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Kirk Redmondhttp://www.blogger.com/profile/05149425706408433721noreply@blogger.comBlogger530125
Updated: 3 min 44 sec ago

"A man’s house is his castle, whether it is under siege by police officers prying into his possessions stored within or whether they exclude him from its sanctuary."

Thu, 11/15/2018 - 22:58
Police officers seized Mr. Shrum's home after his wife died from an overdose. They didn't let Mr. Shrum back into his home to check on his dogs, get medication that his wife may have overdosed on, or even to urinate for eleven hours before even applying for a warrant. And the seizure was done without a reasonable basis (no evidence of foul play).



But officers gained "consent" from Mr. Shrum who wanted to make sure his dogs were cared for and that the investigators had what they needed to determine the cause of death. And while purportedly only doing those two things, an investigator took dozens of photos of the house and saw ammunition in the home in plain view.
Was this consent proper? No, says the Tenth Circuit. The consent was obtained only as a result of the illegality of the initial improper seizure. 
This case is full of good language, including a lot of strong language about the overriding privacy interests in a person's home. And the court, in a footnote, also took a shot at the government's strategy in the case:

From farms to cities to The cloud--"the internet of things"

Sun, 11/11/2018 - 16:32
We take time to pay tribute to our active and former service members this Veterans Day for their honor, courage, commitment, and sacrifice over the past century to defend the ideals of democracy and freedom on which America was founded more than 240 years ago.


It’s veracious to say that during those 240 years we, as a nation, have evolved dramatically in how we live—from farms, to cities, and now on the internet. But the speed at which we have evolved in the age of the internet cannot be understated, as FarhadManjoos’s piece, A Future Where Everything Becomes a Computer is as Creepy as You Feared, makes readily clear. It was only 40 years ago that Gates and Allen “founded Microsoft with a vision for putting a personal computer on every desk.” And the industry’s goal today, Manjoos recognizes, is not “a computer on every desk nor a connection between every person, but something grander: a computer inside everything, connecting everyone. Cars, door locks, contact lenses, clothes, toasters, refrigerators, industrial robots, fish tanks, sex toys, light bulbs, toothbrushes, motorcycle helmets.” 

Importantly, the ideals of democracy and freedom for which our service members have valiantly and selflessly defended, do not end in this digital age, which the Supreme Court has repeatedly reminded us. (See e.g., Riley v. California (2014), and United States v. Carpenter (2018) for a couple recent examples.)

But “the internet of things”—or technological advancements leading to more and more “smart” toys—necessarily means that more information that exposes extraordinarily sensitive details about us (far more so than a search of our home even could) will end up in that proverbial “cloud.” And while “cloud storage” sounds metaphysical, we know that such storage is quite physical: it resides on identifiable, physical computers in brick-and-mortar datacenters, which users’ own electronic devices access remotely when used by their respective devices and accounts. 
To be certain, though, the speed at which the tech giants can hurl these smart toys into our atmosphere cannot countermand our civil rights and liberties. It is our duty to be vigilant, to spot these issues of potential infringement on our constitutional rights and civil liberties early, and to raise them.
In that vein, for those not yet familiar with Electronic Frontier Foundation (EFF), you should be. It is one of the leading nonprofit organizations defending civil liberties in the digital world, providing indispensable leadership on cutting-edge issues of free expression, privacy, and human rights. In 2017 the organization filed 59 amicus briefs on issues surrounding civil liberties and technology (among many other things, including bringing a groundbreaking lawsuit challenging invasive border searches of electronic devices), as discussed in EFF’s recently released annual report, found here.

Restoration of Voting Rights

Wed, 11/07/2018 - 22:03
On election night, we learned that voters in Florida agreed to reinstate the voting rights of 1.5 million persons with prior felony convictions. With Florida’s passage of Proposition 4, most Floridians with prior felony convictions will have their voting rights restored after they have finished the terms of their sentence (including any probation or parole). This could affect 10 % of Florida’s adult population (and 23 % of adult African Americans in Florida).

