US v. Jiménez, No. 04-1691, holds that 1) a person didn’t have authority to consent to a search of a room, and the agents were not permitted to conduct a protective sweep of that room – but the error was harmless; 2) it was not an abuse of discretion to hold a evidentiary hearing where the facts were not in dispute; and 3) there were no Crawford, Booker, or FRE 804(b)(3) isusues.
Specifically, the court seems to come close to articulated when Maryland v. Buie, 494 U.S. 325, 327 (1990) does not apply, but backs off. In this case, the government had argued that the smell of marijuana in a place where they had no warrant to search justified a protective sweep because “that the smell of smoke emanating from the front room escalated the threat the agents were facing during their search because it was reasonable for them to suspect that Jiménez was in the house, smoking marihuana, likely in possession of a firearm, and possibly lying in wait for them.”
Also, failing to admit a statement of a co-conspirator was upheld because it wasn’t really a statement against penal interest under FRE 804(b)(3), because it was wasn’t really inculpatory of the defendant. If the declarant had wanted to make such a statement, the court held, he could have done it at trial – but he refused to. The District Court refused to grant a “missing witness” instruction, as well, because, under United States v. St. Michael's Credit Union, 880 F.2d 579, 597 (1st Cir. 1989), the government’s power to grant immunity to a witness asserting the fifth amendment doesn’t make the witness available to the government. (Something doesn’t sit well with me about this, but I will have to think about it.)
There was no Crawford issue where a statement was introduced “for purposes other than establishing the truth of the matter asserted.
And, finally, there was no Booker remand because he didn’t show that he could have gotten a lower sentence.