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Judge Betty Fletcher gave the federal government what it wanted Wednesday. But she didn’t feel too good about it. And her colleague, Judge Raymond Fisher, wasn’t really happy, either. Fletcher, a senior judge on the 9th U.S. Circuit U.S. Court of Appeals, authored two opinions Wednesday, and sat on the panel that offered a third, per curiam opinion. They said that border agents searching for contraband may disembowel gas tanks, drill holes in truck beds and disassemble car doors without reasonable cause for suspicion. Fletcher made her feelings known in a concurrence to her own opinion in U.S.A. v. Chaudhry, 05 C.D.O.S. 8344, that, she wrote, is intended “to express my distaste for the government’s game-playing.” The game-playing involved the government’s goal of getting an appeals court to agree that border agents could take apart an automobile without apparent suspicion. But in all three cases, there were clear reasons for suspicion that the government chose not to enter into evidence — from drug-sniffing dogs to visibly nervous drivers. “But the government wanted confirmation that no suspicion is required for extensive, intrusive searches at the border,” Fletcher wrote. “This would have an ancillary benefit for the government — it would not have to prove the reliability of its drug-sniffing dogs.” The question of whether the government may conduct such extensive searches without suspicion, she added, “is an entirely fictional construct. Suspicion existed in each case, and in my view, review of cases at the appellate level is a waste of judicial resources. The only possible purposes are the government’s desire to push the envelope to its limits: to find out how much destruction it can do without any suspicion, and to avoid proving it uses reliable dogs.” In a separate — but much shorter — concurrence, Fisher agreed. Northern District of California Federal Defender Barry Portman said Fletcher seemed constrained by the longstanding trend of U.S. Supreme decisions expanding the freedom of border guards to conduct random searches. “We’re looking to see, when the crowbar comes out to the cab, what is the allowable destruction of the vehicle,” he said. Without room to rule against the government, he said, Fletcher did everything possible to criticize the litigation strategy. “She’s never been one to tiptoe around things she thinks are off,” he said. But, Portman added, the easy solution for a judge who felt forced to make a distasteful ruling would be to issue an unpublished opinion. And Rory Little, a professor at Hastings College of the Law and a former federal prosecutor, said he was puzzled by the fact that Fletcher would author an opinion in a case that she called “essentially a request for an advisory opinion.” “It’s a little bit of judges crying, in a sense, after they’ve inflicted their own wound,” he said. But, Little continued, he understands why judges might be annoyed by the government’s strategy of eliminating certain facts from a case to get a favorable appeals court ruling. “I don’t like the strategy either, personally, but if I was an appellate lawyer, I’d use it,” he said. “It is a way, in a sense, for a party to overreach. You can win on your facts, but you want more.” The strategy is common in instances when a litigant is hopeful they can get a favorable ruling on a controversial issue. “It’s not game playing. It’s a litigation technique that is often used by appellate lawyers when they want to develop law that is favorable to them,” Little added. But in the criminal justice system, Portman said, it’s a technique whose benefits are limited to prosecutors. “That’s an advantage that the government has that defense counsel never does,” he said. “Because the government represents positions, while defense lawyers represent a person.”

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