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9th Circuit: Short Wins

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For short (and short-ish) summaries of recent (and recent-ish) 9th Circuit criminal defense wins in involving cell phone searches, restitution, fraud, appeal waivers, crimes of violence, violent felonies, the Excessive Fines Clause, the Marks Rule, the Fair Sentencing Act, fictitious financial instruments, conspiracy, minor role, supervised release conditions, forcible medication, attempted illegal reentry, home searches, guilty plea colloquys, confrontation, the Assimilative Crimes Act, the Court Interpreter’s Act, mail fraud, and perjury, click on “continue reading” below: United States v. Lustig, — F.3d —, 2016 WL 4056065 (9th Cir. 2016) (search of cell phones; harmlessness in conditional plea case) In Riley v. California, 134 S. Ct. 2473 (2014), the Supreme Court held that the Fourth Amendment requires law enforcement officers to obtain a warrant before they may search an arrestee’s cell phone. But when police arrested defendant, Riley…

United States v. Pimentel-Lopez, — F.3d —, 2016 WL 3874414 (9th Cir. 2016): Affirmative jury finding that quantity of drugs did not exceed specified amount controls sentencing decision

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Mutt: I’m looking for my quarter I dropped. Jeff: Did you drop it here? Mutt: No, I dropped it two blocks down the street. Jeff: Then why are you looking for it here? Mutt: Because the light is better here! Jeff: [question mark hovers over head]. It has a point, the question mark hovering over Jeff’s head: Why orient your search to where the light is better, as opposed to where you’re more likely to find what you want? And yet it appears that some circuit courts, faced with the question of whether a district court may contradict affirmative jury findings that appear to limit the court’s sentencing discretion, have looked where “the light is better” – i.e., where there is an abundance of very familiar, sort-of-but-not-really-on-point precedent – rather than the obscure corner where the answer lies. Not so the Ninth Circuit. Mr. Pimentel-Lopez was convicted of possession of methamphetamine with intent to…

Can you get a nondisclosure after straight probation in Texas?

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There are generally two kinds of Community Supervision in Texas. The first is “Straight Probation” and the second is “Deferred Adjudication.” The difference between Straight Probation and Deferred Adjudication is that there is a finding of guilt (in other words, a conviction) if you are placed on Straight Probation while there is no finding of guilt or a conviction if you are placed on Deferred Adjudication as successfully complete the terms of your Community Supervision. Until recently, a person could not seal their criminal record after being placed on Straight Probation in Texas, even if they successfully completed the terms of their Community Supervision. Under newly enacted Government Code Section 411.073, certain individuals who successfully completed misdemeanor Straight Probation for an offense that took place on or after September 1, 2015 may be able to get a nondisclosure of their criminal record. A nondisclosure in Texas is the legal mechanism…

MA: Seizing a bag during arrest at a hotel out of mere curiosity unreasonable

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Defendant was arrested at a hotel, and his stuff was arranged to be left with the hotel until he could get it, except for a bag that the police were curious about. “As part of the booking process, LaPlante opened … Continue reading →

WA: While cell phones are certainly “private affairs,” there’s no special abandonment rule for cell phones

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Cell phones are the “private affairs” of Washingtonians under their state constitution, merely stating the obvious, but they can be abandoned like anything else, and the court declines to adopt a cell phone exception to abandonment. State v. Samalia, 2016 … Continue reading →

FL3: Consent to search bedroom was solely for cell phone; search of dresser after phone was found suppressed

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Defendant signed a general consent for his bedroom, but the police told him they were only looking for a stolen cell phone. After they found the cell phone, they started searching his dresser drawers and found cocaine. The search exceeded … Continue reading →

Fatality crash eastbound US30 at milepost 214, near Filer

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IDAHO STATE POLICE NEWS RELEASE - generated by our News Release ListServer DO NOT REPLY --------------------------------------------------------------------------- IDAHO STATE POLICE NEWS RELEASE District 4 Patrol 218 West Yakima, Jerome, ID 83338-5904 (208) 324-6000 Fax (208) 324-7897 For Immediate Release: 07/31/2016 4:37 a.m. Please direct questions to the District Office On Saturday, July 30, 2016, at approximately 11:40 p.m., Idaho State Police investigated a two-vehicle fatality crash eastbound on US30 at milepost 214, near Filer. Joe Wilcox, 57, of Antlers, OK, was driving a 2007 Freightliner semi truck. Wilcox was pulling out of a driveway onto US30 traveling eastbound when a 2003 Dodge Neon, also eastbound, collided with him from behind. The driver of the Neon succumbed to injuries received at the scene. Wilcox was wearing his seatbelt, the driver of the neon was not. The eastbound and westbound lanes of travel on US30 were blocked for approximately 3 hours…