Here in Kansas, a felony conviction will lead to a temporary loss of the right to vote. But Kansas law automatically restores voting rights to persons with felony convictions once they have completed the terms of the sentence (including any supervision). Under K.S.A. 21-6613, a person with a felony conviction gets the restoration of their right to vote, to hold public office, and to serve on a jury once they complete the terms of their sentence.

So it is across the state line in Missouri. Under Mo. Ann. Stat. §§ 115.133(2) & 561.026(1), a person convicted of a felony is generally unable to vote until they are finished any term of incarceration or probation or parole. But after the terms of the sentence are completed, the right to vote is restored.This is something to keep in mind when advising clients about the collateral consequences of any felony conviction in federal court. You should advise clients that they will lose their right to vote (and to hold public office and to serve on a jury) with their conviction. But this loss of civil liberties is usually temporary. Once the client finishes the terms of their sentence they will again be eligible to vote if they live in Kansas or Missouri (or in many other states). 

"Clearly, a person could not have been hiding in the toilet tank."

Tue, 11/06/2018 - 12:57
The Supreme Court has cautioned that protective sweeps must be "narrowly confined to a cursory visual inspection of those places in which a person might be hiding." Maryland v. Buie, 494 U.S. 325, 327 (1990).

Consequently---unless the police are looking for a very tiny person or at a very large toilet tank---leaning over and looking into an open toilet tank exceeds the scope of a protective sweep. So said the district court in United States v. Brown, 2018 WL 5603541 (S.D. Fla. Oct. 30, 2018):

"The evidence indicates that when Detective Perdomo entered the bathroom he went to the bathtub and pulled back the curtain. Upon seeing the lid to the toilet tank in the bathtub, Detective Perdomo looked into the open toilet tank and saw a gun at the bottom of the toilet tank. Detective Perdomo could not have seen the gun at the bottom of the toilet tank without leaning over and looking into the tank. This action, however, exceeded the scope of a protective sweep. Clearly, a person could not have been hiding in the toilet tank. Thus, after checking behind the shower curtain to ensure that no one was hiding in the bathroom, the protective sweep in the bathroom should have been done. Consequently, Detective Perdomo’s look into the toilet tank was an improper search."

(Unfortunately for the defendant in this case, a subsequent search warrant for the house constituted an independent source for discovery of the gun. Motion to suppress denied.)

Good read--America's Other Family-Seperation Crisis

Sun, 11/04/2018 - 21:24
Sarah Stillman’s article in the November 5, 2018 issue of the New Yorker is a must read for anyone representing a parent—especially a mother living in poverty. Stillman’s expose focuses on Tulsa, Oklahoma (and the commendable efforts of She Still Rises—a holistic defense effort led by the founders of the Bronx Defenders), but its painful revelations on the interlacing in the criminal justice system of poverty, parenthood, and generations of racial discrimination reverberate to every corner of our nation.

The permanent and devastating collateral ramifications that a criminal conviction and corresponding sentence will have on our clients' children are well documented. So, too, are the reasons why a low-income parent may have a slew of prior convictions, as Stillman's article highlights.

Importantly, the Tenth Circuit has repeatedly acknowledged that sentencing courts are mandated under § 3553(a) to consider family circumstances as part of a defendant's "history and characteristics" when fashioning the appropriate sentence. See, e.g., United States v. Vargas-Ortega, 736 Fed. Appx. 761 (10th Cir. 2018) (unpublished) (reversing and remanding for resentencing where the district court erred in stating it could not vary downward based on family circumstances). It is therefore our duty when it comes to sentencing to fully investigate and to persuasively present our clients' story to the court. And for our clients who are parents, part of that presentation must necessarily includes discussion on the unquantifiable, lasting effects that a criminal sentence will have on our clients' children and family structure. For another good discussion on the "invisible victims of mass incarceration," as well as the use of family impact statements at sentencing, see Amy B. Cyphert Prisoners of Fate: The Challenges of Creating Change for Children of Incarcerated Parents, 77 Md. L. Rev. 385, 426 (2018). 

