United States v. Jasper Black

482 F.3d 1044 UNITED STATES of America, Plaintiff-Appellee, v. Jasper BLACK, Defendant-Appellant. No. 05-10640. United States Court of Appeals, Ninth Circuit. April 10, 2007. 1 Daniel R. Schiess, Camille Damm, Office of the U.S. Attorney, Las Vegas, NV, for Plaintiff-Appellee. 2 Anne R. Traum, Federal Public Defender's Office, Las Vegas, NV, for Defendant-Appellant. 3 Before B. FLETCHER and MARSHA S. BERZON, Circuit Judges, and TRAGER, * Senior District Judge. 4 Order; Dissent by Judge KOZINSKI. ORDER 5 Judges B. Fletcher and Trager voted to deny the petition for panel rehearing. Judge Berzon voted to grant the petition for panel rehearing. Judge Berzon voted to grant the petition for rehearing en banc and Judges B. Fletcher and Trager recommended denial of the petition for rehearing en banc. 6 The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35. 7 The petition for panel rehearing and the petition for rehearing en banc are denied. 8 KOZINSKI, Circuit Judge, with whom…

Order; Dissent by Judge KOZINSKI.

*1045 ORDER

Judges B. Fletcher and Trager voted to deny the petition for panel rehearing. Judge Berzon voted to grant the petition for panel rehearing. Judge Berzon voted to grant the petition for rehearing en banc and Judges B. Fletcher and Trager recommended denial of the petition for rehearing en bane.

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35.

The petition for panel rehearing and the petition for rehearing en banc are denied.

with whom Judges REINHARDT, KLEINFELD and BERZON join, dissenting from the order denying the petition for rehearing en banc:

Once upon a time in the West there was a special place called home. Solemn pronouncements from our nation’s highest court, and our own court, protected it from warrantless police intrusions. “With few exceptions,” the Supreme Court held, “the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no.” Kyllo v. United States, 533 U.S. 27, 31 , 121 S.Ct. 2038 , 150 L.Ed.2d 94 (2001). Such searches were deemed “presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 586 , 100 S.Ct. 1371 , 63 L.Ed.2d 639 (1980). We held that the “government bears a heavy burden of demonstrating that exceptional circumstances justified departure from the warrant requirement. The burden [could not] be satisfied by speculation about what may or might have happened.” United States v. Howard, 828 F.2d 552, 555 (9th Cir.1987) (emphasis added) (quoting United States v. Licata, 761 F.2d 537, 543 (9th Cir.1985)). Police who entered the home without a valid warrant could be held personally liable. Groh v. Ramirez, 540 U.S. 551,…