Wednesday, August 31, 2016

Maine Joins Other Jurisdictions Allowing Jury Instructions for Eyewitness Identification

After considering the growing body of scientific research regarding the reliability of eyewitness identification, the ban against trial judges giving jury instructions on this topic was lifted

State v. Mahmoud, 2016 BL 264503, Me., No. And-15-147, 8/16/16.

The Maine Supreme Court joined a multitude of other jurisdictions in allowing trial judges to give jury instructions regarding the fallibility of eyewitness identification. This overturns a ban to such instructions that has been in place since 1989. The court held, “In light of the voluminous body of scientific research that has emerged regarding the reliability of eyewitness identification, and the subsequent evolving trend among both state and federal courts to instruct juries on this matter, we conclude that it is permissible, where relevant, to instruct jurors on the reliability of eyewitness identification.”

The court did add one caveat, that these instructions would not need to be used in every case. One example the court provided was that such instructions are unnecessary when the identified person was already known to the witness.

Similar instructions are allowed in Utah under the Model Utah Jury Instructions, Second Edition. 

Lifetime Registration for Sex Offenders Limited to Recidivists

The lifetime sex offender registration requirement that applies to persons convicted of “two or more” sex offenses does not apply to offenders who have multiple charges in their first prosecution

A.S. v. Pa. State Police, 2016 BL 263364, Pa., No. 24 MAP 2014, 8/15/16
Commonwealth v. Lutz-Morrison, 2016 BL 263370, Pa., No. 28 MAP 2015, 8/15/16.

   The Pennsylvania Supreme Court clarified the state’s rule that places a sex offender on a lifetime registry for committing two or more sex offenses, now only requiring sex offenders who have been prosecuted two or more times to be placed on the registry. Before, state police were requiring first-time sex offenders with multiple charges to register with the lifetime sex offender registry in the state.

   The court found that the lifetime registration should be reserved for repeat offenders who have failed to reform themselves, while first-time offenders and those who commit less serious crimes can still have a chance through rehabilitation. The court further held that the structure of the schemes, with the graduated tiers of registration requirements, reveal that the legislature had a “recidivist philosophy” in mind.

“Could Have” Gotten a Warrant Is Not Inevitable Discovery

Police testimony that they “could have” gotten a warrant before performing a search is too speculative to invoke an inevitable discovery exception to the exclusionary rule

Gore v. United States, 2016 BL 267572, D.C., No. 15-CM-354, 8/18/16.

   The D.C. Circuit joined the Second and Eighth circuits finding that “could have” gotten a warrant before executing a search is too speculative to be “inevitable” because there is indication of whether lawful procedures were already in the works during the illegal search. The court ruled, finding that the constitutional standard to be used is “would’ve,” not “could’ve” or “might’ve.” If officers “could’ve” gotten a warrant, then it lacks the necessary certainty to trigger the exception to the exclusionary rule that would have allowed them to perform the search.

   The First, Second, Third, Fourth, Sixth, Ninth, and Tenth circuits apply a softer standard, only requiring that the government to show that if the police were following routine standards, then they could have used lawfully secured the evidence.

Automatic Standing Rule Allowing Suppression of Evidence Limited for Multiple Charges

A defendant cannot use the state’s automatic standing rule to suppress evidence for one charge where the evidence was not an essential element, even if it can be used in a different charge

Commonwealth v. Miller, 2016 BL 266206, Mass, SJC-10640, 8/17/16.

   The Massachusetts Supreme Judicial Court ruled that the state’s automatic standing for defendants in suppressing evidence seized on someone else’s property does not extend equally across multiple charges. In the case, a murder suspect was not able to suppress evidence gathered from someone else’s property in relation to his murder charge because the evidence was not essential to the elements of the crime. The same evidence, however, was suppressible in an unlawful possession of a large capacity weapon charge because it was relevant to the charge.

