February-March, 2015

Utah:  Bad Stop Requires Suppression of
Evidence Found During Arrest on
Outstanding Warrant

The Utah Supreme Court held that when police officers discover outstanding arrest warrants for suspects that they have unconstitutionally detained, the admissibility of evidence found during searches incident to the arrests is governed by the inevitable discovery exception to the Fourth Amendment’s exclusionary rule rather than the taint analysis that other courts apply in this situation.  The court stated that a strong indication that the US Supreme Court did not intend for the attenuation analysis to apply in the warrant scenario is the existence of a different doctrine that applies in cases involving parallel lines of investigation: the inevitable discovery exception.  State v. Strieff, 2015 BL 12219 (Utah, No. 20120854, 01-16-15); full text at http://www.bloomberglaw.com/public/document/ State_of_Utah_Respondent_v_Edward_Joseph_Strieff_Jr_Petitioner_No

Tenth Circuit:  Defendant Didn’t Waive
Batson Rebuttal by Waiting Until After
Trial to Mount Attack

The Tenth Circuit held that a criminal defendant did not forfeit his right to rebut the government’s purported nondiscriminatory reasons for striking a potential juror by waiting until after he was convicted and had filed a motion for a new trial.  Although the delay did not require forfeiture, it was not without consequences.  The court stated that it would limit its inquiry in these tardy Batson attacks to the information that was before the district court during voir dire.  United States v. Vann, 2015 BL 11034, (10th Cir., No. 13-2190, 01-16-15); full text at http://www.bloomberglaw.com/public/document/ United_States_v_Vann_No_132190_2015_BL_11034_10th_Cir_Jan_16_2015

First Circuit:  Entrapment Ruling Brackets
Circumstances in Which Solicitation
Becomes ‘Inducement’

The First Circuit held that a bribery sting operation did not merit an entrapment jury instruction.  The court held that in analyzing whether there was improper inducement, the method of purportedly inducing a defendant is more important than the number of solicitations.  United States v. Gonzalez-Perez, 2015 BL 18052 (1st Cir., No. 12-1743, 01-23-15); full text at http://www.bloomberglaw.com/public/document/ United_States_v_GonzalezPerez_No_121743_2015_BL_18052_1st_Cir_Jan

Ninth Circuit:  The Ninth Circuit Joins the
Majority in Split on Whether Deadline on
Court is Mandatory

The Ninth Circuit held that a federal court deciding whether to allow a prisoner to file a second or successive petition can still allow the prisoner to proceed even if the court has missed the 30-day statutory deadline for granting or denying the motion.  The court also held that the US Supreme Court’s recent narrowing of qualifying predicates under the Armed Career Criminal Act does not justify a second or successive petition to challenge an ACCA sentence.  Ezell v. United States, 2015 BL 16257 (9th Cir., No. 14-71696, 01-23-15); full text at http://www.bloomberglaw.com/public/document/ Ezell_v_United_States_No_1471696_2015_BL_16257_9th_Cir_Jan_23_201

Georgia:  Homeowner Consent Didn’t
Extend to Locked Room

The Georgia Supreme Court held that the police could not rely on the doctrine of third-party consent to justify breaking into a suspect’s locked bedroom where the homeowner did not have a key to the room.  The court said that the person giving consent has to have joint access or control of the area that the police want to inspect.  State v. Colvard, 2015 BL 12173 (Ga. No. S14A1347, 01-20-15); full text at http://www.bloomberglaw.com/public/document/ State_v_Colvard_No_S14A1347_2015_BL_12173_Ga_Jan_20_2015_Court_Op

Eighth Circuit:  AEDPA Finality Isn’t
Defined by Intricate State Rules

The Eighth Circuit held that the one-year deadline for filing a federal habeas petition does not start to run until the 30-day period for filing a direct appeal has expired, even if the defendant was not entitled to appeal his conviction under state law because of the terms of his guilty plea.  Camacho v. Hobbs, 2015 BL 13595 (8th Cir., No. 13-3584, 01-21-15); full text at http://www.bloomberglaw.com/public/document/ Camacho_v_Hobbs_No_133584_2015_BL_13595_8th_Cir_Jan_21_2015_Court

Ninth Circuit:  Freezing Trust Account
Entitles Inmate to Notice

The Ninth Circuit held that due process principles described in Mathews v. Eldridge, 424 U.S. 319 (1976), entitled an inmate to notice that the Oregon prison system was freezing $65,353.94 in his prison trust account to pay the costs of his incarceration.  The inmate had received a large settlement in a lawsuit against a drug manufacturer.  Shinault v. Hawks, 2015 BL 15281, (9th Cir., No. 13-35290, 01-22-15); full text at http://www.bloomberglaw.com/public/document/ Shinault_v_Hawks_No_1335290_2015_BL_15281_9th_Cir_Jan_22_2015_Cou

