinion is the discussion of the search incident to arrest. Under Ninth Circuit law, incident to arrest, does not have to be after the arrest: "a search incident to a lawful arrest may occur before the arrest itself, even if the crime of arrest is different from the crime for which probable cause existed."
"So
long as the search was incident to and preceding a lawful
arrest—which is to say that probable cause to arrest existed
and the search and arrest are roughly contemporaneous,
Smith, 389 F.3d at 951—the arresting officer’s subjective
crime of arrest need not have been the crime for which
probable cause existed."
Judge Watford concurs to point out that the search-preceding-arrest rule should be overruled.