   The court held, “Standing to contest a search is gauged by looking at the individual charges and evaluating whether the items taken were essential to prosecution of the charge.” Although the rule was properly used by the defendant for his unlawful possession charge, the evidence was not essential to the murder charge, thereby not requiring suppression.

Use of the “Question First, Warn Later” Tactic Not a Curative Measure in Police Interrogation

Police that question a suspect first, get a statement, recite the Miranda warnings, and then solicit the statement again can no longer rely on the warning as a curative measure under Missouri v. Seibert

Reyes v. Lewis, 2016 BL 266420, 9th Cir., No. 12-56650, 8/17/16.

   The Ninth Circuit found that the police tactic of questioning a suspect, receiving a statement, and then giving their Miranda warnings would not make a second statement admissible in court. Police must take special “curative measures” to ensure that the suspect understands their rights, even if a statement is obtained from the suspect before their Miranda warnings. The purposeful tactic of questioning first and then providing the warning afterwards cannot be used without further measures to ensure that a reasonable person would understand the effect of the Miranda warnings and waiver.

Doubts over a Murder Accessory’s Involvement in Crime Stays Execution

Almost six days before execution, a man on death row is receiving habeas corpus review over the extent of his participation in a murder, testing the limits of accomplice accountability in capital cases

In re Wood, 2016 BL 271533, Tex. Crim. App., No. WR-45,500-02, 8/19/16.

   The Texas Court of Criminal Appeals stayed an execution of an accomplice in a murder, granting habeas corpus review of the defendant’s case. The habeas court is directed to review whether the defendant received due process because of falsified testimony and scientific evidence. More importantly, however, the court was directed to examine the “party theory” of liability in capital cases, noting that the death penalty should be reexamined because of “shifting societal views.”

    Under Texas criminal law, criminals convicted under the “party theory” of liability can face the death penalty only if they actively participated in “a violent felony where loss of life was foreseeable or if they acted with reckless indifference to human life.” Under the current set of jury instructions, a jury can convict someone of capital murder if they acted as a party by aiding or abetting another person to commit the offense, or in the alternative, if they acted with the intent to commit robbery and another person was killed as a result with evidence pointing to the defendant’s anticipation that death would have resulted. 

   The trial could have implications for accomplice accountability in capital murder sentencing.

Cooperating Witness Unfairly Denied Sentence Reduction after Defendant Acquitted

An incarcerated witness in a corruption case was unfairly denied his full sentence reduction deal by the trial judge after the defendant at trial was acquitted

United States v. Harrington, 2016 BL 269404, 7th Cir., No. 15-3486, 8/19/16.

   The Seventh Circuit overruled a trial judge’s decreased sentence reduction for a cooperating witness after the defendant in the trial was acquitted. The trial judge implied that the witness did not give his best effort because he “didn’t establish beyond a reasonable doubt that the [defendant]….had committed the crimes that they were charged with,” which did not please the circuit panel. Instead of receiving a 25% sentence reduction for testifying and participating in the preparation of the trial, the witness was only given a 14% reduction by the judge.

   In its opinion, the panel expressed concern with the trial court’s decision because the acquittal may not have had any connection to the witness’s testimony. Additionally, the ruling was problematic because tying a sentence reduction to the outcome of a trial could possibly incentivize testimony that was either a lie or exaggerated.

Furtive Movements at Time of Apprehension Enough to Keep Suspects Cuffed

At police stop for a suspected drug deal, officers were allowed to cuff the suspects as they waited for a canine unit because of possible safety implications by the suspect’s actions around the car

Chase v. State, 2016 BL 269343, Md., No. 85, 8/19/16.

   The Maryland Court of Appeals affirmed a denial for a motion to suppress evidence collected while officer cuffed two suspects for safety reasons after a drug deal sting. When the officers approached the vehicle where the drug deal occurred, they noticed “furtive” movements made by the suspects and feared that they may have had weapons on them or in the vehicle. They were cuffed for approximately two minutes while the arresting officers waited for a canine unit to arrive to search the vehicle.

