Late Attempt to Seal Wiretap Not Justified by Prosecutor's Workload

Federal law requires that intercepted communications be "immediately" presented for sealing once the warrant expires, and a prosecutor's preoccupation with another case is not a good excuse for noncompliance.

 

Finney v. State, 2016 BL 68689, Ga., No. S15A1739, 3/7/16

     The Georgia Supreme Court ruled that the upcoming oral argument which the prosecutor was worried about was not a surprise development that the state was forced to handle. The court also determined that the prosecutor's preoccupation with the upcoming oral argument did not explain why other lawyers in the office could not have filed the motion, or why the matter was not dealt with until eight days after the oral argument had concluded. See, 18 U.S.C. § 2518 (1) - (6).

http://www.bloomberglaw.com/public/desktop/document/Finney_v_State_No_S15A1739_2016_BL_68689_Ga_Mar_07_2016_Court_Opi?1458316618

Waiver of Appointed Counsel by Being Combative

A defendant "forfeited" his right to appointed counsel by causing his first three lawyers to withdraw and physically threatening the fourth.

 

State v. Nisbet, 2016 BL 60371, Me., Cum-14-224, 2/25/16

     The Maine Supreme Court ruled that a defendant who constantly caused issues with his appointed counsel "forfeited" his right to that counsel when he caused his first three lawyers to withdraw and physically threatening the fourth lawyer appointed.

     The court also said that, in the alternative, the defendant waived his right to counsel by implication. The trial court also told the defendant several times that he had driven away qualified attorneys, and warned him that if he continued to misbehave he would be forced to continue without representation.

http://www.bloomberglaw.com/public/desktop/document/STATE_OF_MAINE_v_JOSHUA_R_NISBET_No_CUM14224_2016_BL_60371_Me_Feb?1458315821

Iowa's Medical Hearsay Rule Stays Firm

An attacker-identifying statement made by an adult victim of domestic abuse to a health-care professional is not automatically admissible.

 

State v. Smith, 2016 BL 66012, Iowa, No 13-1202, 3/4/16

     The Iowa Supreme Court ruled that even though statements made by child victims to health-care providers are routinely admitted, identifying statements made by adult victims will not be automatically admissible.

     The state wanted to court to follow other jurisdictions, including the 10th Circuit, which allow these identifying statements because the identity of the abuser is pertinent and necessary to the victim's treatment. However, the court ruled that it would require the state to prove on a case-by-case basis how the identification of the abuser was necessary to provide treatment.

http://www.bloomberglaw.com/public/desktop/document/State_v_Smith_No_131202_2016_BL_66012_Iowa_Mar_04_2016_Court_Opin?1458314791

Suggestion Not Custodial Seizure

A suspect was not in police custody, and did not need to be Mirandized, just because officers suggested that it would be a good idea for him to come with them and to be honest.

 

Spencer v. United States, 2016 BL 63376, D.C., No. 13-CF-0085, 3/3/16

     The D.C. Court of Appeals determined that a reasonable person in the suspect's shoes would have felt free to leave regardless of the officers' statements, because he "was still permitted to use his cell phone, he was never handcuffed, and he was told multiple times that he was not under arrest."

     Just because officers told the suspect that he "needed" to come with them to the station and later said "if  you want to walk out of here, you got to be honest" does not mean that the suspect was in custody. Because he was not in custody he did not need to be read his Miranda rights. The police did not assert authority to get his compliance, rather, it seemed that the suspect's decision to go with his girlfriend to the station was "precipitated by his desire to support his girlfriend."

http://www.bloomberglaw.com/public/desktop/document/Spencer_v_United_States_No_13CF0085_2016_BL_63376_DC_Mar_03_2016_/1?1458312772

Prosecutor's Undercover Facebook Chats Deemed Unethical

Using a fake Facebook identity to talk to alibi witnesses is unethical behavior for a prosecutor.

