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Tag Archives: Criminal Practice

Criminal Practice – Search & Seizure – Traffic Stop – Vehicle Search — Consent (access required)

U.S. v. Ortiz The 4th Circuit offers a refresher course in assessing “probable cause” and reverses a district court order suppressing drugs found in a secret compartment of defendant’s car because the district court applied the wrong standards for determining whether police had defendant’s consent to search the vehicle and whether there was probable cause to search it.

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Criminal Practice – Sentencing – PSR ‘Facts’ – Prior Convictions — ACCA (access required)

U.S. v. BoykinA district court committed plain error when it used the presentence report’s discussion of the circumstances surrounding defendant’s two prior violent-felony convictions to apply an Armed Career Criminal Act enhancement under 18 U.S.C. § 924 when sentencing defendant as a felon in possession of a firearm; the 4th Circuit vacates the sentence and remands for a new sentencing hearing on this issue.

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Criminal Practice – Accessory After the Fact of Murder – Hiding Gun – Search & Seizure – Consent to Search (access required)

State v. Schiro Defendant consented to a police search of his car, but when officers began looking behind the rear quarter panels, defendant complained, “Man, they’re tearing up my trunk.” A reasonable person would not have considered defendant’s statements that the officers were “tearing up” his car to be an unequivocal revocation of his consent.

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Criminal Practice – Constitutional – Ineffective Assistance Claim – Guilty Plea – Immigration Consequences – Padilla – No Retroactive Application (access required)

State v. Alshaif Although Padilla v. Kentucky, 176 L. Ed. 2d 284 (2010), held that a criminal defense attorney must inform his client of any immigration consequences of a guilty plea, that was not the rule at the time defense counsel in this case advised defendant to plead guilty to assault with a deadly weapon inflicting serious injury.

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Criminal Practice – Forfeiture – Escrow Funds – Cigarette Manufacturer – Tobacco Settlement – Nonparticipant – States’ Interest (access required)

U.S. v. State of Oregon The 4th Circuit vacates a district court forfeiture order for funds escrowed by defendant cigarette manufacturer, a nonparticipant in the tobacco-litigation settlement agreement who was prosecuted for tobacco-related crimes, because the district court granted an interest in the escrowed funds to two states who failed to prove they had a superior legal interest in the funds.

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Criminal Practice – Felony Murder – Girlfriend’s Fear – Lesser Included Offense — Allen Charge – Pattern Jury Instruction (access required)

State v. Gettys Defendant claims it was error for the trial court to allow defendant’s girlfriend to testify that she didn’t press him for details on the night he killed the victim “because I didn’t want him to get pissed off and beat my ass ....” However, defendant does not challenge substantially similar testimony from a detective who interviewed the girlfriend and relayed her statement to the jury.

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Criminal Practice – Constitutional – Search & Seizure – Anonymous Tip – Defendant’s Flight – Inculpatory Statements (access required)

State v. Hemphill When Officer Adkins arrived at Auto America, he saw defendant, who generally matched the description of one of the individuals reported by an anonymous caller, peering from behind a van parked at Auto America. When defendant spotted Officer Adkins, defendant ran away from him. Defendant ignored Officer Adkins when he shouted for defendant to stop, and Officer Adkins ran after defendant for about an eighth of a mile. When Officer Adkins caught up with defendant, defendant was attempting to hide behind a dumpster. When considered together and in context, these facts were sufficient to raise a reasonable suspicion that criminal activity was afoot, and that defendant was involved.

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Criminal Practice – Constitutional – Confrontation Clause – Witness’s Attorney-Client Privilege (access required)

State v. Lowery Defendant sought to cross-examine prosecution witnesses about their communications with their attorneys so defendant could prove that these witnesses knew they would not be prosecuted if they agreed to testify. However, the Confrontation Clause does not permit defendant to avoid the witnesses’ attorney-client privilege.

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Criminal Practice – Evidence – Blood Alcohol Content – Retrograde Extrapolation – ‘Smell Test’ (access required)

State v. Davis While the state’s expert did present studies dealing with his method for calculating blood alcohol content based on the smell of alcohol on a person’s breath, the expert still failed to show that his method met the rigorous standards for chemical analysis of breath under G.S. § 20-139.1.

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