No Qualified Immunity For "Objectively Unreasonable" Tasing

Police officers will not be granted immunity for using a taser on a person who is unarmed and is not told he is under arrest, because that tasing was objectively unreasonable.

 

Kent v. Oakland County, 2016 BL 1955, 6th Cir., No. 14-2519, unpublished 1/6/16

    Deputies tased a man who was trying to stop the resuscitation of his naturally deceased father (who had previously expressed a desire that no such efforts be made). This tasing was "objectively unreasonable" and violated law that was clearly established in 2010. The U.S. Court of Appeals for the Sixth Circuit ruled that the deputies are, therefore, not entitled to qualified immunity and the man's civil rights claim main proceed.

    It was undisputed that the victim "was unarmed and made no evasive movements to suggest he had a weapon" before being tased. Also, he was never told that he was under arrest.

http://www.bloomberglaw.com/public/desktop/document/Kent_v_Oakland_County_No_142519_2016_BL_1955_6th_Cir_Jan_06_2016_?1453485740

Cannot Cross-Examine Defendant During Allocution

Resentencing is required for convicted fraudster because the trial court judge allowed him to be aggressively cross-examined when he exercised his right to allocate prior to being sentenced.

 

United States v. Moreno, 2016 BL 824, 3d Cir., No. 14-1568, 1/5/16

     A former real estate developer, serving time for being part of a mortgage-fraud scheme, was cross-examined aggressively while he exercised his right to allocute prior to being sentenced. Allocution is designed to give the defendant an opportunity to raise personal and mitigating circumstances in order to inform the judge and give the judge an opportunity to temper punishment with mercy when appropriate.

    The court indicated that adversarial cross-examination is contrary to the purpose of allocution. The court stated that "[e]ven if we were to conclude that the error in this case was not plain (and we do not so hold), we would nevertheless exercise our supervisory power and hold that a defendant may not be cross-examined during allocution."

http://www.bloomberglaw.com/public/desktop/document/United_States_v_Moreno_No_141568_2016_BL_824_3d_Cir_Jan_05_2016_C?1453401207

Massachusetts Supreme Court Differs from SCOTUS Over Anonymous Tip

An anonymous tip about an apparent drunk driver does not, by itself, give the police reasonable suspicion to conduct an investigatory stop of the suspected motorist.

 

Commonwealth v. Depiero, 2015 BL 435626, Mass., No. SJC-11893, 1/4/16

    An anonymous tipster called 9-1-1 and complained about an apparently drunk driver.  The Massachusetts Supreme Court ruled that this, by itself, did not give the police reasonable suspicion to conduct an investigatory stop of the suspected drunk driver.

    The court's decision does not follow the U.S. Supreme Court's decision in Navarette v. California, which says that anonymous calls are normally reliable because caller ID technology makes prank calls unlikely. In this case, the court indicated that caller ID technology is irrelevant if the caller does not know about it, and a tipster might instead be a prankster.

http://www.bloomberglaw.com/public/document/Commonwealth_v_Depiero_No_SJC11893_2015_BL_435626_Mass_Jan_04_201

Query About Lawyer Not Invocation

If the suspect is not clear if they actually want a lawyer brought, and they sound indecisive, a reasonable officer would not necessarily interpret this as a request for an attorney.

 

People v. Kutlak, 2016 BL 6048, Colo., No. 13SC499, 1/11/16

    The Colorado Supreme Court ruled that a man who told the police that he had a lawyer on retainer, and later added an ambiguous statement about getting the lawyer was not making a request for an attorney. The video of the interview shows that the suspect's voice was "indecisive" and that he "shrugged" while making the statement.

    The court ruled that the man was not clear whether he definitely wanted a lawyer's assistance or was merely contemplating the issues of getting the lawyer to come to his aid. The court determined that this would not lead a reasonable officer to interpret this as a request for an attorney.

http://www.bloomberglaw.com/public/desktop/document/Petitioner_The_People_of_the_State_of_Colorado_v_Respondent_Leven?1453220327

Indian Tribes Have Extraterritorial Jurisdiction

"Indian tribes have the inherent sovereign authority to try and prosecute members of the basis of tribal membership even if criminal conduct occurs beyond a tribe's Indian country."

