May, 2016

Fifth Circuit:  Automobile Exception Doesn’t Justify Search if Car Parked in Driveway and no Emergency

The Fifth Circuit held that police can’t rely on the “automobile exception” to the Fourth Amendment warrant requirement to justify searching a car parked in a residential driveway, even though a drug-sniffing dog alerted on the vehicle, where there were no exigent circumstances making it impractical to first obtain a search warrant.  United States v. Beene, 2016 BL 69837 (5th Cir., No. 14-30476, 03/08/16; full text at

Fourth Circuit:  Lawyer’s Frequent Snoozing During Trial is Automatic Sixth Amendment Violation

The Fourth Circuit held that a lawyer who fell asleep several times during trial violated his client’s right to counsel in such a fundamental way that the man didn’t need to show prejudice to win a reversal of his conviction.  Prejudice is presumed and reversal is automatic if the lawyer dozes off repeatedly because a sleeping lawyer is tantamount to no lawyer at all.  United States v. Ragin, 2016 BL 74958 (4th Cir., No. 14-7245, 03/11/16); full text at

Delaware:  Warrant That Was Cloned From Template Failed Particularity Test

The Delaware Supreme Court held that a pair of search warrants in a witness tampering case that were “cut-and-pasted” from a child pornography warrant gave police too much leeway to rummage through the target’s digital records to satisfy the Fourth Amendment’s particularity requirement.  The court stated that warrants “directed to digital information present unique challenges in satisfying the particularity requirement, given the unprecedented volume of private information stored on devices containing such data.”  Wheeler v. State, 2016 BL 63896 (Del., No. 205, 03/21/16; full text at

Ninth Circuit:  Backyard Shack With Curtilage Required Separate Knock-and-Announce

The Ninth Circuit held that the Fourth Amendment requires police officers who have already talked with a homeowner to knock and re-announce their identity and purpose when they approach an area within the curtilage of the home that they know or should reasonably know is a separate residence from the main house.  Police searching for a parole violator went looking for him without a warrant after they heard that he had been spotted on the street.  They went to a home, where the homeowner at first refused to open the door.  The homeowner changed her mind when they approached with a pick and ram but the officers, once inside, didn’t find the person they were looking for.  They then entered a shack in the backyard and entered without knocking or announcing.  The man who lived in the shack was holding a BB gun.  The police shot the man and the woman in the shack.  Mendez v. County of Los Angeles, 2016 BL 62212 (9th Cir., No. 13-56686, 03/02/16; full text at http://www.

Fifth Circuit:  Extra Charges on Heels of Winning Appeal are Prosecutorial Vindictivenss

The Fifth Circuit held that the claim that a new prosecution team merely corrected an oversight when they hit a defendant with extra charges after he successfully appealed his flawed conviction and won a new trial, didn’t overcome the presumption of vindictiveness triggered by the harsher treatment.  The government must show that something specific happened in the interim that justified coming down harder on the defendant at his retrial for bank fraud to undo the presumption of vindictiveness.  United States v. Dvorin, 2016 BL 83802 (5th Cir., No. 15-10142, 03/18/16; full text at

New Jersey:  Lengthy Hypothetical Usurped Jury’s Task by Summing up Entire Case in One Question

The New Jersey Supreme Court held that a man convicted of trafficking in heroin will get a new trial because the state posed a hypothetical to its expert that asked the witness to assume that a transaction the police saw from afar was a drug deal.  The court stated that “a hypothetical question in a drug case should not be used as a prosecutorial tool to sum up an entire case in a single question for the purpose of eliciting an expert’s opinion on a defendant’s guilt.” State v. Simms, 2016 BL 78140 (N.J., No. A-14, 03/15/16; full text at public/document/State_v_Simms_No_A14_September_Term_2014_2016_BL_78140_NJ_Mar_15_.

Ninth Circuit:  ‘Knock and Talk’ in Dead of Night was Unconstitutional Pretext to Arrest

The Ninth Circuit held that police looking to execute a warrantless arrest can’t use the “knock and talk” exception to the warrant requirement as a pretext to enter the curtilage of a home at four in the morning and bang on the door.  The ruling clarifies that the implied license that invites the police and members of the public to approach the front door of a home doesn’t apply in the dead of the night and can’t be invoked if the officers are less interested in talking than they are in ambushing the occupant and making an arrest.  United States v. Lundin, 2016 BL 870410 (9th Cir., No. 14-10365, 03/22/16; full text at document/United_States_v_Lundin_No_1410365_2016_BL_87041_9th_Cir_Mar_22_20.

New Jersey:  Killer Must be Resentenced Where Judge Said he ‘Always’ Gives Killers 60-Year Terms

The New Jersey Supreme Court held that a convicted killer will get a new sentence because the judge remarked in an unrelated matter (years after he was sentenced) that he “always” dishes out 60-year terms in first-degree murder cases.  The statement cast enough of a cloud on the process that it undermined public confidence that the judge considered the unique facts of a defendant’s case before sentencing.  State v. McFarlane, 2016 BL 109323 (N.J., No. A-7, 04/07/16; full text at

Ninth Circuit:  Cops Investigating ‘Domestic Violence’ Call Can’t Automatically Frisk Suspect for Weapon

A divided panel of the Ninth Circuit held that officers can’t automatically frisk a suspect for weapons whenever they respond to a report of “domestic violence.”  A report of domestic violence subsumes too broad an array of crimes that don’t necessarily involve weapons to categorically give rise to reasonable suspicion to frisk.  Thomas v. Dillard, 2016 BL 106710 (9th Cir., No. 13-55889, 04/05/16); full text at document/Thomas_v_Dillard_No_1355889_2016_BL_106710_9th_Cir_Apr_05_2016_Co.