April, 2016

D.C. Circuit:  Attorney was Ineffective for Not Anticipating that FSA Would be Given Retroactive Effect

A divided D.C. Circuit held that a lawyer rendered ineffective assistance when he didn’t correctly predict that the new federal law lowering harsh mandatory minimums for crack cocaine offenders would be made retroactive to cases that were still in the pipeline when the law went into effect.  The decision puts lawyers on notice that they might need to keep track of looming legislative developments and tailor their trial strategy accordingly.  United States v. Abney, 2016 BL 32207 (D.C. Cir., No. 14-3074, 02/05/16; full text at http://www.bloomberglaw.com/public/document/United_States_v_Abney_No_143074_2016_BL_32207_DC_Cir_Feb_05_2016.

Second Circuit:  Warrantless Cross-Threshold Arrest Counted as Inside Arrestee’s Home

The Second Circuit held that in the absence of exigent circumstances, the legality of a cross-threshold warrantless arrest depends on the location of the arrestee as opposed to the arresting officers.  The defendant was inside his home and the police officers were able to effect the arrest without crossing the threshold.  The Court held that where “law enforcement officers have summoned a suspect to the door of his home, and he remains inside the home’s confines, they may not effect a warrantless ‘across the threshold’ arrest in the absence of exigent circumstances.”  United States v. Allen, (2d Cir. No. 13-3333-cr, 01/29/16; full text at http://www.bloom berglaw.com/public/document/United_States_v_Allen_No_133333cr_2016_BL_24083_2d_Cir_Jan_29_201.

Illinois:  Expert Testimony on Eyewitness Reliability Admissible, Even if Suspect was no Stranger

The Illinois Supreme Court held that expert testimony on the reliability of eyewitness identification may be relevant and appropriate even in cases where the accused murderer wasn’t a complete stranger.  The court stated that there was no per se rule of exclusion just because the accused wasn’t a complete stranger.  People v. Lerma, 2016 BL 17381 (Ill., No. 118496, 01/22/16; full text at http://www.bloomberglaw.com/public/document/People_v_Lerma_2016_Il_118496_Court_Opinion.

Arkansas:  False Name, ‘Masking Agent’ Didn’t Justify Extending Traffic Stop Until Drug Dog Arrived

A divided Arkansas Supreme Court held that the fact that a motorist used a fake name when claiming a post office package that smelled like dryer sheets – a known drug-masking agent – didn’t give police sufficient cause to drag out an ensuing traffic stop for an extra half hour while waiting for a drug-detection dog.  MacKintrush v. State, 2016 BL 17211 (Ark., No. CR-15-387, 01/21/16; full text at http://src.bna.com/ca8.

Ohio:  Arrest of Passenger Over Domestic Assault Didn’t Justify Impounding Legally Parked Car

A divided Ohio Supreme Court held that police didn’t have justification to impound and search a legally parked vehicle just because they arrested a passenger on an outstanding domestic violence warrant.  This case clarifies that police do not have carte blanche to execute a warrantless search just because the person they arrest exited a vehicle. State v. Leak, 2016 BL 13949 (Ohio, No. 2014-1273, 01/20/16; full text at http://www.bloomberglaw. com/public/document/State_v_Leak_2016Ohio154_Ohio_Jan_20_2016_Court_Opinion.

New Jersey:  Suggestive Lineup Must be Evaluated in Absence of Extrinsic Evidence of Guilt

The New Jersey Supreme Court held that a court evaluating the reliability of an identification that resulted from a suggestive showup can consider only evidence of the showup itself and not any extrinsic evidence of guilt.  The reliability and the admissibility of the identification depend solely on “the accuracy and trustworthiness of the specific identification.”  State v. Jones, 2016 BL 13993 (N.J., No. A-112, 01/20/16; full text at http://www. bloomberglaw.com/public/document/State_v_Jones_No_A112_September_Term_2013_2016_BL_13993_NJ_Jan_20.

California Court of Appeal, Fourth District:  Police Officer’s False Promise Not to Charge if Suspect Told the Truth Invalidates Confession

The California Court of Appeals held that a suspect’s confession should have been suppressed where the police falsely assured him that he wouldn’t be charged so long as he was “honest” and told the truth.  The court stated that confessions elicited with beguiling promises of leniency are involuntary.  People v. Perez, 2016 BL 4750 (Cal. Ct. App., No. D068690, 01/08/16; full text at http://www.bloomberglaw.com/public/document/People_v_Perez_No_D068690_2016_BL_4750_Cal_App_4th_Dist_Jan_08_20.

