Defendant’s search issue is arguable and substantial and a question of first impression in this circuit, and the search claim is determinative of the conviction. This counsel’s in favor of granting release pending sentencing. United States v. Wilson, 2018 U.S. Dist. LEXIS 1744 (S.D. Cal. Jan. 4, 2018):
B. Exceptional Reasons for Release
Wilson offers several reasons why the circumstances of this case present exceptional reasons supporting his release pending sentencing. The strongest of Wilson’s argument is that his appeal of this Court’s denial of his suppression motion, which is currently pending before the Ninth Circuit, raises a substantial question regarding the scope of the Fourth Amendment. The issue addressed in that ruling is novel—to the Court’s knowledge, the Ninth Circuit has never addressed it—and difficult. While it appears that at least two other district court judges have recently issued rulings denying suppression motions under similar facts, see United States v. Ackerman, No. 13-10176-EFM, 2017 U.S. Dist. LEXIS 178925, 2017 WL 4890433 (D. Kan. Oct. 30, 2017) (citing this court’s ruling); United States v. Stratton, 229 F. Supp. 3d 1230 (D. Kan. 2017), there is a meaningful possibility that the Ninth Circuit might disagree. What is more, if the Ninth Circuit reverses this Court’s decision on that issue, the Court would likely suppress the evidence obtained from Wilson’s email account and residence, as well as evidence obtained from investigations into Jenalyn Arriola. (See ECF No. 71 at 20-23 (rejecting the government’s alternative arguments).) Wilson’s convictions thus likely “will stand or fall” based on the Ninth Circuit’s ruling on a substantial Fourth Amendment issue. See Garcia, 340 F.3d at 1017 n.4. The Court finds that the substantial nature of Wilson’s appeal weighs strongly in finding that this case presents exceptional reasons to release Wilson pending sentencing.