August, 2020

Indiana: Forcing Defendant to
Unlock Her Smartphone by Holding Her in
Contempt Violated the Fifth Amendment

When defendant was placed under arrest for stalking, law enforcement took her iPhone believing it contained incriminating evidence. Defendant refused to open her phone, so detectives got a warrant, and when she refused to open the phone the trial court held her in contempt. The Indiana Supreme Court held that the contempt order was prohibited by the Fifth Amendment right against self-incrimination where the officers did not identify any particular files on the smartphone relevant to defendant’s arrest and investigation and where ordering defendant to unlock her phone would provide law enforcement with information it did not already know, which the State could then use in its prosecution against her. Seo v. Obagi, ___ N.E.3d ___ (06-23-2020, WL 3425272).

Fourth Circuit: Merely Hearing Gunshots
Did Not Justify Suspicionless
Investigatory Stop Under
Exigent Circumstances Doctrine

After the Fourth Circuit reversed the district court’s grant of defendant’s motion to suppress, the court granted defendant’s petition for rehearing en banc. The panel held that even though police officers heard several gunshots in a densely populated residential neighborhood, moved toward them, and received corroboration regarding the general location of the shots in or near an apartment complex, exigent circumstances did not justify the suspicionless investigatory stop of defendant, a pedestrian in an open field near the area. The officers did not have any specific description of the scene of the shooting or the perpetrator, they did not stop everyone close to the scene, and they approached defendant in an area they only suspected to be near the scene of an unknown crime and with no reason to believe the men walking in the field had anything to do with the gunshots they heard. The Fourth Circuit noted that the exigent circumstances doctrine typically involves emergencies justifying a warrantless search of a home, not an investigatory stop of a person, and that to hold otherwise would create a sweeping exception to Terry v. Ohio. United States v. Curry, ___ F.3d ___ (CA 4, 07-15-2020, WL 3980362).

Ninth Circuit: Government’s Failure to
Disclose Grant of Immunity to
Their Witness Until Closing Arguments
Violated Brady and Jury Instructions
Failed to Cure Prejudice

Defendant was convicted of mortgage fraud at a trial where the government violated its discovery obligations under Brady by failing to disclose until closing arguments the grant of immunity received by their witness in a separate mortgage fraud investigation and her role as a culpable participant in that mortgage fraud scheme. The Ninth Circuit held that the government violated Brady, even though the witness’s testimony was duplicative of other testimony and evidence where the government relied on the witness’s independent corroboration to bolster the otherwise dubious credibility of its cooperating witnesses, the witness’s impeachment substantially weakened the credibility of those witnesses and the strength of the government’s case, and the jury returned with a split verdict.

The district court’s jury instruction to disregard the witness’s testimony did not fully cure the prejudice where the instruction did not tell the jury that the government’s powerful closing was premised on a false narrative regarding the witness’s reliability or explain how defense counsel had presented the case one way, only to learn afterwards that the truth was something else. United States v. Obagi, ___ F.3d ___ (CA 9, 07-17-2020, WL 4033849).

Ninth Circuit: District Court Erred
When It Applied Attenuation Doctrine to
FBI Follow Up Questions

After someone at defendant’s address pointed a laser at a police aircraft in flight, officers went to defendant’s home and illegally detained and interrogated defendant without Miranda warnings and, after defendant confessed, seized the laser. Eight months later, an FBI agent approached defendant outside his home and stated he was there to ask “follow-up questions” about the incident, and defendant again admitted to shining the laser at the plane. The Ninth Circuit reversed the denial of defendant’s motion to suppress, holding that the government could not carry its burden of proving that defendant’s statements to the agent were sufficiently attenuated from the illegal detention and seizure eight months prior where they could not point to other intervening circumstances that would act to separate the incidents. The encounter, introduced as a “follow up” to the first, was directly linked to the original illegalities. While significant time had passed, that time was collapsed by the agent’s opening the conversation by stating that he was following up on the original investigation. United States v. Bocharnikov, ___ F.3d ___ (CA 9, 07-27-2020, WL 4280957).

First Circuit: Search of Defendant’s Vehicle
Was Not Supported by Community
Caretaking Exception, Forfeiture Law, or
Inevitable Discovery Doctrine

After the district court denied his motion to suppress, defendant was convicted of drug and gun charges. The First Circuit reversed holding that: 1) the community-caretaking exception to the warrant requirement did not apply to the warrantless seizure of defendant’s vehicle where even though there was no one to move the vehicle, the vehicle was parked legally on a quiet residential street near defendant’s home, there was no indication that personal property was visible inside the vehicle or that the vehicle was unregistered, uninsured, or in unsafe condition, and there was no suggestion that defendant would be held for long on a minor drug possession offense; 2) the officers did not have probable cause to seize defendant’s vehicle pursuant to the Puerto Rico Uniform Forfeiture Act where officers made no claim that the impounded vehicle constituted proceeds of any crime or that the vehicle was obtained with any such proceeds; and 3) the inevitable discovery doctrine did not apply where the government did not provide any reason to think that officers inevitably could have lawfully conducted such a search. United States v. Del Rosario-Acosta, ___ F.3d ___ (CA 1, 08-03-2020, WL 4435081).

Fifth Circuit: Trial Court Violated
Petitioner’s Confrontation Rights When It
Allowed Officer’s Hearsay Testimony That
Implicated Petitioner

Petitioner was convicted of armed robbery at a trial where the prosecutor questioned an officer about his interview of a non-testifying co-defendant that led to petitioner’s arrest and referenced the interview during his opening statement and closing argument. The Fifth Circuit granted habeas holding that the lower court’s conclusion that the officer’s testimony was not hearsay that violated petitioner’s right of confrontation was an unreasonable application of clearly established federal law where the testimony clearly implicated petitioner. The Court rejected the government’s reliance on the “explain-the-investigation” exception to hearsay holding that law enforcement officers cannot, through their trial testimony, refer to the substance of statements given to them by non-testifying witnesses in the course of their investigation when those statements inculpate defendant and lead to his arrest. Atkins v. Hooper, ___ F.3d ___ (CA 5, 08-07-20, WL 4557116).

Seventh Circuit: District Court Erred When
It Granted Summary Judgment of
Prisoners’ Claim That Strip
Searches Violated Constitutional Rights

Plaintiffs, a class of female inmates, brought this action following mass strip searches conducted as part of a cadet training exercise contending that the intrusive and degrading manner of the searches violated their Fourth and Eighth Amendment rights. The district court granted summary judgment to defendant prison officials holding that convicted prisoners do not maintain a privacy interest during visual inspections of their bodies. After a divided panel affirmed that decision, plaintiffs were granted rehearing en banc, and the Seventh Circuit reversed holding that the Fourth Amendment protects (in a severely limited way) an inmate’s right to bodily privacy during visual inspections, subject to reasonable intrusions that the realities of incarceration often demand. On remand, plaintiffs must provide sufficient evidence that the searches were unreasonable, considering the scope of the particular intrusions, the manner in which they were conducted, the justification for initiating them, and the place in which they were conducted. Henry v. Hulett, ___ F.3d ___ (CA 7, 08-11-20 WL 4691882).