Government misses correct issue and loses suppression motion

U.S. District Court for Oregon grants a motion to suppress that, in my view, should have been denied but the correct legal theory is never mentioned in the opinion. Either the government or the court missed the issue to deny suppression. United States v. Clark, 2006 U.S. Dist. LEXIS 68610 (D. Ore. September 22, 2006). The defendant was stopped for trespassing after he was seen coming from an area with a “no trespassing” sign. After walking away from the officer, apparently attempting to elude arrest, he was finally apprehended and handcuffed. The backpack was at his feet. He refused consent to search the backpack, but he said it was not his. Later, the backpack was searched at the police station after the defendant’s arrest, but it was held the search could not be justified by any exception the government argued. The court details the facts and the government argued that the defendant abandoned his backback by first denying that it was his, but he asserted control over the backpack by words and deed and refusing to consent to a search, and that this was a correct conclusion on this issue. Inventory was rejected, too. Where the issue was missed, however, was the defendant’s probation officer talked to the defendant, and the defendant told the PO that he would “get him.” Finding of fact 10:

10. After placing Defendant and the backpack in his patrol car, Officer Carrico was occupied outside of the car for a time. During that period, Defendant started to move out of the police car. PO Martin told Defendant to get back and physically moved Defendant toward the police car. In response, Defendant said to PO Martin, “I have the same thing you have on your belt in my pack and I’m not chicken-shit like you to use it. I am going to use it on you. I am going to get you for this.” (Emphasis added.) PO Martin again told Defendant to get back into the patrol car. After Defendant complied, PO Martin closed the car door. PO Martin repeated Defendant’s statements to Officer Carrico.

If this isn’t cause to search the backpack for a gun, what is? What about a probation search? If the government failed to frame the issue correctly, should the court do it for it? No. That would be an “activist judge.” The parties frame the issues, and the court decides. The Ninth Circuit will probably reverse, if the government appeals.