Wasserman's Appellate Summaries
September 22, 2000
By Lawrence Wasserman, Esq.
Netlaw Libraries welcomes back attorney Lawrence Wasserman as a new website contributor. We are pleased to announce that his guest column, which synopsizes the recent decisions from the Ninth Circuit Court of Appeals, the California Supreme Court, the six California appellate districts, as well as some of the recent and interesting decisions from the U.S. Supreme Court, will be appearing as a regular feature for members and guests visiting the Netlaw Libraries website. We hope that you will find it to be a good way to start your legal research day and welcome your comments and criticisms regarding the column.
Burbank-Glendale-Pasadena v. Hensler
Case No. B125401
California Court of Appeal, Second District, Division Three
ORDER
Modification of opinion filed herein on August 30, 2000, the modification effects a change in the judgment.
United States v. Martin
Case No. 99-55478
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-APPEAL OF DENIAL OF MOTION ATTACKING SENTENCE-TIMELINESS OF MOTION TO RECONSIDER-REQUIREMENT FOR CERTIFICATE OF APPEALABILITY-ANTI-TERRORISM AND EFFECTIVE DEATH PENALTY ACT
Martin was convicted in federal court in 1991 on three counts: a firearm offense; conspiracy to possess cocaine base with intent to distribute; and, possession of cocaine base with intent to distribute. He was sentenced to 235 months. In 1998, his motion to invalidate his conviction for the firearm offense was granted. Before he was re-sentenced, eighty-three days after the District Court's order, the Government filed a motion to reconsider. The Government's motion was held to be timely and the court reversed its decision granting the motion.
HELD: At the time of Martin's appeal a petitioner did not need to have a Certificate Of Appealability if the petition was filed before the effective date of the Anti-terrorism and Effective Death Penalty Act of 1996. After this appeal was filed, the Supreme Court held that an appeal brought after the effective date of the AEDPA requires a COA. A COA must issue before the case could proceed in the Ninth Circuit. A COA may only issue if the applicant has made a substantial showing of the denial of a constitutional right. The two-part test to determine appellate jurisdiction over trial court procedural errors in habeas cases is: 1) the court must decide whether the petition raises a debatable constitutional question; and, 2) the procedural issue raised must be debatable. The Court held that Martin satisfied these two tests and treated his appeal as an application for a COA. In this case, until the scheduled re-sentencing occurs the initial order was not final and the ten-day limitation of the Rules for bringing the motion does not apply. The motion was timely. Affirmed.
Mena v. City of Simi Valley
Case No. 99-56720
U.S. Court of Appeals for the Ninth Circuit
CIVIL RIGHTS-QUALIFIED IMMUNITY-LIMITATION OF SEARCH PURSUANT TO A WARRANT-UNREASONABLE DESTRUCTION OF PROPERTY IN EXECUTION OF WARRANT-UNREASONABLE DETENTION DURING SEARCH
Police officers investigating a gang-related drive-by shooting learned that their primary suspect, Raymond Romero, was in possession of a .25 caliber handgun used in the shooting. Romero was determined to be at a house owned by Mena. A search warrant was secured describing the house as one known to be occupied by numerous persons and provided for a search for deadly weapons and related material of the entire house and garage. The officer did not mention that he had been to the premises before and most of the rooms leading from the living room were locked. When the warrant was executed the officers forced the locks open on the rooms, handcuffed the residents, including Mena, for two to three hours and removed them to the garage. After the search they released Mena and told her the reason for the search. Mena sued for violation of her civil rights. Defendants motion for summary judgment, on qualified immunity grounds, was denied.
HELD: Qualified immunity requires that the law governing theofficial's conduct was clearly established; and, under that law, a reasonable officer could have believed the conduct was lawful. The Court found that there was absolutely no evidence in the record sufficient to create a genuine issue of material fact that the officers submitting the affidavit for the warrant or any other officer of the SVPD knew or should have known prior to the application for the warrant that the Mena residence was a multi-unit dwelling. Defendants reasonably could have believed at the time the warrant was issued that there was probable cause to search the entire premises. Shortly after beginning the search, the evidence and the reasonable inferences it supports are sufficient to suggest that the officers should have realized that the Mena's house was a multi-unit residential dwelling and that the warrant was actually overbroad. The officers were required to discontinue the search of Mena's property not reasonably in Romero's control as soon as they discovered that there were other separate units on the property. On the totality of the circumstances Mena's detention past the point of a proper search violated the Fourth Amendment, as did the unnecessary destruction of property by the officers. Affirmed in part, reversed in part and remanded.
Los Angeles Alliance For Survival v. City of Los Angeles
Case No. 97-56742
U.S. Court of Appeals for the Ninth Circuit
ORDER-ORDINANCE REGULATING SOLICITATION
The district court granted a preliminary injunction barring enforcement of a Los Angeles Ordinance regulating solicitation. The City of Los Angeles appealed.
HELD: The question of whether the regulation of solicitation was content based under the California Constitution was referred to the California Supreme Court, which responded that it was content neutral. Even though an ordinance regulating solicitation is content-neutral, whether the ordinance in certain aspects and applications infringes upon the right to free speech raises other serious questions. Because the balance of hardships tips sharply in favor of the Alliance and they would be irreparably injured absent the preliminary injunction, the grant of the preliminary injunction was affirmed. Remanded for further proceedings.
*Change in law, interesting case, or just watch out!
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