United States v. Joshua Cooley


FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 17-30022 Plaintiff-Appellant, D.C. No. v. 1:16-cr-00042- SPW-1 JOSHUA JAMES COOLEY, Defendant-Appellee. ORDER Filed January 24, 2020 Before: Marsha S. Berzon, Stephanie Dawn Thacker, * and Andrew D. Hurwitz, Circuit Judges. Order; Concurrence by Judges Berzon and Hurwitz; Dissent by Judge Collins * The Honorable Stephanie Dawn Thacker, United States Circuit Judge for the U.S. Court of Appeals for the Fourth Circuit, sitting by designation. 2 UNITED STATES V. COOLEY SUMMARY ** Criminal Law The panel filed an order denying a petition for panel rehearing and denying on behalf of the court a petition for rehearing en banc, in a case in which the panel affirmed the district court’s order granting a motion to suppress evidence obtained as a result of the defendant’s encounter with a Crow Indian Reservation police officer while the defendant’s truck was parked on the shoulder of United States Route 212, which is a public right-of-way that crosses the Reservation. Concurring in the denial of rehearing en banc, Judges Berzon and Hurwitz wrote that even within the questionable genre of dissents from denial of rehearing en banc, Judge Collins’s dissent is an outlier that misrepresents the legal context of this case and wildly exaggerates the purported consequences of the panel opinion. Dissenting from the denial of rehearing en banc, Judge Collins, joined by Judges Bea, Bennett, and Bress, wrote that the panel’s extraordinary decision directly contravenes long- established Ninth Circuit and Supreme Court precedent, disregards contrary authority from other state and federal appellate courts, and threatens to seriously undermine the ability of Indian tribes to ensure public safety for the hundreds of thousands of persons who live on reservations within the Ninth Circuit. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. UNITED STATES V. COOLEY 3 ORDER The panel has voted to deny the petition for panel rehearing and petition for rehearing en banc. 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 rehearing en banc is denied. Attached are a dissent from and a concurrence respecting the denial of rehearing en banc. BERZON and HURWITZ, Circuit Judges, concurring in the denial of rehearing en banc: Even within the questionable genre of dissents from denial of rehearing en banc, see Martin v. City of Boise, 920 F.3d 584, 588 (9th Cir. 2019) (Berzon, J., concurring in denial of rehearing en banc), Judge Collins’s dissent to the denial of rehearing (“dissent”) is an outlier. It misrepresents the legal context of this case and wildly exaggerates the purported consequences of the panel opinion. I This case involves an unusual factual scenario ...

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