November, 2014

Ninth Circuit:  Pulling Baggie Out of
Arrestee’s Rectum Requires
Search Warrant, Medical Training

The Ninth Circuit held that narcotics investigators violated the constitutional rights of an arrestee by immediately removing a baggie they saw sticking out of his rectum during a visual cavity search at the jail.  There was no evidence that the arrestee could have destroyed the evidence, or that the baggie’s unidentified contents posed a medical emergency.  There was ample time for the investigators to have obtained a search warrant.  United States v. Fowlkes, 2014 BL 235402, (9th Cir., No 11-50273, 08-25-14); full text at

Ninth Circuit:  Loaded Gun on Porch
Did Not Create Exigency Justifying
Order For Suspect to Exit His Home

The Ninth Circuit held that police officers who saw a man with a pistol in his hand retreat into his house from his front porch needed a warrant to order him to exit the residence.  Seeing the pistol did not create exigent circumstances excusing the lack of warrant.  Carrying a loaded gun in California is only a misdemeanor.  United States v. Nora, 2014 BL 239250 (9th Cir., #12-50485, 08-28-14); full text at

New Mexico:  Rape-Shield Law Does Not Block Testimony About Couple’s History of Make-Up Sex

The New Mexico Supreme Court held that a defendant charged with trying to rape his girlfriend should have been allowed to cross-examine her about the couple’s history of engaging in “make-up sex” as a method of resolving disputes.  The evidence was offered to support the defendant’s claim that he was only aggressively pursuing consensual “make-up sex” as the couple had done after arguments in the past.  State v. Montoya, (N.M., #33,592, 08-21-14); full text at

Texas:  Expunged Criminal Records
May be Used in Disciplinary Proceeding
Against Prosecutor

The Texas Supreme Court held that a prosecutor accused of suppressing exculpatory evidence in a criminal case cannot prevent disciplinary authorities from accessing records from the criminal trial by citing an expungement order entered in the case.  The prosecutor withheld an exculpatory 911 tape from the defendant.  An expungement does not bar the Commission from using records from the criminal trial in the grievance proceeding.  In re State Bar of Texas, 2014 BL 233916 (Tex., #13-0161, 08-22-14); full text at

Third Circuit:  Evidence of Prior Illegal
Gun Buy Was Inadmissible

The Third Circuit held that, at a defendant’s trial for illegally possessing a firearm found beneath the seat of a car where he was sitting, the government should not have been allowed to present evidence that the defendant had previously been convicted of using a third party to illegally purchase a firearm.  The government did not explain the relevance of the prior conviction to the current charges.  United States v. Brown, 2014 BL 237661 (3d Cir. #13-2214, 08-27-14); full text at

Third Circuit:  Officers Should Have
Halted Search For Gun Once Gunman
was Cuffed, House was Secure

The Third Circuit held that Philadelphia police officers who had pursued a man carrying a handgun into a residence needed to get a warrant to keep searching for the gun after they had handcuffed him in a back room and were escorting him outside.  Once the police secured the defendant and had everyone else in the house outside, they violated the Fourth Amendment when they looked behind a door for the handgun they had earlier seen the suspect carrying.  United States v. Mallory, 2014 BL 244512 (3d Cir., #13-2025, 09-03-14); full text at

Eleventh Circuit:  Grabbing Lawyer’s Arm
to Seize Phone was “Seizure”
Under Fourth Amendment

A divided Eleventh Circuit held that a lawyer who alleges that she was subjected to an unreasonable seizure in violation of the Fourth Amendment when an officer at a courthouse security checkpoint grabbed her wrist and jerked her arm while forcibly twisting a mobile phone out of her hand has stated a viable constitutional claim. West v. Davis, (11th Cir., #13-14805, 09-08-14); full text at

Ninth Circuit:  Fellow Inmate’s Delivery Qualifies For Mailbox Rule

The Ninth Circuit held that the prison “mailbox rule” for habeas corpus petition deadlines applies even if the petitioner recruited a fellow inmate to deliver the petition to prison authorities.  Application of the rule has never turned on who physically delivered the petition to prison authorities.  Hernandez v. Spearman, 2014 BL 233308 (9th Cir., # 09-55306, 08-22-14); full text at

Wyoming:  Ban on Mandatory LWOP For Juveniles Applies to “Functional Equivalent” of LWOP

The Wyoming Supreme Court held that the Eighth Amendment’s limits on sentences of life imprisonment without parole for offenses committed by juveniles prohibits sentences to terms of years that are the “functional equivalent” of life without parole.  The court found that “a lengthy aggregate sentence for closely-related crimes whose practical effect is that the juvenile offender will spend his lifetime in prison triggers the Eighth Amendment protections set forth by the United States Supreme Court in Miller.”  Bear Cloud v. State, (Wyo., No. S-13-0216, 09-10-14), further proceedings in 294 P.3d 36, 92 CrL 575; full text at