 

Kelsey v. Pope, 2016 BL 797, 6th Cir., No. 14-1537, 1/5/16

    One of the council members of the Little River Band of Ottowa Indians sexually assaulted one of the Band's employees at a tribal event. Even though the attack did not occur on reservation land, the U.S. Court of Appeals for the Sixth Circuit ruled that the tribal court may try the defendant.

    The court's opinion said that "Indian tribes have the inherent sovereign authority to try and prosecute members on the basis of tribal membership even if criminal conduct occurs beyond a tribe's Indian country."

    The court cited the US Supreme Court's decisions in United States v. Wheeler (1978), and Duro v. Reina (1989), as well as the Ninth Circuit's decision in Native Village of Venetie et al v. Alaska (1991), which indicated that tribes possess sovereignty over both their members and their territory. The court also added that the inherent sovereignty of Indian tribes predates the Constitution, and is neither derived from nor protected by that document.

http://www.bloomberglaw.com/public/desktop/document/Kelsey_v_Pope_No_141537_2016_BL_797_6th_Cir_Jan_05_2016_Court_Opi?1453142263

Blanket Suppression Not Needed Despite Cop's Bad Acts

The remedy for instances where officers seize items not listed in a warrant is suppression of the improperly seized items, not suppression of all of the evidence.

 

United States v. Webster, 2016 BL 840, 10th Cir., No. 15-3027, 1/5/16

    The 10th Circuit Court of Appeals ruled that drugs and guns seized during the execution of a valid search warrant do not need to be suppressed merely because some of the officers took advantage of the situation to steal an iPhone, a PlayStation, and other items.

    The court said that the remedy for instances where officers seize items not listed in a warrant is suppression of the improperly seized items, not suppression of all of the evidence. The court went on to say that blanket suppression is only called for in those very rare instances where officers disregard the limitations of a warrant flagrantly, turning the search into a fishing expedition.

    In United States v. Medlin, the court ordered blanket suppression of all of the evidence, not just the illegally seized items, because officers exhibited "flagrant disregard" for the terms of the warrant and took more than 660 items not named in the warrant.

    The court here distinguished indicating that the officers did not use the warrant as a fishing expedition, but instead pocketed only four items. The court pointed to the fact that in Medlin, all of the police were in on it, but here only a couple of the officers were involved in the wrongdoing.

http://www.bloomberglaw.com/public/desktop/document/United_States_v_Webster_No_153027_2016_BL_840_10th_Cir_Jan_05_201?1453128513

Second Amendment Does Not Protect Paring Knives

Very divided Washington Supreme Court rules that carrying a kitchen knife in public is not covered by the Second Amendment.

 

City of Seattle v. Evans, 2015 BL 435678, Wash., No. 90608-4, 12/31/15

    The Washington Supreme Court characterized the knife in this case as a "utility tool" and as such, allowed no more protection than a frying pan, rolling pin, or other culinary utensil that may be used as an instrument of self-defense.

    The court said that "[w]hile almost any common object may be used as a weapon, that does not necessarily mean that possession of otherwise innocuous objects that could be wielded with malice will trigger the constitutional protections afforded to 'arms'."

    The court recognized and agreed with most modern decisions which have held that the right to bear arms is not limited to firearms, but includes less lethal weapons as well. In this case, however, the court added that to receive Second Amendment protections the "weapons" must be of the type that law-abiding citizens traditionally turn to for self-defense.

