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August 22, 2005

Guest Computer User

I left my computer sort of laying around the other night when we had a houseful of guests and when I opened it up the next morning I found a browser window open to the Westlaw version of U.S. v. Johnson, 123 Fed.Appx. 240, 2005 WL 589976 (C.A.7 (Ind.)). Another window was open to this recording of the oral argument in that case in which an exasperated attorney is apparently arguing a position that would contradict the U.S. Supreme Court and the 7th Circuit is having none of it. I have not investigated beyond this point to really understand what this is about except that the attorney is arguing that pretextual stops by police are really really bad. I certainly agree. When he's done, it sort of sounds like he tries to walk out and the clerk won't let him. It's all very strange.

But who was looking at this case and why? The mystery may never be solved....

Posted August 22, 2005 11:14 PM | crimlaw


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Sounds like a great argument. I think the link's broken, though. Any idea the case?

Posted by: Greg at August 23, 2005 12:54 AM

Sorry about that. I guess it's a dynamic link so you can't go directly to it. Try here. If that doesn't work, the case was # 04-2732 : USA v. Johnson, Robert Lee.

Posted by: ambimb at August 23, 2005 10:25 AM

I've heard that argument, and it's actually Judge Bauer who tells the appellant's counsel that his seat is at the counsel's table. The case involved a drug-sniffing dog, and came before the court about six weeks after the Caballes decision. How counsel failed, in those six weeks, to either withdraw or develop a way to distinguish his case from Caballes I don't understand.

Posted by: Jennifer at August 23, 2005 08:29 PM

Imagine taking the case and working on it for like a year to present on appeal. Then the Supreme Court issues a decision one month before your oral arguments (but probably after your brief was submitted) that completely negates any arguments that you had for your case. *That* is frustration.

The audio can be found in the archives of the court's webpage by searching 04-2732.

Here's the first I saw of it:
Adapted from the source http://www.theconglomerate.org/2005/03/ineffective_ass.html
"There is an electronic recording of an unbelievable appellate argument heard in front of the 7th Circuit a couple of months ago. The counsel for appellant in a search and seizure case (U.S. v. Johnson, 04-2732) stumbles around for less than 3 1/2 minutes, basically gives up his argument, and presumably even walks out of the courtroom. Even when Milwaukee's own Diane Sykes is trying to help him, counsel refuses to be helped. The appellant made an in forma pauperis filing, so his counsel was likely appointed. Maybe he had better things to do
yesterday or else is planning a really clever "inassistance of counsel" appeal."


Here is the entire opinion from the case:

Robert Johnson was convicted after a jury trial of possession with
intent to distribute in excess of 500 grams of cocaine, 21 U.S.C.
841(a)(1), (b)(1)(B)(ii)(II), and sentenced to 130 months'
imprisonment and 4 years' supervised release. On appeal Johnson
challenges the district court's denial of his motion to suppress
evidence obtained during a traffic stop where a dog alerted to the
presence of drugs, arguing that his consent to allow the [**2] dog to
walk around his van was involuntary.

A recent Supreme Court case makes it irrelevant whether Johnson's
consent for the dog sniff was voluntary. See Illinois v. Caballes, 160
L. Ed. 2d 842, 125 S. Ct. 834, 838 (2005) (holding that no legitimate
privacy interest is implicated by allowing a drug-detection dog to
sniff the exterior of a vehicle during a lawful traffic stop). The
trooper at the scene had not finished writing the warning ticket when
the officer walked the dog around Johnson's van, so Johnson's consent
was irrelevant. Cf. Knowles v. Iowa, 525 U.S. 113, 117-118, 142 L. Ed.
2d 492, 119 S. Ct. 484 (1998). At argument, Johnson could not
distinguish his case from Caballes, and neither can we.

AFFIRMED.

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