 

These things are going to be happening to our clients now. (The new phone book is finally here! update).

Thu, 11/01/2018 - 22:16
A few months ago we informed you that the Sentencing Commission had adopted some changes to the 2018 guidelines. We were (of course) ahead of the game. Although the Commission had agreed on the amendments, they were not to go into effect until (checks watch) TODAY!




That is right, today the 2018 Sentencing Guidelines are now in effect. And since they are likely to impact some of your clients, lets discuss some of the key changes:

1) There are a number of fentanyl related changes, including a four level enhancement for misrepresenting another drug or mixture that contains fentanyl. See § 2D1.1(b)(13).

2) A number of grounds for departure in synthetic  cases have been added, with an acknowledgment of the potential differences in potency among different synthetic drugs.

3) "Marijuana equivalency" is gone. Now called Drug Conversation Table.§ 2D1.1(c)(1).

4) Acceptance of responsibility commentary attempts to clarify that an objection, even if a losing one is not necessarily frivolous in order to lose acceptance of responsibility.  § 3E1.1.

5) Judges should consider sentence other than imprisonment for offenders in Zone A and B with certain characteristics.  § 5C1.1

There are other things in there (including some changes to 2L and some tribal court conviction related stuff. The linked publication from the sentencing commission summarizing the changes is only 39 pages.

This is worth getting excited about!

Hunch after disproved hunch is not reasonable suspicion

Tue, 10/30/2018 - 13:18
Based on a tip from a "disappearing informant," officers hunched that a man they were surveilling was carrying paper bags of drugs into his garage. They stopped the man and frisked him. Nothing. They searched his van. Nothing. They searched his garage (including the paper bags). Nothing.

Despite their first hunch having been disproved, on a second hunch, the officers continued to question the man, eventually securing his "consent" to search his house, where they found drugs and a gun.

This evidence should have been suppressed, said the Seventh Circuit in United States v. Lopez, a well-analyzed opinion. A few highlights:

---"Requiring police to corroborate tips from identified but unproven informants is an important protection of individual liberty." The opinion includes a terrific, extended discussion of this requirement. While reasonable suspicion is a low bar, that bar has not slipped so low as to allow unreliable tips like this one to trigger the humiliating, involuntary seizures and sometimes violent encounters that we justify under the bland and familiar phrase 'Terry stops.'"

---"Instead of doing the police work required to substantiate the tip, the officers pounced as soon as they saw Lopez leave his garage." This stop violated the Fourth Amendment.

---"The authority to frisk is not automatic in a drug investigation." This frisk was illegal.

---"[N]o reasonable person in Lopez's shoes would conclude that one officer's words [you're free to go] meant more than eight officers' actions [functionally blocking his exit by their physical presence and by retaining his van, car keys, and cell phone]."

All in all, the Fourth Amendment violations here---a bad initial stop that was unreasonably continued---undermined the validity of Mr. Lopez's consent to search his house.

