May 16-17, 2024, opinions

Posted on by tadbartlett

Designated for publication

  • U.S. v. Martinez, 23-40366, appeal from S.D. Tex.
    • Dennis, J. (Dennis, Southwick, Ho), criminal, search and seizure
    • Affirming conviction of defendant for transporting undocumented aliens, upholding denial of motion to suppress that was brought on the basis that the alert of a Border Patrol canine was insufficient reasonable suspicion to extend the stop and probable cause to search because the canine would not have been able to differentiate between the scents of the driver/defendant and the scents of concealed passengers.
    • The Court noted, “by focusing on a dog’s ability to detect concealed humans, Martinez improperly parses the situation in hindsight, rather than examining it through the totality of Agent Compton’s experience in the moment. The record shows that Bak is trained and certified to detect both concealed humans and controlled substances. When Bak alerted to Martinez’s tractor-trailer, a reasonable person could have thought Bak was detecting either concealed humans or controlled substances.”
    • The Court also held, “even evaluating Bak’s ability to detect concealed humans, the district court’s finding that Bak was reliable in this regard is not clearly erroneous. The district court found Martinez’s argument that dogs cannot differentiate between the scents of different concealed humans to be speculative.”

Unpublished

  • U.S. v. Perricone, 22-51127, appeal from W.D. Tex.
    • per curiam (Barksdale, Southwick, Graves), criminal, sentencing
    • The Court affirmed the application of sentencing enhancement for “engag[ing] in a pattern of activity involving the sexual abuse or exploitation of a minor,” and upheld the admission of statements made by the defendant to law enforcement on the day of his arrest.
  • U.S. v. Gilbert, 23-10896, appeal from N.D. Tex.
    • per curiam (Smith, Higginson, Engelhardt), criminal, guilty plea
    • Affirming guilty plea conviction and 151-month sentence for conspiracy to possess with intent to distribute a mixture and substance containing a detectable amount of methamphetamine.
  • Ellis v. City of White Settlement, 23-10996, appeal from N.D. Tex.
    • per curiam (Clement, Elrod, Ho), § 1983
    • Affirming dismissal of pro se plaintiff’s § 1983 claims.
  • Thompson v. Singleton, 23-30655, appeal from E.D. La.
    • per curiam (Elrod, Haynes, Douglas), § 1983
    • Dismissing as frivolous appeal from dismissal of § 1983 suit for lack of sufficient service of process.
  • Benton v. U.S., 23-60445, appeal from N.D. Miss.
    • per curiam (Elrod, Oldham, Wilson), Federal Tort Claims Act
    • Affirming dismissal of FTCA claim as untimely.
  • McGee v. Barton, 24-30038, appeal from M.D. La.
    • per curiam (Jones, Higginson, Ho), prisoner suit
    • Dismissing as frivolous appeal from dismissal of Louisiana state prisoner’s § 1983 claim.