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Articles by Anthony Accurso

Federal Judge Criticizes Qualified Immunity and Challenges SCOTUS to Abolish It

In a recent decision dismissing a defendant’s lawsuit against a police officer on the basis of qualified immunity, Judge Carlton Reeves of Mississippi filed a 72-page opinion that challenges the morality of the doctrine of qualified immunity, provides an in-depth history of the doctrine, and concludes with a challenge to the U.S. Supreme Court to abolish it.

Clarence Jamison was driving to his home in South Carolina after vacationing in Arizona, where he had purchased a Mercedes convertible. On July 29, 2013, as Jamison was passing through Pelahatchie, Mississippi, Officer Nick McClendon noticed a “Black man driving a Mercedes” and decided to pull him over. At trial, McClendon claimed the temporary tag was bent and the license number was obscured, but during the stop he told Jamison that police had received a tip that the Mercedes was stolen and contained 10 kilos of cocaine. Nearly two hours later, after McClendon had caused about $4,000 worth of damage to the vehicle while searching it and had inspected it with a drug dog, he let Jamison go on his way.

“Thankfully, Jamison left the stop with his life,” Reeves said in his opinion. “Too many others have not.”

Jamison filed a lawsuit ...

Eighth Circuit: Counsel Ineffective for Not Recognizing § 851 Enhancement Should Not Have Applied

Rocky Thomas Mayfield was charged with several crimes relating to methamphetamine conspiracy, possession, and distribution, as well as being a felon in possession of a firearm. The Government also filed an enhancement under 21 U.S.C. § 851 for his 2002 conviction in Arizona for possession of drug paraphernalia. This put his statutory minimum at 240 months.

The Government offered a plea agreement in which Mayfield would plead to the conspiracy and firearm counts in exchange for the Government “to recommend a sentence at the low end of the sentencing guideline range found by the court at the sentencing hearing or the statutory minimum mandatory imprisonment sentence, whichever is higher.” The Government estimated his range would be 292 to 365 months if he went to trial or 240 to 293 if he took the plea. Under those terms, counsel suggested Mayfield decline the offer ...

Kansas Supreme Court Announces Residual Clause of Law Prohibiting Knife Possession by Felons Unconstitutionally Vague

Christopher M. Harris was a convicted felon on post-release supervision when he was observed in an altercation with another man on a street in Wichita, Kansas. An officer turned his spotlight on the men, and Harris dropped an object, which turned out to be a pocket knife with a 3.5-inch serrated blade.

Harris was charged with aggravated assault, criminal use of a weapon, and criminal possession of a weapon by a convicted felon. Before trial, Harris moved to have the possession charge dismissed on the grounds that the statute is unconstitutionally vague.

K.S.A. 2019 Supp. 21-6304 defined a knife as “a dagger, dirk, switchblade, stiletto, straight-edged razor or any other dangerous or deadly cutting instrument of like character.” The portion of this statute after the word ‘or’ is the residual clause, and the portion of the law under which both Harris and the State agreed he was prosecuted.

Harris also sought to introduce evidence that his parole officer had issued ...

Maryland Court of Appeals: Odor of Marijuana Alone Doesn’t Provide Probable Cause to Arrest and Search Person

Rasherd Lewis was in a convenience store in Baltimore City on February 1, 2017, when officers got a tip that someone matching his description was “potentially armed.” Officers located Lewis, but the tip was not, by itself, sufficient to search or arrest him. Offices ordered the patrons of the store to leave, and when Lewis was passing them, Officer Burch said he smelled the odor of burnt marijuana on him.

Officers searched him and found a non-criminal amount of marijuana, plastic baggies, $367 in cash, and a handgun. Lewis was charged with criminal possession of a firearm. He filed a motion to suppress the firearm on the ground that the search was unconstitutional, but the motion was denied. Lewis was convicted in a bench trial and sentenced to three years’ incarceration with all but 90 days suspended, and three years’ probation. Lewis appealed the results of the suppression hearing.

The Court of Special Appeals affirmed the results of the suppression hearing by ...

Seventh Circuit: Solo Masturbation Near Fully Clothed and Sleeping Child Does Not Constitute Production of Child Pornography

by Anthony Accurso

 

The U.S. Court of Appeals for the Seventh Circuit held that a conviction under 18 U.S.C. § 2251(a) for production of child pornography cannot be sustained where the defendant only engaged in sexually explicit conduct near a minor when the images were produced.

 

Prior to law enforcement serving a search warrant and inspecting his computers in August 2017, Matthew Howard made two videos showing himself masturbating near his sleeping and fully-clothed, 9-year-old niece. Howard pleaded guilty to several charges relating to the possession, receipt, and distribution of child pornography under §§ 2252(a)(2) and (a)(4) but went to trial on the production counts.

 

After a lengthy battle over the jury instructions pertaining to the elements of the crime, the district court allowed the jury to convict him if it found, in pertinent part, that, “The defendant knowingly used [his niece] to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct.”

 

The Government argued to the jury: “This isn’t about what [his niece] did or didn’t do. The law says you look at what did the defendant use [his niece] to engage in masturbation, did the defendant use ...

Wisconsin Supreme Court: Officers Wrongly Inventoried Vehicle for Towing, Requiring Suppression of Evidence

by Anthony Accurso

The Supreme Court of Wisconsin held that the Court of Appeals erred when it affirmed the denial of a suppression motion because officers were not acting in their role as “community caretakers” when they inventoried a defendant’s vehicle for towing following a traffic stop.

