In Florida, most people know that their Fifth Amendment right to remain silent means that the state cannot normally use a person's silence in response to police questioning against them in court. However, does this same principle extend to a refusal to provide DNA? In a recent murder case south of Jacksonville, Florida, the police responded to an apartment where they saw signs that the victim had been attacked. The police were able to collect DNA from the apartment which they believed came from the attacker. They went to question the defendant who was the ex-boyfriend of the victim. The police asked if they could take a DNA sample from the defendant (now done with a simple swab inside a person's mouth) to compare it to what they found in the apartment. The defendant refused to give a DNA sample. The defendant was ultimately arrested for murder. The state tried to admit the evidence that the defendant refused to provide a DNA sample. They argued that the…
If You Refuse to Submit a DNA Sample to Police in Florida, Can the State Use That Refusal Against You in Court?
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United States v. Quintero-Leyva, No. 14-50509 (5-17-16)(Nelson with Callahan and N. Smith). The 9th holds that Guidelines amendment 794 (minor role) applies retroactively in direct appeals.Amendment 794 concerned minor role adjustments. The amendment resolved a circuit split and clarified application by broadening applicability. In amending minor role as it pertained to drug couriers ("mules"), the Sentencing Commission sided with the 9th and 7th in considering the actual participants involved, and not, as in the 1st, to hypothetical average participants. The amendment also used a totality of circumstances approach, stating that a courier could get the adjustment even if deemed essential to the trafficking. The court needed to consider factors such as a propriety stake, degree of planning, compensation, nature and extent of involvement and so forth. Given the resolution of the split, and clarification, the amendment must be retroactive to…
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United States v. Tadios, No. 14-30231 (5-18-16)(McKeown with Tallman and Gleason, D.J.). "Time is money." That was the conclusion of this opinion, which concerned loss calculation. The defendant was convicted of various fraud counts of using federal funds for personal benefit. As a CEO of a federally funded health clinic on an Indian Reservation, she said she was visiting clinics for "official government business" when she was really visiting her husband, a tribal chairman, who was serving a federal sentence at a federal penitentiary in South Dakota. These trips lasted several days but she would only visit a tribal clinic for a couple of hours. This conversion of federal funds led to the conviction: the question for the 9th was whether the salary loss to the tribe, because she should have taken annual leave, should be counted as loss. The district court included such loss, and the 9th affirmed. Under 2B1.1 of the…
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Failed litigation may still spur debtors prison reforms in Austin
Though litigation against debtors prison policies in Austin municipal courts was thrown out because of, essentially, a technicality (the question of the policy's constitutionality was unaddressed; a federal court instead ruled that municipal judges are not city policymakers and therefore can't be sued) the allegations brought by the Texas Fair Defense Project continue to make waves. Reported the Austin Statesman's Jazmine Ulloa:the lawsuit has set in motion efforts to examine and change procedures within Austin’s municipal courts.City leaders and civil rights lawyers say it’s not a matter of avoiding further litigation: They want Austin to be among the first communities to tackle what has become a national problem.Texas law and two unanimous Supreme Court decisions prohibit courts from jailing people because they cannot afford to pay their fines. But many cities have ordinances on municipal court fees that violate those orders. Others give full…
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Michigan Juvenile Lifers Win Court Victory
– Hill V. Snyder, 6th Cir. 2016 On May 11, it was ordered by the U.S. Sixth Circuit Court of Appeals that a “meaningful and realistic opportunity for release” must be granted to all Michigan juvenile “lifers,” or those sentenced to life in prison without parole for crimes allegedly committed when these individuals were juveniles. Currently, there are more than 364 individuals incarcerated in Michigan’s prisons who were sentenced to spend their entire lives there for crimes they committed as children. In the case of Hill v. Snyder, the ruling by the Sixth Circuit follows two U.S. Supreme Court decisions that sentencing juveniles to life in prison without parole is unconstitutional (Miller v. Alabama); further, this punishment has been declared as “cruel and unusual punishment.” The decision in the Miller v. Alabama case is retroactive to all juvenile lifers (Montgomery v. Louisiana). Michigan has the second highest per…
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Carvalho on Liberty and Insecurity
Henrique Carvalho (University of Warwick - School of Law) has posted Liberty and Insecurity in the Criminal Law: Lessons from Thomas Hobbes (Criminal Law and Philosophy (Online First), 2015) on SSRN. Here is the abstract: In this paper, I provide...