Delaware:  Reverse-Batson Error
Requires New Trial

The Delaware Supreme Court held that a judge’s determination that an African American defendant did not engage in racial discrimination by exercising his first 14 peremptory strikes against white jurors undermined the judge’s determination that the 15th strike against a white juror was discriminatory.  The proper remedy for the judge’s erroneous denial of the defendant’s peremptory strike was a new trial.  McCoy v. State, 2015 BL 13746 (Del., No. 558 2012, 01-20-15); full text at http://www.bloomberglaw.com/public/document/ McCoy_v_State_No_558_2015_BL_13746_Del_Jan_20_2015_Court_Opinion

Wisconsin:  Erroneous Denial of
Substitute Judge Isn’t Harmless

The Wisconsin Supreme Court held that a violation of a defendant’s state statutory right to a substitute trial judge is not subject to harmless-error analysis, which would nullify the defendant’s statutory right to substitution of the judge.  State v. Harrison, (Wis., No. 2013AP298-CR, 01-22-15); full text at http://www.bloomberglaw.com/public/document/ State_v_Harrison_2015_WI_5_Court_Opinion

New Hampshire:  Lone Officer Shouldn’t
Have Frisked Passenger

The New Hampshire Supreme Court held that a state trooper lacked sufficient reason to frisk the passenger of a car where the trooper stopped the car after observing the driver litter and subsequently seized the butt of a marijuana cigarette from the driver.  The trooper’s reasons of being outnumbered by two motorists, the lack of eye contact by the passenger, and her lying that she had not been drinking in the car did not make it reasonable for the trooper to believe that the passenger was armed and dangerous.  State v. Broadus, 2015 BL 14866, (N.H., No. 2013-757, 01-22-15); full text at http://www.bloomberglaw.com/public/document/ State_v_Broadus_No_2013757_2015_BL_14866_NH_Jan_22_2015_Court_Opi

Nevada:  Discovery of Warrant Won’t Purge
Evidence of Taint of Bad Stop

The Nevada Supreme Court held that a police officer’s detention of a pedestrian to run a warrants check after the suspicion underlying the stop had dissipated violated the Fourth Amendment and required suppression of the evidence (handgun) that the officer found during a later search incident to the arrest on the warrant.  The court chose to limit its ruling to stops of pedestrians.  Torres v. State, 2015 BL 21390, (Nev., No. 61946, 01-29-15); full text at http://www.bloomberglaw.com/public/document/ Torres_v_State_No_61946_2015_BL_21390_Nev_Jan_2015_Court_Opini

Massachusetts:  Prosecution for Cyber
Harassment Didn’t Violate
Free-Speech Rights

The Massachusetts Supreme Judicial Court held that a couple who emailed threats against their neighbor and lured others to join unwittingly in the campaign of harassment with a series of false online posts were not engaging in constitutionally protected speech.  The First Amendment does not provide a defense to a criminal charge of harassment simply because the defendants used words to carry out their illegal plot.  Commonwealth v. Johnson, (Mass., No. SJC-11660, 12-23-14); full text at http://www.bloomberglaw.com/public/document/ Commonwealth_v_Johnson_470_Mass_300_2014_Court_Opinion

Sixth Circuit: Rejection of State Filing
Over Unpaid Fees Won’t Count as
Failure to Exhaust Remedies

The Sixth Circuit held that a prisoner did not fail to exhaust his state remedies for purposes of having his federal habeas petition heard just because his direct state appeal was denied over a failure to pay overdue fees, taxes, costs and other expenses from a different matter.  The court stated that access to the courts cannot be contingent on wealth.  Clifton v. Carpenter, 2014 BL 363081, (6th Cir., No. 13-5402, 12-24-14); full text at http://www.bloomberglaw.com/public/document/ Clifton_v_Carpenter_No_135402_2014_BL_363081_6th_Cir_Dec_24_2014

Pennsylvania:  Witness Who Refuses to Talk Isn’t Available for Cross

The Pennsylvania Supreme Court held that a defendant’s Sixth Amendment confrontation rights were violated when the state was allowed to put into evidence a four-year-old sex abuse complainant’s forensic interview after she took the stand on direct and refused to speak.  The fact that the witness curled up in a fetal position and kept intoning that she wanted to go home made it clear that there was no realistic opportunity to engage in effective cross-examination.  In re N.C., 2014 BL 351562 (Pa., No. 5 WAP 2014, 12-15-14); full text at http://www.bloomberglaw.com/public/document/ In_re_NC_No_5_WAP_2014_BL_351562_Pa_Dec_15_2014_Court_Opinio