   The court upheld the trial court’s decision, ruling that the handcuffing of the suspects in this instance did not necessarily transform the detention into an arrest due to the totality of the circumstances. The court took into account the possibility of weapons in the vehicle and the furtive movements and mannerisms of the suspects. The officers, even after performing a frisk of the suspects and finding no weapons were ruled to be justified in handcuffing the suspects because of the fear of weapons in the vehicle.

Thursday, August 11, 2016

Ban from Home Depot for Shoplifting Does Not Violate Right to Travel

After shoplifting from Home Depot, a court imposed ban from visiting the store was determined to be constitutional because it did not violate a person’s right to travel

People v. Moran, 2016 BL 252329, Cal., No. S215914, 8/4/16.

    The California Supreme Court ruled that as a condition of a convicted burglar’s probation, a court can impose a complete ban from a store’s property throughout the state without violating the right to travel. After robbing a Home Depot and being placed on probation, the defendant argued that the prohibition was to expansive and violated his right to travel. The court disagreed and held that “He was not, after all, prohibited from entering all retail establishments nor even all home improvement, hardware, or big box stores. The condition simply prevented him from entering the stores (and adjacent parking lots) of the company he victimized.”

Police Cannot Receive Restitution Because They Are Not Victims Under State Statute

After tearing up a private road, police cannot seek restitution from a convicted burglar because they are neither victims nor an entity that provides recovery services to a victim

State v. Knight, 2016 BL 252202, Me., No. KEN-15-534, 8/4/2016.

    The Maine Supreme Court held that police, under the state’s victim restitution law, are not authorized to collect restitution from a convict as part of his sentencing because they are neither victims nor an entity that provides recovery services to victims. The issue arose from an incident when police tore up a private road while catching a burglar. After the conviction, the police sought restitution from the convicted burglar to pay for the repairs of the road under Maine’s victim restitution law. The Supreme Court disagreed with the sentence, however, holding that the victim restitution law was narrowly written to only apply to direct victims of the crime or services that directly help victims. Since the police were neither in this case, they could not recover anything, passing on the expense to the community that maintains the road.

Man with Multiple Images of Child Pornography on Computer Gets Multiple Sentences

Seven charges, convictions, and sentences for seven images of child pornography on the computer was proper because there were seven distinct instances of receiving and storing the different images

State v. Bakken, 2016 BL 250735, Minn., No. A14-2057, 8/3/16.

    The Minnesota Supreme Court clarified the purpose of a state statute that criminalizes the possession of multiple pornographic images of children and the computer used to store those images. The court held that it was the intent of the statute to issue a separate charge for each individual image stored on one device. A man received seven convictions and sentences for seven photos that he received over a one-month period that were stored on his computer. The defendant attempted to argue that the possession of the medium, such as a computer, allows only one conviction and sentence. The court, however, noted that possession of the image is the cause of the charge, not just the possession of the computer. The supreme court also rejected the alternative argument made by the defendant, which was that there cannot be multiple convictions and sentences because there was only one single transaction. The court disagreed, noting that he received the images over an extended period of time. This ruling aligns Minnesota with several other states, including Utah.

Government Must Quickly Place Aliens Recently Released from Jail into Detention

Under the Immigration and Naturalization Act (INA), the government must act quickly to place an alien into mandatory detention after they are recently released from jail to hold them without bond 

Preap v. Johnson, 2016 BL 252253, 9th Cir., No. 14-16326, 8/4/16.

   The Ninth Circuit joined a minority of jurisdictions in requiring the government to act quickly to place aliens recently released from jail into mandatory detention without bond under the INA. The controversy arose because of the statute’s language that requires the government to take an alien into custody “when the alien is released” from jail. Relying on statutory context and legislative history, the court held that there cannot be a lengthy period between an alien’s release and subsequent detention. It said, “[B]ecause Congress’s use of the word ‘when’ conveys immediacy, we conclude that the immigration detention must occur promptly upon the aliens’ release from criminal custody.” The circuit court suggested that the individual circumstances of each case should be considered to determine if government detention occurred quickly after a release from jail.

