From Other States-November/December, 2015

Third Circuit:  Redaction Didn’t Cure Confrontation Issue Where Other Evidence Pointed to Defendant

The Third Circuit held that a state court that refused to look beyond the four corners of a non-testifying co-defendant’s redacted confession when evaluating the merits of a confrontation clause claim violated “clearly established” federal law such that a federal court could ignore the traditional deference afforded to state court decisions and grant habeas corpus relief.  Washington v. Sec’y Pa. Dep’t of Corr., 2015 BL 282414 (3d Cir., No. 12-2883, 09-01-15; full text at http://www.bloomberglaw.com/public/document/
Washington_v_Secy_Pa_Dept_of_Corr_No_122883_2015_
BL_282414_3d_Cir.

Ohio:  Busted Pistol Isn’t ‘Concealed Deadly Weapon’

The Ohio Supreme Court held that a juvenile who was caught walking around with a broken pistol in his waistband wasn’t guilty of carrying a concealed deadly weapon.  The court rejected the prosecution’s claim that the busted gun could be used as a bludgeon.  The court held that the busted gun was no more a deadly weapon than a laptop or computer, yet attorneys are not routinely arrested for carrying concealed weapons as they enter the courthouse.  In re J.T., 2015 BL 292242 (Ohio, No. 2014-0449, 09-10-15; full text at http://www.bloom berglaw.com/public/document/In_re_JT_2015Ohio3654_
Ohio_Sept_10_2015_Court_Opinion

New Mexico:  Promise to Drop Charges is Strictly Enforced

            The New Mexico Supreme Court held that a defendant who said that he would produce a murder weapon if the state would agree to drop an evidence-tampering charge is entitled to specific performance of that deal even though the prosecutor’s assent was communicated “by proxy” from a detective and appeared to promise only that the prosecutor would talk dismissal.  State v. King, 2015 BL 29257 (N.M., No. 34,411, 09-10-15; full text at http://www.bloomberglaw.com/public/document/STATE_
OF_NEW_MEXICO_PlaintiffAppellee_v_DONOVAN_KING_
DefendantApp.

Eleventh Circuit:  Reaching Into Home to Effect Terry Stop is Unconstitutional Seizure

The Eleventh Circuit held that unless there is an emergency, the police can’t enter a home to execute the functional equivalent of a Terry stop.  The court stated that it “makes ‘no sense’ to block police from entering homes to execute arrests unless the officers have probable cause or consent but at the same time allow them to enter homes to execute a [Terry stop] based on a suspicion of criminal violation.”  Moore v. Pederson, 2015 BL 298614 (11th Cir., No. 14-14201, 09-16-15; full text at http://www.bloomberglaw.com/public/document/Moore_v_
Pederson_No_1414201_2015_BL_298614_11th_Cir_Sept_16_2015__.

Fifth Circuit:  En Banc Fifth Circuit Indicates ‘Hot Pursuit’ Isn’t Per Se Exception to Knock/Announce

A deeply divided Fifth Circuit denied qualified immunity to a police officer and his chief in a federal civil rights lawsuit, finding that the officer failed to show that he had a reasonable suspicion that complying with the knock-and-announce rule would be dangerous or futile or that it would inhibit effective investigation of a crime.  After observing two all-terrain vehicles racing on a closed highway, the officer followed a fleeing suspect into a house without hesitating or knocking and announcing his presence.  All occupants of the house have the same constitutional right to be free from no-knock entries.  Trent v. Wade, 2015 BL 297882 (5th Cir., No. 13-10960, 09-14-15, denying rehearing in 776 F.3d 368, 96 CrL 529); full text at http://www.bloomberglaw.com/public/document/Trent_v_
Wade_No_1310960_2015_BL_297882_5th_Cir_Sept_Court.

Wisconsin:  Convicted Sexual Offender Can’t be Tracked for Life in GPS System

The U.S. District Court for the Eastern District of Wisconsin held that a convicted sex offender who finished his sentence and was determined not to need further commitment won’t have to wear a GPS tracking device for the rest of his life.  The court refused to retroactively apply a 2007 law requiring people who have been convicted of a serious sexual offense against a child to wear a GPS device.  The defendant served his sentence, and the state is not entitled to add to his punishment because it now believes that the sentences imposed at the time were too lenient.  Belleau v. Wall, 2015 BL 305320 (E.D. Wis., No. 1:12-cv-01198, 09-21-15; full text at http://www.bloomberglaw.com/public/document/MICHAEL_J_BELLEAU_
Plaintiff_v_EDWARD_F_WALL_and_DENISE_SYMDON_Def.