Cockfighting Is Not Considered a Per Se Crime of Moral Turpitude

A misdemeanor conviction for cockfighting does not necessarily rise to the level of a crime of moral turpitude that would block an immigrant from contesting his removal from the United States

Ortega-Lopez v. Lynch, 2016 BL 273130, 9th Cir., No. 13-71127, 8/23/16.

   The Ninth Circuit overturned the Board of Immigration Appeals in its determination that cockfighting categorically falls into crimes of moral turpitude, based on actions that involve “base and depraved” conduct. Although cockfighting is outlawed everywhere in the U.S., crimes of moral turpitude must involve harm towards someone or conduct that impacts a protected class of victims. It was noted that cockfighting is legal in Guam, the Northern Mariana Islands, Puerto Rico and the U.S. Virgin Islands.

http://www.bloomberglaw.com/public/document/OrtegaLopez_v_Lynch_No_1371127_2016_BL_273130_9th_Cir_Aug_23_2016.

Right-To-Know Law Allows Public to View Annulled Prosecution

After an annulment of a prosecution that ended in acquittal, the public still has the right to view and access records from the case surrounding the arrest and prosecution of a former defendant

Grafton Cty. Attorney's Office v. Canner, 2016 BL 272988, N.H., No. 2015-0536, 8/23/16.

   The New Hampshire Supreme Court ruled that the state’s right-to-know law allows citizens to view the records from an annulled prosecution that ended in acquittal. The plaintiff argued that his records should be exempt from the law because an annulment treats a former defendant “in all respects” as if he was never arrested, convicted, or sentenced under state law. The court responded saying that the purpose of the annulment statute was to give a person a new start, free from stigma, not “conceal the fact that [an arrest] occurred.” Moreover, the court added that it would be “Orwellian” to require the state to deny an existence of any prosecution file.

http://www.bloomberglaw.com/public/document/Grafton_Cty_Attorneys_Office_v_Canner_No_20150536_2016_BL_272988_.

Ohio: Juvenile Adjudication Cannot be used as Priors in Adult Sentencing

Ohio joins a number of jurisdictions preventing juvenile adjudications to be used as prior convictions during sentencing for adults because it violates due process principals

State v. Hand, 2016 BL 276326, Ohio, No. 2014-1814, 8/25/16.

   The Ohio Supreme Court held that a state statute allowing juvenile convictions to count as priors during sentencing as an adult was unconstitutional under Apprendi v. New Jersey and its line of case law. It found that such statutes violate due process requirements because there is not a right to a jury in juvenile cases. The supreme court followed Apprendi, finding that a right to a jury trial is required because “other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”

   While many federal circuit courts have issued opinions regarding this issue, finding that juvenile crimes can be used to enhance subsequent adult sentences under the Armed Career Criminal Act, state supreme courts are divided on the same issue. Ohio joins the minority of jurisdictions that do not enhance sentences based on juvenile adjudication.

http://www.bloomberglaw.com/public/document/State_v_Hand_2016Ohio5504_Ohio_Aug_25_2016_Court_Opinion.

License Plates from States with Legal Weed Not Enough for Stop and Search

Stopping a car with tags from Colorado was not enough to create reasonable suspicion to stop and search the car for illicit material

Vasquez v. Lewis, 2016 BL 273055, 10th Cir., No. 14-3278, 8/23/16.

   The Tenth Circuit found that the stopping of a car in Kansas with temporary tags from Colorado was not enough to create reasonable suspicion in holding and searching the car. The officer’s stated primary justification for stopping and calling in a drug-sniffing dog was the Colorado tags on the vehicle. The court opined that detaining someone because of their residency is improper, especially taking into consideration that 25 states have legalized medical or recreational marijuana, which cannot support reasonable suspicion.

   The officers cited other factors for the search, including the driver’s nervousness, late night travel on a highway known to be a “drug corridor,” and a blanket covering items in the back seat. The court found, however, this evidence was “too innocuous” to add any weight to the officer’s claim. “Absent a demonstrated extraordinary circumstance, the continued use of state residency as a justification for the fact of or continuation of a stop is impermissible,” stated the court.

   The opinion is of note for its potential of breathing new life in 42 U.S.C. § 1983 claims. In the dissenting opinion, the ruling was called a “close call,” arguing that officers should be given the benefit of the doubt due to the totality of circumstances.

http://www.bloomberglaw.com/public/document/Vasquez_v_Lewis_No_143278_2016_BL_273055_10th_Cir_Aug_23_2016_Cou.

Border Search Okay, Even If Driver Never “Crossed” Border

After making a U-turn at a border crossing, the warrantless border search was constitutional because the subjective intent of the driver did not matter

D.E. v. Doe, 2016 BL 276645, 6th Cir., No. 15-2128, 8/26/16.

   The Sixth Circuit held that border patrol agents did not conduct an illegal warrantless search at a border crossing, even if the driver did not actually cross the border. The driver, after mistakenly entering a border crossing into Canada, made a U-turn at the station and was stopped by U.S. border patrol agents. After being stopped, the driver's vehicle was searched and drugs were discovered in the vehicle. The court upheld the search, clarifying  that the subjective intent of the driver, whether wanting to cross the border or not, does not have any impact on the broad search powers at an international border crossing setting. It was irrelevant that the driver did not want to cross the border.

https://www.bloomberglaw.com/public/desktop/document/DE_v_Doe_No_152128_2016_BL_276645_6th_Cir_Aug_25_2016_Court_Opini?1472748746