April, 2015

Eleventh Circuit:  Passenger Had Protected Privacy Interest in Bag

The Eleventh Circuit held that a passenger in an automobile had a privacy interest protected by the Fourth Amendment in a bag in the car even after the driver granted police permission to search the car.  The bag was located on the passenger-side floor board, and it contained a gun used to charge the defendant with a federal firearm offense.  State v. Barber, 2015 BL 26486 (11th Cir., No. 13-14935, 02/03/15); full text at www.bloomberglaw.com/public/document/ State_v_Barber_No_1314935_2005_BL_26486_11th_Cir_Feb_03_2.

Massachusetts:  Doctor’s Letter Was Too Little, Too Late to Make Prosecution Witness ‘Unavailable’

The Massachusetts Supreme Judicial Court held that a prosecutors’ submission on the day of trial of a letter from a 74-year-old witness’s doctor stating that the witness’s medical conditions would be detrimentally affected by the stress of testifying wasn’t enough to render the witness “unavailable” for purposes of the constitutional limits on the admission of hearsay.  A letter would be sufficient only if it provided sufficient detail about the witness’s current medical condition to allow the judge to evaluate the risk that would be posed if the witness were to testify in court - a conclusory assertion is not enough.  The court found that timeliness is a part of a good faith effort to procure the witness. Commonwealth v. Housewright, 2015 BL 41053, (Mass., No. SJC-11617, 02-19-15); full text at www.bloomberglaw.com/public/document/ Commonwealth_v_Housewright_No_SJC11617_2015_BL_41053_Mass_Feb_19_

District of Columbia:  Arrestee Who Incited Crowd Didn’t Assault an Officer

The District of Columbia Court of Appeals held that a handcuffed defendant who attempted to pull away from a police officer escorting him by the arm and who incited an angry crowd to “get them off me” did not violate a statute that broadly describes an assault on an officer in terms of “obstructing,” “intimidating,” or “resisting.”  The court could not find that the crowd moved in a manner towards the officers that could be considered intimidating.  Gayden v. United States, 2014 BL 374256 (D.C., No. 13-CF-814, 02-05-15); full text at www.bloomberglaw.com/public/document/Gayden_v_United_States _103_A3d_203_DC_2014_ Court_Opinion

Alabama:  Defense Lawyer’s Waiver of Closing Was Premature

The Alabama Supreme Court held that a lawyer who waived closing argument before he heard any of the state’s closing remarks rendered ineffective assistance.  It would not have been possible for counsel to make a fully informed strategic decision without first having heard the complete content and extent of the state’s initial closing argument.  Ex parte Whited, 2015 BL 30808 (Ala. No. 1130686, 02-06-15); full text at http://www.bloomberglaw.com/public/document/Ex_parte_Whited_No_1130686_2015_BL_ 30808_Ala_Feb_06_2015_Court_Op.

Sixth Circuit:  No Qualified Immunity for Police Officers Who Tackled Woman While Looking For Man

The Sixth Circuit held that officers who received a report of a man who called a dispatcher and said that he needed a ride and “I’m gonna kill that bitch,” are not entitled to qualified immunity in a civil rights action brought by a woman whom they dragged out of a car, cuffed, and threw to the ground.  The officers lawfully stopped the car that they saw pulling away from the home where the call was made, but they no longer had reasonable suspicion once they determined that the driver was a woman.  Brown v. Lewis, 2015 BL 50151 (6th Cir., No. 14-1392, 02-26-15); full text at http://www.bloomberglaw.com/public/document/Brown_v_Lewis_No_141392_2015_BL_50151_6th _Cir_Feb_26_2015_Court_O.

Massachusetts:  Judge Should Have Asked Further About Sleeping Juror

The Massachusetts Supreme Judicial Court held that a trial judge presented with a juror’s report that another juror was nodding off and snoring loudly during important testimony should have done more than kept an eye on the juror for the rest of the trial.  The judge should have conducted an inquiry into whether and when the juror was sleeping.  Commonwealth v. McGhee, 2015 BL 36500 (Mass., No. SJC-11716, 02-13-15); full text at http://www.bloomberglaw.com/public/document/Commonwealth_v_McGhee_470_Mass_638_2015_Court_Opinion.

Kentucky:  Strike Explanation Failed Batson as a Matter of Law

The Kentucky Supreme Judicial Court held that trial counsel cannot get over the second hurdle of a Batson challenge to a peremptory strike with the argument that counsel did not single out the struck jurors and, instead, simply chose the jurors whom counsel liked and struck the rest.  Ross v. Commonwealth, 2015 BL 42074, (Ky., No. 2013-SC-000775-MR, 02-19-15); full text at http://www.bloomberglaw.com/public/document/Ross_v_Commonwealth_No_2012SC000775MR_ 2015_BL_42074_Ky_Feb_19_201.

Second Circuit:  Serial Vehicle Stops Based on Same Reason Must be Collectively Reasonable

The Second Circuit held that the reasonableness of successive traffic stops based on the same suspicion of criminal activity must be gauged collectively, not individually.  If the stops are justified by the same reasonable suspicion of wrongdoing and the officers involved know about the prior stop, the two detentions must be analyzed collectively so as to avoid police “gamesmanship.”  United States v. Foreste, 2015 BL 64929 (2d Cir., No. 13-4880, 03-11-15); full text at http://www.bloomberglaw.com/public/document/United_States_v_Foreste_No_134880_2015 _BL_64929_2d_Cir_Mar_11_201

Massachusetts:  DNA Analysis for Identity, Sex Isn’t “Search” Under Fourth Amendment

The Massachusetts Supreme Judicial Court held that police officers who saw a blood stain on a stabbing suspect’s shirt didn’t have to get a search warrant before conducting DNA testing on the stain to determine if it matched the victim.  The court stated that when DNA analysis is limited to the creation of a DNA profile from lawfully seized evidence of a crime, and where the profile is used to identify its unknown source, the DNA analysis is not a search in the constitutional sense.   Commonwealth v. Arzola, 2015 BL 56013, (Mass., No. SJC-11679, 03-04-15); full text at http://www.bloomberglaw.com/public/document/Commonwealth_v_Arzola_470_Mass_809_2015_Court_Opinion.