February - March, 2018

Colorado: Defendant Entitled to New Trial on Murder Charges Where Prosecutor Violated Brady

After defendant’s conviction, the prosecution disclosed two reports that had been in its possession since the first days of the investigation. One report documented the discovery of a note found on the day of the murder indicating that white supremacists were planning to murder white inmates in the prison. The other showed a detective’s suspicion that the murder was linked to another homicide that had been committed in the prison a few days later. Defendant’s motion for a new trial was granted and affirmed on appeal where the state violated defendant’s due process rights under Brady when it suppressed this exculpatory and material evidence. People v. Bueno, Colo., No. 13SC1017, 2018 BL 19216, 1/22/18.

Ohio: Search of Defendant’s Purse During Traffic Stop Violated Fourth Amendment

Defendant was pulled over for speeding while driving her boyfriend’s car and arrested on a warrant. The arresting officer pulled defendant’s purse from the car and searched it after she was arrested and handcuffed. Because the purse was not in defendant’s possession and was in her boyfriend’s car, which was protected under the Fourth Amendment, the warrantless search violated defendant’s constitutional rights and required vacation of her convictions and sentences. State v. Banks-Harvey, 2018 BL 20951, Ohio, 2016-0930, 1/16/18.

2d Circuit: 7-Year Delay Violated Defendant’s Speedy Trial Rights

Defendant’s speedy trial rights were violated where he was incarcerated for 7 years prior to his trial. The extreme length of the delay weighed heavily against the government. Also weighing against the government were delays caused by sending defendant out three times for competency evaluations, a seven-month delay caused by failure to provide timely transportation to and from the third competency examination, delays caused by court reporters, and delays caused by the dilatory tactics of defense counsel. United States v. Tigano, 2018 BL 21084, 2d Cir., 15-3073, 1/23/18.

9th Circuit: Exclusion of Relevant Third-Party Culpability Evidence Required New Trial

Defendant was caught coming into the United States from Mexico with methamphetamine in her car and denied that she knew the drugs were there. The district court excluded, on relevancy grounds, evidence of third-party culpability, including prior drug-related convictions of defendant’s next-door neighbor in Mexico and the neighbor’s deportation from the United States. The evidence was admissible to support the defense theory that the neighbor had packed the vehicle driven by defendant, who regularly traveled to the United States to purchase clothing, with methamphetamine and set her up as a “blind mule” to transport methamphetamine into the United States. The error required reversal of defendant’s conviction. United States v. Espinoza, 2018 BL 20718, 9th Cir., 16-50033, 1/22/18.

10th Circuit: Petitioner Filed Viable Claim Regarding Withholding of Funds from Prison Account

Petitioner brought a due process claim after money was withheld from his prison account under a Colorado regulation. Petitioner claimed that $3.82 was exempt because he had less than $10 in his account. Petitioner also argued that a prison official withheld another $1.41 in retaliation for complaining about the first withholding. The 10th Circuit held that petitioner’s claim should not have been dismissed as frivolous where he alleged that the withholding was atypical in his prison environment and significant given his minimal pay each month and that petitioner pled sufficient facts to connect the second withholding to the filing of his first grievance. Johnson v. Whitney, 2018 BL 23033, 10th Cir., 17-1249, 1/24/18.

Arizona: Warrantless GPS Tracking of Truck Violated Fourth Amendment Rights of Passenger

Warrantless GPS tracking of a truck over the course of three days violated the Fourth Amendment rights of a passenger who sometimes drove the truck. The passenger had a reasonable expectation that he wouldn’t be tracked while he traveled with the truck’s owner. The divided Arizona Supreme Court held, however, that because the search in this case was conducted in objectively reasonable reliance on binding appellate precedent, the good faith exception applied. Arizona v. Jean, Ariz., No. CR-16-0283-PR, 1/3/18: full text at