Killing Dogs During a Police Search Not Inherently Unconstitutional

The death of two dogs during a police search was deemed reasonable under the Fourth Amendment because of their aggressive behavior that was impeding a police search of a home

Brown v. Battle Creek Police Dep't, 2016 BL 420467, 6th Cir., No. 16-1575, 12/19/16.

The Sixth Circuit held that police officers did not violate the Fourth Amendment in killing two pit bulls during a drug raid. Although the court recognized that dogs are property and any unreasonable seizure of them would be considered unconstitutional, due to their aggressive nature and interference in the performance of a large-scale drug raid by police officers, their killing was reasonable. It was irrelevant to the court that the dogs were owned by occupants of the house who were not subject to the search.

https://www.bloomberglaw.com/public/desktop/document/Brown_v_Battle_Creek_Police_Dept_No_161575_2016_BL_420467_6th_Cir?1485369674

Buying Drugs with a Gun Does Not Require Heightened Sentences

A gun used to purchase drugs does not qualify a defendant for longer sentences under the U.S. Sentencing Guidelines

 United States v. Gates, 2017 BL 879, 7th Cir., No. 16-2193, 1/4/17.

The Seventh Circuit ruled that sentence enhancement for the commission of a drug crime cannot stem from the presence of a weapon used only for the exchange of drugs. The court recognized that the enhancement is generally applied only when the weapon is used in the commission of the drug crime. In this case, the gun was used as payment for drugs and as satisfaction for a prior debt. The court, noting how little a role the weapon played in the actual exchange, even outlined how the gun was stored and transported before the drug deal.

http://www.bloomberglaw.com/public/document/United_States_v_Gates_No_162193_2017_BL_879_7th_Cir_Jan_04_2017_C/1.

Negative Profile Evidence Inadmissible

The use of character evidence, even negative character evidence, gives rise to a substantial risk of a miscarriage of justice, requiring reversal

Commonwealth v. Horne, Mass., No. SJC-12068, 1/10/17.

The Massachusetts Supreme Judicial Court found that negative character evidence used to profile a defendant is not admissible because it creates a substantial risk of prejudicing the defendant. In Massachusetts, profile evidence has long been established to be inadmissible, but this holding establishes that negative profiling evidence serves the same purpose. Negative profile evidence is generally used to contrast a defendant's profile with the character of a person committing a certain kind of crime.

During the trial, prosecutors used an expert witness that testified on the appearance of a crack addict, claiming that the defendant was “too robust” to fit the profile. Prosecutors argued that the defendant did not fit the profile of a cocaine addict, even though he was found with large amounts of cocaine on him, suggesting that he was too fat to be using drugs and was intending to sell them.

The court, in reviewing this case, found that the prosecutors attempted to persuade the jury by using the profile evidence due to the defendant’s appearance that was specifically designed to contrast him to a stereotype.

http://www.bloomberglaw.com/public/document/Commonwealth_v_Horne_No_SJC12068_2017_BL_5957_Mass_Jan_10_2017_Co.

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

Specific Mens Rea Required For Drug Analogues

It is not rational to presume beyond a reasonable doubt that a defendant knew that just because one drug gives similar effects as another, the two drugs share similar chemical structures.

 

United States v. Makkar, 2015 BL 384626, 10th Cir., No. 14-5147, 11/23/15

    The 10th Circuit Court of Appeals overturned the convictions of two men selling controlled substance analogues. The convictions were reversed because the trial court jury had been instructed to infer that because the drug's effects were similar to marijuana, the men knew that it was an illegal drug.

    The court said that "[a]s a matter of common experience and logic, the fact that one drug produces a similar effect to a second drug just doesn't give rise to a rational inference-let alone rationally suggest beyond a reasonable doubt-that the first drug shares a similar chemical structure with the second drug."

