Circuit Snippets

It is constitutional to require persons accused of federal felonies to give a DNA sample as a condition of granting bail, the Ninth Circuit held. The Court found it was reasonable because the sample was only demanded after a judge had determined that there is probable cause to support the charges. The government's interests outweighed any privacy interests the person might have in his or her DNA. The physical intrusion is "minimal." Concurring, Judge Lucero reasoned that, because the DNA collection was pursuant to a federal statute and program, the intrusions were not random or arbitrary. Judge Schroeder dissented, and would have continued to restrict the collection of DNA to those actually convicted of crimes. US v. Pool, No. 09-10303, 2010 WL 3554049 (9th Cir. 9/14/10)

Suspicionless strip searches of all arrestees before they are placed in the jail population was upheld by the Third Circut. The Court stressed deference to the jail officials' security concerns. Judge Pollack dissented, on the grounds that there was no evidence that arrestees actually presented a smuggling risk. Florence v. Board of Chosen Freeholders of the County of Burlington, 2010 WL 3633178, No. 09-3603 (3dCir. 9/21/10)

Following the Supreme Court's decisions in Caballes, Muehler, and, most recently, Arizona v. Johnson, 129 S.Ct. 781, the Connecticut Supreme Court held that an officer who has stopped a motorist for a traffic violation can ask about anything the officer wants to, "so long as those inquiries do not measurably extend the duration of the stop." State v. Jenkins, No. SC 18077 (Conn. S.Ct. 9/7/10)

Hooray for Powell's Books of Portland, Oregon, the plaintiff in Powell's Books v. Kroger, 2010 WL 3619949, No. 09-35153 (9th Cir. 9/20/10), in which the Ninth Circuit struck down Oregon laws that makes it a misdemeanor to intentionally furnish a child under the age of 13 or intentionally permit such a child to view "sexually explicit material," and that make it a felony to furnish a minor with a visual representation or explicit verbal description or narrative account of "sexual conduct" for the purpose of "arousing or satisfying the sexual desires of the person or the minor" or "inducing the minor to engage in sexual conduct." The statutes also define "sexually explicit material" and "sexual conduct." The Ninth Circuit agreed the statutes were unconstitutionally overbroad and violated the First Amendment by including a number of works that were not obscene to children or minors.

The Second Circuit concluded that it reviews a district court's determination as to whether a party has established a prima facie Batson violation for abuse of discretion, and further held that the defendant, just like the prosecution, is prohibited from exercising peremptory challenges on the basis of gender. US v. Martinez, 2010 WL 3606710, No. 08-5071-cr (2d Cir. 9/17/10)

Under the Mandatory Victims Restitution Act, the government can garnish a defendant's retirement benefits to pay a restitution order. However, the Consumer Credit Protection Act limits the garnishment to 25% of the defendant's monthly retirement benefits. US v. DeCay, 2010 WL 3621084, No. 09-30218 (5th Cir. 9/20/10)

An indigent defendant who seeks an expert on drug-sniffing dogs to help with a challenge to the admission of evidence must articulate facts demonstrating a "legitimate controversy" concerning the dog's smelling ability, certification, training or the circumstances of the alert to get funding. It would be just too burdensome to give an indigent defendant funds for a dog-sniff expert in every case in which there was a dog alert that was the basis for probable cause, because it happens so often. US v. Howard, No. 08-6143 (6th Cir. 9/14/10)

Great insufficient evidence decision from the Sixth Circuit, though. The evidence that the defendant obtained the van and probably acted as a lookout while others loaded marijuana into the van was insufficient to sustain the defendant's conviction for conspiracy to traffic in drugs and aiding and abetting. US v. Sliwo, 2010 WL 3488991 (6th Cir. 2010)

It was plain error, though harmless of course, for the court to allow a DEA agent to give "expert testimony" regarding the typical characteristics of a drug courier and then link them to the defendant. The defendant trucker drove a tractor-trailer into an immigration checkpoint; methamphetamine was found among the grapefruit in the trailer. Without objection, a DEA agent testified about how drugs are smuggled into the US from Mexico, and was also allowed to testify that the defendant was guilty for such reasons as the log book was falsified. You may be surprised to learn that it is highly suspicious to have no criminal history and to be hauling a legitimate load of produce: "Agent Crawford's testimony that drug couriers generally have no criminal history is classic profile testimony: it describes a characteristic used by law enforcement officers to identify an individual who might be a drug courier" and "Agent Crawford suggested that Gonzalez-Rodriguez was a drug courier because he was transporting a legitimate load of grapefruits." US v. Gonzales-Rodriguez, 2010 WL 3636986 (5th Cir. Sept. 21, 2010)

A defendant convicted of mortgage fraud received a new trial because evidence that she received cocaine from a broker who operated the scheme was improperly admitted as trial as proof of her motive in going along with the fraud. Whatever minimal value the evidence had was outweighed by its unfairly prejudicial effect, and the government's motive theory was undermined by the fact that defendant did the same fraudulent conduct for another broker who didn't provide drugs. US v. Corsmeier, 617 F.3d 417 (6th Cir. 2010)