New Supreme Court Decision

This past June the Supreme Court of the United States handed down a 7-2 decision in Davis v. United States that faded the “exclusionary rule.”  Davis, the petitioner, was a passenger in a vehicle when it was pulled over.  Davis was first arrested for providing the police with a false name, and then found to have violated a federal statute because the police found a gun in his coat pocket.  Davis was a convicted felon. 

Prior to the Eleventh Circuit’s decision of Davis’s appeal, the Court found in Arizona v. Gant that searches like Davis’s were illegal. The court found that while the search did violate Davis’s constitutional rights, it could not however be excluded evidence and could be used at trial.  The Court reasoned that the exclusionary rule is meant to deter officers from illegal activity, and because the police, at the time, were making a good-faith effort to conduct the search within the current law they could not have know they were violating his rights.  Suppression, the court found, would not serve as deterrence.

Protect Your 4th Amendment Rights

On July 23, 2007 Joshua Burchett, then 17, was driving without taillights when officer Billings attempted to pull Burchett over.  Mascorro v. Billings, 2011 WL 3836439, No. 10-7055, at *1 (10th Cir. Aug. 31, 2011).  Burchett resisted arrest when he drove two more blocks, ran into his parents’ home, and hid in the bathroom.  Id.  According to Burchett’s parents, Officer Billings pounded on their door demanding to come inside, pointed a gun at Jose Mascorro (Burchett’s step-father) when he opened the door, and sprayed the parents and 14 year-old son with mace as the officer broke into the home.  Id.  The Mascorro’s home was torn apart by Billings and fellow officers.  Id. at *2. 

On appeal, the 10th circuit refused to hear the officers plea for qualified immunity because their story of that night’s events were much different than the Mascorros’.  Id.  Furthermore, the court held that the Mascorros were protected under the Fourth Amendment against the forceful entry into their home by the officers.  Id.  at* 5.  The court reasoned that the officers were not entitled qualified immunity because the circumstances involving the arrest did not amount to exigent circumstances.  Id.  “[T]he pursuit of a misdemeanant” unlike the “hot pursuit of a felon” is not sufficient for forceful entry into a person’s home.  Id.  at *6.

If you believe, that like the Mascorro’s, your Fourth Amendment rights have been violated during an arrest, contact Lindsey and Dionne at www.ericksonscherff.com for counsel and an assessment of your claims. 

Jury Instruction Objection

Jury Instruction Objection

In August, the Kansas Supreme Court determined, in State v. Duong, 257 P.3d 309, that the district court did not make a clearly erroneous error when it failed to give the eyewitness cautionary instruction in an aggravated indecent liberties with a child case.  However, the defendant argued that the case turned on the fact that the child could not correctly identify the defendant.    

The eyewitness cautionary instruction identifies that it is the State’s burden to identify the defendant, and that the “law does not require the defendant to prove (he)(she) has been wrongfully identified.”  In the Duong case, because he did not request the instruction, the court could not reverse unless the judge’s failure to give the instruction was clearly erroneous.  Id. at 318.  Because the Supreme Court found that it would not have been “a real possibility” that the jury would have acquitted Duong, the failure to give the instruction was not a clearly erroneous mistake. 

If you believe that giving the eyewitness cautionary instruction could have changed your case, see Lindsey and Dionne at www.ericksonscherff.com for assistance.