Officer’s Notification of License Suspension Does Not Invalidate Consent for Blood Test

A driver’s consent to submit to a blood test is not invalidated because an officer informed him that refusal of such test would cause his license to be suspended under the implied consent law

State v. Blackman, 2016 BL 250352, Wis. Ct. App., No. 2015AP450-CR, 8/3/16.

    The Wisconsin Supreme Court held that an officer’s notification of the implied consent law requirement of submitting to a blood test after a minor accident did not coerce a driver into consenting to a test, which ultimately led to his license suspension. In this case, the driver was involved in a minor accident with a cyclist, whereas the implied consent law only applies to serious accidents that cause death or serious harm and the officer believes a traffic violation led to the accident. While the officer correctly recited to the driver the implied consent statute, the officer did not need to because it was not applicable to this situation. The Wisconsin Supreme Court noted, however, that it did not matter because the recitation of the implied-consent law was technically correct, thereby not invalidating the consent given from the driver. When a driver gives consent willingly, it is still consent. The court also commented that Wisconsin’s implied consent law was not invalidated by a recent U.S. Supreme Court decision that limits implied-consent laws only to civil penalties.

Sniffing Dog Does Not Violate Fourth Amendment if there are Exigent Circumstances

The use of a sniffing dog around the curtilage of a home during a hot pursuit does not violate the Fourth Amendment because there were exigent circumstances during the chase

State v. Gay, 2016 BL 240680, N.H., No. 2015-0174, 7/27/16.

    The New Hampshire Supreme Court recently ruled that police using a sniffing dog without a warrant to track an individual to the curtilage of a home does not violate the Fourth Amendment. The pursuit took place in the immediate aftermath of a murder in which a dog immediately took after the scent from some “skin rafts” and traced it to the defendant’s home. The defendant motioned to suppress the evidence, arguing the search violated a similar principle established in Florida v. Jardines, in which the use of a drug sniffing dog on an unverified tip was unconstitutional. The New Hampshire Supreme Court distinguished this case, however, arguing that the exigencies of the case due to the dispersion of the scent from the “skin rafts” warranted the use of the sniffing dog. Additionally, the court noted that the level of intrusion was minimal because the dog was not used to climb onto structures in the property and after the home was identified, the officers immediately left to obtain a warrant.

Suppression Ruling During Pretrial Has Preclusive Effect During Federal Civil Rights Suit

A motion to suppress ruling at pretrial precludes a later federal civil rights claim regarding a seizure because the Fourth Amendment violation was already resolved during the criminal proceeding

Nance v. Humane Soc'y of Pulaski Cty., 2016 BL 252098, 8th Cir., No. 15-3512, 8/4/16.

   The Eighth Circuit ruled that a couple cannot not sue in federal court under 43 U.S.C. § 1983 because a state’s court ruling on a pretrial motion to suppress evidence precluded their claim. During their criminal trial, the couple motioned to suppress evidence that was collected in an animal cruelty investigation. The trial court had a hearing and admitted the evidence, resolving the possibility of any Fourth Amendment claim that could be raised later. In their opinion, the circuit court rebutted any claim that the couple did not have an opportunity to fully litigate the validity of the seizure on an alternative argument. It held that any alternative argument should have been presented during the pretrial proceedings, and the failure to do so, now bars their civil rights claim on this issue.

GPS Tracking on Cell Phone OK if for Exigent Circumstances

Without answering issues regarding the expectation of privacy in a suspect’s GPS coordinates through their cell phone, a court ruled that exigent circumstances warranted tracking of a cell phone

United States v. Caraballo, 2016 BL 247520, 2d Cir., No. 14-4203-cr (Con), 8/1/16.

