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Tag Archives: Criminal Practice

Criminal Practice – Search & Seizure – Warrant Application – Child Pornography (access required)

U.S. v. Wellman Although a search warrant application did not include either an exemplar or description of an image alleged to be child pornography, the 4th Circuit declines to impose a bright-line requirement that such an application must include an image of the alleged pornography; the court upholds the search warrant and defendant’s conviction and sentence for possession of child pornography.

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Criminal Practice – Search & Seizure – Pat Down – Reasonable Suspicion -Suspected Stalker (access required)

U.S. v. Glover Police who observed defendant at 4:40 a.m. near a gas station that had been robbed previously, in an area outside surveillance-camera range, apparently stalking the gas-station attendant, had reasonable suspicion to perform a stop-and-frisk, and the 4th Circuit upholds the pat down, admission of the gun in defendant’s pocket and his conviction for possession of a firearm as a felon.

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Criminal Practice – Marijuana Possession – Constructive Possession – Same Room – Plain View (access required)

State v. Slaughter In his dissent, Judge Hunter noted that the state presented evidence of defendant’s presence - along with two other people — in a room in which contraband was in plain view, but neither evidence of defendant’s proximity to the contraband nor evidence that he had the intent and capability to maintain control and dominion over it.

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Criminal Practice – Motion for Appropriate Relief – Written Order (access required)

State v. Williamson Both the majority and the dissent in the Court of Appeals’ decision addressed the significance of the trial court’s denial of defendant’s motion for appropriate relief without entering a written order memorializing that decision. However, the trial court actually entered a written order, the existence of which apparently was not known to appellate counsel.

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Criminal Practice – Forfeiture — $400,000 in Currency – Drug-Trafficking – Time Deadline (access required)

U.S. v. Martin Four defendants convicted as part of a drug-trafficking operation lose their appellate challenge to the belated forfeiture of their property under 18 U.S.C. § 983, including over $400,000 in currency from several accounts, a Mercedes automobile and several million dollars in drug proceeds, as the 4th Circuit holds the time deadline for forfeiture under Rule 32.2 is not a jurisdictional condition. Defendants argue the district court was without jurisdiction to order the criminal forfeiture of their property after sentencing and the entry of judgments.

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Criminal Practice – ACCA – Prior Convictions – ‘Building’ B&Es (access required)

U.S. v. Foster A defendant’s prior convictions for breaking and entering a restaurant and a “Corner Market” under Virginia’s non-generic burglary statute qualify as violent felonies under the Armed Career Criminal Act, contrary to the district court decision, and the 4th Circuit vacates defendant’s sentence for possession of a firearm as a convicted felon and remands for resentencing.

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Criminal Practice – Search & Seizure – Traffic Stop – Before Warrant Execution (access required)

U.S. v. Montieth A police affidavit detailing police discovery of marijuana packaging and residue in a trash pull outside defendant’s residence supported issuance of a search warrant for defendant’s home, and the police effort to safeguard defendant’s wife and young children during execution of the search warrant, by first detaining defendant in a traffic stop and searching the home after defendant’s wife and young children left, did not violate the Fourth Amendment; the 4th Circuit upholds defendant’s conviction on a drug and firearm charge under 18 U.S.C. § 924(c)(1).

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Criminal Practice – Murder – Evidence – Expert Testimony – Bullets – Forensic Toolmark ID – Defendant’s Finances (access required)

State v. Britt N.C. courts have allowed expert testimony on firearm toolmark identification for decades; furthermore, defendant did not introduce any new or compelling evidence to challenge the reliability of the methodology. We uphold the trial court’s ruling that toolmark identification is sufficiently reliable. We find no error in defendant’s conviction of first-degree murder.

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Criminal Practice – Uttering a Forged Instrument – Forgery – Insufficient Evidence (access required)

State v. Brown Even though defendant acknowledged that someone else gave him the HP Invent payroll check and that he didn’t work for HP, and even though the bank teller said the check was “strange,” this was not sufficient to show that the check was forged, i.e., that the check was not actually from HP. We vacate defendant’s convictions of uttering a forged instrument, attempting to obtain property by false pretenses, and obtaining the status of habitual felon.

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Criminal Practice – Jury & Jurors – Deadlock – Incomplete Re-Instruction – Rape Charge – New Trial (access required)

State v. Gillikin After four hours of deliberating, the jury informed the trial judge that they were deadlocked on four of five charges. When the judge re-instructed the jury, he gave some, but not all of the instructions set out in G.S. § 15A-1235(b); in particular, nowhere in the re-instructions is there a suggestion that no juror was expected to “surrender his honest conviction” nor reach an agreement that might do “violence to individual judgment.” The trial judge’s re-instructions are a clear violation of statutory guidelines, necessitating a finding of prejudicial error.

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