But, if so, you'd be wrong. It's Judges Bybee and VanDyke, joined by Judge Chhabria (sitting by designation from the Northern District of California).
Judge Chhabria's concurrence might explain in substantial part why a case with such a panel ends up the way it does. He says (in part):
"I write
separately to emphasize that reversal is warranted only
because of how this case was presented to us. At no point has
the government meaningfully analyzed Bocharnikov’s first
encounter with law enforcement to help us determine what
sort of violation occurred. . . . And at
oral argument, despite suggestions from the bench that the
attenuation analysis would be unnecessary if the police had
probable cause to arrest Bocharnikov and if his first
confession was not coerced, the government declined to adopt
that position. In short, the government has disavowed the
argument that an attenuation analysis need not be conducted,
and left us with little choice but to assume for purposes of
this analysis that all four violations took place.
Had the government pressed Bocharnikov on the nature
of the first constitutional violation—or itself taken care to
identify the violations and the legal consequences that flow
from each—I strongly suspect we would have been
compelled to rule the other way. . . . To rule in the government’s favor on this appeal would
have required us to bend over backwards, doing the
government’s work for it. Federal prosecutors should not
need that kind of help from the courts, nor should they expect
to receive it."
This is a reminder that, a lot of times, there's not much you can do in your briefs or at oral argument to win a difficult case.
Yet, almost always, you can lose (even an easy case) because of 'em.