 

Disciplinary Council v. Brockler, 2016 BL 66525, Ohio, No. 2015-0280, 2/25/16

     The Ohio Supreme Court ruled that no matter the intentions of a prosecutor, there is no public policy exception for the Ohio prosecutor who used fake Facebook accounts to speak with alibi witnesses. The Ohio Supreme Court ruled that the fake Facebook account violated Ohio Rule of Professional Conduct 8.4(c) dishonesty, fraud, deceit, or misrepresentation. The court refused to recognize a public policy exception that would permit deceptive prosecutorial investigative tactics.

      This ruling is similar to the 2002 case in Colorado where a prosecutor was suspended for pretending to be a public defender to talk a suspect into giving himself up. See, In the Matter of Mark C. Pautler.

http://www.bloomberglaw.com/public/desktop/document/Disciplinary_Counsel_v_Brockler_2016Ohio657_Ohio_Feb_25_2015_Cour?1457969598

Losing Ambiguous Text Messages Does Not Violate Due Process

A defendant's due process rights were not violated when the government failed to preserve text messages he had sent regarding the assault.

 

United States v. Harry, 2016 BL 58901, 10th Cir., No. 14-2160, 2/29/16

     During an investigation, incoming text messages were recovered from the defendant's phone, but the prosecution was unable to obtain any outgoing text messages. The defendant argued that the outgoing messages were exculpatory, and the prosecution's failure to preserve them violated his due process rights.

     The court ruled that the failure to preserve evidence violates due process only if the evidence was exculpatory and its exculpatory value was apparent before its loss. If the evidence was not obviously exculpatory but "potentially useful" the failure does not violate due process, absent bad faith. Here, the exculpatory value was not apparent, and there was no evidence of bad faith.

http://www.bloomberglaw.com/public/desktop/document/United_States_v_Harry_No_142160_2016_BL_58901_10th_Cir_Feb_29_201?1457718203

Cops Can't Use Dog on Suspect Who Ceased Fleeing

Police may be held liable for having a police dog attack a man after he had surrendered and put his hands in the air.

 

Alicea v. Thomas, 2016 BL 60723, 7th Cir., No. 15-1255, 3/1/16

     The Seventh Circuit Court of Appeals ruled that, if a jury believes that the man had surrendered, the police may be liable for siccing their dog on him. The court here clarifies that the police cannot assume that a surrendering suspect continues to pose a threat in order to justify using extreme force.

     The court added that "[t]he sole fact a suspect has resisted arrest before cannot justify disregarding his surrender in deciding whether and how to use force."

http://www.bloomberglaw.com/public/desktop/document/Alicea_v_Thomas_No_151255_2016_BL_60723_7th_Cir_Mar_01_2016_Court?1457716591

Probationers Get Right To Digital Privacy

The government may not search a probationer's mobile phone based only on the fact that the person agreed to allow the government to search his "property" at any time.

 

United States v. Lara, 2016 BL 64094, 9th Cir., No. 14-50120, 3/3/16

      In this case, the Ninth Circuit Court of Appeals confirmed their view that a probationer's acceptance of specific search terms in a probation agreement does not, by itself, justify otherwise unconstitutional searches. The court also extended some digital privacy rights to nonviolent probationers. The court said that "there is a limit on the price the government may exact in return for granting probation."

     Without specific mention of digital devices in a probation agreement, ambiguous terms will not be read to include mobile phones and the data therein. Even a search of a probationer needs to be reasonable. That is determined by balancing the degree of intrusion against the degree to which the search is needed to advance a legitimate government interest.

     The court here indicated that even though the probationer's privacy interest was diminished, and the government had a clear interest in combatting recidivism, looking through the nonviolent probationer's phone was not justified just because they missed a meeting.

 http://www.bloomberglaw.com/public/desktop/document/UNITED_STATES_OF_AMERICA_Plaintiff_Appellee_v_PAULO_LARA_BRO_1_De?1457714431

Warrantless Blood Draw Justified By Broken Intoxilyzer

A blood draw performed without a warrant was justified by exigent circumstances after the officer attempted to use the police station's Intoxilyzer machine, but it was not functioning correctly.

