2012 & 2012 Cases Flashcards
Does “natural dissipation” of alcohol in blood constitute a per se exigent circumstance?
No. McNeely S.Ct.
Four Prongs of Plain Error Review:
1st Prong: An error occurred.
2d Prong: The error is plain.
3d Prong: The error affects substantial rights, which means D must show prejudice (a reasonable probability that D would have received a lower sentence had the error not occurred)
4th Prong: The error affects the fairness, integrity, or public reputation of judicial proceedings.
Two Types of Sentencing Error
Constitutional Error: D’s sentence was increased based upon facts that were not found by the jury or admitted by D.
Statutory Error: The sentence was imposed under a mandatory guideline scheme.
Does sharing marijuana for no remuneration constitute and aggravated felony under Immigration & Nationality Act?
No, Moncrieffe S.Ct.
Use “categorical approach” this is NOT everyday understanding of “trafficking” which usually means some kind of commercial dealing
Is sexual assault of a child considered a “Crime of Violence”?
Yes, Cabeccera Rodriguez 5th Cirt
It’s statutory rape, so yes.
Is D entitled to call fact witnesses in habeas proceeding for competency?
No, Green v. Thaler 5th Cir
D had expert witnesses and stipulated med. records
Can a court strike a “waiver of appeal” in a plea agreement?
No, Serrano-Lara 5th Cir
Court can only accept or reject
In child sex crimes does there have to be proximate cause for restitution?
No, Amy 5th Cir
Statute only requires “proximate result”
Can court reopen restitution matter after concluding it is too complex or too many victims to calculate?
No Murray 5th Cir.
If court later changes restitution amount, does waiver of appeal bar appealing that issue?
No, Murray 5th Cir.
“plain language of plea agreement must unambiguously apply to claim”
Does D have to know that child porn was interstate in nature?
No, Terrell 5th Cir.
If prisoner’s writ is dismissed for not exhausting appeals can he late file writ after exhausting appeals?
Yes, Strickland v. Thaler 5th Cir
Can a court impose a federal sentence to run with a discharged state sentence?
No, Kirklin 5th Cir.
BUT even though judge intended it to work, no harm, because only a few days left on sentence
Can a D be convicted of possession of a firearm and ammunition?
No, Meza 5th Cir.
It’s multiplicitous and violates Double Jeopardy Clause
Can Gov’t appeal a court’s failure to assess restitution for a victim of child sex crime?
No, Amy 5th Cir.
Only relief for victim is mandamus
Does there need to be evidence that driver passed “Left Lane for Passing Only” sign for traffic stop?
Yes, Abney TCA
Is North Carolina “Taking Liberties with Children” substantially similar to Texas “Indecency with a Child”?
No, Anderson TCA
Where must the “law of parties” be submitted in the jury charge to be considered to apply jury verdict?
It SHOULD be in the application paragraph, BUT being in the abstract portion of the charge is enough to trigger law of parties in hypothetically correct charge
SO, if D offers evidence of lesser included of robbery, BUT NOT lesser included of Agg. Robb. considering law of parties, he’s not entitled to lesser charge
Yzaguirre TCA
Does a guest in hotel room have standing to challenge search?
Depends, NOT if not registered, no possessions there, and not evidence of intent to stay overnight
Consider TOTALITY of CIRCUMSTANCES
Moore TCA
May law enforcement be present when Magistrate reads statutory warning to juvenile?
Yes, Herring TCA
Law enforcement may be present for reading of warnings BUT NOT present when JUV signs confession
Can a once found indigent defendant be ordered to later pay court appointed attorney fees?
No, Daniel TCA
Unless there is a new finding that he is not indigent.
Is “Possession of ID Info” and “Fail to ID” meant to be read in pari materia?
No, Jones TCA
Does “Outcry Statute” allow admission of child’s statements on video tape?
No, Bays TCA
- 072 Applies to statements admitted through OUTCRY witness
- 071 Applies to video of unavailable child
Does D have standing to challenge search of aunt’s backyard where he keeps and takes care of his dogs?
Yes, Betts TCA
D had expectation of privacy, he had permission to keep his dogs there, and he attended them daily.
Yard was fenced and 70 yards from the road
For determining “reasonable suspicions” can State rely on what is depicted in video tape if officer didn’t see it?
No, Duran TCA
Officer stopped for impermissible reason (fail to yield right of way while officer was speeding), but didn’t see D cross line and court found officer didn’t see line crossing.
Is Padilla retroactive for final convictions before the Padilla ruling?
No, De Los Reyes TCA
Also see, Chaidez S. Ct.
Can police keep searching vehicle once person shows up to scene to take vehicle after D’s arrest?
No, Cashion Tex. App.-Dallas
BUT SEE McKinnon 5th Cir.
Police policy said nothing about having valid insurance when picking up vehicle, and police said that’s why they continued to search…
STANDING may be an issue… These inventories must be conducted in good faith pursuant to reasonable standardized police procedures. See Garza. However, the Fourth Amendment protection against seizures cannot be whittled away by standard police procedures. See Benavides .