    Here, the defendant's knife was a culinary tool and he went too far when arguing that a utensil that is customarily used to cut fruit and vegetables fits within the traditional definition of "weapon." The court said that "[w]ere we to adopt [the defendant]'s analysis and hold that a kitchen knife was a protected arm because it could be used as self-defense, there would be no end to the extent of utensils arguably constitutionally protected as arms."

http://www.bloomberglaw.com/public/desktop/document/City_of_Seattle_v_Evans_No_906084_2015_BL_435678_Wash_Dec_31_2015?1452972030

Obstruction of Justice Statutes Ruled Vague/Overbroad

Obstruction of justice ordinance overbroad, because it criminalizes speech protected by the First Amendment.

 

Scott v. First Judicial Dist. of Nev. , 2015 BL 435411, Nev., No. 67331, 12/31/15

    A car's passenger was arrested under an obstruction of justice ordinance when he repeatedly interrupted the police officer and advised the driver not to perform a field sobriety test. The Supreme Court of Nevada overturned the arrest, and deemed the statute to be overbroad and vague.

    The Carson City code provision made it unlawful "to hinder, obstruct, resist, delay, molest or threaten to hinder, obstruct, resist, delay or molest" police officers or fire officials from performing their official duties. The court ruled that the ordinance is unconstitutionally broad because it criminalizes some speech that is protected by the First Amendment. The court also determined that the ordinance was vague because it did not give police guidelines, which amounted to police having unrestricted discretion to arrest citizens for words or conduct that annoys or offends.

    It is well established that even speech that could otherwise be prohibited will be permitted if the applicable statute is overbroad with respect to other speech.

http://www.bloomberglaw.com/public/desktop/document/Scott_v_First_Judicial_Dist_Court_of_Nev_No_67331_2015_BL_435411_?1452881894

Florida Death Sentencing Scheme Unconstitutional

Florida's "hybrid" jury advisory sentencing scheme, which did not require unanimity, was struck down under the Sixth Amendment.

 

Hurst v. Florida, U.S. No. 14-7505, decided on 1/12/16

    The U.S. Supreme Court struck down a Florida capital punishment sentencing scheme that involved juries giving advisory verdicts which did not need to be unanimous, but took into account aggravating factors and punishment. Ultimately, the juries were told, the judges had the final decision for what punishment would be imposed.

    The Court stated that "[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury's recommendation is not enough."

http://www.supremecourt.gov/opinions/15pdf/14-7505_5ie6.pdf

No Quantity Discount For Indigent Prisoners IFP Filings

Indigent prisoners must pay a percentage of the fee for each individual suit, the cap on filing fees does not combine their suits for payment purposes.

 

Bruce v. Samuels et al, U.S., No. 14-844, decided 1/12/16

    The U.S. Supreme Court ruled that indigent prisoners filing multiple in forma pauperis actions do not get a quantity discount on filing fees. Under the cap on filing fees extended to indigent prisoners under 28 U.S.C. §1915 they must cover a percentage of the fee for each individual suit they bring. There is still a provision in the law that ensures that the fee requirements do not completely bar a prisoner's access to the courts.

    The court said that "[t]he per case approach more vigorously serves the statutory objective of containing prisoner litigation."

http://src.bna.com/bYX

Computer Search Techniques Need Not Be Explicit

The forensic search methods that will be used in a computer search need not be outlined in a warrant.

 

United States v. Mulcahey, 2015 BL 415955, D. Mass., No. 1:15-cr-10112, 12/17/15

    The defendants moved to suppress evidence found on the hard drives of a computer seized, with a warrant, from their business premises, arguing that the warrant was defective because it authorized only the seizure and not the search of the hard drives.

    The district court found that the warrant was proper because the language clearly identified the property to be searched and seized. The court indicated that the defendants failed to identify what conditions might be given to limit the search, and how those conditions would be applied. The court referred to a 2013 ruling from the Supreme Judicial Court of Massachusetts which rejected the idea that advanced approval of particular forensic examination methods of computers is necessary.

http://www.bloomberglaw.com/public/desktop/document/USA_v_Mulcahey_et_al_Docket_No_115cr10112_D_Mass_May_05_2015_Cour/1?1452611588

Polygraph Admitted to Explain Police Questioning

When the defendant testified that his confession was coerced, it opened the door to cross-examinations about the his polygraph test.

