Monday, November 03, 2014

Unpublished decisions

U.S. v. Pulsifer, 2014 WL 5369397 (10/23/14) (Okl.) (unpub'd) - The 10th applies the good faith exception. Mr. Pulsifer contended there was probable cause for a warrant to search only for evidence of marijuana use, but not of distribution. The 10th found the warrant affidavit was not "devoid of factual support." An anonymous tipster claimed Mr. Pulsipher was distributing marijuana from his home and that there was heavy traffic in and out of the place. A three-week surveillance contradicted the tipster's traffic claim. Nonetheless, the matching of Mr. Pulsifer and his home to the descriptions the tipster gave, the discovery of a small quantity of marijuana in Mr. Pulsifer's trash and the 2007 delivery of 30 grams of marijuana to Mr. Pulsifer was enough to pass through the good faith portal regarding distribution. Significantly, and most troublingly, the 10th reasons the search was okay because it would have taken a "close comparison" between the affidavit and the warrant to discover any probable cause issues.

U.S. v. Stewart, 2014 WL 5354763 (10/22/14) (Col.) (unpub'd) - The 10th finds Mr. Stewart must have understood what his appeal waiver covered because he assured the judge he understood it, even though his attorney seemed a bit confused about the waiver at the plea hearing.

U.S. v. Wagner, 2014 WL 5394307 (10/24/14) (Wyo.) (unpub'd) - There was no reason for the district court to grant a further variance on the grounds that the handgun's relationship to the burglary was marginal given that it was in a locked safe in Mr. Wagner's car when he tried to break into a pharmacy. Mr. Wagner had stipulated to the enhancement for possession of a firearm in connection with a felony and counsel apologized to the district court for raising the "marginal" issue.

Pelletier v. U.S., 2014 WL 5334203 (10/21/14) (Col.) (unpub'd) - A procedural victory for a ยง 2241 petitioner. Contrary to the district court's ruling, Mr. Pelletier was "in custody" for habeas purposes where he was released on bond pending a removal hearing. That Mr. Pelletier must appear at immigration hearings scheduled at the discretion of the immigration court was enough to establish custody.

Cleveland v. Martin, 2014 WL 5368884 (10/23/14) (okl.) (unpub'd) - Qualified immunity applied to Mr. Cleveland's First and Eighth Amendment complaints against the prison denying him visitation with his minor children based on his previous conviction of child abuse. Although one can reasonably infer a "substantial hardship," the 10th states there is no clearly established right to familial association in the prison visitation context. Nor does visitation with minor children constitute a "necessity of life." So deprivation of that visitation is not cruel and unusual punishment.