Alfonso Lorenzo Brooks was pulled over for driving no less than 15 mph over the speed limit late one summer night in 2014. He exited the freeway and legally parked in a mixed commercial and residential neighborhood where, during the stop, the sheriff’s deputies ascertained that his driver’s license had been suspended. As they were issuing him citations for speeding and driving on a suspended license, they informed him that they were required to have his vehicle towed because he could not legally drive.

Brooks protested, saying that the vehicle belonged to his girlfriend and that she would arrive shortly to obtain the vehicle. The deputies said they could not allow an additional non-official person at the scene of a traffic stop, and they began a tow inventory search on the vehicle. They discovered a firearm in the trunk area and then promptly arrested Brooks for being a felon in possession of a ...

Sixth Circuit Clarifies ‘Different Location’ in Robbery Guidelines Enhancement Commentary Requires More Than Herding Victims To Different Room

by Anthony Accurso

The U.S. Court of Appeals for the Sixth Circuit clarified that the term “different location” in the U.S. Sentencing Guidelines commentary definition of “abduction” requires more movement than from a sales floor of a business to the back breakroom for the related robbery enhancement to apply.

Tramain Hill pleaded guilty to Hobbs Act robbery and aiding and abetting for his role in the armed robbery of a Universal Wireless store in Coldwater, Michigan, on August 27, 2016. Hill and his codefendants forced three employees and a female customer from the sales floor to the back breakroom at gunpoint. The robbers then looted the store and fled with approximately $42,000 in stolen cellphones and cash.

At sentencing, the district court applied an enhancement under (b)(4)(A) of Section 2B3.1 of the Guidelines because the victims were “abducted to facilitate commission of the offense or to facilitate escape,” resulting in an additional four points and a sentencing range of 130 to 162 months. Hill argued that he should merely be subject to a two-point enhancement under (b)(4)(B), which requires that the victims were “physically restrained to facilitate commission of the offense or to facilitate escape,” which would result in a ...

Minnesota Supreme Court: Coercion Statute Unconstitutionally Overbroad

by Anthony Accurso

In a decision issued July 22, 2020, the Supreme Court of Minnesota ruled that Minnesota Statutes Section 609.27, subd. 1(4) (2018) (“the coercion statute”) is overbroad on its face, violates the First Amendment to the U.S. Constitution, and must be struck in its entirety.

John Joseph Jorgenson was charged under the coercion statute after he contacted R.C., the father of his girlfriend J.C., and demanded $25,000 in exchange for not releasing a video of J.C. – in which she discussed smoking marijuana – to various agencies, including the Minnesota Department of Human Services, J.C.’s employer, and J.C.’s professional licensing board.

Jorgenson moved to dismiss because, among other reasons, the statute violates the First Amendment. The district court granted his motion on this ground, and the court of appeals affirmed. The State then appealed to the Minnesota Supreme Court.

The Court described the statute as follows: “Section 609.27, subdivision 1, provides that anyone who ‘orally or in writing makes’ a ‘threat’ falling into any one of six enumerated categories, and who ‘thereby causes against the other’s will to do any act or forebear doing a lawful act is guilty of coercion.’ Subdivision 1(4), one of the six categories, ...

Colorado Supreme Court Announces New Rules for Awarding Presentencing Credit

Derick Wayne Russell was in community confinement following unrelated convictions in Jefferson County and Douglas County, Colorado, in December 2015 and January 2016, respectively. He was terminated from the program for a violation and taken into custody on May 26. On June 1, Jefferson County sentenced him to three years’ imprisonment, to run concurrently with his Douglas County sentence. Douglas County sentenced him on October 13 to six years’ imprisonment, also to run concurrently with his Jefferson County sentence.

At sentencing in Douglas County, the district court calculated his PSCC time, awarding him PSCC for time spent confined prior to his sentence to community corrections, the time he served in residential community corrections, and the days he spent in custody prior to his resentencing in Jefferson County. The court denied him PSCC for the period between June 1 and October 13 because, under the but-for causation test articulated in People v. Torrez, 403 P.3d 189 (Colo. 2017), he could not be awarded this time since ...

Washington Federal Court: Looking at Lock Phone Screen Requires Warrant

The U.S. District Court for the Western District of Washington in Seattle ruled that the FBI conducted an illegal search of a defendant’s phone by powering it on to inspect the lock screen, resulting in suppression of information obtained from the search.

Joseph Sam was arrested pursuant to an indictment on conspiracy to commit robbery, robbery, and assault resulting in serious bodily injury. When Sam was arrested, Tulalip Police seized his phone. He was booked into police custody, and his phone was inventoried, including determining whether the phone was locked and attempting to place the phone in airplane mode to prevent remote wiping.

On February 13, 2020, the FBI temporarily obtained Sam’s phone from police inventory, powered it on, and took a photo of the lock screen, which displayed the user’s name as “<<<Streezy.” Sam’s lawyer filed a motion to suppress this evidence as the result of an illegal search.

The Court briefly discussed the governing law, starting with the Fourth Amendment’s prohibition against unreasonable searches and seizures. The Court explained that the “default rule is that a search is unreasonable unless conducted pursuant to a warrant.” Veronica School District 47J v. Acton, 515 U.S. 646 ...

 

 

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