Tuesday, December 16, 2008

Kreskin = CAAFlog: CAAF grants review in Weston

Today's Daily Journal gives us this new grant in U.S. v. Darrel A. WESTON, No. 08-0594/MC (NMCCA No. 200600985). Review granted on the following issues:

I. Whether the lower court erred in holding that Georgia v. Randolph, 547 U.S. 103 (2006), does not apply to the consent search of appellant's marital home where agents from the Marine Corps' Criminal Investigation Division (CID) first received appellant's unequivocal objection to a search of his marital home and then obtained consent from appellant's wife, both of whom were physically located in separate interrogation rooms in CID’s building on Marine Corps Base Hawaii, Kaneohe Bay, Hawaii.

II. Whether, assuming arguendo that the search of appellant's marital home was unreasonable in light of Georgia v. Randolph, 547 U.S. 103 (2006), the lower court erred in holding that the inevitable discovery exception to the exclusionary rule would allow admission of the seized evidence.

(CAAFlog tip of the day: to convert from all caps to all lowercase paste the all caps message into Word, highlight the text, and press Shift-F3 until the text appears in all lowercase.)

As CAAFlog previously predicted, here, this case was destined for CAAF review. This is the NMCCA panel reversal of an MJ's (now-Navy-Marine Corps Trial Judiciary CJ MacKenzie's) decision that turned into an en banc affirmance when 2 NMCCA judges went from agreeing with a panel decision to agreeing with an en banc decision. As CAAFlog previously observed, this inevitable discovery and competing consent case provides no clue as to why or how the two judges changed their votes from the panel to the en banc opinion. Now CAAF takes a shot at explaining why they were right or wrong to change their votes.

UPDATE: From CAAFlog's dueling post on Weston: Yesterday was the last day that CAAF could grant review of a case and, without altering the normal briefing schedule, ensure that it will be ready for oral argument by the 25 and 26 February argument dates.

1 comment:

Anonymous said...

This is an interesting case. I think that the answer may depend more on where one perceives the genesis of the property right. Some tend to focus on the property itself and see property rights as rooted in the property. Others tend to focus on the person and see property rights as rooted in personhood, with the property being an accidental phenomenon.

So, in Randolf, the "physical presence" of the "refuser-of-consent" held a lot of weight. But we can't know whether the Supremes were focused on the person or the property. After all, the "refuser-of-consent" was at the fabled threshold, the infamous common-law curtilege.

The question in Randolf was whether an evidentiary seizure was lawful with the permission of one occupant when the other was present at the scene and expressly refused to consent.

Was the "physical presence" at the scene critical?

I guess we will find out in this case.

Randolf held that, a physically present co-occupant's stated refusal to permit entry trumps all, rendering a warrantless search unreasonable and invalid as to the "refuser-of-consent."

There is language in passing in Randolf to suggest that if the police physically remove a "refuser-of-consent" from the area, that removal is invalid and would be problematic for establishing valid consent from the remaining "granter-of-consent."

As to my irrelevant opinion: I believe property rights are rooted in people, not places. Katz v. United States, 389 U.S. 347 (1967). So I don't see how being at a police station magically renders a different result than the same combination of consent/refusal at the home.

Prediction: Stucky and Ryan go the conservative route pronounced by Roberts, Scalia and Thomas.