 

State v. Arndt, 2016 BL 45450, Me., Sag-15-150, 2/18/16

     The deputy attempted four times to use the Intoxilyzer to obtain a blood-alcohol reading from a suspected drunk driver, but the machine was not functioning correctly. Because time was running out, as any alcohol in the blood stream was dissipating, the deputy had a paramedic take a sample of the suspect's blood.

     The Maine Supreme Court determined that the deputy's decision was reasonable, and did not go against Missouri vi McNeely, because 90 minutes had passed and he feared that the evidence would be lost because the Intoxilyzer was broken. See Missouri v. McNeely, 133 S.Ct 1552 (2013). 

http://www.bloomberglaw.com/public/desktop/document/State_v_Arndt_2016_ME_31_Court_Opinion?1457544612

Pleas Not Subject To Unilateral Changes By Judge

When a trial judge wants to change a recommended sentence in a plea bargain, the state must be allowed to withdraw consent to that plea bargain.

 

State v. Kelly, 2016 BL 49123, Ga., No. S15G1197, 2/22/16

     The Georgia Supreme Court ruled that a judge cannot unilaterally change a portion of a negotiated plea and then force the state to accept the change. The court stated that "the trial court's authority to accept a plea agreement to a lesser charge flows from the State's consent to that agreement."

     The court indicated that if this were allowed, a court's ability to change plea deals would "not only weaken the inherent authority of the executive branch to control how individuals should be charged, but it would also chill the State's willingness to enter into such pleas."

     If courts want to reject sentence recommendations as part of a plea agreement to a lesser charge, they must give the state an opportunity to withdraw its consent to the plea and demand a trial.

http://www.bloomberglaw.com/public/desktop/document/THE_STATE_v_KELLEY_No_S15G1197_2016_BL_49123_Ga_Feb_22_2016_Court?1457453963

Cop Request Determined To Be 'Command'

A man was effectively seized when he refused to consent to a search and the police "asked" him to exit his legally parked vehicle.

 

Sharp v. United States, 2016 BL 45032, D.C., No. 13-CM-951, 2/18/16

     It was clear that refusal was not a real option for the Devon Sharp. Therefore, when the police "asked" him to exit his car, it was really a command, amounting to a seizure under the Fourth Amendment. This case clarifies that such requests will be treated as commands when a reasonable person would, under the circumstances, believe that he had to comply.

     The court stated, quoting Florida v. Bostick, that "in the absence of any sign that a reasonable person in these circumstances would believe the officer was giving him a genuine choice to decline the request and stay in the car, we conclude that the police here 'convey[ed] a message that compliance with their request[] [was] required'."

     The court also noted that nothing that Sharp had been doing gave rise to reasonable suspicion, and did not justify his detention. Merely listening to loud music and appearing to be nervous is not enough.

http://www.bloomberglaw.com/public/desktop/document/Sharp_v_United_States_No_13CM951_2016_BL_45032_DC_Feb_18_2016_Cou?1457369927

No Need For Reasonable Suspicion for Search of Probationer

Agents of law enforcement are not required to cite reasonable suspicion before searching a probationer under standard probation.

 

United States v. Tessier, 2016 BL 45438, 6th Cir., No. 15-5284, 2/18/16

     The Sixth Circuit Court of Appeals ruled that, as long as the standard probation form that consents to searches "without a warrant" and "at any time", law enforcement officials do not need reasonable suspicion to search a probationer.

     Probationers still have some protections, but are not entitled to the same absolute liberties, guaranteed by the Fourth Amendment, as people not on probation. In this case, officers were acting within a operation searching the residences of every known sex offender in the county. The court used a "totality of the circumstances" analysis and said that because the search conditions in this case advanced the two primary goals of probation - rehabilitation and protecting society from future criminal violations -  the intrusion was reasonable.