Columbia Was Just Serving Up What Its Customers Want

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Catching someone with the smoking gun in her hand is rare. But it occasionally happens, as was the case when University of Southern California Title IX Director Gretchen Dahlinger Means thought she had dropped out of a conference call.  Via KC Johnson: At University of Alaska, Fairbanks, the curiously titled Director of Diversity and Equal Opportunity, Mae Marsh, put it in an email. But Andrew Miltonberg wasn’t so lucky when it came to his John Doe’s suit against Columbia University. There were the facts of what transpired, the usual find all the adverse evidence, spin it as hard as possible, ignore the exculpatory evidence and burn the boy. But without the smoking gun, Columbia moved to dismiss the complain on the basis that it wasn’t discriminating against males, but rather giving the customers what they wanted. The alleged sexual assault was, well, you decide. On the night of May 12, 2013, Plaintiff, a male Columbia freshman who upon completing…

Perv Cops, In A Class Of Their Own

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An anecdote of how a high school school teacher engaged in a sexual relationship with his student is the stuff of outrage. There ought to be a law, and indeed, in Ohio there is. Not just for teachers, but for a list of others as well, including clergy, mental health providers, prison guards and cops. (5) The offender is the other person’s natural or adoptive parent, or a stepparent, or guardian, custodian, or person in loco parentis of the other person. (6) The other person is in custody of law or a patient in a hospital or other institution, and the offender has supervisory or disciplinary authority over the other person. (7) The offender is a teacher, administrator, coach, or other person in authority employed by or serving in a school for which the state board of education prescribes minimum standards pursuant to division (D) of section 3301.07 of the Revised Code, the other person is enrolled in or attends that school, and the offender is not enrolled in and does not…

Illinois’ New Domestic Violence Law

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According to the Chicago Metropolitan Battered Women’s Network, approximately 77% of women who are currently incarcerated are victims of abuse. This figure is staggering and is part of the reason why this nonprofit helped to pass Illinois’ new domestic violence law, SB0209. SB0209 is important because it allows being a victim of domestic violence to be a mitigating factor at sentencing. A mitigating factor is any information presented to the court, generally about the defendant or the circumstances surrounding the crime, that has the potential to reduce the defendant’s sentence or the crime charged. Therefore, SB0209 was passed in order to enable courts in our state to reduce a defendant’s sentence if he or she was a victim of domestic violence. Bill SB0209: History of Domestic Violence as a Mitigating Factor According to  SB0209, if a defendant is or was a victim of domestic violence, and the domestic violence tended to excuse or justify his or her…

On training as a remedy for excessive use of force

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The missus has been combing through Austin PD's use of force policy in the wake of the Breaion King video's release, and informs me that, generally, it is structured to delineate the maximum force which may be used instead of embracing deescalation principles. I've asked her to write up some of what she's found for Grits and will publish it soon.Her effort got me thinking more about use-of-force training. After learning recently that Round Rock PD's training included tactics derived from urban warfare settings in Iraq and Afghanistan, Grits has taken a renewed interest in the subject.Either more or improved training is frequently something police chiefs and city councils offer local advocates demanding reform after some bad shooting incident. The problem is, there's a lot of bad training out there and advocates have no way to judge it.Most use of force training does not emphasize deescalation, instead insisting that officers must bring suspects…

Double Jeopardy Found in Child Pornography Case

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There is this rule of law—dating back to 1932 when the U.S. Supreme Court first pronounced it—that the Double Jeopardy Clause of the U.S. Constitution prohibits multiple punishments for the same criminal offense.   Double Jeopardy   The double jeopardy test as the Supreme Court stated in Blockburger v. United States is this: If “the same act or transaction constitutes a violation of two distinct provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.”   Here is how the test is applied.   Possession Lesser Included of Receipt   In 2011, the Eighth Circuit Court of Appeals in United States v.  Muhlenbruch held that double jeopardy occurs when a defendant is convicted for receipt of child pornography under 18 U.S.C. § 2252(a)(2) and possession of child pornography under § 2252(a)(4)(B) based on the same act…

OR: Search of computer’s browser history limited to the PC; here, 15 minutes, not two months; a computer is more of a “place to be searched” rather than a “thing to be seized”

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Defendant was convicted of murder by child abuse. The only relation of a computer was his admission that he used a computer to search for symptoms when the child was sick 15 minutes before his 911 call. When the computer … Continue reading →

LAS DECLARACIONES DEL CARDENAL CIPRIANI Y LAS MUJERES PROVOCADORAS

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No es la primera vez que estoy en favor de las declaraciones del Cardenal Cipriani pero sin ánimo de defenderlo y no soy "devoto" de ningún sacerdote, he sufrido en carne propia su indiferencia. Ningún político o personaje público dirá nada a favor del Cardenal e incluso este debe "retractarse" de sus declaraciones, pero este abogado NO es ni lo uno ni lo otro, luego no tengo porqué estar con el sentimiento de la mayoría. Por lo anterior y luego de leer las dos primeras líneas de su declaración opiné sobre el tema e inmediatamente encontré  respuestas que he tenido el placer a su vez de contestar. He aquí el desarrollo del debate en facebook: "A ver, "no existe palabra mal dicha sino mal entendida" dice un viejo aforismo, traslademos tal dicho al pensamiento y tendremos, según mi opinión, lo siguiente: En el reino animal…