   The Second Circuit punted on the privacy issue of whether a Fourth Amendment search is conducted when a state actor uses the GPS coordinates of a suspect’s cellphone during an investigation. Rather, it relied on exigent circumstances in the case to justify the search. While the circuit court affirmed the lower court’s holding, finding that there were exigent circumstances for the search, it did not, however, make a ruling on the trial court’s determination that the use of GPS coordinates violates an expectation of privacy. The Sixth Circuit is the only jurisdiction so far to address whether the use of GPS coordinates from a cell phone violate an expectation of privacy, holding that individuals have “no reasonable expectation of privacy in the real-time GPS location of their cell phones.”

Suspect’s Conversation with Himself is Admissible in Court

Incriminating comments made in a police cruiser by a suspect speaking to himself, while being recorded, is not an interrogation and are admissible in court

United States v. Bailey, 2016 BL 253698, 8th Cir., No. 15-3591, 8/4/16.

    The Eighth Circuit ruled that comments made by a suspect while alone that were recorded on camera in a police cruiser are admissible in court. The police arrested the suspect after chasing him down when he fled a traffic stop. While alone in the car, he made an incriminating comment about the police finding his gun. In court, the defendant argued that these statements should be suppressed because they were made before he received his Miranda warnings and that he essentially was engaged in an interrogation. By being placed in the police cruiser with an active camera, the defendant contended that the police hoped or even expected him to make incriminating statements.

   The circuit court, however, disagreed with the defendant’s reasoning. Even with the police hoping that the defendant would incriminate himself on camera, the hope does not rise to an interrogation understood under Miranda jurisprudence. The court even noted that regular booking queries were stopped by the time the defendant was placed in the cruiser, further emphasizing that any formal interrogation or questioning had come to an end.

Delaware’s Death Penalty is Unconstitutional Due to its Sentencing Procedures

After reviewing Delaware’s sentencing procedures, its supreme court ruled that the death penalty is unconstitutional because judges have too much power to make factual findings during sentencing

Rauf v. State, 2016 BL 249274, Del., No. 39, 8/2/16.

   The Delaware Supreme Court held that its state’s death penalty was unconstitutional because a sentencing judge had too much power in making factual findings, thereby violating the Sixth Amendment. The ruling follows the U.S. Supreme Court’s holding in Hurst v. Florida, which required juries, not judges, to decide the facts of the case necessary to justify the death penalty. The court stated that “the Sixth Amendment right to a jury includes a right not to be executed unless a jury concludes unanimously that it has no reasonable doubt that is the appropriate sentence.” While the court attempted to sever or cure the problematic portions of the sentencing statute, it was unable to do so, ultimately leading to their decision to invalidate the entire death penalty statute.

   After this decision, Delaware becomes the 20th state to have ended capital punishment. There are currently 18 inmates on death row in the state.

Monday, August 1, 2016

Ex-Governor Cannot Hide Emails Shared with State Lawyers in Corruption Investigation

The former Oregon governor cannot prevent emails shared with state lawyers from being introduced to a grand jury because of attorney-client privilege

United States v. Kitzhaber, 2016 BL 224564, 9th Cir., No. 15-35434, 7/13/16.

   The Ninth Circuit found that emails sent by a former governor to the state’s attorneys are not completely shielded by the attorney-client privilege in a grand jury investigation. The former governor used several personal email accounts to communicate with state attorneys regarding ethics violations, but, unbeknownst to him, were archived on state servers.

   The court rejected the ex-governor’s argument that he had an attorney-client privilege while sending those emails. While emails exchanged with privately held attorneys were protected, any email sent to the state attorneys were not because “[w]hatever privilege such communications may implicate is held by the State of Oregon, not [the governor] personally.” In addition, the court held that communication with a state’s attorney over “a consultation concerning conflict-of-interest or ethics laws is a consultation about an office holder's official actions and obligations. [A]n executive officer who consults with a government attorney concerning whether to let a certain contract go to a person with whom he has business dealings, or to a relative, is seeking advice about carrying out his official duties.”

