Appellate Law

CA1: sentencing, and car protective sweeps

By S. COTUS

US v. Diaz, No. 06-2378.  The court affirms the denial of a motion to suppress evidence obtained in a ?protective sweep? of a car after the defendant was cuffed.  The District Court comes up with this silly rationale, such a search isn?t reasonable as "to conduct a protective search after putting a suspect in handcuffs during a Terry stop so that the suspect may be released from handcuffs as soon as police safety is assured."  Sure.  The District Court is really concerned with releasing ?from handcuffs? the kind of person that would be subject to a protective sweep. (He was a minority.  Later it was determined that he was an illegal alien with a gun.  Somehow white people in nice cars don?t get this treatment.)  The First says that there was other evidence that the car match the description of a car at another shooting.  The First says that Thornton v. United States, 541 U.S. 615 (2004) applies to any kind of search (even those undertaken before a suspect is arrested). 

Also not surprisingly, the District Court decides that the government?s failure to provide translations doesn?t create reversible error.  Yet, somehow, when civil litigants fail to do this in Puerto Rico (where the local rules require such translations), peoples? cases (usually civil plaintiffs) fail.   

The most interesting argument seems to be that because he was acquitted of being a ?felon in possession? the District Court can?t apply the ACCA?s sentencing enhancement.  But, the First says that the District Court can find such facts on its own.  Who needs juries, anyway?

Sufficiency arguments fail, as do Almendarez-Torres v. United States, 523 U.S. 224, 226-27 (1998) arguments. 

Full post as published by Appellate Law and Practice on March 07, 2008 (boomark / email).