Armed Forces Appellate Court Follows Majority on "Protective Sweep" Exception to Warrant Requirement.

The protective sweep exception to the warrant requirement does not neccesitate an arrest while in a home, so long as the law enforcement agents are lawfully in the home and are concerned about safety.

 

United States v. Keefauver, C.A.A.F., No. 15-0029



 

     The U.S. Court of Appeals for the Armed Forces ruled that law enforcement agents may make "protective sweeps" if they are lawfully in a house and have a justifiable concern for safety. They also indicate that this must not be a part of a "standard procedure."

 

     Some circuits have ruled that this "protective-sweep exception" is only applicable during an in-home arrest. But this court is following the majority of circuits, allowing for such sweeps whenever they are in a residence legally.

 

     This standard comes from the Supreme Court decision of Maryland v. Buie, U.S. 325 (1990). It allowed for warrantless post-arrest sweeps in two situations:

•       "As an incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched."
 
•      Officers may also engage in a warrantless sweep when "articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene."

    This case included a sweep of the second type given above, and the court confirmed the standard but held that the agent's actions in this case were not up to snuff as they could not give facts that indicated danger that needed to be swept for.

   

     This was because the agents had watched the house for hours prior and had seen a package delivered and left on the step for an hour until the teenage son returned home and brought it inside. When the police entered soon after they smelled marijuana and claimed that the young man was not smoking alone, and that since most drug-related crimes become violent they needed to protect themselves. Though the trial court agreed with this reasoning, the appellate court did not.



 

http://www2.bloomberglaw.com/public/desktop/document/United_States_v_Keefauver_No_150029_2015_BL_187821_CAAF_June_12_2

Defendant's Abilities to Block Retrials May Be Limited

Vacated counts may be considered when assessing what jurors decided at an earlier trial.

 

United States v. Bravo-Fernandez, 1st Cir., No. 14-1089

 

 

      The 1st Circuit ruled that "hung counts" are different than "vacated counts." "Hung counts," according to Yeager v. United States, 557 U.S. 110 (2009), are not to be considered when determining what the jury decided at the earlier trial. The 1st Circuit Court of Appeals determined that vacated counts may be considered.

 

       The court determined that the rationale of the Yeager decision is that hung counts do not reveal anything about the jury's decision. This is because a hung jury is essentially a "nonevent." The court indicated that, "vacated decisions, unlike hung counts, are jury decisions, through which the jury has spoken."

   

      The court added to that by saying, "vacated decisions are still part of what the jurty did decide at trial. For that reason, vacated convictions on some counts do potentially bear on the question whether the jury, in acquitting on other counts, necessarily decided an issue in a manner contrary to what the government would have to prove in renewed prosecutions.

 

      The court summed up the reasoning by saying, "vacated convictions on some counts do potentially bear on the question wheter the jury, in acquitting on other counts, necessarily decided an issue in a manner contrary to what the government would have to prove in renewed prosecutions."

http://www2.bloomberglaw.com/public/desktop/document/United_States_v_BravoFernandez_No_141089_2015_BL_188297_1st_Cir_J

Police Officer's Statement Leads Court to Require Miranda Warning.

A suspect should have been given Miranda warnings because of the coercive nature of the remarks made to the suspect's companion.

 

Broom v. United States, No. 13-CF-1423

    Police entered the apartment of a woman and her infant to investigate about a bullet hole in a shared wall. The mother's friend, the defendant, was in the apartment with them. When the police saw the bullet hole in the wall they handcuffed the couple, but stated that they were not  under arrest. The police believed that there was a gun in the apartment and had restrained the couple for the officers' safety.

   The defendant and the woman denied the presence of a firearm in the house. Without giving Miranda warnings, a police officer told them that, if a firearm was found in the house, both the defendant and the woman would be placed under arrest and the city's child protection agency would take the child away.  This caused the mother to plead with the defendant to tell the officers the location of the gun. The defendant did so, and was later found guilty of illegal possession of the gun.

  The Appellate court understood the police officer's remark about the woman losing custody of her child to be "highly coercive" and the type of remark that would indicate to a person that they were in "custody."

   Even though the record did not establish who the parents of the child were, the court still found that the statement was still coercive. The court stated that "the officers reasonably would have known that their statement was likely to have a strong coercive effect on Mr. Broom, either directly if the child was Mr. Broom's or in any event indirectly through Ms. Hagans."

  The court concluded that the police stating that they were looking for a gun in the house, the woman believing that the defendant knew where it was, together with the use of handcuffs and the coercive statement about the child, "would have contributed to a reasonable conclusion that Mr. Broom was no longer merely the subject of an investigatory detention."

  When a police officer's statements and actions reasonably lead someone to believe that they are in custody, that person should be given their Miranda warnings.


http://www2.bloomberglaw.com/public/desktop/document/Broom_v_United_States_No_13CF1423_2015_BL_193469_DC_June_18_2015_

Making Peremptory Jury Strikes Without Defense Counsel Input after Objections Ruled Harmess Error.

 

Prosecutor giving nondiscriminatory reasons for peremptory jury strikes without defense counsel present to discuss objections is a harmless error.

 

Davis v. Ayala, 2015 BL 193518, U.S., No. 1301428

 

 

       A hispanic man convicted of triple homicide by a jury with no black or hispanic people on it is not entitled to habeas corpus relief, in spite of the fact that his attorney was not present to contest the prosecution's claimed nondiscriminatory reasons for striking them.

 

      Batson v. Kentucky, 476 U.S. 79 (1986), holds that the equal protection clause of the 14th Amendment prohibits prosecutors from exercising peremptory challenges on the basis of race. Under this precedent, the defense attorney did object to the peremptory strikes of all of the black and hispanic jurors, however, defense counsel was not allowed to participate in the discussions between the judge and the prosecutor that resolved the objections.

 

     The court said "[t]here is no basis for finding that Ayala suffered actual prejudice, and the decision of the California Supreme Court," which affirmed his conviction, was "an entirely reasonable application of controlling precedent."

 

http://www2.bloomberglaw.com/public/desktop/document/Davis_v_Ayala_No_131428_2015_BL_193518_US_June_18_2015_Court_Opin

Pretrial Detainee Suit for Excessive Force Judged by Objective Standard

Pretrial detainees with excessive force claims in civil suits need to show only that the force was objectively unreasonable.

 

Kingsley v. Hendrickson, U.S., No. 14-6368

 

 

       The government had argued that corrections officers can only be found liable for violating 42 U.S.C. § 1983 if they were subjectively aware that their use of force was unreasonable.  The court disagreed, stating, "a pretrial detainee must show only that the force purposely or knowingly used against him was objectively unreasonable."

   

        The court indicated that subjectivity is more consistent with the precedent and is easier to work with than the subjective test. This aligns with Supreme Court cases such as Bell v. Wolfish, 441 U.S. 520 (1979) which held that a pretrial detainee could win on a claim that their due process rights were violated by providing only objective evidence that the governmental action was not rationally related to a legitimate government interest or that it was excessive relative to that interest.

 

       The Court gave some examples of what it considers to be objective considerations, namely: "the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff's injury; and attempy made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting." Note that this standard protects an officer acting in good faith. And due to the Prison Litigation Reform Act, 42 U.S.C. § 1997e, both prisoners and pretrial detainess are detered from frivolous litigation against prison officials.

 

 

http://www2.bloomberglaw.com/public/desktop/document/Kingsley_v_Hendrickson_No_146368_US_June_22_2015_Court_Opinion