 

United States v. Tenorio, 2015 BL 428927, 10th Cir., No. 15-2037, 12/29/15

    The court ruled that the government had a strong interest in giving the jury a more complete picture of what the defendant indicated was an aggressive interrogation, so the judge admitted the fact that the police had obtained the confession after a polygraph test had been administered.

    The defendant had previously testified that he was bullied into writing a confession and did not understand why the agents kept accusing him of lying and telling only "half the story." The judge limited the admission of the polygraph to only explain the officer's actions and directed the jurors to not speculate about the results of the polygraph.

http://www.bloomberglaw.com/public/desktop/document/United_States_v_Tenorio_No_152037_2015_BL_428927_10th_Cir_Dec_29_?1452526628

No Right For DUI Suspect To Choose BAC Test

Under Pennsylvania's implied-consent law, drivers do not have the right to choose the type of blood-alcohol test they will submit to when they are arrested for suspected DUI.

 

Nardone v. Pa. Dep't of Transp., 2015 BL 429928, Pa., No. 141 MAP 2014, 12/29/15

    Similar to Utah's implied consent law, Pennsylvania's law states that all motorists "are deemed to have given consent to one or more chemical tests of breath, blood or urine." 75 Pa. Cons. Stat. §1547. The court said that that language does not mean the police must offer the suspect a "menu of choices."

    "By implicitly consenting to any and all chemical tests in Section 1547(a), a motorist arrested for DUI is subject to any and all tests, and he effectively relinquishes any right to choose his preferred test over an officers," the court stated.

    The court continued, saying "[i]t could not have been the General Assembly's intent to establish a rule of implied consent at the outset of the statutory scheme only to immediately thereafter devise a procedure for obtaining chemical testing that would nullify the rule."

http://www.bloomberglaw.com/public/desktop/document/JOHN_D_NARDONE_APPELLANT_V_COMMONWEALTH_OF_PENNSYLVANIA_DEPARTMEN?1452267926

No More Emergency Entry Exception When Crisis Ends

Police who enter a residence under the emergency exception are expected to restore order and prevent injury, but seizing and testing suspected items is beyond the emergency exception.

 

Commonwealth v. Kaeppeler, 2015 BL 428978, Mass., No. SJC-11855, 12/30/15

    Officers entered a house without a warrant under the "emergency aid exception," and determined that the occupant was no longer in distress. The police exceeded their authority after the initial entry when they seized and tested the contents of a tequila bottle.

    The police had received information from a local hospital that a couple who had been with the defendant the previous evening at his home had become seriously ill after drinking tequila. The police also heard from the defendant's coworker that he had not been to work that day.

    Based on that information, the Massachusetts Supreme Judicial Court upheld the initial warrantless entry of the defendant's home because the police had a legitimate concern for his health and safety. There was no longer an emergency, however, after the police arrived and ensured that the defendant could get "checked out" at the hospital. The court said that "[f]rom that point on, the police had no further cause for concern about the defendant's well-being and no public safety justification to remain in his home."

    The court continued by saying "[w]e recognize that the role of a police officer responding to an emergency is not necessarily limited to rendering aid to an injured person. But here, the police went beyond that and started investigating things to which they had not warrant and no reasonable articulable suspicion.

http://www.bloomberglaw.com/public/desktop/document/Commonwealth_v_Kaeppeler_No_SJC11855_2015_BL_428978_Mass_Dec_30_2?1452097225

The plain language of Utah Rule of Evidence 403 is the legal standard, nothing more or less.

 

State of Utah v. Cuttler, 2015 UT 95 

    The Utah Supreme Court overturned the district court's determination that propensity evidence could be allowed. The district court had looked to "factors set forth in State v. Shickles[,] 760 P.2d 291 (Utah 1988)," but the Utah Supreme Court indicated that the text of rule 403 controls and that anything beyond or below that is the wrong legal standard and an abuse of discretion. The Utah Supreme Court held that "courts are bound by the text of rule [of evidence] 403, not limited lists of considerations used in cases."

http://www.utcourts.gov/opinions/supopin/State%20v.%20Cuttler20151224.pdf

'Seizure' Only After Driver Obeyed Police Orders

A seizure does not occur until a suspect actually capitulates to a show of authority.