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Brown et al. on Empiricism and Psychopaths
Teneille R. Brown , Jim Tabery and Lisa Aspinwall (University of Utah - S.J. Quinney College of Law , University of Utah - Department of Philosophy and University of Utah) have posted Understanding Validity in Empirical Legal Research: The Case...
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CA6: SW for cell phone based on PC defeats § 1983 case over phone search
“Professional hunter William ‘Spook’ Spann sued his former employee and several officers from the Tennessee Wildlife Resources Agency under 42 U.S.C. § 1983 for alleged violations of his constitutional rights during an investigation into his hunting practices. The district court … Continue reading →
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W.D.N.Y.: Consenter said she had no common authority over a barn but officers assumed it and broke in; suppressed
Defendant’s wife told the officers that she could not consent to entry into the barn on their farm because she told them she didn’t have authority and she wasn’t on the deed. The officers caucused, acknowledged the consent problem amongst … Continue reading →
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CA3: Def’s complaint about how CP forensic search was done didn’t rise to “objective unreasonableness”
In a computer search for child pornography, the use of the “hashing” function rather than “gallery view function” is not constitutionally required. That was an issue in United States v. Burgess, 576 F.3d 1078 (10th Cir. 2009), which the court … Continue reading →
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CA7: Excessive lighting at a traffic stop (which this really wasn’t) isn’t excessive force in a high crime area at night
Defendant’s car was parked within 15′ of a crosswalk, a violation of state law unless passengers were getting out. The officers saw no driver and nobody getting out, so they pulled up on the car and shined a light and … Continue reading →
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No Subreddit For Old Lawyers
One of my snappy retorts to commenters here when they lose connection to reality is that Reddit called and wants them back. This, of course, is a swipe at Reddit, a website built of insular communities that tend to have a specific issue focus. It was once the paradigm of the internet, the wild west, self-policing its content and members. Cross a line, such as dox (reveal the identity) another commenter and be banned. Moderators were chosen from its more involved and respected members. While some of this has changed, as Reddit became touch-feely over purported misogyny and subjects that gave some people the willies (often with good cause, but that’s just my sensibilities), it still provides a forum for like-minded folks to discuss matters of interest. This is good. And terrible. And helpful in a damning sort of way. At a subreddit called “Bad Cop, No Donut,” a mod who went by the handle FritzMuffKnuckle started having some doubts. He reached out to me. He had…
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The Crime Of Leveling The Playing Field
In the grand scheme of piss-poor analogies (edit: and the beloved metaphor), leveling the playing field is a winner. First, it’s not a game. Second, the field is so grossly unlevel that no matter what the defense does, it can’t touch the advantage the prosecution enjoys. Forget all the platitudes that people use about the legal system; it’s meant to be unfair, to favor the prosecution. Anyone who doesn’t realize this doesn’t “get” the system. But there was a private investigator who found a crack in the system. The crack was an NYPD sergeant, Ronald Buell, who wanted to earn some extra money. Cops like to earn extra money, and this was a particularly easy way to do so, and far less nefarious than other ways, like copping spare dope from dealers or pocketing the piles of cash found in stash houses. Buell sold access to his police computer. To many defense lawyers, Joseph P. Dwyer, a retired New York police officer who became a…
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D.S.D.: A pre-Rodriguez delay didn’t warrant suppression despite the lack of reasonable suspicion
Defendant was stopped in an Eighth Circuit state governed by the former de minimus rule three months prior to Rodriguez, and it’s already been held that the old rule applies until that date. The district court finds the officer’s assertions … Continue reading →
