United States v. Chong in Kim

specially concurring:

I concur in all but Part II.C. of the majority opinion. I also agree with the majority’s conclusion in Part II.C. that the district court did not err in considering at sentencing the 348 grams of methamphetamine, suppressed at trial as the product of a warrantless, non-consensual search. Under the law of our circuit, illegally seized contraband must be *1437 suppressed at sentencing where failure to do so would create a significant incentive for illegal searches. United States v. Vandemark, 522 F.2d 1019, 1022-23 (9th Cir.1975); Verdugo v. United States, 402 F.2d 599, 611-12 (9th Cir.1968). Given the objective nature of this test, I do not place as much reliance as the majority upon the district court’s findings as to the officers’ subjective intent. However, I agree that suppressing the illegally seized methamphetamine at sentencing was not necessary in this case, where the officers had a significant incentive to find and seize a defendant whom they reasonably suspected was trying to evade capture and punishment.

My disagreement is with the majority’s unnecessary suggestion that because of the adoption of the Sentencing Guidelines, courts may no longer…

Appellant Chong In Kim was convicted on December 4, 1992, in the United States District Court for the District of Hawaii of possession of various narcotics with intent to distribute under 21 U.S.C. § 841 (a)(1) and possession of firearms in connection with the use and trafficking of controlled substances under 18 U.S.C. §§ 922 (g)(3) and 924(c)(1). Sentenced to 108 months in federal prison, Kim challenges two aspects of the district court’s ruling and one aspect of sentencing, including: The judge’s failure to find that Kim was arrested pursuant to an illegal, race-based stop; the finding that Kim consented to be searched; and the enhancement of Kim’s sentence on the basis of contraband suppressed at trial as the fruit of an illegal search and seizure.

I.

Kim’s conviction arises out of an investigation conducted by the Drug Enforcement Administration (DEA) in the McCully district of Honolulu. Agent Aiu testified that this investigation was prompted by a tip informing the DEA that on November 13, 1991 a male Korean, five-feet six to five-feet seven in height, in his mid-twenties or early thirties, would be carrying several ounces of methamphetamine (“ice”) in the vicinity of the…

25 F.3d 1426 UNITED STATES of America, Plaintiff-Appellee, v. Chong In KIM, Defendant-Appellant. No. 93-10022. United States Court of Appeals, Ninth Circuit. Argued and Submitted Jan. 11, 1994. Decided June 1, 1994. Joseph M. Gedan, Honolulu, HI, for defendant-appellant. Florence T. Nakakuni, Asst. U.S. Atty., Honolulu, HI, for plaintiff-appellee. Appeal from the United States District Court for the District of Hawaii. Before: CHOY, SCHROEDER, and NOONAN, Circuit Judges. CHOY, Circuit Judge: 1 Appellant Chong In Kim was convicted on December 4, 1992, in the United States District Court for the District of Hawaii of possession of various narcotics with intent to distribute under 21 U.S.C. Sec. 841 (a)(1) and possession of firearms in connection with the use and trafficking of controlled substances under 18 U.S.C. Secs. 922 (g)(3) and 924(c)(1). Sentenced to 108 months in federal prison, Kim challenges two aspects of the district court's ruling and one aspect of sentencing, including: The judge's failure to find that Kim was arrested pursuant to an illegal, race-based stop; the finding that Kim consented to be searched; and the enhancement of Kim's sentence on the basis of…