First, in United States v. Brown, --- F.3d ---, No. 19-50250 (9th Cir. 2021), the Court reversed the denial of Brown's motion to suppress the fruits of a search of his pocket and his subsequent conviction for possession of 35.35 grams of heroin with intent to distribute.
This case is all about Terry stops and the limits of protective searches. Based on all the circumstances, the Court concluded the officer had reasonable suspicion for the stop. But the subsequent search exceeded Terry. The key point is that, the officer did not perform any pat down or other initial limited intrusion but instead proceeded directly to extract and examine an item in Brown’s pocket.
We conclude that the officers complied with Terry and its progeny in all respects except one: in conducting the limited protective search for weapons that Terry authorizes, the officer here did not perform any patdown or other initial limited intrusion but instead proceeded directly to extract and examine an item in Brown’s pocket. We conclude that, under Sibron v. New York, 392 U.S. 40 (1968)—a companion case to Terry that was decided the same day—the officer’s search of Brown’s pocket exceeded the limited scope of what Terry permits and was therefore unreasonable under the Fourth Amendment.
The Court also noted: "Merely sitting next to a vehicle in a motel parking lot does not, without more, give rise to reasonable suspicion of loitering or any other crime."
Second, in United States v. Nishiie, --- F.3d ---, No. 19-10405 (9th Cir. 2021), the Court reversed the district court’s order dismissing as time barred seven non-conspiracy criminal counts, and remanded for further proceedings, in a case in which the indictment alleges that Duane Nishiie engaged in a scheme seeking payments in exchange for steering the award of Department of Defense contracts for infrastructure, engineering, and construction projects in Korea.
This is a long opinion about statutory construction. The Court framed the issue as follows:
This appeal raises a question of first impression: which of the three categories of offenses under the Wartime Suspension of Limitations Act (“WSLA”), 18 U.S.C. § 3287—fraud, property, or contract—is modified by a clause requiring a nexus between the charged criminal conduct and a specific, ongoing war or congressional authorization of military force. If the WSLA’s war nexus clause—“which is connected with or related to the prosecution of the war or directly connected with or related to the authorized use of the Armed Forces”—applies, then the criminal charges against Duane Nishiie are time barred.
The Court held: "Based upon the WSLA’s text, history, and context, however, we hold that the war nexus clause modifies only the third offense category—not at issue here. Accordingly, we reverse the district court’s dismissal of Nishiie’s seven criminal counts and remand for further proceedings."
In very short, this means that, under the Wartime Suspension of Limitations Act, the statute of limitations is tolled for fraud and property offenses against the U.S. regardless of whether there is a nexus between the charged criminal conduct and a specific, ongoing war or congressional authorization of military force.
As the Court explained, "We are acutely aware—and somewhat concerned—that this interpretation, while legally correct, may effectively toll the statute of limitations for offenses under the WSLA for 20, 30, even 40 plus years. In large part that results from the expansion of war powers far beyond what they were when the WSLA was codified in 1948. Any policy concern for subjecting defendants to decades-long liability is subordinated to the WSLA’s unambiguous language."