Fifth Circuit:  Prosecutor’s Remarks About Credibility Crossed Line Into Improper Vouchsafing

The Fifth Circuit held that a man convicted of downloading child porn will get a new trial because the prosecutor told the jury he was convinced that the state’s witnesses were telling the truth and further assured the jurors that his office wouldn’t go after someone who was innocent. United States v. Smith, 2016 BL 37128 (5th Cir., No. 14-60926, 02/10/16; full text at http://www.bloomberglaw.com/ public/document/United_States_v_Smith_No_1460926_2016_BL_37128_5th_Cir_Feb_10_201.

Seventh Circuit:  Driver Fiddling with Phone Didn’t Give Cops Cause to Stop for Violating Anti-Texting Ban

The Seventh Circuit held that police who saw a motorist fiddling with his mobile phone didn’t have reasonable suspicion to stop him for violating a state texting-while-driving ban because it was just a likely that the driver was engaged in legal activity such as dialing a number or using a GPS application.  United States v. Paniagua-Garcia, 2016 BL 46039 (7th Cir., No. 15-2540, 02/18/16; full text at http://www.bloom berglaw.com/public/document/United_States_v_PanaguaGarcia_No-152540_2016_BL_46039_7th_C ir_Fe.

Maryland:  Prosecutor’s Batson Violation Wasn’t Cured by Intent to Sit Different Black Man on Jury

The Maryland Court of Appeals held that a prosecutor who justified the peremptory strike of a black man by saying that she intended to replace him with another black male from the prospective jurors in the on-deck circle violated Batson because that rationalization was neither race- nor gender-neutral.  By suggesting that minority jurors are interchangeable commodities, the prosecutor saved the defense the trouble of having to make out a prima facie case of discrimination.  Ray-Simmons v. State, 2016 BL 49211 (Md. No. 28, 02/22/16); full text at http://www.bloomberglaw.com/public/document/ RaySimmons_v_State_No_28_2016_BL_49211_Md_Feb_22_2016_Court_Opini.

D.C. Circuit:  Cops Who Asked Man to Exit Parked Car Didn’t Give Him Realistic Chance to Decline

The D.C. Circuit held that the police who asked a man to exit his legally parked car after the man refused to consent to a search effectively seized the man for purposes of a Fourth Amendment inquiry because it was clear that refusal was not a real option.  The court noted that it was not stating that every request to exit a vehicle qualifies as a seizure; however, the government was unable to point to any cases where a court held that an individual was not seized when police asked him to get out of a vehicle.  Sharp v. United States, 2016 BL 45032 (D.C., No. 13-CM-951, 02/18/16; full text at http://www.bloom berglaw.com/public/document/Sharp_v_United_States_No_13CM951_2016_BL_45032_DC_Feb_18_2016_Cou.

Kansas:  Motorist Can’t be Punished for Revoking ‘Implied Consent’ and Saying no to BAC Test

A divided Kansas Supreme Court held that drivers in Kansas who refuse to submit to a warrantless blood, breath, or urine test during a DUI stop can’t be prosecuted for that refusal under the state’s implied-consent laws.  The court stated that everyone has a right – grounded in the Due Process Clause of the 14th Amendment – to withdraw their consent to a warrantless search, regardless of whether that consent is express or implied.  State v. Ryce, 2016 BL 56385 (Kan., No. 111,698, 02/26/16; full text at http://www.bloomberglaw.com/public/ document/State_v_Ryce_No_111698_2016_BL_56385_Kan_Feb_26_2016_Court_Opinio.

Ninth Circuit:  Suspicionless Search of Nonviolent Probationer’s Mobile Phone Voided

The Ninth Circuit held that government agents may not comb through the digital data on a probationer’s mobile phone just because the man signed a condition of probation stating that the government had the right to search his “property” at any time. A probationer’s acceptance of a search term in a probation agreement doesn’t by itself justify otherwise unconstitutional searches.  United States v. Lara, 2016 BL 64094 (9th Cir., No. 14-50120, 03/03/16; full text at http://www.bloom berglaw.com/public/document/UNITED_STATES_OF_AMERICA_Plaintiff_v_PAULO_LARA_BRO_1_De.