May 2020

D.C. Circuit: Use of False Hair Evidence
That Exceeded Limits of Science Violated
Defendant’s Right to a Fair Trial

Almost fifty years ago, defendant was convicted of murder after a trial where an FBI forensic expert testified that hairs found on the victim were microscopically identical to defendant’s hair. Defendant brought a motion to set aside his conviction and vacate his sentence based on the government’s recent acknowledgment that hair evidence of the kind introduced was false and exceeded the limits of science and that the prosecution knew or should have known as much at the time of his trial. The D.C. Circuit reversed the district court’s finding that the hair evidence was immaterial, holding that introduction of the evidence violated defendant’s right to a fair trial where the prosecution’s case rested primarily on testimony of two unreliable witnesses, the false hair testimony was the only corroborating evidence that defendant could not rebut, and the prosecutor’s closing argument emphasized the improbability of a mistake. United States v. Butler, ___ F.3d ___ (04-14-2020, WL 1861412).

Washington: Affidavit in Support of
Search Warrant for Cell Phone Data
was Insufficient

Defendant was convicted of burglary and trafficking in stolen property based on evidence found during the execution of two separate search warrants for defendant’s residence and another for his cell phone records and data. Defendant challenged the sufficiency of the affidavits, and the Washington Appellate Court found the affidavit for the cell phone warrant failed to provide any specific nexus between the cell-site location information (CSLI) and the burglary/trafficking investigation where the affidavit relied on general statements indicating that the majority of Americans possess and use cellular telephones and keep the phones within their reach at all times but offered no specific facts as to defendant or the use of cell phones in the burglary at issue here. The court opined that these are precisely the sort of blanket inferences and generalities that, without additional specific facts, courts have declared insufficient to establish the requisite nexus for the issuance of constitutionally valid search warrants noting that historical and real-time CSLI, like text messages, reveal an intensely intimate picture into our personal lives. State v. Denham, unpublished opinion (04-27-2020, WL 2026799).

Kentucky: Judge’s Ex Parte Discussion with
Juror Violated Defendant’s Right to an
Impartial Jury and His Right to
Representation at all Critical Stages

Defendant’s jury trial convictions related to fleeing and eluding charges were reversed where the trial court had an ex parte discussion with a juror who had been offered a bribe. The Kentucky Supreme Court held that the trial court’s failure to take action to include defense counsel during the bench conference and the failure to admonish the juror to disregard her encounter and not to discuss the attempted bribe with fellow jurors was a structural error that violated defendant’s right to an impartial jury and his right to representation at all critical stages of trial. Eversole v. Commonwealth, ___ S.W.3d ___ (04-30-2020, WL 2091860).

Tenth Circuit: Exigent Circumstances and
Community Caretaking Doctrines Did Not
Support Warrantless Search of Truck

Defendant entered a conditional guilty plea to felon in possession of a firearm and ammunition and challenged the denial of his motion to suppress. Officers, responding to a report of a verbal altercation between defendant and his girlfriend, lifted the cover on defendant’s pick-up truck to help the girlfriend retrieve her belongings and discovered the evidence. The Tenth Circuit reversed, finding that: 1) the officer conducted the search without a warrant or probable cause; 2) the community caretaking exception to the warrant requirement does not apply where the opening of the camper was not justified by state law or sound police procedure or concern for the safety of the general public as the girlfriend could have opened the camper herself, the deputy could have used clear noninvasive alternatives, and the invasion of privacy was not de minimis; and 3) the inevitable discovery exception did not apply where it was not inevitable that the deputy would have seen the ammunition, run a criminal history check, or found a gun in the truck, and without an arrest, the truck would not inevitably have been impounded and searched, as the truck was parked in a parking lot and defendant could have called a towing company. United States v. Neugin, ___ F.3d ___ (CA 10, 05-01-2020, WL 2091842).

Seventh Circuit: Officers Lacked
Reasonable Suspicion to Support Frisk

Defendant was convicted of gun charges after his motion to suppress was denied. Officers stopped defendant based on an anonymous tip, searched him, and found a gun in his pocket. The Seventh Circuit reversed the denial of the suppression motion finding that the officer lacked reasonable suspicion to support the frisk of defendant where the caller gave only a barebones description of the suspect, defendant matched some aspects of the description, but not others, police had no corroboration or additional indicia of reliability of the caller’s tip, the caller did not report an emergency or that the suspect was armed, police saw no crime in process and encountered no witnesses, and, although defendant looked panicked upon seeing the police, he did not flee, and there was no suggestion he was armed. In a matter of apparent first impression, the court limited the scope of its review to the record on the pretrial motion and would not consider the trial record, where the district court never considered the trial record in denying the motion and consideration of the officer’s trial testimony would prejudice defendant as he had little incentive at trial to cross-examine or attempt to impeach the officer with respect to factual details surrounding the pat-down. United States v. Howell, ___ F.3d ___ (CA 7, 05-04-2020, WL 2107934).