United States v. Juan Lemus

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 08-50403 Plaintiff-Appellee, D.C. No. v. 3:07-cr-03238-

JUAN HERMAN LEMUS,  VQH-

Southern District of Defendant-Appellant. California, San Diego

 ORDER

Filed February 18, 2010

Before: Ronald M. Gould, Johnnie B. Rawlinson and Jay S. Bybee, Circuit Judges.

Order; Dissent by Chief Judge Kozinski

ORDER

A judge of this court sua sponte called for this case to be reheard en banc. A vote was taken, and a majority of the active judges of the court did not vote for a rehearing en banc. Fed. R. App. P. 35(f). The call for this case to be reheard en banc is DENIED.

Chief Judge KOZINSKI, with whom Judge PAEZ joins, dis- senting from the denial of rehearing en banc:

This is an extraordinary case: Our court approves, without blinking, a police sweep of a person’s home without a war-

2529 2530 UNITED STATES v. LEMUS rant, without probable cause, without reasonable suspicion and without exigency—in other words, with nothing at all to support the entry except the curiosity police…