Florida v. Harris, 568 U.S. ____ (2013)

Officer Wheetley pulled Harris over for a routine traffic stop. Wheetley sought consent to search Harris's truck, based on Harris's nervousness and seeing an open beer can. When Harris refused, Wheetley executed a sniff test with his trained narcotics dog, Aldo, who alerted at the driver's-side door, leading Wheetley to conclude that he had probable cause to search. The search turned up nothing Aldo was trained to detect, but did reveal ingredients for manufacturing methamphetamine. Harris was charged with illegal possession of those ingredients. In a subsequent stop while Harris was out on bail, Aldo again alerted on Harris's truck but nothing of interest was found. The trial court denied a motion to suppress. The Florida Supreme Court reversed, holding that if an officer failed to keep records of field performance, including how many times a dog falsely alerted, he could never have probable cause to think the dog a reliable indicator of drugs. The Supreme Court reversed. Training and testing records supported Aldo's reliability in detecting drugs and Harris failed to undermine that evidence, so Wheetley had probable cause to search. Whether an officer has probable cause depends on the totality of the circumstances, not rigid rules, bright-line tests, and mechanistic inquiries. Requiring the state to introduce comprehensive documentation of a dog's prior hits and misses in the field is the antithesis of a totality-of-the-circumstances approach. Field records may sometimes be relevant, but the court should evaluate all the evidence, and should not prescribe an inflexible set of requirements.


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Bailey v. United States, 568 U.S. _____ (2013)

While police were preparing to execute a search warrant for a basement apartment, detectives in an unmarked car outside the apartment saw two men, later identified as Bailey and Middleton, leave the gated area above the apartment, get in a car, and drive away. The detectives followed for about a mile, then stopped the car. They found keys during a pat-down search of Bailey, who said that he resided in the apartment. He later denied it when informed of the search. The men were handcuffed and driven to the apartment, where the search team had found a gun and illicit drugs. One of Bailey's keys unlocked the apartment's door. The district court denied Bailey's motion to suppress the key and statement, holding that Bailey's detention was justified under Michigan v. Summers, as a detention incident to execution of a search warrant, and, in the alternative, that the detention was supported by reasonable suspicion under Terry v. Ohio. Bailey was convicted. The Second Circuit affirmed, without ruling on the Terry claim. The Supreme Court reversed and remanded for determination of whether Terry applies. The rule in Summers, permitting detention even if there is no particular suspicion that an individual is involved in criminal activity or poses a specific danger to officers, is limited to the immediate vicinity of the premises to be searched. None of the law enforcement interests identified in Summers applies with similar force to the detention of recent occupants beyond the immediate vicinity of the premises to be searched.


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United States v. Arnoldo Gonzalez-Garcia, United States Court of Appeals, 5th Circuit, Docket No. 11-41365

Defendant conditionally pleaded guilty to possession with intent to distribute a controlled substance. On appeal, defendant challenged the district court's partial denial of his motion to suppress. The district court found that defendant voluntarily consented to the search of the house containing marijuana. His consent was not automatically involuntary merely because his Miranda rights were violated. And even if government agents violated Edwards v. Arizona when they sought his consent, the Edwards violation would not suffice to justify suppression of the marijuana. Therefore, the court affirmed the judgment.


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United States v. Carlos Hernandez, United States Court of Appeals, 5th Circuit, No. 11-50669

Defendant pleaded guilty to conspiracy to distribute and possess with the intent to distribute cocaine and methamphetamine. After the district court denied defendant's motion for relief from judgment under Rule 60(b)(6) of the Federal Rules of Civil Procedure, defendant filed a notice of appeal and the district court denied him a certificate of appealability (COA). The court then granted a COA, in relevant part on the issue of whether defendant's Rule 60(b) motion presented a successive habeas petition within the meaning of Gonzalez v. Crosby. The court concluded that it did, and thus the district court was not permitted to consider the motion. Accordingly, the court dismissed the appeal.


