January, 2018

Massachusetts: Department of Corrections Must Film Hearing and Make Detailed Findings Before Denying Juvenile Lifers Minimum Security Placement

Juvenile lifers who were otherwise eligible for minimum security were denied placement by the use of discretionary overrides in approximately 90 percent of cases. The Massachusetts Supreme Court held that the corrections department must record the initial hearing that determines a juvenile’s threshold eligibility and make it available at any subsequent stage of review to facilitate challenges. If the board relies on the facts or notoriety of the offense to deny minimum security placement, it must give a written, detailed explanation of why the murder is worse than other murders and, if the board relies on the juvenile’s conduct while in custody, it must explain in detail the specific conduct at issue. Deal v. Comm’r of Corr., 2017 BL 402644, Mass., SJC-12246, 11-09-17: full text at

Eleventh Circuit: District Court Erred When it Sua Sponte Invoked Waiver Claim to Dismiss Defendant’s Motion to Vacate Plea

Defendant waived his right to appeal based on ineffective assistance of counsel but then attempted to appeal on that basis. The trial court did not request that the prosecutor argue the waiver issue, and the state did not make the waiver argument in its brief. The Eleventh Circuit held that the district court erred when it dismissed the claim as waived. The court first had to give the parties fair notice and a chance to present their positions, and it had to consider the parties respective positions. Burgess v. United States, 2017 BL 397596, 11th Cir., No. 15-12045, 11-06-17: full text at http://src.bna.com/ugE

Pennsylvania: Vehicle Exception to Warrant Requirement Does Not Apply to Vehicle Parked on Defendant’s Private Residential Driveway

Police officers investigating a deadly hit and run accident seized defendant’s truck from his driveway without a warrant believing that it was the vehicle involved. The Pennsylvania Supreme Court held that the automobile exception to the warrant requirement does not apply to a vehicle parked on a defendant’s private residential driveway and any warrantless search and/or seizure of an automobile must be supported by both probable cause and exigent circumstances and there were no exigent circumstances. Commonwealth v. Loughnane, Pa., 2017 BL 419241, 11-22-17: full text at

Wyoming: New Trial Ordered Under Cumulative Error Doctrine Due to Prosecutorial Misconduct and a Due Process Violation

The Wyoming Supreme Court applied the cumulative error doctrine in granting defendant a new trial where defendant was prejudiced by prosecutorial misconduct in the form of a discovery violation and improper comments during closing argument in which the prosecutor personally attacked defense counsel, made an improper plea to the passion or prejudice of the jury, and impermissibly vouched for the credibility of witnesses, and by a due process violation arising out of an order that defendant wear restraints during trial without any justification for restraints appearing in the record and in the absence of a hearing. Black v. State, 2017 BL 414632, Wyo., No. S-15-0295, 11-17-17: full text at

10th Circuit: Warrant with “Catch All” Phrase Violated Particularity Requirement of Fourth Amendment

Police searched defendant’s home pursuant to a warrant that listed particular items to be searched but prefaced the list with a catch-all phrase stating that the items to be searched “include but are not limited to” the listed items thus authorizing a search not only for evidence involving the means of committing a crime but also a search of everything in the apartment for any reason. The “not limited to” language does not taint a warrant when the language serves only to modify one or more categories in the list. However, this warrant violated the particularity requirement of the Fourth Amendment, and the defect was so obvious that no executing officer could reasonably rely on the warrant. United States v. Dunn, 2017 BL 443865, 10th Cir., 15-1475, 12-12-17: full text at

New York: Defendant is Entitled to Counsel During Pretrial Motion to Compel a DNA Test

The pretrial proceedings concerning the prosecution’s DNA discovery motion seeking to compel defendant to submit to a buccal swab were a “critical stage” of the proceedings for which defendant had a right to counsel, thus entitling defendant to vacation of his guilty plea. People v. Smith, 2017 BL 452799, N.Y., No. 123, 12-19-17: full text at

9th Circuit: Court Erred When It Admitted “Criminal Profile” Testimony on Workplace Violence in Murder Trial

The trial judge erred when he allowed admission of expert “criminal profile” testimony on the characteristics of those who commit targeted workplace violence in defendant’s murder trial for the death of two of his coworkers. The testimony was improperly used to show that defendant acted in accordance with such a profile. United States v. Wells, 2017 BL 454451, 9th Cir., Nos. 14-30146, 12-19-17: full text at

10th Circuit: Protective Sweep of Defendant’s Home Violated Fourth Amendment Where Defendant Was Already Handcuffed and There Was No Knowledge of Others in the Home

Officers’ protective sweep of defendant’s home, including a bedroom, during execution of an arrest warrant did not comply with the Fourth Amendment where defendant had already been arrested and handcuffed near the front door, which was not adjacent to the bedroom, at the time the protective sweep began, and officers lacked any knowledge as to whether anyone else was still inside the home at the time the bedroom was searched. United States v. Bagley, 2017 BL 451230, 10th Cir., No., 16-3305, 12-18-17: full text at

10th Circuit: Officer’s Search of Defendant’s Car for Marijuana Was Unlawfully Expanded to Credit Cards Without Probable Cause

An officer’s search of defendant’s car while he was parked in a fast food restaurant parking lot was unlawfully expanded to include inspection of multiple credit cards found in a bag within the car. Although the officer had probable cause to search the car for marijuana based on a reasonable belief that defendant had been smoking marijuana in his car, there was no showing that the officer observed any marijuana in the bag or any device that could be used in credit card fraud, or that, when the officer looked in the bag and saw multiple cards, he actually knew that they were credit cards, as opposed to gift cards, insurance cards, membership cards, or library cards, and that they did not belong to defendant, as required to support probable cause for inspection of the cards. United States v. Saulsberry, 2017 BL 464246, 10th Cir., No., 16-6306, 12-28-17: full text at