Second Chair applications due December 1

Sun, 10/28/2018 - 14:35

We are currently accepting applications for our fifth term of the Second Chair Program, which will be a year-long program taking place in Kansas City, commencing in January 2019.
The Second Chair Program is a FPD training and mentoring program for attorneys who want to practice in federal court or apply for the CJA panel, but may lack the requisite experience. The program includes intensive monthly orientations and workshops that, over the course of the year, will cover all phases of a federal criminal case, including in-depth coverage of the sentencing guidelines. Having been a Second-Chair participant myself, I can attest that the program provides invaluable experience for anyone interested in practicing federal criminal defense and inimitable insight into practicing in the District of Kansas.  
Attendance at the monthly sessions is mandatory for continued participation in the program and for consideration for panel appointment. Additionally, each participant will be assigned to a more experienced mentor attorney to shadow on selected cases. Participants should plan to commit about 8-10 hours per month. Materials and compensation ($70 per hour) are provided courtesy of the Bench-Bar Committee. Participants may also be requested to assist current FPD clients, pro bono, with representation on basic legal matters related to their criminal case. Only a limited number of full participants are accepted. Other attorneys can audit the training sessions, lectures, and workshops, with prior approval from the FPD.If you would like to apply, please send a letter of interest, resume, and three references to Laura Shaneyfelt, CJA Resource Counsel, at laura_shaneyfelt@fd.orgby December 1, 2018
And if you know an attorney who may be interested in or could benefit from the program, please pass along the information.

Surprise! Cutting funding for halfway houses means less people get to go to halfway houses.

Thu, 10/25/2018 - 20:47
You may have read some stories from last year that said the Bureau of Prisons (BOP) was cutting funding for halfway house programs. Big surprise that less people are going to halfway houses as a result. But maybe that is a good thing you, an astute person say. After all, the research that shows that halfway houses are effective is mixed at best. And because home confinement saves more money and allows people a chance to transition back directly into their community more people will end up there instead of halfway houses.

Well you would be wrong
Home confinement is in free fall, down 61 percent to a population of 1,822. The majority of that cut has come in just the past year. Now only 1 in 20 people under federal supervision is in transitional housing. While the overall prison population has also fallen in recent years, the number of federal prisoners monitored in communities has dropped more sharply.It is important for stakeholders in the criminal justice system to know that the old advice we gave our clients - that they can expect six months of halfway house at the end of their prison sentence - is not true anymore. And we should also consider letting our judges know that so they are aware that their sentences are functionally six months longer than they were just a year or two ago.

20 seconds of off-mission questioning is 20 seconds too long

Tue, 10/23/2018 - 17:58
Police questions during a traffic stop may violate the Fourth Amendment if they (1) are not necessary to complete the mission of the stop; (2) are not justified by a reasonable suspicion of other criminal activity; and (3) extend the duration of the stop for any length of time.
 
And thus, in United States v. Clark, the Third Circuit affirmed a suppression order holding that questions to a driver about his criminal history were irrelevant to the mission of the stop, were not otherwise justified by suspicious behavior, and improperly extended the stop by 20 seconds.

Fighting the BOP's unlawful take on "compassionate release"

Sun, 10/21/2018 - 20:20
Congress, via the Sentencing Reform Act of 1984, authorized the practice of “compassionate release”—that is, it authorized the BOP to request that a federal judge reduce a prisoner’s sentence for “extraordinary and compelling” circumstances, which may include either medical or nonmedical conditions that could not reasonably have been foreseen at the time of sentencing. In doing so, Congress recognized the importance of ensuring that justice be balanced with mercy. 

According to a recent reportissued by The Marshall Project and The New York Times, however, between 2013 to 2017 the BOP approved only 6% of the 5,400 applications it received for compassionate release. Of those applicants, 266 died in custody; half of the 266 who died were convicted of nonviolent crimes. 

With knowledge of these grim statistics, defenders nationwide are continuing to challenge the BOP’s unlawful implementation of the compassionate release statute (18 U.S.C. § 3582(c)(1)(A)(i)). District courts have jurisdiction and authority to require the BOP to comply with the statutory scheme by filing sentence-reduction motions for qualified candidates so that sentencing courts—not the BOP—may decide whether, when, and to what extent a prisoner’s sentence should be reduced, as Congress has intended. 

Current litigation pending in the Fourth Circuit—an appeal to the denial of habeas relief under § 2241 to a terminally ill prisoner who the BOP concedes meets its program-statement definition of “terminal medical condition”—provides the most recent example of excellent advocacy in this arena. 

