June 2016

D.C. Circuit:  Warrant to Take Balky Victim’s DNA Upheld Where Court Curbed its Use Against Victim

The D.C. Circuit held that police investigating an alleged assault may get a warrant forcing an uncooperative victim/witness to submit to a DNA test even though the putative victim isn’t suspected of any criminal wrongdoing where the government’s use of the DNA was significantly limited.  The court stated that the intrusion was reasonable because it was minimally invasive and because the issuing court put tight restrictions on how the DNA could be used.  In re Grand Jury Witness G.B., 2016 BL 167249 (D.C. Cir., No. 15-CO-531, 05-26-16); full text at http://www.bloomberglaw.com/public/document/ In_re_GM_No_15CO531_2016_BL_167249_DC_May_26_2016_Court_Opinion.

Georgia:  Asking Cop to Call Girlfriend for Lawyer Info Qualified as Invocation of Right to Counsel

The Georgia Supreme court held that police violated a man’s right to counsel when they continued to question him after he told them to call his girlfriend to get the contact information for his lawyer.  After being told that he was entitled to a lawyer, the defendant asked:  “You need his number to get him on file?”  Then he told the officers:  “You can call the old lady, get her to call him and have him come down here.”  State v. Philpot, 2016 BL 178848 (Ga., No. S16A0334, 06-06-16); full text at http://www.bloomberglaw.com/public/document/State_v_Philpot_No_S16A0334_2016_BL_178848_Ga_June_06_2016_Court_.

Sixth Circuit:  Credit for ‘Acceptance of Responsibility’ Wasn’t Forfeited by Tardiness of Guilty Plea

The Sixth Circuit held that a district judge erred when he refused to give a man credit for “acceptance of responsibility” under the federal sentencing guide-lines just because the tardiness of the man’s decision to plead guilty caused the government to waste time preparing for trial.  The court stated that district courts “may consider the timeliness of a defendant’s plea under [U.S.S.G.] § 3E1.1(a) only to the extent that timeliness reflects the extent of the defendant’s sincerity in accepting responsibility.”  United States v. Hollis, 2016 BL 166203 (6th Cir., No. 15-5246, 05-25-16); full text at http://www. bloomberglaw.com/ public/document/United_States_v_Hollis_No_155243_2016_BL_166206_6th_Cir_May_25_20.

Fourth Circuit:  Government Doesn’t Need Search Warrant to Collect Real-Time Cell Site Location Data

An en banc panel of the Fourth Circuit held that the government doesn’t need to get a search warrant before it grabs cell tower records kept by mobile phone companies that can be used to track a user’s location.  The court stated that individuals do not enjoy any Fourth Amendment protection for informa-tion they voluntarily turn over to third parties.  The decision is significant because it overturns a panel ruling from last summer that ran contrary to the vast majority of other federal court rulings on this issue.  United States v. Graham, 2016 BL 171712 (4th Cir., No. 12-4659, 05-31-16); full text at http://www.bloomberglaw.com/public/document/US_v_Graham_Docket_No_1204659_4th_Cir_Aug_22_2012_Court_Doc/1.

Maryland:  Motorist’s Drunken Driving Arrest Justified Warrantless Search of Car Interior for Booze

The Maryland Court of Appeals held that police who arrest a motorist for DUI may execute a warrantless search of the vehicle’s passenger compartment based on their knowledge and experience that they will likely find evidence of alcohol consumption.  The court stated that the officer’s testimony that there is a “good possibility” there would be open containers of alcohol in the vehicle based on other DUI arrests he made met Gant’s “reasonable suspicion” standard.  Taylor v. State, 2016 BL 162879 (Md., No. 75, 05-23-16); full text at http://www.bloomberglaw.com/public/docu ment/Taylor_v_State_No_75_2016_BL_162879_Md_May_23_2016_Court_Opinion.

USSC:  Justices Disagree in Montgomery Remand Concurrences

Three USSC justices filed separate concurring opinions in yet another case vacated and remanded in light of Montgomery v. Louisiana.  Justices Thomas, Alito, and Sotomayor wrote the three opinions concurring in the vacating and remanding of a case involving a minor whose death sentence had been automatically reduced to life without parole following the high court’s ruling Jan. 25 in Montgomery that death sentences for minors are unconstitutional.  Adams v. Alabama, (U.S., No. 15-6289, vacated and remanded 05-23-16).

Kentucky:  Defense Continuance Should’ve Been Given After Last-Second Amendment to Indictment

The Kentucky Supreme Court held that a man convicted of sexually abusing his nephew decades earlier must be retried because the trial judge re-fused to grant a two-day continuance after the in-dictment was amended on the opening day of trial to expand the time frame for when the alleged abuse occurred.  The court stated that an effective “defense requires, at least, an investigation of the newly re-vealed circumstances thorough enough to allow coun-sel to make a reasoned and deliberate determination whether further investigation is necessary to develop a defense that may apply to the new circumstances.”  Commonwealth v. Herp, 2016 BL 192009 (Ky., No. 2014-SC-000447-MR, 06-16-16; full text at http:// www.bloomberglaw.com/public/document/Herp_v_Commonwealth_No_2014SC000447MR_2016_BL_192009_Ky_June_16_2.

Second Circuit:  Child Pornographer’s 60-Year Term is Likely Too Stiff

The Second Circuit held that a 60-year sentence for producing and possessing child pornography might be excessive where the sentencing transcript suggested that the trial judge saw no moral difference between the defendant and someone who murders or violently rapes children and likely overstated the impact of the crime on one of the three victims.  The case if significant because the court took the rare step of overturning a sentence that was well within the parameters of the sentencing guidelines on the ground that the trial judge may have misunderstood the facts of the case.  United States v. Brown, 2016 BL 188578 (2d Cir., No. 13-1706, 06-14-16; full text at http://www. bloomberglaw.com/public/document/United_States_v_Brown_No_131706_2016_BL_188578_2d_Cir_June_14_201.