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N.D.Ala.: Flyover revealed MJ plants in backyard; warrantless entry violated curtilage; no exigency shown
Police in a helicopter saw a marijuana grow in defendant’s backyard. The backyard was not visible from the road. Therefore, the backyard was clearly curtilage, and the police warrantless entry into the back yard violated the Fourth Amendment. There was … Continue reading →
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E.D.Wis.: SW particularity shown in attachments; lack of a computer search protocol not a violation of Fourth Amendment
The attachments to the application and search warrant, reasonable read, limited the search and provided necessary particularity. [Comprehensive discussion of principles of interpretation of documents.] The lack of a computer search protocol didn’t violate the Fourth Amendment. United States v. … Continue reading →
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Correction - Injury crash on US20 near Hitt Road
IDAHO STATE POLICE NEWS RELEASE - generated by our News Release ListServer DO NOT REPLY --------------------------------------------------------------------------- Idaho State Police District 6 1540 Foote Dr. Idaho Falls, Idaho 83402-1828 (208) 525-7377 FAX: (208) 525-7294 For Immediate Release: 05/21/2016 8:57 a.m. Please direct questions to the District Office Correction: ----------- After the trailer came loose from Schroeder's vehicle, Jeffry Andrews struck the trailer in the eastbound lane. The trailer was originally empty, but Andrews' pickup came to rest on top of the trailer in the lane of travel, causing some to report that there was a vehicle being towed on the trailer. Trevor Edwards was travelling behind Andrews in his Nissan Versa, and struck Andrews' vehicle on the drivers' side. Jeffry Andrews and his passenger, Sharon Andrews, age 65, live in Rigby. Sharon Andrews was not wearing her seatbelt, and she and Jeffry were transported to…
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D.Haw.: False alert package was opened didn’t nullify reasonable belief of exigent circumstances
The package had a GPS and a trigger “alarm” or alert for when it was opened. Here, however, the trigger alert was subject to failure if the package was dropped with sufficient force. Officers assembled outside the apartment, and the … Continue reading →
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BGer 6B_1061/2014: Entschädigung im Strafverfahren für Stellenverlust?
Bei einem Freispruch hat die beschuldigte Person gem. Art. 429 Abs. 1 lit. b StPO grundsätzlich das Recht auf Entschädigung von wirtschaftlichen Einbussen, die ihr aus der notwendigen Beteiligung am Strafverfahren entstanden sind. Das Bundesgericht musste sich vorliegend mit der Frage auseinandersetzen, wie es sich mit dem Schaden verhält, wenn die beschuldigten Person vom Arbeitgeber während des Strafverfahrens entlassen wird, obwohl nachher ein Freispruch erfolgt. Einem Lehrer wurde i.c. vorgeworfen, sich an einer Schülerin sexuell vergriffen zu haben.Das Bundesgericht setzt sich in seinem Entscheid 6B_1061/2014 intensiv mit der Lehre auseinander, indem es feststellt, dass diese überwiegend der Ansicht sei, dass nicht nur der unmittelbare Schaden aus einer bestimmten Amtshandlung, sondern auch die sich mittelbar aus dem Strafverfahren ergebenden wirtschaftlichen Einbussen zu entschädigen seien, so auch der Verlust einer Arbeitsstelle (Erw.…
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Excited delirium: Cause or excuse for deaths in custody?
This NY Times piece on a Georgia death-in-custody didn't use the phrase "excited delirium," but it's precisely the type of circumstance from which that diagnosis can arise.Grits' contributing writer Amanda Woog asked me recently about "excited delirium," having seen the term come up in death in custody reports she's curating as part of her Texas database project. (Look for a big announcement soon as she releases new datasets beyond just recent police shootings.) I first heard the term when I directed the ACLU of Texas' Police Accountability Project around the turn of the century. The term represents one of the most curious and bizarre distortions of medical terminology in service to a political agenda I've ever personally run across. Really, excited delirium is not a diagnosis at all so much as an acknowledgement of the lack of other diagnoses. It's what authorities say when someone dies after being restrained or Tazed by…
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