In light of the exceedingly low BOP approval numbers for compassionate-release requests, work is yet to be done and a concerted effort on our part is needed for those prisoners who are—or will become—disabled, terminally ill, or who otherwise qualify for a second look at their case for a sentence reduction under U.S.S.G. § 1B1.13. Briefing for the pending Fourth-Circuit litigation, including an amici brief filed by FAMM and the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, can be found hereand here.

"A dangerously racist view that has no place in the law"

Tue, 10/16/2018 - 19:04
"There is no reason to suspect that persons of a particular race are more likely to agree to commit a stash house robbery unless one believes that persons of that race are inherently more prone to committing violent crime for profit—a dangerously racist view that has no place in the law."

So wrote Ninth Circuit Judge Nguyen earlier this week, concurring in a ruling (also authored by Judge Nguyen) holding that the nearly impossible Armstrong standard for obtaining discovery on a claim of selective prosecution does not apply to a claim of selective enforcement, at least not in stash-house reverse-sting cases, and not in this case, where the agent in charge testified that out of the 60 stash-house stings he had conducted that resulted in indictments, more than 55 of the defendants were people of color.

The case is United States v. Sellers, and it is a must-read both on the question of what it takes to make a selective-enforcement discovery request and the problems with stash-house stings.

Bail Reform Act provides sole avenue for detention pending trial

Sun, 09/30/2018 - 19:49

Very recently, Judge Lamberth from the District of Columbia (and former Chief Judge) confronted head-on a critical quagmire in the separation-of-powers arena. 
In United States v. Vasquez-Benitez, 18-cr-00275, Docket Entries 26, 29 (D.D.C. Sept. 27, 2018), the District Court for the District of Columbia found this past month that the Bail Reform Act (i.e., the Judiciary) exclusively controls the custody of an individual facing criminal charges regardless of the Executive Branch’s authority to detain that individual under the Immigration and Nationality Act.  
A month into civil removal proceedings brought against Vasquez-Benitez, the government filed a criminal complaint charging him with illegal reentry. Shortly thereafter, customs officials transferred custody of Vasquez-Benitez to the U.S. Marshals Service for a detention hearing at which the court ordered his release pending trial under the Bail Reform Act's presumption for release. When the district court denied the government’s request to revoke release, the U.S. Marshals transferred the defendant back to customs officials for his continued detention related to the civil removal proceedings. 
But not so fast.This past Friday, after reopening Vasquez-Benitez’s detention hearing in light of his civil detention, Judge Lamberth not only granted Vasquez-Benitez's request that the district court's order for his supervised release pending trial be enforced but also clarified that Vasquez-Benitez may not be returned to the custody of Immigration & Customs Enforcement during the course of the criminal proceedings. Rather, “because the government has chosen to bring criminal charges against the defendant, a judicial order under the Bail Reform Act provides the sole avenue for detaining defendant while the charges are pending.” (D.E. 26, Emphasis added.)

Immigration consequences: the "particularly serious crime" bar

Sun, 09/23/2018 - 18:20

To provide constitutionally effective assistance of counsel requires that we advise our clients about the potential immigration consequences of a particular plea. And those consequences include navigating the legal landscape for criminal convictions that may bar a client from applying for certain forms of protection-based relief, when available.
Past CLE resources are available on our website to assist defense counsel when representing noncitizens in criminal proceedings, and in understanding the immigration consequences of certain criminal convictions generally. (See here, here, and here.)
Very recently, the Harvard Immigration Clinical Program’s Crimmigration Clinic, together with the Immigrant Defense Project (IDP), drafted another helpful resourceto add to the mix. This one is specific to evaluating whether the BIA and federal courts have found specific federal (and state) offenses to constitute "particularly serious crimes" such that a conviction would bar asylum or withholding removal, two forms of protection-based relief. While the resource does not obviate the necessity of case-specific research, it provides a great first step into investigations you may want to conduct if you believe your client may be eligible for protection-based relief from removal on down the road.

