Noncustodial Interviews Must Stop When Lawyer Arrives

Police had a duty, under the State's due process clause, to tell a man being questioned that his lawyer had arrived, even though he was not technically in custody.

State v. McAdams, 2016 BL 126886, Fla., No. SC14-788, 4/21/16

     The Florida Supreme Court ruled that, even if a suspect came to the station voluntarily and is not yet in custody, police questioning must stop when the suspect's lawyer arrives. The court decided that "the only way to properly protect the due process rights of citizens under the Florida Constitution is to implement a bright-line rule." The bright line rule will prevent the court from determining specifically "what type of conduct, coupled with the failure to inform the individual of the attorney's presence, would be sufficiently outrageous to rise to the level of a due process violation."

     This ruling, along with previous rulings, confirms Florida's greater due process protections than that of the Fifth Amendment to the U.S. Constitution.

http://www.bloomberglaw.com/public/desktop/document/State_v_McAdams_No_SC14788_2016_BL_126886_Fla_Apr_21_2016_Court_O?1463582946

Harder to 'Aid and Abet' in 1st Circuit.

Prosecutors are required to show that the defendant knew that the situation was such that the principal's conduct was illegal.

United States v. Ford, 2016 BL 115513, 1st Cir., No. 15-1303, 4/13/16

     The First Circuit Court of Appeals ruled that just because a woman had "reason to know" that her husband was convicted of a felony years earlier, she cannot be convicted of aiding and abetting her husband's illegal possession of a firearm.

     Other Circuits have applied a lower level of mens rea to prove aiding and abetting, but the First Circuit said that the government must prove "actual knowledge." The court looked at the language in 18 U.S.C. § 2, which uses the words "aids, abets, counsels, commands, induces or procures," suggesting that a person can only violate the statute with full knowledge and choice.

http://www.bloomberglaw.com/public/desktop/document/United_States_v_Ford_No_151303_2016_BL_115513_1st_Cir_Apr_13_2016?1463410334

NV and 6th Cir. Agree, Fourth Amendment Does Not Protect Cell Location Data

Cell phone customers do not have a reasonable expectation of privacy in the records of cell tower usage kept by wireless carrier that reveal where phones were used.

United States v. Carpenter, 2016 BL 114989, 6th Cir., No. 14-1572, 4/13/16;
Taylor v. State, 2016 BL 127001, Nev., No. 65388, 4/21/16

    In Carpenter, the Sixth Circuit Court of Appeals ruled that police may rely on court orders rather than search warrants to gather information about a suspect's movements through phone records because customers do not have a reasonable expectation of privacy in the company's records of cell tower usage. The court distinguished content from "routing information" by saying "[c]ontent, per this distinction, is protected under the Fourth Amendment, but routing information is not." The monitoring of how communications travel "from point A to point B" is not protected.

    In Taylor, the Nevada Supreme Court ruled that customers do not have a reasonable expectation of privacy in the cell tower location records that reveal the general areas where the phones were used. This court determined that the information was considered business records that belonged to a third party. The court stated that "a warrant requiring probable cause was not required before obtaining that information" "because Taylor does not have a reasonable expectation of privacy in business records made, kept and owned by his provider."

http://www.bloomberglaw.com/public/desktop/document/UNITED_STATES_OF_AMERICA_PlaintiffAppellee_v_No_TIMOTHY_IVORY_CAR?1463070438

http://www.bloomberglaw.com/public/desktop/document/Taylor_v_State_No_65388_2016_BL_127001_Nev_Apr_21_2016_Court_Opin?1463582294

A Dog's Sniff In A Common Hallway Requires A Warrant

A warrant is required for police to use dogs to sniff in an apartment building's common hallway.

United States v. Whitaker, 2016 BL 113879, 7th Cir., No. 14-3290, 4/12/16

     The Seventh Circuit Court of Appeals ruled that the police violated the Fourth Amendment when they walked a drug-sniffing dog up to a suspect's door in a common hallway of an apartment building and used the dog's "alert" as probable cause to get a search warrant.

     This is the first time that a federal circuit court extended the dog-sniff rule elicited in Florida v. Jardines, 2013 BL 79684 (U.S. 2013) (92 CrL 781, 3/27/13), to include shared hallways in apartment buildings.

http://www.bloomberglaw.com/public/desktop/document/United_States_v_Whitaker_No_143290_and_143506_2016_BL_113879_7th_?1463068355

Can't Frisk Based On Domestic Violence Alone

A police report of "domestic violence" does not, by itself, give justification for the police to frisk a person for weapons.

 

Thomas v. Dillard, 2016 BL 106710, 9th Cir., No. 13-55889, 4/5/16

     The Ninth Circuit Court of Appeals ruled that a simple report of "domestic violence" cannot automatically give rise to a reasonable suspicion to frisk because domestic violence involves a broad array of crimes, many of which do not necessarily involve weapons.

