October, 2016

D.C. Circuit:  Inevitable Discovery Didn’t Save Bad Search on Claim Cops ‘Could’ve’ Got Search Warrant

The D.C. Circuit held that police testimony that they “could have” gotten a warrant before searching a hotel room for missing property is too speculative to trigger the inevitable-discovery exception to the exclusionary rule.  The court stated that the inevitable discovery exception is unavailable because the officer’s testimony that the police “could have applied for a search warrant” was too speculative.  Gore v. United States, 2016 BL 267575 (D.C. Cir., No. 15-CM-354, 08-18-16; full text at http://www. bloomberglaw.com/public/document/Gore_v_United_States_No_15CM354_2016_BL267575_DC_Aug_18_2016_Cou.

Pennsylvania:  Pa.’s Lifetime Registration Doesn’t Apply to First-Time Sex Offenders

A divided Pennsylvania Supreme Court held that the lifetime registration requirement for persons convicted of “two or more” sex offenses only applies to recidivists, not sex offenders whose multiple offenses arose out of one prosecution.  The State Police were forcing first-time offenders to register for life even if the two or more offenses occurred in a single criminal episode.  This decision clarifies that the harshest registration requirement is reserved for incorrigible offenders who engage in persistent criminal conduct.  A.S. v. Pa. State Police, 2016 BL 263364 (Pa., No. 24 MAP 2014, 08-15-16; full text at http://www.bloomberglaw.com/public/document/AS_v_Pa_State_Police_No_24_MAP_2014_2016_BL_263364_Pa_Aug_15_2016.

California:  Court’s Questionnaire to Deadlocked Jury Intruded on Sanctity of Deliberative Process

The California Supreme Court held that a trial judge interfered with a jury’s deliberations during the penalty phase of a capital trial by giving the deadlocked panel a questionnaire asking about the impasse and then replacing one of the holdout jurors after quizzing her about her answers.  The court held that it was clear to the jury that the purpose of this inquiry was to solve the problem of the jury’s deadlock, and the inquiry therefore communicated to holdout jurors that their deliberative processes would be reported by fellow jurors and scrutinized by the court.  People v. Nelson, 2016 BL 263336 (Cal., No. S048763, 08-15-16; full text at http://www. bloomberglaw.com/public/document/People_v_Nelson_No_S048763_2016_BL_263336_Cal_Aug_15_2016_Court_O.

Indiana:  Warrantless Seizure of Mobile Phone Data Violates Fourth Amendment

A divided Indiana Court of Appeals held that police need to get a search warrant before they grab cell tower records kept by mobile phone companies that can be used to track a user’s location.  The third-party doctrine doesn’t apply here because a mobile phone customer doesn’t hand over location data to the provider - voluntary or otherwise - and therefore doesn’t assume the risk that the company will turn the information over to the police.  Zanders v. State, 2016 BL 252090 (Ind. Ct. App., No. 15A01-150-CR-1519, 08-04-16; full text at http://www.bloom berglaw.com/public/document/Zanders_v_State_No_15A01150CR1519_2016_BL_252090_Ind_Ct_App_Aug_.

California:  Teen’s Probation Condition Prohibiting all Data-Deletion Features is Too Vague

The California Court of Appeal held that a probation condition barring a delinquent teen from possessing any electronic storage devices that “automatically” delete data sweeps too broadly.  The ban effectively forbids the seventeen-year-old minor from using any smartphone or computer at all because almost every software program or application contains a delete function.  People v. Ana C., 2016 BL 258753 (Cal. Ct. App., No. A145411, 08-10-16; full text at http://www.bloomberglaw.com/ public/document/People_v_Ana_C_No__A145411_2016_BL_258753_Cal_App_1st_Dist_Aug_10_.

Maryland:  Driver’s Consent to Cops’ Searching Car Didn’t Perforce Justify Frisking Passengers

A divided Maryland Court of Appeals held that police who stopped a car for a busted tail light and issued a written warning violated a passenger’s rights when they ordered him out of the car and frisked him for weapons after the driver consented to a search of the vehicle.  The decision clarified that a Terry frisk must always be tethered to a legitimate concern for officer safety and can’t be justified by a department policy authorizing pat-downs of all passengers every time a motorist consents to a search.  Sellman v. State, 2016 BL 274588 (Md., No. 84, 08-24-16; full text at http://www.bloomberglaw. com/public/document/Sellman_v_State_No_84_2016_BL_274588_Md_Aug_24_2016_Court_Opinion.

Tenth Circuit:  Colorado’s Permissive Marijuana Laws Don’t Make All its Drivers Suspicious

A divided Tenth Circuit held that police can’t justify detaining and searching out-of-state motorists just because they come from a jurisdiction with permissive marijuana laws.  The court stated that it is “wholly improper to assume that an individual is more likely to be engaged in criminal conduct because of his state of residence.”  Vasquez v. Lewis, 2016 BL 273055 (10th Cir., No. 14-3278, 08-23-16; full text at http://www.bloomberglaw.com/public/ document/Vasquez_v_Lewis_No_143278_2016_BL_273055_10th_Cir_Aug_23_2016_Cou.

Ohio:  Ohio Differs From Most Federal Courts on Use of Juvenile Priors for Enhancement

The Ohio Supreme Court held that an Ohio statute providing that a previous juvenile adjudication counts as a prior conviction to increase a later adult sentence violates due process under Apprendi and its progeny.  Ohio, like other jurisdictions, has no constitutional right to a jury in juvenile adjudications.  The court stated that “the proper inquiry under Apprendi is not simply whether juvenile adjudications are deemed to be reliable, but whether the juveniles were afforded the right to a jury.”  State v. Hand, 2016 BL 276326 (Ohio, No. 2014-1814, 08-25-16; full text at http://www.bloom berglaw.com/public/document/State_v_Hand_2016Ohio5504_Ohio_Aug_25_2016_Court_Opinion.