United States v. Herman Patayan Soriano

Opinion by Judge CLIFTON; Dissent by Judge BERZON

ORDER

The opinion and the dissenting opinion filed October 15, 2003, and published at *497 346 F.3d 963 (9th Cir.2003), are amended as follows:

The opinion is amended by adding a new footnote 4, 346 F.3d at 975 , at the end of the first sentence of the concluding paragraph: “For the foregoing reasons, we affirm the denial of Soriano’s motion to suppress, and thus affirm his conviction. 4 ”

The dissenting opinion is amended by replacing the first paragraph, 346 F.3d at 975 , with:

Accordingly, I respectfully dissent.

Replace the fourth paragraph (the fourth paragraph on 346 F.3d at 977 ) with:

Replace the second and third full paragraphs (second and third full paragraphs on 346 F.3d at 978-79 ) with:

Replace the final paragraph of the dissenting opinion ( 346 F.3d at 983 ) with:

With these amendments, Judge Tashima and Judge Clifton have voted to deny the petition for rehearing and petition for rehearing en banc. Judge Berzon has voted to grant the petition for rehearing and petition for rehearing en banc.

A judge of the court called for a vote on the petition for rehearing en banc. A vote was taken, and a majority of the…

dissenting:

Faced with conflicting representations by two law enforcement officers, Hiroe Mukai did the only thing that a reason able parent could have done under the circumstances: She consented to a search for fear that the representation of one of the two officers that her young children would be taken from her if she did not consent would prove correct. The trial court recognized that when signing the consent form Mukai did “have [ ] in mind to some extent” her fear that her children would be taken from her if she refused to accede to the officers’ demand. Yet, the trial court concluded that Mukai’s consent was voluntary.

In affirming the district court’s decision, the majority ratifies at least two unacknowledged legal errors: first, the assumption that where there is a finding that impermissibly coercive statements occurred and did impact the decision to consent, as here, the decision can nonetheless be voluntary even if the reliance on the coercive statements was reasonable; and second, the conclusion that a consent can become voluntary simply because there was time to deliberate concerning whether to rely on impermissibly coercive statements.

At the outset, I note that…

361 F.3d 494 UNITED STATES of America, Plaintiff-Appellee, v. Herman PATAYAN SORIANO, Defendant-Appellant. No. 01-50461. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 16, 2003. Filed October 15, 2003. Amended March 11, 2004. COPYRIGHT MATERIAL OMITTED Jeffrey H. Rutherford, Deputy Federal Public Defender, Los Angeles, CA, for the defendant-appellant. Adam D. Kamenstein, Assistant United States Attorney, Los Angeles, CA, for the plaintiff-appellee. Appeal from the United States District Court for the Central District of California Lourdes G. Baird, District Judge, Presiding. Before: TASHIMA, BERZON, and CLIFTON, Circuit Judges. Opinion by Judge CLIFTON; Dissent by Judge BERZON ORDER CLIFTON, Circuit Judge. 1 The opinion and the dissenting opinion filed October 15, 2003, and published at 346 F.3d 963 (9th Cir.2003), are amended as follows: 2 The opinion is amended by adding a new footnote 4, 346 F.3d at 975 , at the end of the first sentence of the concluding paragraph: "For the foregoing reasons, we affirm the denial of Soriano's motion to suppress, and thus affirm his conviction. 4 " 4 After the initial publication of the opinions in this case and during…