Tuesday, December 12, 2006

U.S. v. Luong (9th Cir. - Dec. 12, 2006)

Two interesting things about this case.

First, although the opinion only parenthetically refers to it, the facts of the case involve something that I don't recall having seen before: The "different sovereign" exception to the Double Jeopardy Clause being employed by the government to circumvent an adverse search and seizure ruling. Here, the defendant gets indicted in a California state court on a drug charge, but the state trial court court holds that the warrant wasn't supported by probable cause (and the good faith exception didn't apply), so suppresses the evidence, and the California Court of Appeal affirms. At which point the U.S. responds by indicting the defendant in federal court, on the basis of the same evidence that had been suppressed in state court, and asking the federal court to allow it in even though the state court hadn't. No privity, after all (or at least allegedly), so res judicata doesn't apply.

Neat trick, huh?

Second, Judge Tevrizian suppresses the evidence again, and the government appeals to the Ninth Circuit. At which point the panel -- which consists of Judges Fletcher, Ferguson, and Callahan -- has to decide whether to suppress. Remember, the state trial court, the state appellate court, and the district court have all held that the evidence was unlawfully seized. As, in the end, does the majority. But one judge dissents. Can you guess who it is?

I think you can. Not that s/he doesn't make some tolerable points. But I think that the majority -- and all the other judges -- are nonetheless correct.

Rarely do you see a judge on the Ninth Circuit be a fair piece more right-of-center than the California state court in a criminal case. But it happens here. So it's memorable.