What is the purpose of an inventory search?
standardized regulations and procedures
(1) protecting the property of the vehicle’s owner,
(2) protecting the police against claims or disputes over lost or stolen property, and
(3) protecting the police from danger.
Is an officer’s subjective intend behind conducting an inventory search a reason for suppression?
No. U.S. v. McKinnon 5th Cir. 2012
No suggestion that officer did not follow police policy for inventory search;
Officer admitted he wanted to search the vehicle for evidence of a crime.
Subjective motivations are irrelevant, so long as there is an objective justification for the search
Is a search warrant authorizing search of all “electronic devices” and “electronic memory devices” sufficiently particular?
Yes. U.S. v. Triplett 5th Cir.
- Law allows Warrant to be viewed alongside the Affidavit if incorporated by reference - which “amplified” particularity by stating goal;
- Further, Warrant was not SO lacking in indicia of probable cause to render belief in it unreasonable, thus officers protected by “good faith” doctrine
.Stop by officer 50 miles from border, what will be sufficient for reasonable suspicion of alien smuggling?
- Reputation of I-10;
- Direction and time vehicle traveling;
- Agents experience;
- “Paisanos” van
- Van registered to a woman rather than company (had company logo)
- Passengers fit profile
U.S. v. Rico-Soto 5th 2012
5th Cir: Is a persons presence in a vehicle (with another person) that contains drugs enough to provide probable cause to arrest that person?
Yes. Rodriguez v. U.S. 5th Cir.
5th Cir: Can an officer search a cell phone incident to arrest?
Yes. U.S. v. Finley 5th Cir. 2007
It amounts to a “Container” that would be searchable. Relies on “pager” cases that allowed searching because of pushing out numbers.
Split of circuits: some say no, it’s like a “sealed letter” thus not searchable
Where is the “trap” for reviewing for “plain error” while case is on appeal?
Davis S.Ct. 2011
Allows OFFICERS to rely on precedent at time of their actions, so even if 4th Amendment error becomes plain on appeal, officers “good faith” reliance probably fixes it
When did GPS tracking become a “search” in the 5th Cir.?
Jan. 23, 2012 - because United States v. Jones, 132 S. Ct. 945 (2012) decided it was a search, but before that Officers could reasonably rely on binding president, so their tracking would be excused under Jones - Under Davis S. Ct. 2011
Where is the “trap” for reviewing for “plain error” while case is on appeal?
Davis S.Ct. 2011
Allows OFFICERS to rely on precedent at time of their actions, so even if 4th Amendment error becomes plain on appeal, officers “good faith” reliance probably fixes it
5th Cir: Does consent in response to questions asked in violation of Miranda require suppression of the search consented to?
NO. Gonzalez-Garcia 5th Cir. 2013
Violation of prophylactic Miranda rule does not require suppression of non-testimonial evidence, in this case the marijuana found after consent was given.
Under Federal law, when does a mistrial based on Gov’t’s misconduct require a Double Jeopardy bar?
Oregon v. Kennedy S.Ct. 1986
Dugue 5th Cir. 2012
When the prosecutor INTENDED to goad D into moving for a mistrial.
Even when Gov’t conduct is “overreaching and unprofessional” the Dist. Crt. found Gov’t’s conduct not intended to create mistrial
Can D be convicted of possession of firearm and ammunition on the same occasion?
NO. Meza 5th Cir. 2012
Sua Sponte - plain error
Fed: Can you be convicted of “possession” and “distribution” of child pornography?
Woerner 5th Cir.
YES
Where D was charged with 6 counts of alien harboring: 2 for each sister (1 for harboring in house, 1 for harboring in bar) - was it plain error for multiplicity?
Garcia-Gonzalez 5th 2013
NO. 1. Not plain because no precedent interpreting statute;
NO. 2. Did not show “seriously affects the fairness, integrity, or public reputation”
What must the Gov’t prove for multiple counts of possession of child pornography?
Multiple possession counts:
Unit of prosecution is “material” defined as “medium”
(1) “has images stored in separate materials,” and (2) “the prohibited images were obtained through the result of different transactions.”
>NOT DAYS
5th Cir: What are the units of prosecution for child porn?
Materials (medium i.e. pictures, video, paper, electronic)
5th Cir
5th Cir: What can jurors use to “infer” multiple transactions?
Large number of images
Woerner 5th Cir.
5th Cir: Is possession of child porn a lesser of distribution of child porn?
No, 18 U.S.C.A. § 2252A
You can distribute without possessing: i.e. brokers
Distinguishes from possession of controlled substance
What are the two types of “multiplicity”?
- Charging for greater and lesser offense - Blockburger Double Jeopardy - does one require proof of element that other doesn’t
- Charing multiple times for same conduct
Planck Test - 1. unit of prosecution; 2. number of criminal acts
5th CIr: What must happen to terminate “War Time Suspension” of statute of limitation?
Pfluger 5th Cir. 2012
Congress or President must make “official declaration”
NOT “Functional Approach” meaning use of force ceases
5th Cir: What triggers “Wartime Suspension” of statute of limitations?
18 USC 3287 “Wartime Suspension of Limitations Act”
Trigger is “Authorization for Use of Military Force”