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United States v. Keith M. Kennedy et al., United States Court of Appeals, 5th Circuit, Docket No. 11-60431

Defendants appealed their convictions stemming from charges related to their scheme to fraudulently obtain mortgage loans. The primary issue on appeal was whether the wire fraud convictions and money laundering convictions merged to result in convictions for two crimes on the same facts, when the facts should support convictions for wire fraud. The court held that the district court correctly found that the wire fraud and money laundering convictions did not merge. The wire fraud crimes were complete before the conduct forming the basis of the money laundering convictions began, and defendants used only profits from the underlying wire fraud to promote further wire fraud crimes. Finally, defendants have failed to identify any reversible error. Accordingly, the court affirmed the judgment of the district court.


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Bobby Smith v. Burl Cain, United States Court of Appeals, 5th Circuit, Docket No. 10-30665

Petitioner sought federal habeas relief raising Batson v. Kentucky claims. The court subsequently granted petitioner a Certificate of Appealability (COA) on the limited issue of comparative juror analysis required by Miller-El v. Dretke. After the COA was granted, the Supreme Court decided Cullen v. Pinholster, which called in question whether the district court could properly grant petitioner an evidentiary hearing on his Batson claim. The court held that Pinholster's restriction did not bar the federal evidentiary hearing conducted in this case because the district court first concluded, solely on the basis of the state court record, that the state courts committed legal error, as required under 28 U.S.C. 2254(d)(1), through the state courts' "unreasonable application of, clearly established Federal law." After reviewing the record, the court held that petitioner failed to carry his burden of proving that the prosecutor's race-neutral explanations for striking the two black panelists at issue were a pretext for purposeful discrimination and affirmed the judgment of the district court.


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United States v. Dean Moore et al., United States Court of Appeal, 5th Circuit, Docket No. 11-30877

Defendants Mathew Dean Moore and Melvin Williams, former New Orleans Police Officers (NOPD), appealed their convictions and sentences arising from an incident that resulted in the death of an individual. The court concluded that a jury could reasonably conclude from the evidence that the individual's death was proximately caused by and the foreseeable result of being kicked in the chest by Williams; the district court did not err by basing Williams' sentence on the base offense of voluntary manslaughter; the evidence was sufficient to sustain Moore's conviction for aiding and abetting the submission of a false incident report and by obstructing a federal investigation through the submission of a false NOPD incident report and aiding and abetting each other; the evidence was sufficient to sustain Moore's conviction for making false, material statements to the FBI; and the district court did not err in determining Moore's sentence. Accordingly, the court affirmed the convictions and sentences.


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United States v. Demmitt, United States Court of Appeals, 5th Circuit, Docket No. 11-11120

Defendant appealed her convictions of conspiracy to launder monetary instruments, wire fraud, and money laundering. Defendant's convictions stemmed from her involvement in an insurance annuity scheme with her son to defraud customers. The court held that defendant cited no authority in support of her contentions as to the impropriety of admitting a certain witness's testimony and therefore, waived this argument; the record showed that the Government presented significant evidence, albeit circumstantial, that demonstrated defendant was actually involved in her son's scheme or deliberately indifferent to it; given that this evidence was cumulative of the factual resume, the trial court's error in admitting it was harmless and did not warrant reversal; the deliberate ignorance instruction was proper; and no rational trier of fact could have found that the evidence established all of the essential elements of 18 U.S.C. 1956(a)(1)(B)(i) beyond a reasonable doubt and therefore, the court vacated defendant's money laundering conviction (Count 27).


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United States v. Garza, United States Court of Appeals, 5th Circuit, Docket No. 11-10543

Defendant pleaded guilty to possession with intent to distribute methamphetamine. Defendant subsequently violated the conditions of his supervised release and was sentenced to 24-months of imprisonment to be followed by 24-months of supervised released. Defendant appealed. The court held that 18 U.S.C. 3582(a) applied to a revocation sentence and the district court erred under Tapia v. United States by considering defendant's rehabilitative needs in imposing his prison sentence. Further, the error affected defendant's substantial rights. Therefore, the court vacated and remanded for resentencing.


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United States v. Alvarez, United States Court of Appeals, 5th Circuit, Docket No. 11-41371

Claimant appealed an order of criminal forfeiture. Claimant is the minor child of Omar Alvarez, who pleaded guilty to drug charges and in his plea agreement, agreed to forfeit his interest in certain property, which he admitted to using in furtherance of the conspiracy. Because the petition was untimely under 21 U.S.C. 853(n)(2), the court affirmed the dismissal of claimant's claim.


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