August - September, 2016

Hawaii:  Driver’s Reputation, Proximity of Canine Unit Didn’t Justify Escalating Stop Into Drug Probe

The Hawaii Supreme Court held that officers who stopped a car for a seat belt violation lacked sufficient cause to call a drug-sniffing dog even though the cops recognized the driver as a known drug user and had received a tip five days earlier that he was dealing methamphetamine.  The court held that the information didn’t rise to the level of reasonable suspicion justifying a separate criminal inquiry.  State v. Alvarez, 2016 BL 211663 (Haw., No. SCWC-12-0000838, 06-30-16; full text at http://

Oregon:  Failure to Respond to Accusatory Text Isn’t Admissible at Rapist’s Trial

The Oregon Supreme Court held that an accused rapist’s failure to respond to accusatory text messages sent from the victim’s phone shouldn’t have been admitted at his trial.  The court held that they were inadmissible hearsay.  State v. Schiller-Munneman, 2016 BL 210679 (Ore., No. SC-S063526, 06-30-16; full text at public/document/State_v_SchillerMunneman_No_SC_S063526_2016_BL_210679_Or_June_30_

Seventh Circuit:  First Amendment Protects Prisoners’ Grievances

The Seventh Circuit held that the First Amendment prevents district courts from entering summary judgments in prisoners’ grievance cases when they request evidence central to the conflict and a government official refuses to comply.  The prisoner challenged a ruling on two complaints that he filed and eventually appealed the ruling to the district court.  The investigator did not turn over a video of the incident and instead moved for summary judgment, which the court granted in favor of the investigator.  The court found that the First Amendment barred a premature ruling. Ogurek v. Gabor, 2016 BL 205005 (7th Cir., No. 15-1151, 06-27-16.

Sixth Circuit:  General Drug Trafficking Info Not Probable Cause

The Sixth Circuit held that police knowledge of the kind of items found in the homes of suspected drug traffickers is insufficient to support a search warrant.  The officers had probable cause to search the defendant’s car, but there was no evidence that he distributed narcotics from his home, that he used it to store narcotics, or that any suspicious activity had taken place there. 

United States v. Brown, 2016 BL 205724 (6th Cir., No. 13-1761, 06-27-16; full text at http://www.

First Circuit:  Musician’s Violent Lyrics Wrongly Used to Pump up Sentence for Gun Crimes

The First Circuit held that the First Amendment protects a musician who has a penchant for violent lyrics from having his songs used against him in his sentencing hearing for gun crimes.  The court stated that courts simply cannot assume that violent lyrics accurately reflect a performer’s motive or state of mind.  Extrinsic evidence must tie the lyrics to the crime.  United States v. Alvarez-Nunez, 2016 BL 219988 (1st Cir., No. 15-2127, 07-08-16; full text at

Sixth Circuit:  No Removal for Albanian Because the Law is too Vague

The Sixth Circuit joined the Seventh and Ninth Circuits and held that an Albanian can’t be removed under federal immigration law’s definition of “crime of violence” because it is void for vagueness.  The defendant pled guilty to unarmed robbery and the Board of Immigration held that it was a crime of violence under federal immigration law.  The provisions in the Armed Career Criminals Act and in the INA “combine indeterminacy about how to measure the risk posed by a crime and how much risk it takes for the crime to qualify as a crime of violence.”  Shuti v. Lynch, 2016 BL 217913 (6th Cir., No. 15-3835, 07-07-16; full text at http://src.bna. con/gCs.

Southern District of New York:  Sting Ray Cell-Site Simulator Evidence Tossed Because Search Violated the Fourth Amendment

The U.S. District Court for the Southern District of New York held that the use of a cell-site simulator to force a mobile phone to “ping” information about its precise location without a warrant violates the Fourth Amendment.  The court stated that the use of the simulator allowed the government to obtain information it would otherwise not be able to gain without some “physical intrusion” into the defendant’s home.  Absent a search warrant, the government may not turn a citizen’s cell phone into a tracking device.  United States v. Lambis, 2016 BL 222804 (S.D.N.Y., No. 15cr734, 07-12-16; full text at

Ninth Circuit:  Post-Invocation Comments Can’t be Used to Infer that Assertion of Rights Was Unclear

A divided Ninth Circuit held that police violated a suspect’s right to remain silent when they continued to ask him questions after he said “I don’t want to talk no more, man.”  The court stated that no fair-minded jurist could conclude that this statement was so ambiguous that the police needed to resume the interrogation to clarify what the suspect meant.  Jones v. Harrington, 2016 BL 235726 (9th Cir., No. 13-56360, 07-22-16; full text at Cir_Aug_31_2015_

D.C. Circuit:  Detention Before Conviction on New Charge Doesn’t Toll Running of Supervised Release

The D.C. Circuit held that the federal law that extends a judge’s authority over a term of supervised release when a person “is imprisoned in connection with a conviction” doesn’t apply when the incarceration is a pretrial detention on an unrelated set of charges.  This decision adds to a circuit split on whether the tolling provisions of 18 U.S.C. § 3624(e), kick in if a defendant is detained prior to trial on a fresh charge.  United States v. Marsh, 2016 BL 230749 (D.C. Cir., No. 12-3086, 07-19-16; full text at

New Jersey:  Use of High Beams on Deserted Urban Street Isn’t Illegal or Dubious Enough to Justify Stop

The New Jersey Supreme Court held that an officer who exited his cruiser to investigate an abandoned car had no cause to stop a vehicle he saw driving down the otherwise deserted street at three in the morning just because the driver had her high beams on.  The court refused to uphold the stop and search on the ground that the officer had a reasonable, albeit mistaken, belief that the motorist was violating the law restricting the use of high beams.  State v. Scriven, 2016 BL 232318 (N.J., No. A-11, 07-20-16; full text at http://www.bloomberglaw. com/public/document/State_v_Scriven_No_A11_September_Term_2015_2016_BL_232318_NJ_July.

Delaware:  Delaware’s Death Penalty Scheme Violates Sixth Amendment Right to Jury Trial

A divided Delaware Supreme Court held that Delaware’s capital punishment scheme is unconstitutional because it gives sentencing judges too much power to make the factual findings required to impose death.  The court concluded that the Delaware scheme could not stand in the wake of Hurst v. Florida, which held that juries, not judges, must decide whether the facts of the case justify executing a convicted defendant.  Rauf v. State, 2016 BL 249274 (Del., No. 39, 08-02-16; full text at