Monday, October 31, 2005

Zambrana from the 7th: Say that again . . .

Here's something I don't think I've ever seen. In United States v. Zambrana, No 04-2311(7th Cir. 10/31/05), the district court suppressed evidence with a pretty extensive order; the government appealed; and the Seventh Circuit sends it back for a more definite suppression order--with a caveat that the parties and the district court shouldn't take the remand as an indication of any inclination on the merits.

The district judge was, apparently, in a prior incarnation, a police officer. The police officer who testified at the suppression hearing apparently taught classes on "pre- and post-stop indicators," that the district judge characterized as courses in "How to avoid the warrant requirement in searching a vehicle."

The Seventh Circuit opinion emphasizes the importance of what a police officer knows from his or her experience. In this case the testifying officer said that folks rarely "play down" their arrest records, as one of the suspects in this case did when asked about it. That seems unlikely to me.

But in any event, if a police officer testifies that X is the case in his experience, is that pretty much the end of the matter? How, in a suppression hearing, without extensive discovery, can any defendant challenge what an officer claims his or her experience has shown?

Maybe the theme for today is (ghostly) transparency, discussed by Doug Berman at SL&P in this post about a per curiam opinion in Eberhart v. United States, No. 04-1538 (U.S. Oct. 31, 2005), reversing the Seventh Circuit on a procedural issue.

I find this case strange.

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