     This is different from other crimes, like bank robbery or drug trafficking, which almost always involve weapons and automatically give investigators sufficient reasonable suspicion to stop and frisk.

http://www.bloomberglaw.com/public/desktop/document/Thomas_v_Dillard_No_1355889_2016_BL_106710_9th_Cir_Apr_05_2016_Co?1462979570

Parents Have 'Vicarious Consent' to Listen in to Kid's Conversations

As long as parents believe that eavesdropping is in the best interests of their child, they may use electronic devices to listen in on their children's conversations with third parties.

People v. Badalamenti, 2016 BL 106362, N.Y., No. 71, 4/5/16

     The New York Court of Appeals ruled that there is a 'vicarious consent' exception to the one-party consent wire-tapping laws, which ban outsiders from listening to a conversation unless one of the parties gives consent beforehand.

     The court ruled that "[t]here is no basis in legislative history or precedent for concluding that the New York Legislature intended to subject a parent or guardian to criminal penalties for the act of recording his or her minor child's conversation of out a genuine concern for the child's best interests."

     The court followed the reasoning in the case of Pollock v. Pollock, 154 F.3d 601 (6th Cir. 1998), which initially recognized the vicarious consent to federal wiretapping laws.

http://www.bloomberglaw.com/public/document/People_v_Badalamenti_No_71_2016_BL_106362_NY_Apr_05_2016_Court_Op

Judge Must Accept Guilt Plea Without Necessary Details

Judge acted outside of his authority to reject a guilty plea just because he wanted details about the crime that went beyond the elements necessary for a guilty plea.

United States v. Nickel, 2016 BL 85312, 9th Cir., No. 14-30204, 3/21/16

     The U.S. Court of Appeals for the Ninth Circuit ruled that once a defendant admits that the charged elements of the crime are true, the judge can only reject the plea if the defendant is disputing, or does not understand, the charges.

     The court confirmed that "[t]here is no requirement in Rule 11(b) that the defendant himself give an in-depth account of his crime or confirm that everything in the government's offer of proof is true."

http://www.bloomberglaw.com/public/desktop/document/United_States_v_Nickle_No_1430204_2016_BL_85312_9th_Cir_Mar_21_20?1462809942

Shoplifting Does Not Become Burglary Merely By Remaining On Premises

Ordinary retail theft will not be elevated to a count of burglary merely by remaining on the premises, if the premises is still open to the public.

 

People v. Bradford, 2016 BL 90900, Ill., No. 118674, 3/24/16

     The Illinois Supreme Court ruled that a defendant who commits theft during regular business hours, remains only in areas open to the public, and leaves before the store closes, cannot be convicted of burglary merely for staying on the premises after the theft.

     The court ruled that a person commits 'burglary by remaining in the public place only where he exceeds his physical authority to be on the premises.' One 'who enters a building lawfully, shoplifts merchandise within areas which are open to the public, then leaves during business hours, is guilty of ordinary retail theft.'

http://www.bloomberglaw.com/public/desktop/document/People_v_Bradford_2016_IL_118674_Court_Opinion?1462392535

Spouses May Consent to Child Porn Searches on Home Computers

A wife had the legal authority to consent to the search and seizure of her husband's electronic devises that contained child pornography.

 

United States v. Thomas, 2016 BL 103144, 11th Cir., No. 14-14680, 4/1/16

     The Eleventh Circuit Court of Appeals ruled that the evidence found on his computer should not be suppressed because his then-wife shared authority and access over the home and the computers inside. Any search made prior to the prisoner revoking consent was within the Fourth Amendment.

     The court found it 'particularly significant that Thomas did not protect his Internet history from [his wife] by maintaining a separate login name and password or by encrypting his files.'

http://www.bloomberglaw.com/public/desktop/document/United_States_v_Thomas_No_1414680_2016_BL_103144_11th_Cir_Apr_01_?1462392789

Knock-and-Talk Exception Does Not Allow Late Hour Entry Into Curtilage

Even under the Knock-and-Talk exception, police do not have license to enter the curtilage of a home if they subjectively plan to execute a warrantless arrest.

United States v. Lundin, 2016 BL 87041, 9th Cir., No. 14-10365, 3/22/16

     The U.S. Court of Appeals for the Ninth Circuit ruled that Police may not use the 'knock-and-talk' exception to the warrant requirement as a pretext to enter the curtilage of a home at four a.m. This indicates that the implied license to approach a front door of a home does not apply in the dead of night, and cannot be used by police if the officers are subjectively interested in arresting, rather than speaking with, the occupant.

     The court clarified that the knock-and-talk exception only applies during 'normal waking hours,' stemming from the normal implied license extended by the homeowner to visitors. The officers were outside of that, because they knocked on the door at four a.m., not at a normal hour for visitors.

     The court cited the US Supreme Court case, Florida v. Jardines, saying that the knock-and-talk is also limited to a specific purpose. When officers approach a house to execute a warrantless arrest, it is outside the social norm that is extended to members of the public to the front door.

http://www.bloomberglaw.com/public/desktop/document/United_States_v_Lundin_No_1410365_2016_BL_87041_9th_Cir_Mar_22_20?1462378081