Mawage, that bwessed awangment

Wed, 09/19/2018 - 18:12
Forty years ago, the Tenth Circuit held that a criminal defendant may not invoke the spousal testimonial privilege if his or her spouse is alleged to be a joint participant in the defendant's crime. United States v. Trammel, 583 F.2d 1166 (10th Cir. 1978) affirmed on other grounds by Trammel v. United States, 445 U.S. 40 (1980).

It's time to ask the Tenth Circuit to revisit this holding. This week, the First Circuit refused to adopt a joint-participation exception to the spousal testimonial privilege,* deepening a circuit split on the issue (exception: 2; no exception: 4). The First Circuit relied in part on language from Obergefell v. Hodges waxing poetic about marriage ("[n]o union is more profound," etcetera, etcetera).

Take courage from the First Circuit. The next time the government threatens to force your client's coconspirator spouse to testify,** object.

*Not to be confused with the marital-communications privilege.

**The government may still attempt to bribe (ahem, persuade) the spouse to testify voluntarily (see SCOTUS's Trammel).


When motive is central

Sun, 09/16/2018 - 16:41
The Supreme Court has repeatedly emphasized the Sixth Amendment’s confrontation clause as the principal means by which the believability of a witness and the truth of her testimony are tested.

A week ago the Seventh Circuit granted habeas to a state petitioner based on the erroneous confrontation-clause holdings of the State Court that were held contrary to and an unreasonable application of the clearly established right to cross-examine witnesses on issues central to the case.
In Rhodes v. Dittmann, the defendant had been convicted by a jury of first-degree intentional homicide. The prosecution's theory? Defendant shot and killed the victim (his sister’s then-boyfriend) to avenge the severe beating that his sister had sustained the day before, allegedly by the victim.
The prosecution emphasized the motive-theory throughout trial, and prominently featured it in the direct testimony of the sister by focusing heavily on her injuries from the beating the day before the shooting. But when defense counsel tried to cross-examine sister beyond that beating, the judge shut him down, siding with the state prosecutor that rebuttal evidence on prior incidents of domestic violence between the sister and her boyfriend (victim) would “confuse” the jury.
The Seventh Circuit agreed with the district court that the state courts’ errors were of Constitutional magnitude, but disagreed that they were harmless. In so finding, the Rhodescourt reiterated that the Confrontation Clause cannot be satisfied merely by a finding that the evidence offered by the accused might be excluded properly under Rule 403; rather, courts must always give special consideration to the defendant’s constitutional right to confront witnesses against him. And effective cross-examination requires that the defense be permitted to expose specific facts from which jurors “could appropriately draw inferences relating to the reliability of the witness.” The Sixth Amendment "is not satisfied with the defendant is permitted to ask only general questions."
Here, “[i]t was the prosecution itself that wanted the jury to focus on motive.” In essence, then, “the trial court shut down the defense’s cross-examination to rebut the prosecution’s central theory.” Given the “importance of the motive issue,” the error could not be deemed harmless.  Writ of habeas corpus granted. 
And happy Constitution Day, all. As Thomas Edison cogently expressed, “[t]he strength of the Constitution, lies in the will of the people to defend it.” Carry on, and thank you.

Arresting middle-school girls to teach them a lesson is (surprise!) not reasonable

Tue, 09/11/2018 - 14:34
Dear parents and teachers of middle-school girls:

We feel your pain. But be careful when you seek the intervention of a sheriff's deputy---even if he is a school resource officer. You don't want to risk an undifferentiated group of allegedly feuding 12- and 13-year-old girls getting arrested en masse because the officer decides that's the best course of action "to prove a point and make [them] mature a lot faster."

"The arrest of a middle schooler . . . cannot be justified as a scare tactic, a lesson in maturity, or a chastisement for perceived disrespect." And thus the Ninth Circuit affirmed the district court's grant of summary judgment to three arrested girls on Fourth Amendment grounds in their 1983 action.

