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Articles by Richard Resch

Nevada Court of Appeals Rules Police May Not Conduct Warrantless Search Based on Third-Party Consent Where No Effort Made to Determine Whether Person Has Authority to Do So

by Richard Resch

The Nevada Court of Appeals ruled that law enforcement officers cannot conduct a warrantless search of a bedroom inside a shared residence by obtaining the consent of a third party without first asking about the living arrangements within the residence. The specific question at issue had not ...

Second Circuit Announces Prisoners Have First Amendment Right Not to Snitch or Provide False Information to Prison Officials

by Richard Resch

In its opinion issued on May 9, 2018, the U.S. Circuit Court of Appeals for the Second Circuit held that a prisoner has a First Amendment right not to serve as a prison informant. However, since that right was not clearly established at the time the ...

Ninth Circuit Rules Detective’s Persistent Questioning After Invocation of Right to Counsel Entitles California Prisoner to Habeas Relief

by Richard Resch

The U.S. Court of Appeals for the Ninth Circuit held that a California prisoner convicted of murder is entitled to habeas relief because a detective continued to interrogate him even after he clearly and repeatedly invoked his right to counsel, and the detective’s persistent unlawful badgering ...

Washington Supreme Court Announces State’s Death Penalty Is Unconstitutional

by Richard Resch

On October 11, 2018, the Supreme Court of Washington issued an opinion in which the Court struck down the state’s death penalty, announcing: “we hold that Washington’s death penalty is unconstitutional, as administered, because it is imposed in an arbitrary and racially biased manner.” The Court ...

Idaho Supreme Court Rules Dead-Body Reporting Statute Unconstitutional As Applied to Defendant

by Richard Resch

The Supreme Court of Idaho held that prosecution of the defendant under a state statute that imposes a duty on anyone who discovers or has custody of a body to promptly notify authorities, based on the facts of this case, would violate the defendant’s Fifth Amendment privilege against self-incrimination. As such, the Court affirmed the district court’s decision to dismiss the charge.

In late 2015, Kimberly Vezina died of an overdose at a residence well known for drug activity. Laura Akins and another person were ordered to dispose of the body at a lake house owned by Akins’ relative. Akins eventually dumped the body in the water, but it was discovered by fishermen about three weeks later. Investigators determined that Akins was involved with dumping the body and placed her under arrest.

Akins was charged under I.C. § 19-4301A(3), failure to notify of a death. She moved for dismissal, arguing that her prosecution under the statute violated her Fifth Amendment privilege against self-incrimination. Following a hearing, the district court agreed with her, reasoning that compliance with the statute under these facts would effectively punish her for failing to incriminate herself. The court entered an order ...

Iowa Supreme Court Announces Greater Privacy Protections Under State Constitution for Impounded Vehicles Than Provided by Fourth Amendment

by Richard Resch

The Supreme Court of Iowa announced a stricter legal framework for warrantless inventory searches and seizures of vehicles being impounded under the Iowa Constitution than required by the U.S. Supreme Court under its recent case law interpreting the Fourth Amendment.

On October 30, 2015, police pulled Bion Ingram over because his vehicle’s license plate was not illuminated as required by law. During the traffic stop, the officer discovered that the vehicle’s registration had expired. The officer decided to impound the vehicle, but he did not arrest Ingram.

The vehicle was going to be towed. Another officer arrived and inventoried the contents of the vehicle without a warrant. During the inventory, the officer discovered a cloth bag on the floor and opened it. A glass pipe containing a gram of meth was inside. Ingram was arrested and charged with possession of meth and drug paraphernalia.

Ingram filed a motion to suppress based on the Fourth Amendment to the U.S. Constitution and Article I, Section 8 of the Iowa Constitution. He argued that the inventory was merely a pretext to search his vehicle without a warrant. The district court denied the motion, ruling that inventory searches are ...

Pennsylvania Supreme Court Announces Search Warrant Required for Nonconsensual Entry into Any Residence to Carry Out Arrest Warrant

by Richard Resch

The Supreme Court of Pennsylvania adopted a new rule governing nonconsensual entry into a residence to effectuate an arrest warrant. The Court rejected the constitutional framework utilized by lower state courts that differentiated between a third-party’s residence and that of the subject of an arrest warrant, which mandated a search warrant for nonconsensual entry into the former but not the latter. The Court announced that a search warrant is now required to enter any residence to carry out a search and arrest.  

A parolee named Earnest Moreno absconded from a halfway house in Philadelphia. An arrest warrant was issued for him. Authorities believed 4745 North 2nd Avenue was his residence and attempted to execute the arrest warrant at that location. In fact, it was the residence of his half-brother, Angel Romero, and his wife, Wendy Castro. While searching the residence for Moreno, investigators noticed a large number of marijuana plants in the basement. They subsequently obtained a search warrant for the premises and recovered evidence of a large-scale marijuana-growing operation.

Romero and Castro were charged with several drug offenses. They both filed motions to suppress the evidence. At the suppression hearing, the lead agent testified that ...

SCOTUS: Warrantless Invasion of Curtilage to Conduct Search Unconstitutional

by Richard Resch

In a May 29, 2018 opinion, the Supreme Court of the United States (“SCOTUS”) held that the automobile exception to the Fourth Amendment does not permit law enforcement to enter the curtilage of a home, without a warrant or consent, in order to search a vehicle located therein.

On two occasions, a person riding an orange and black motorcycle with an extended frame eluded police officers who attempted to conduct a traffic stop. Investigators observed a motorcycle matching that description on the Facebook page of Ryan Collins. Officer David Rhodes believed that the motorcycle was stolen and located at the top of the driveway of his girlfriend’s house.

Rhodes drove to the house, parked on the street, and observed what appeared to be the motorcycle in question covered with a white tarp. Without a search warrant, Rhodes walked onto the property and removed the tarp. He then performed a search of the license plate and VIN numbers, which confirmed that the motorcycle was stolen. He then got back into his patrol vehicle and waited for Collins to return.

Upon his return, Collins admitted the motorcycle was his and that he purchased it without title. Rhodes then placed ...

Ninth Circuit: Violations Alleged After Expiration of Supervised Release Term Must be Factually Related to Pre-Expiration Allegation

by Richard Resch

In a February 28, 2018, opinion, the U.S. Court of Appeals for the Ninth Circuit ruled that U.S. District Courts may not base a revocation of supervised release upon violations that (1) were not alleged prior to the expiration of the supervisory period and (2 ...

SCOTUS: Sixth Amendment Right to Autonomy — Attorney Cannot Overrule Client’s Decision to Assert Innocence at Trial

by Richard Resch

On May 14, 2018, the Supreme Court of the United States (“SCOTUS”) issued a major decision affirming criminal defendants’ Sixth Amendment right to assert their innocence at trial. The Court determined that Robert McCoy’s “right to autonomy” had been violated when his attorney conceded his guilt at ...




 

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