     The court said that it did not need to answer the greater question of "whether a search of a probationer's home that has no legitimate law enforcement or probationary purpose-such as a search with no purpose other than to harass the probationer-would be reasonable under the Fourth Amendment."

http://www.bloomberglaw.com/public/desktop/document/United_States_v_Tessier_No_155284_2016_BL_45438_6th_Cir_Feb_18_20?1457129207

Minority Jurors Are Not Interchangeable Commodities

Attorneys may not justify a peremptory strike by indicating that they intend to replace the person with another juror of the same race, because that is not race- neutral.

 

Ray-Simmons v. State, 2016 BL 49211, Md., No. 28, 2/22/16

     A prosecutor attempted to justify a peremptory strike of a black man by saying that she planned to replace him with "another black male" from the other prospective jurors.  The Maryland Court of Appeals ruled that this violated Batson because that rationalization was neither race- nor gender-neutral.

     The court indicated that the prosecutor's suggestion that minority jurors are interchangeable saved the defense from having to make out the prima facie case of discrimination. The court said that "[a] desire to replace a juror with another unspecified member of the panel does not explain in any way, race-neutral or otherwise, the prosecutor's reasons to strike that particular juror."

     Because the original case happened four years ago, and the circumstances surrounding the challenge could not be reconstructed easily, the Court of Appeals ordered a new trial.

http://www.bloomberglaw.com/public/document/RaySimmons_v_State_No_28_2016_BL_49211_Md_Feb_22_2016_Court_Opini

Judges may determine that a criminal forfeiture violates the Eight Amendment's excessive fines clause by considering whether it deprives the defendant of the future ability to earn a living.

United States v. Voloski, 2016BL 43826, 2d Cir., No. 14-4176-cr, 2/17/16

    The Second Circuit ruled that judges may consider that a criminal forfeiture is too harsh by determining whether it would deprive the defendant of the future ability to earn a living.

    In United States v. Bajakajian, 524 U.S. 321 (1998), the U.S. Supreme Court ruled that "a punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of the defendant's offense." They gave four factors to make this determination:

• the essence of the crime and its connection to other criminal activity;
• whether the defendant is in the class of persons at whom the statute was principally aimed;
• the maximum sentence and fine that could have been imposed; and
• the nature of the harm caused by the conduct.

    Many courts (including the Eleventh and Ninth Circuits) have taken a narrow approach, essentially that the above list is exhaustive, and have ruled that excessiveness is determined by the character of the offense, not the offender. The Second Circuit concluded that there is an additional factor, that

• "a fine should not be so oppressive as to deprive a wrongdoer of his livelihood."

    The court indicated that this is not inconsistent with the Bajakajian decision, because the excessive fines clause comes from English constitutional tradition, which includes protections against livelihood deprivations. In this case, the court turned down Viloski's claim, because he had presented no evidence that his forfeiture would prevent him from earning a living once he was out of prison.

http://www.bloomberglaw.com/public/document/United_States_v_Viloski_No_144176cr_2016_BL_43826_2d_Cir_Feb_17_2

Texting-While-Driving, Almost Unenforceable in Indiana

Seeing a motorist doing something on their phone does not, by itself, give reasonable suspicion to stop them for violating the texting-while-driving ban.

 

United States v. Paniagua-Garcia, 2016 BL 46039, 7th Cir., No. 15-2540, 2/18/16

     The defendant was pulled over because the officer said that he "appeared" to be texting on his phone's key pad. The court ruled that because it was just as likely that he was doing something that was not prohibited, the officer did not have reasonable suspicion. The Indiana law bans texting, but allows all other uses.

     The state's argument essentially claimed that the mere possibility that someone is engaging in a criminal act creates a reasonable suspicion. The court determined that this is too broad, and that "[w]hat [the government] calls reasonable suspicion, we call suspicion."

     There was no evidence of erratic driving or anything else to bolster the police officer's suspicion. The court said that if the government stance was correct, the police could stop any driver they saw drinking from a coffee cup on the suspicion that the coffee was spiked with booze because it is illegal to drink alcohol while driving.


http://www.bloomberglaw.com/public/desktop/document/United_States_v_PaniaguaGarcia_No_152540_2016_BL_46039_7th_Cir_Fe?1456852336