April, 2018

Massachusetts: Driver’s Consent to Search
Vehicle Did Not Extend Under the Hood

Defendant was pulled over for playing music too loudly and consented to a search of his vehicle. After the officers found nothing in the interior, they opened the hood and removed the air filter and found guns. A divided Massachusetts Supreme Court found a Fourth Amendment violation and suppressed the guns and the statements made by defendant after the search holding that defendant’s consent was for the interior of the vehicle and that defendant’s silence did not expand his consent. Commonwealth v. Ortiz, 2018 BL 45971, Mass., SJC-12273., 02-12-18.

9th Circuit: Conditions of Defendant’s
Supervised Release Were
Unconstitutionally Vague and
Violated Due Process

After defendant pled guilty to gun possession, he challenged the imposition of certain release conditions at sentencing. The Ninth Circuit remanded to the district court finding that three conditions were unconstitutionally vague: 1) that defendant “work regularly at a lawful occupation,” 2) that defendant “meet other family responsibilities,” and 3) that defendant notify third parties of risks stemming from his criminal record, personal history or characteristics. United States v. Evans, 2018 BL 70526, 9th Cir., 16-10310, 16-10311, 02-28-18.
10th Circuit: Defendant Was Entitled to
Resentencing Where Drug Possession
Enhancement Lacked Evidentiary Support

As officers were seeking to arrest defendant for absconding from parole, defendant fled into a garage that contained drugs. The Tenth Circuit held that defendant was entitled to resentencing because the district court erred when it enhanced defendant’s sentence for being in possession of drugs where there was no proof that defendant frequented the garage or was familiar with its contents or had control over the drugs. All that the record supported was that it was a mere coincidence that defendant was in the proximity of the drugs. United States v. Ferrell, 2018 BL 71272, 10th Cir., 17-1024, 03-02-18.

South Carolina: Failure to
Advise Defendant of the Risk of
Deportation was
Ineffective Assistance of Counsel

Petitioner was deported after pleading guilty to marijuana possession. Petitioner’s attorney failed to advise him of the risk of deportation prior to his plea. The Supreme Court held that petitioner’s attorney was ineffective and that there was a reasonable probability that absent the attorney’s errors petitioner would have gone to trial. Counsel must do more than discuss immigration or advise petitioner he might face adverse immigration consequences. Rather, the deportation issue must be clearly described and not addressed as a collateral issue. A general warning by the plea court fails to cure the attorney’s deficient representation. Taylor v. State, 2018 BL 66971, S.C., No. 27769, 02-28-18.

7th Circuit: Evidence Must Be Suppressed
Where Trooper Lacked Reasonable
Suspicion to Extend Traffic Stop

The Seventh Circuit affirmed the suppression of methamphetamine found during a traffic stop where the police extended the stop for 30 minutes to obtain a drug dog. The trooper did not have a reasonable suspicion to extend the stop where defendant and his fiancée gave conflicting information about their travel plans and there was a very pungent scent of air fresheners, but the motorists remained calm, answered all questions, and explained their conflicting answers. United States v. Rodreguez-Escalera, 2018 BL 77284, 7th Cir., 17-2334, 03-07-18.

Minnesota: Officer Violated Fourth
Amendment When He Explored Defendant’s
Backyard and Snooped in a
Camper Parked on the Back Driveway

Defendant was convicted of possession of a stolen vehicle after police inspected a camper parked on his back driveway. The Supreme Court reversed the conviction and suppressed the evidence of the search holding that, even though defendant had given an implied license to members of the public to use the driveway as a backdoor entrance to his home, the officer who entered his property acted outside the scope of that license and violated the Fourth Amendment. The officer was not allowed to stray from a visitor’s normal route of access to inspect the camper. State v. Chute, 2018 BL 86606, Minn., No. A15-2053, 03-14-18.

3rd Circuit: Petitioner Granted Habeas
Where Pennsylvania Court Gave
Faulty Accomplice Jury Instruction

Petitioner was convicted of first-degree murder for sitting in the passenger seat of the getaway car when his coconspirator entered a store to commit a robbery and fatally shot the clerk. Petitioner was granted habeas where the trial court’s jury instructions violated his federal right to due process because they did not require the prosecutor to prove that he had an intent to kill as an accomplice. Pennsylvania law requires the state to prove that an accomplice or conspirator had the specific intent to kill. Bennett v. Superintendent Graterford SCI, 2018 BL 102213, 3d Cir., 16-1908, 03-26-18.

4th Circuit: Retroactive Change in Circuit
Sentencing Law That Would Lower
Defendant’s Sentence Qualifies for the
Savings Clause

Defendant was convicted of drug and firearm offenses and his 120-month sentence reflected an enhancement for a prior felony drug conviction. After an unsuccessful direct appeal and a habeas petition, the circuit court made retroactive an existing change in its standard for classifying a prior drug offense as a felony. The fact that defendant’s prior conviction is no longer classified as a felony presented an error sufficiently grave to be deemed a fundamental defect as required for defendant to seek habeas relief under the savings clause of the statute governing motions to vacate, set aside, or correct sentences. Without the prior conviction, defendant’s mandatory minimum sentence would have been only five years. This holding puts the Fourth Circuit at odds with the Eleventh Circuit, which recently held that a change in circuit sentencing law did not qualify for the savings clause. United States v. Wheeler, 2018 BL 107086, 4th Cir., No. 16-6073, 03-28-18.