United States v. Heriberto Pacheco-Ruiz

dissenting:

I dissent from the withdrawal of this case from consideration by the court en banc. A review of the transcript of evidence and photographs of the crawl space still leaves me with the firm conviction that the fourth amendment was not intended to protect the crawl space here. Although Pendleton admittedly is controlling in cases involving the breaking and entering of a house or garage extending the privacy of the home to crawl space under a house is simply expanding the fourth amendment too far. In my view, exaggerated applications of the amendment discredit its basic validity.

CHOY, Circuit Judge, joins in this dissenting opinion.

dissenting:

I dissent from the refusal of the court to take this case en banc for the reasons stated by Judge Carter in his dissenting opinion.

APPENDIX

Opinion of October 23, 1975

As modified December 23, 1976.

Border patrol agents looking for illegal aliens under Pacheco-Ruiz’s house in No-gales found suspicious-looking burlap bags, and called a narcotics agent. The resulting discovery of marijuana led to a conviction under 21 U.S.C. § 841 (a)(1) and this appeal.

The border patrol agents had a statutory right to be on Pacheco-Ruiz’s…

After considering appellee’s petition for rehearing with suggestion for rehearing en banc (filed December 10, 1975) and appellant’s objection thereto (filed February 17, 1976), Judges Hufstedler and Goodwin voted to deny the petition for rehearing and to reject the suggestion for rehearing en banc; Judge Carter voted to allow the petition for rehearing and recommended that the case be heard en banc.

The full court was advised of the suggestion for rehearing en banc. An active judge of the court requested en banc consideration, and a majority of the active judges of the court voted to take the case en banc unless the panel modified its opinion. The panel modified its opinion and circulated it to the entire court; thereafter, upon a vote of the active judges, the request for en banc failed of a majority.

The opinion filed October 23,1975, is withdrawn. The attached amended opinion is filed herewith, together with Judge Carter’s dissenting opinion. * The petition for rehearing is denied, and the suggestion for en banc rehearing is rejected. Judges Chambers’ and Trask’s opinions dissenting to the rejection are filed herewith.

See Appendix.

549 F.2d 1204 UNITED STATES of America, Appellee, v. Heriberto PACHECO-RUIZ, Appellant. No. 74-3337. United States Court of Appeals, Ninth Circuit. Dec. 23, 1976. Victor R. Schwanbeck and Hiram A. Cannon (argued), of Cannon & Schwanbeck, Tucson, Ariz., for appellant. Bruce Heurlin, Asst. U. S. Atty. (argued), Tucson, Ariz., for appellee. Before CARTER, HUFSTEDLER, and GOODWIN, Circuit Judges. 1 After considering appellee's petition for rehearing with suggestion for rehearing en banc (filed December 10, 1975) and appellant's objection thereto (filed February 17, 1976), Judges Hufstedler and Goodwin voted to deny the petition for rehearing and to reject the suggestion for rehearing en banc; Judge Carter voted to allow the petition for rehearing and recommended that the case be heard en banc. 2 The full court was advised of the suggestion for rehearing en banc. An active judge of the court requested en banc consideration, and a majority of the active judges of the court voted to take the case en banc unless the panel modified its opinion. The panel modified its opinion and circulated it to the entire court; thereafter, upon a vote of the active judges, the request for en banc…