28 April 2004

J.S. points out that I am not alone in my belief that Kyllo conflicts with Place et al. He points me toward United States v. Ibarra (2003), wherein the Defendant argues that the presence of a dog at a traffic stop and its use to sniff his car during an admitted pretext stop is unconstitutional. The Court rejects the argument citing Place and United States v. Beale, 736 F.2d 1289 (9th Cir 1984). Then, in footnote 4 it states:
Ibarra's argument that Place is not good law in light of Kyllo v. United States, 533 U.S. 27, 150 L. Ed. 2d 94, 121 S. Ct. 2038 (2001), is an argument we lack power to resolve. Despite the fact that Justice Stevens' dissent argued that the Court's opinion in Kyllo was inconsistent with Place, id. at 47-48 (Stevens, J., dissenting), the Court did not expressly overrule Place. We are therefore bound by Place, unless and until the Supreme Court instructs us to the contrary. See Hohn v. United States, 524 U.S. 236, 252-53, 141 L. Ed. 2d 242, 118 S. Ct. 1969 (1998) ("Our decisions remain binding precedent until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality.").
J.S. tells me that the panel which wrote this is conservative and I'll have to take his word on it. I'm just happy that I'm not the only person who sees it.

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