Excuse of Putting a Bra On to Escape the Police Constitutes Escaping Arrest

 A woman was found guilty of "escaping arrest" after sneaking away from the police who gave her permission to put her bra on before arresting her, even if they did not physically arrest her yet

State v. Dorweiler, 2016 BL 234092, Me., No. PEN-15-228, 7/21/16.

    The Maine Supreme Court found that being in the police’s physical custody is not necessary for the purposes of an unlawful escape once the person submits to the police. The court found that the defendant was constructively seized by the police when she acquiesced by letting them into her home and submitted to their commands. The court found that the defendant’s actions and comments gave the arresting officers as much control over the situation as needed, thereby constructively arresting her. The court also ruled that the subjective intent of the arrestee is not determinative in establishing whether the person was under arrest under the escaping arrest statute.

No New Trial: Juror Was Not Asleep, Just Focusing With Eyes Shut

No new trial is required because a juror that was presumed to be asleep was actually focusing with their eyes closed, and only during non-consequential moments of the trial

State v. Mohammed, 2016 BL 239035, N.J., No. A-70, 7/25/16.

   After making a decision about whether a juror was deemed to be inattentive and asleep during a trial, the New Jersey Supreme Court set out new protocol for allegations of a juror falling asleep or being inattentive. Generally, judges have broad discretion to correct inattention, whether they observed the behavior or not. The court held that if a trial judge finds a juror inattentive during a non-consequential part of the trial, then the judge has a wide discretion to fix the problem, with the possibility of review under the “harmless error” standard. If the juror was not paying attention during an important part of the trial, then “the judge must take appropriate corrective action, such as replaying a tape recording or videotape, rereading a portion of the jury charge, or excusing the juror, among other steps.”

   After establishing this protocol, the court found that there was no harm due the actions of the inattentive juror. The alleged instances occurred during pretrial instructions, which were deemed inconsequential by the supreme court. During the other instance of inattention, the trial judge, through his personal observations, found the juror to be paying attention, just with his eyes shut to help “focus.”

The Stop and Search of a Car for Using Their High Beams Considered Unreasonable

A traffic stop of a car for using high beam headlights in a residential area, although reasonable, was mistaken, making the stop and subsequent search without cause.

State v. Scriven, 2016 BL 232318, N.J., No. A-11, 7/20/16.

   A police officer’s stop and search of a vehicle driving with their high beams on in a residential neighborhood was not reasonable, the New Jersey Supreme Court held. During the search, the officer found an unlicensed firearm in the possession of the driver. The language of the high beam law under the New Jersey law requires drivers to “dim their high beams only when approaching an oncoming vehicle.” The court further elaborated by saying “The statute does not state that high beams may be used only on rural or unlit suburban roads at night, but not on a seemingly well-lit deserted city street at 3:30 a.m. Neither a car parked on a perpendicular street nor an on-foot police officer count as an oncoming vehicle.”

   Prosecutors in the case argued that the initial stop and discovery of an unlicensed handgun was justified according to a North Carolina decision, which provides that a reasonable mistake of law that forms the basis for a finding of reasonable suspicion justifies a stop. The New Jersey court disagreed. Prosecutors also argued that the officer appropriately acted under the community-caretaker doctrine because “something could have been wrong with the driver” or the high beams created a public safety hazard. This argument, like the other, was also rejected. The officer’s only purpose in stopping in the driver was because he thought he was breaking the law, which was a mistake.

An Employee’s Violation of Company’s Computer Use Policy is not a “Computer Crime”

An employee that printed off lottery tickets from her company’s store computer does not commit a “computer crime” because it would broaden the meaning of the law and run against the state’s intent

State v. Nascimento, 2016 BL 234067, Or., No. SC S063197, 7/22/16.