Pennsylvania:  State Has Burden of
Going Forward at Suppression

The Pennsylvania Supreme Court held that a defendant charged with a possessory crime has “automatic standing” to file a motion to suppress, which means that he does not need to prove as a preliminary matter that he had a reasonable expectation of privacy before the prosecution’s burden of production is triggered.  The prosecution cannot simply sit on its hands and force the defendant to admit his connection to the contraband or the area searched.  Commonwealth v. Enimpah, 2014 BL 364525 (Pa., No. 84 MAP 2013, 12-29-14); full text at http://www.bloomberglaw.com/public/document/ Commonwealth_v_Enimpah_No_84_MAP_2013_2014_BL_364525_Pa_Dec_29_20

Seventh Circuit:  Suspect Detained by
Armed Officers During Search of
Home Was in Custody

The Seventh Circuit held that a suspect who was handcuffed while more than a dozen armed officers executed a search warrant at his home and then was confined to a small bedroom for three hours of questioning was “in custody” for purposes of Miranda v. Arizona.  Although the suspect was told that he wasn’t under arrest and the interrogation wasn’t antagonistic, these factors did not outweigh the coercive nature of the detention.  The court stated that the overwhelming display of force inside a single-family home would have led a reasonable person to believe that he was not free to leave.  United States v. Borostowski, 2014 BL 367921 (7th Cir. No. 13-3811, 12-31-14); full text at http://www.bloomberglaw.com/public/document/ United_States_v_Borostowski_No_133811_2014_BL_367921_7th_Cir_Dec

Ninth Circuit:  Ban on Proximity to
All Sexy Materials Violates the
First Amendment

The Ninth Circuit held that a term of supervised release that purports to bar a convicted child molester from possessing material depicting any sexually explicit conduct and from patronizing places where such depictions are available violates the former inmate’s First Amendment right to access non-pornographic depictions of adults.  The court found that the conditions deprived the defendant of more liberty than is reasonably necessary to accomplish the goals of supervised release.  United States v. Gnirke, 2015 BL 99 (9th Cir., No. 13-50101, 01-02-15); full text at http://www.bloomberglaw.com/public/document/ United_States_v_Gnirke_No_1350101_2015_BL_99_9th_Cir_Jan_02_2015

Fifth Circuit:  Officers Making “Hot Pursuit” Entry May Still Have to
Knock and Announce

The Fifth Circuit held that circumstances that make it reasonable for police officers to make a warrantless “hot pursuit” entry do not necessarily make it reasonable for the officers not to knock and announce their identity and purpose.  It also held that any reasonable officer would know this and, accordingly, denied qualified immunity to a police officer and his chief in a federal civil rights lawsuit.  Trent v. Wade, 2015 BL 4828, (5th Cir., No. 13-10960, 01-09-15); full text at http://www.bloomberglaw.com/public/document/ Trent_v_Wade_No_1310960_2015_BL_4828_5th_Cir_Jan_09_2015_Court_Op

Massachusetts:  Law Firm Can’t be
Ordered to Give up Client’s Mobile Phone

The Massachusetts Supreme Judicial Court held that a law firm need not comply with a grand jury subpoena duces tecum directing it to surrender a client’s mobile phone so prosecutors can mine the data in the phone for evidence of a crime being investigated by the grand jury.  The court held that the phone was shielded from compulsory disclosure by the attorney-client privilege.  In re Grand Jury Investigation, 2015 BL 4434 (Mass., No. SJC-11697, 01-12-15); full text at http://www.bloomberglaw.com/public/document/ In_re_a_Grand_Jury_Investigation_No_SJC11697_2015_BL_4434_Mass_Ja

District of Columbia Circuit:  Domestic
Abuse Victim’s Statement to Police Was
Testimonial Where Emergency Was Over

The District of Columbia Court of Appeals held that a police officer’s recital to a jury of what a non-testifying domestic-assault complainant said to him after he arrived at her apartment and asked “What happened?” violated a defendant’s Sixth Amendment right to confront adverse witnesses.  The officer’s open-ended questions signaled that the police were conducting a criminal investigation.  Andrade v. United States, 2015 BL 3093 (D.C. Cir., No. 13-CM-224, 01-08-15); full text at http://www.bloomberglaw.com/public/document/ Andrade_v_United_States_No_13CM224_2015_BL_3093_DC_Jan_08_2015_Co

Eleventh Circuit:  Prisoners Might be
Entitled to Obtain Santeria Supplies
From Unapproved Sources

The Eleventh Circuit ruled that an inmate may go forward with a Religious Freedom Restoration Act lawsuit alleging that prison officials violated his right to religious expression when they blocked him from receiving Santeria beads, necklaces, and cowrie shells that have been ceremonially soaked in animal blood.  Davila v. Gladden, 2015 BL 4403, (11th Cir., No. 13-10739, 01-09-15); full text at http://www.bloomberglaw.com/public/document/ Davila_v_Gladden_No_1310739_2015_BL_4403_11th_Cir_Jan_09_2015_Cou