Indonesia Executes 4 More Foreign Drug Offenders

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Indonesia executed four more drug traffickers this week. Another 10 were taken from their cells on the notorious Nusakambangan prison island at Cilacap, Central Java, and brought to the killing field. Without explanation, these 10 were taken back... [[ This is a content summary only. Visit my website for full links, other content, and more! ]]

Another Brady Violation: Rape Conviction Overturned After Prosecutor Intentionally Withholds Psychiatrict Report

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The National Registry of Exonerations has recorded 1855 exonerations to date. Roughly 15 percent of them involved false sexual assault cases. DNA exonerations in the sexual assault cases reveal a much higher percentage of wrongful convictions.   Rape is a difficult crime to both prosecute and defend, especially those involving only “she said/he said” evidence. A July 15, 2016 decision by the Second Circuit Court of Appeals illustrates this point.   Issue of Consent   Jose Alex Fuentes was convicted of first degree rape and sodomy of a victim identified as G.C. There is no question that on the night of January 27, 2002 the two individual had vaginal and oral sexual contact. The question was whether that sexual encounter was consensual.   The morning after the encounter, 22-year-old G.C. showed up at the Woodhull Hospital in New York where she informed hospital staff that she had been raped. A rape kit was performed. A physical examination was also…

How to spot an overloaded truck on the highway

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(Image Credit: Wikimedia.org) Trucks have to follow strict weight restrictions for the safety of other road users. Overloaded trucks struggle to steer properly and they take longer to slow down. There is a higher risk of tipping or rolling over when the truck is heavily loaded. Continue reading

Common Reasons a Request for Parole Might Be Denied

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When a person is placed on parole, it means they will be released from prison before serving their full sentence.  In Utah, parole decisions are made by the Board of Pardons and Parole (BOPP), which you can read about in our article on how parole decisions are made in Utah.  Here, we’ll be focusing on some common issues that might cause an inmate’s request for parole to be denied. Why Would the Utah Board of Pardons and Parole Deny an Inmate’s Request for Release? According to the National Institute of Corrections, 161 out of every 100,000 people in Utah were parolees as of 2014.  With a state population of 2.9 million, that’s roughly 4,670 Utahans. While parole is a possibility for many convicted offenders, including some who have been convicted of serious felonies, it isn’t granted to everyone.  The BOPP decides to grant or deny parole on a case-by-case basis by evaluating each inmate across a list of many different…

Squeezedness and Feminisms in the Age of Counterterrorism

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Jayne Huckerby, Feminism and International Law in the Post-9/11 Era, 39 Fordham Int’l L.J. 533 (2016). Nick J. Sciullo There are many reasons to like Jayne Huckerby’s most recent article, and many different ways to incorporate this work into your reading and classes. The article has appeal to feminist, international law, national security, and peace studies. There are several things this article does that I like lots. At its most basic level, it’s a helpful reminder of where feminisms stand on or in relation to the complex terrorism and counter-terrorism terrain. Huckerby takes an exhaustive review of the literature, in the best sense of the phrase, presenting scholars with copious notes detailing discussions in law reviews, peer-reviewed journals of allied fields, books, U.N. and U.S. government reports, and the popular press. Anyone eager to learn more about gender, feminisms, and international law, or to write a syllabus, would do well to comb her notes.…

One vehicle crash northbound I-15 at milepost 69

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IDAHO STATE POLICE NEWS RELEASE - generated by our News Release ListServer DO NOT REPLY --------------------------------------------------------------------------- Idaho State Police District 5 5205 South 5th Ave. Pocatello, Idaho 83204-2299 (208) 236-6466 FAX: (208) 236-6068 For Immediate Release: 8/1/2016 4:32 a.m. Please direct questions to the District Office On Monday, August 1, 2016 at approximately 2:35 a.m., the Idaho State Police investigated a single-vehicle, injury crash northbound I-15 at milepost 69, in Pocatello. Briana Ulanowski, 25, of Idaho Falls, was northbound in a 2005 Honda Element when the vehicle went off the left shoulder. Ulanowski overcorrected and the vehicle went off the right shoulder, where it impacted a guardrail. The vehicle came to rest in the gore of the northbound I-15 69 off ramp. Both Ulanowski, and her passenger, Britt Edquist, 32, of Albuquerque, New Mexico, were transported to Portneuf Medical Center by ground ambulance. Both…
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