Drug conspiracies and jury-determined drug quantities

Sun, 09/09/2018 - 19:31
As we find ourselves once again on the cusp of a new season, a quick recap on a notable decision issued early this summer seems worthy lest it pass under the radar.
Over the past two decades, the US Supreme Court has made certain that the Constitution requires the jury to find beyond a reasonable doubt any facts that increase either (1) the prescribed range of penalties to which a criminal defendant is exposed (Apprendi v. New Jersey), or (2) the mandatory minimum sentence to which a criminal defendant is exposed (Alleyne v. United States; Burrage v. United States).  
In United States v. Stoddard, the D.C. Circuit applied these principles to address whether an individualized jury finding as to the quantity of drugs attributable to (i.e., foreseeable by) an individual defendant is required to trigger a mandatory-minimum sentence, or if it is sufficient for the jury to find that a conspiracy as a whole resulted in the distribution of the mandatory-minimum-triggering quantity. After acknowledging the circuit split on the issue (including a discussion of Tenth Circuit decisions calling its own precedent into question), the Stoddard court decisively concluded that that the conspiracy-wide approach could not stand muster after Alleyne. Rather, for a defendant’s sentence to be based on a mandatory minimum triggered by a certain quantity of drugs, a jury must find the drug quantity attributable to that defendant on an individualized basis.
Hence the remand for resentencing in Stoddardwhere the district court unlawfully determined that the defendants had conspired to distribute 100 grams or more of heroin, which increased their mandatory-minimum sentences beyond the crime for which the jury found each one of them individual liable—that is, entering into a conspiracy to distribute an indeterminate quantity of heroin.

"The mere taking of photographs of children . . .

Wed, 09/05/2018 - 16:14
. . . cannot suffice as probable cause to believe defendant was in possession of child pornography"---at least when there's no suggestion that those photographs were lewd or lascivious.
And neither can allegations of child molestation alone provide probable cause to search a suspect's computer for child pornography.

And neither can boilerplate recitations about the assumed proclivities of pornographers and child molesters.

So says E.D. Calif. District Court Judge Drozd, in an order granting the defendant's motion to suppress thousands of child-pornography images found on his computer during the execution of a search warrant. The warrant was tainted by numerous Franks violations, and their excision left an already questionable affidavit wanting.

Read this opinion for its excellent analysis of Franks claims, boilerplate cut-and-paste affidavits, and what does and doesn't constitute probable cause to search for child pornography. United States v. Kastis, No. 1:08-cr-00260, 2018 WL 4183267 (E.D. Cal. Aug. 30, 2018).
 

A reasonable officer should have known . . .

Mon, 08/27/2018 - 16:03
. . . that touching a young woman who is trying to make a sexual-abuse report, photographing her breasts and buttocks with the officer's personal cellphone, and badgering her into exposing her vagina would violate her Fourteenth Amendment right to bodily integrity. Yeah, no kidding. And yet in Kane v. Barger, the Second Circuit had to disagree with two other circuits to hold that the officer's conduct was sufficiently shocking to violate the constitution. The district court should not have dismissed this woman's 1983 suit on qualified-immunity grounds.

. . . that the Fourth Amendment prohibits "unduly tight or excessively forceful handcuffing during the course of a seizure." So warned the Sixth Circuit in Hansen v. Aper, affirming the district court's refusal to grant qualified immunity to an officer who handcuffed a driver after a traffic stop and, when the driver complained, told him "handcuffs are supposed to hurt."

. . . that Brady and Giglio obligated an officer to disclose to a murder defendant the fact that the state's key witness's law-enforcement sister called the witness "the biggest liar" she had "ever met," said that she would not believe anything her sister said, and noted that her sister had previously filed over 20 unsubstantiated reports with the local police department. This murder defendant was convicted and served 17 years before her exoneration. The district court erred in dismissing her 1983 suit against the officer on qualified-immunity grounds, held the Ninth Circuit in Mellen v. Winn.

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