The Oregon Supreme Court held that an employee that commits a crime using a company’s computer does not necessarily commit a “computer crime.” The prosecutors in this case argued that the defendant violated an Oregon criminal statute against computer crimes by using a store computer to print off lottery tickets for herself. Under the statute’s language, the prosecutor’s argued, she used or accessed a computer “without authorization.”

The Oregon court, however, did not find that this interpretation of the statute appropriately reflected the legislative intent in its creation and that it was overly broad. In looking at the legislative history, it was apparent to the court that the law was written to punish computer hackers that had no authority to access a business’s computer, not just employees who misuse a computer. While the employee is subject to theft charges and other similar statutes, her actions did not rise up to that of a "computer crime."

Defendant Cannot Attack State Sentence in Appealing his Federal Sentence

A defendant cannot appeal his federal sentence by attacking the validity of his initial state sentence by arguing that the federal sentence is unconstitutional because it runs consecutively to his state sentence.

United States v. Napolitan, 2016 BL 230906, 3d Cir., No. 15-1602, 7/19/16.

   A Third Circuit court ruled that a defendant cannot challenge his federal sentence by attacking the state sentence he had already received. This decision continues and expands upon the line of cases stemming from Custis v. United States, which prevents federal defendants from mounting attacks against past convictions that were used as prior convictions for sentencing enhancement. In this case, the defendant argued that his federal sentence was unconstitutional because it ran consecutively to his state sentence, which he contended was invalid. The court ruled that “Drawing on both the logic and language of Custis, we see no reason why state sentences should not be accorded the same respect and be subject to the same forms of substantive review afforded to state convictions.” The court then joined the Ninth, Sixth, and Second circuits and extended Custis to prevent attacks on prior convictions.

nder New York Law, Robbery Not Necessarily “Crime of Violence” for Career Criminal Enhancements

After reviewing the New York statute on first-degree robbery, a federal circuit court held that language in the statute prevents it from being an inherent “crime of violence” for federal sentencing guidelines

United States v. Jones, 2016 BL 233942, 2d Cir., No. 15-1518-cr, 7/21/16.

The Second Circuit held that robbery is not necessarily a “crime of violence” for purpose of the career-offender enhancement under federal sentencing guidelines. While the facts of the actual robbery were not considered by the court, it examined what constituted a robbery under the New York statute, concluding that a person can commit robbery without taking any “violent” actions. Some actions, such as possessing a weapon without ever brandishing it during the crime, were especially significant to the court in making this decision.

The Second Circuit relied on the U.S. Supreme Court decision, United States v. Jones, where the court held that a violent felony under the Armed Career Criminal Act requires an element of “violent force.” The court looking at the New York statute and found that “a robber's possession of a concealed and unmentioned weapon while he commits a robbery can support a first-degree robbery conviction under [New York law] but such possession cannot turn what is otherwise less-than-violent force into violent force.”

As of August 1, the U.S. Sentencing Commission’s will release a new set of sentencing guidelines regarding what constitutes a "crime of violence."

“I Don’t Want to Talk No More” Unambiguous Invocation to Remain Silent

Police were in error and violated the suspect’s right to remain silent when they continued questioning him after he said “I don’t want to talk no more, man” 

Jones v. Harrington, 2016 BL 235726, 9th Cir., No. 13-56360, 7/22/16.

The Ninth Circuit overruled a Californian appellate court that initially found that a suspect did not invoke his right to remain silent because after saying “I don’t want to talk no more, man,” he quickly followed up by stating “You don’t want to hear what I’m telling you.” The Californian court held that the initial refusal to talk, in the context of the entire conversation, was only him expressing his frustration, not an invocation of the right to remain silent.

The circuit court, however, disagreed. The court held that the Californian court erred because responses by a suspect after their invocation of the right to remain silent cannot be relied on to establish whether the invocation was ambiguous or not. The Ninth Circuit relied on Smith v. Illinois, which held “once a suspect clearly invokes his right to counsel, officers may not continue to question him and use his answers to those questions to cast retrospective doubt on the clarity of his initial invocation.”