 

United States v. Stover, 2015 BL 416751, 4th Cir., No. 14-4283, 12/18/15

    A driver exited his truck and threw a pistol into the grass before he complied with the police officer's command to return to the vehicle. The Fourth Circuit Court of Appeals ruled that he abandoned the weapon before he was "seized" for purposes of the Fourth Amendment.

    The court indicated that a seizure does not occur until a suspect actually capitulates to a show of authority, and the defendant did not submit until he had already ditched the pistol. The court did not accept the defendant's argument that the pistol was the fruit of an illegal seizure because the police seized him without reasonable suspicion when they pulled up behind his truck, turned on their lights, and blocked him from driving away.

    The court hearkened to the ruling in California v. Hodari D., 499 U.S. 621 (1991), which held that a police officer's "show of authority" does not, alone constitute a Fourth Amendment seizure unless and until the suspect submits. Here, the court rejected the proposition that anything short of headlong flight qualifies as submission and ruled that merely remaining at the scene does not qualify as submission.    

    The court stated that because the defendant gave no indication that he was submitting until after he discarded the pistol, he was not "seized" until he did indicate submission. "Only after he discarded that gun and was confronted by an armed police officer did Stover submit to police authority," the court said.

Under INA, State Assault Removable As "Domestic Violence"

A foreign citizen's conviction of assault under state law can qualify as removable under the INA even though the state offense had no "domestic relationship" element.

 

Hernandez-Zavala v. Lynch, 2015 BLL 382973, 4th Cir., No. 14-1878, 11/20/15

 

Removing Domestic Violence 

 

    Even though the state offense of assault did not include a "domestic relationship element" it can qualify as a removable "crime of domestic violence" under the Immigration and Nationality Act.

    The U.S. Court of Appeals for the Fourth Circuit answered a question that was "a purely legal one: whether a conviction under a state law that does not have a domestic violence relationship as an element of the offense can constitute a 'crime of domestic violence."

 

    In this case, the original conviction was of assault with a deadly weapon under N.C. Gen. Stat. §14-33(c)(1). There was no dispute that the defendant had a domestic relationship with the woman that he was convicted of assaulting. The defendant argued that that fact did not disqualify him for having his removal cancelled, because the state statute did not require or mention domestic relationship as part of the crime.

 

    The court held that it was proper to apply a circumstance-specific approach rather than a narrower categorical approach to determine if the state offense qualified as a crime of domestic violence. This ruling creates a circuit split with the Ninth Circuit which rejected the circumstance-specific approach. Tokatly v. Ashcroft, F.3d 613 (9th Cir. 2004).

  

    The court indicated that, under the Immigration and Nationality Act, 8 U.S.C. §1227(a)(2)(E)(i), an "alien convicted of a crime of domestic violence" can be deported. Therefore, the immigrant in question is ineligible for cancellation of removal under §1229(b)(1)(C).

 

The Other Approach

 

    The other approach that the court considered was the categorical approach. This approach is based on seeing if the state offense fits the generic definition of the corresponding federal crime.

 

    Under this approach a state offense will fit if it involves "facts equating to" the federal offense. However, the court said that, if the federal statute describes specific acts rather than a generic offense, the "circumstance-specific approach is appropriate," because it allows courts to "consider other evidence to see if the necessary attendant circumstances existed."

 

    The U.S. Supreme Court, in United States v. Hayes, 555 U.S. 415 (2009), determined that the circumstance-specific approach was proper when considering "a criminal statute with nearly identical statutory text" to the INA provision here. In that situation, the Supreme Court found that applying the categorical approach would frustrate Congress's intent because two-thirds of states did not have laws specifically prohibiting domestic violence, in essence rendering the law moot.