Informant Emergency Justified Warrantless Police Entry Into a Home

A police informant’s disobedience that led to him overdosing on drugs created an exigent circumstance that required police to enter a suspected drug dealer's home without a warrant does not violate the Fourth Amendment

United States v. Belser, 2016 BL 384771, E.D. Mich., No. 16-20572, 11/18/16.

A U.S. District Court in Michigan found that police did not violate the Fourth Amendment by entering a home without a warrant because their informant’s drug overdose was not a fabricated exigent circumstance.  The police were conducting a sting of a local heroin dealer using an undercover informant who disobeyed orders during the operation by ingesting some of the purchased drugs. After hearing strange breathing sounds and the dealer attempting to revive the informant through the radio, the police entered the home, called for medics, and arrested the dealer.

The court held that the exigent circumstances that led to the police’s entry of the home did not violate the Fourth Amendment because it was a true medical emergency. The defendant argued that the police contributed to the emergency by disregarding the unreliable character of the informant, claiming that the decision to use the informant was the proximate cause of the exigency. The court rejected this argument, stating, “proximate cause is not the test to determine if the police created the exigency.” The officers met their Fourth Amendment requirements by taking the lawful steps necessary before entry, making the subsequent arrest and seizure of drugs lawful.

https://www.bloomberglaw.com/public/desktop/document/United_States_v_Belser_No_Case_No_1620572_2016_BL_384771_ED_Mich_?1479935222

Death During Botched Execution Does Not Create Eighth Amendment Claim

An execution that left the inmate in serious pain for 43 minutes was not cruel and unusual punishment because the botched procedure was an isolated mishap, barring the defendant's estate from pursing an Eight Amendment claim 

Estate of Lockett v. Fallin, 2016 BL 379808, 10th Cir., No. 15-6134, 11/15/16.

The Tenth Circuit found that a botched execution does not create an Eighth Amendment claim on behalf of ax executed inmate because such a mishap was isolated and there will always be inherent pain associated with an execution. The decision clarified whether an inmate’s estate can maintain a claim of “cruel and unusual punishment” by only showing that the execution was a painful procedure.  The cause of the botched procedure was due to a poorly inserted IV by the prison’s staff that did not efficiently supply the deadly cocktail of drugs. The court found that mistakes such as this did not reach the level of “torture or deliberate indifference” in sustaining an Eighth Amendment claim. Additionally, the court rejected the estate’s argument that the state was indifferent about the well-being of the inmate by using a new cocktail of lethal drugs. The change in drugs was not due to indifference, but due to a lack of the other drugs that have been used before.

http://www.bloomberglaw.com/public/document/Estate_of_Lockett_v_Fallin_No_156134_2016_BL_379808_10th_Cir_Nov_.

Recent SCOTUS Decision Does Not Retroactively Apply to Juvenile Plea Bargain

A plea bargain entered by a defendant to avoid the death penalty as a juvenile is not retroactively affected by a Supreme Court decision that found juvenile death sentences to be unconstitutional

Dingle v. Stevenson, 2016 BL 354573, 4th Cir., No. 15-6832, 10/25/16.

The Fourth Circuit did not expand the scope of the Supreme Court’s decision in Roper v. Simmons, 543 U.S. 551 (2005) to retroactively apply to defendants who entered into plea deals to avoid the death penalty as juveniles. In the original case, the defendant avoided a possible death penalty or life sentence without parole by entering into a plea deal while he was still seventeen. The defendant argued that his plea was involuntary because he was threatened with what is now considered an unconstitutionally cruel and unusual punishment. The court, however, found that his guilty plea and subsequent sentence were entirely unrelated to the Supreme Court’s decision. The court stated that “[A]lthough Roper, in hindsight, altered the calculus underlying Dingle's decision to accept a plea agreement, it does not undermine the voluntariness of his plea.”  The Supreme Court’s decision only applies if the defendant is actually sentenced to death or life without parole.

http://www.bloomberglaw.com/public/document/Dingle_v_Stevenson_No_156832_2016_BL_354573_4th_Cir_Oct_25_2016_C.

Technological Advances Does Not Lower Defendant’s Proof of Prejudice Standard

Even if privileged computer files are improperly accessed by the government, the defendant still needs to show that the access prejudiced them by proving that the material was used during the case

United States v. DeLuca, 2016 BL 354269, 11th Cir., No. 15-12033, 10/25/16.

The Eleventh Circuit ruled that the defendant must show they were prejudiced when privileged information is improperly turned over to a prosecutor, even when the files are electronic. The issue was created during an investigation by a “filter team” during a financial fraud investigation that improperly sent attorney-client communications to the prosecutors involved in the case. The defendant argued that he should not need to prove prejudice because computer files make it impossible to identify what has been opened or been seen by prosecutors, whereas it is easier to determine what paper files were seen or used by a prosecutor in preparing their case. The defendant further argued that a new standard should be used for electronic files because “[t]he rules that were reasonable in a world run on paper are not suitable to the electronic age.”

The circuit court, however, rejected this argument. It refused to lower the standard of proof for high-tech violations of an attorney-client privilege, stating “Even accepting his contention that technological changes have made accessing privileged communications easier than it used to be in an age of paper records, it does not clearly follow that showing prejudice is more difficult than it used to be.”

https://www.bloomberglaw.com/public/desktop/document/United_States_v_DeLuca_No_1512033_NoNonArgume_Calendar_2016_BL_35?1478716727

Conviction for Threatening Facebook Comments Reinstated

After a conviction for threatening statements was overturned by the Supreme Court, the circuit court ruled that the failure to instruct the jury on the proper mental state element of the crime was merely a harmless error

 United States v. Elonis, 3d Cir., No. 12-3798, 10/28/16.

The Third Circuit reinstated the conviction of a man who posted threatening messages on Facebook, finding that the lack of instruction regarding intent in the jury instructions was a harmless error. A year before, the Supreme Court overturned the conviction due to the objective standard used to convict the defendant, which was the improper standard. The Court, in their reading of the statute, found that a subjective intent on part of the defendant must be established to meet the mental state element of the crime. On reversal, the Third Circuit found that the incorrect jury instructions regarding the defendant’s intent were ultimately a harmless error, not requiring reversal. The court pointed to the amount of evidence showing that the defendant knew his statements were directly terrifying specific individuals. The opinion stated, “The record contains overwhelming evidence demonstrating beyond a reasonable doubt that [the defendant] knew the threatening nature of his communications, and therefore would have been convicted absent the error.”

The Third Circuit, however, did not address whether a “recklessness” standard should be used to convict the defendant. The Supreme Court, in its decision, did not fully address the issue, although it was suggested in a concurring opinion. Rather than making a finding on the standard, the Third Circuit relied on its harmless error reasoning.

https://www.bloomberglaw.com/public/desktop/document/United_States_v_Elonis_No_123798_2016_BL_359855_3d_Cir_Oct_28_201?1478712044