    The convictions followed a method of proving mens rea given in McFadden v. United States (U.S. 2015). In that case, and this one, mens rea was proven by showing that the defendants knew the analogue had a similar chemical structure to the illegal drug and produced a similar effect. Those are two separate questions.

    In this case the government never showed that the defendant's knew anything about the chemical structure. Instead they had the jury instructed to infer that the defendants knew the structure was similar based on what they knew the effects to be. This conflated two independent statutory inquiries, and did so by "resorting to a logical fallacy, a hasty generalization or associational error-an unwarranted assumption that because certain things share one characteristic they must share others."

http://www.bloomberglaw.com/public/desktop/document/United_States_v_Makkar_No_145147_2015_BL_384626_10th_Cir_Nov_23_2/1?1451492900

Dog-Sniff Illegal on Curtilage Even if Officer Hangs Back

Evidence ruled inadmissible when the drug dog alerted near a suspect's apartment window even though the officer let the dog roam off leash while he stayed outside the curtilage.

 

United States v. Burston, 2015 BL 384510, 8th Cir., No. 14-3213, 11/23/15

    In this case the officer let the dog off the leash to sniff around while he remained outside of the curtilage by being six feet away from the apartment window. The Eighth Circuit Court of Appeals ruled that the search violated the rules laid out in Florida v. Jardines.

    The court stated that "cases preceding Jardines support the proposition that a police officer cannot invade a homeowner's curtilage by bringing a dog six to ten inches from a resident's window for the purpose of gathering evidence without a warrant."

    The court determined that the action in this case is different from action permitted in a common area. The court stated that "the area searched in this case was within six to ten inches of Burston's window, that is to say, an uncommon area."

    The ruling indicates that it is the location of the dog that matters. The argument that there is no Fourth Amendment violation so long as the officer stands "in a lawful location" while the dog invades the curtilage unlawfully is incorrect.

http://www.bloomberglaw.com/public/desktop/document/United_States_of_America_Plaintiff__Appellee_v_Democrus_Pernell_B?1451402638

Sentence Enhanced Even With Unclaimed Gun

Even though there was no evidence directly tying the defendant to the weapon found in the same house as he, he was eligible for a two-level sentencing enhancement for possession of a shotgun.

 

United States v. Rodriguez-Guerrero, 2015 BL 357884, 5th Cir., No. 14-41289, 10/10/15

    The U.S. Court of Appeals for the 5th Circuit affirmed the trial judge's determination that there was enough of a "temporal and special relationship" between the weapon, the drug trafficking, and the defendant. The court said that, because the weapon was found along with bundles of marijuana, it was more likely that the weapon would be used by the defendant.

    The house where the arrest was made was a "stash house" and the only purpose for the defendant to be there was to protect the drug stash. The court ruled that "[b]ecause the only purpose of the house was for drugs, it was plausible to find that the only purpose of the weapon was to support the drug business."

http://www.bloomberglaw.com/public/desktop/document/United_States_v_RodriguezGuerrero_No_1441289_2015_BL_357884_5th_C?1450714340

Wittnesses' Opinion That Speaks To All Elements of Crime Disallowed

The opinion of a detective testifying as an expert should have been inadmissible because it spoke to all elements of the crime.

 

Williams v. State, 2015 BL 353500, Ind., No. 48S05-1507-CR-424, 10/26/15

    The detective was testifying as an expert and expressed that he had "zero doubt" that the exchange between the defendant and the informant was a drug transaction. The Indiana Supreme Court ruled that his testimony should have been declared inadmissible as an opinion on the ultimate issue of guilt.

    The rules of evidence bar witnesses from giving their opinion regarding guilt or innocence, and the court ruled that the detective's testimony violated that rule. The court indicated that this was different from testimony regarding intoxication or identity, which can be allowed, because this testimony discussed all of the elements of the crime, including mens rea.

http://www.bloomberglaw.com/public/desktop/document/Williams_v_State_No_48S051507CR424_2015_BL_353500_Ind_Oct_26_2015?1449089156