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United States v. Weston, __ M.J. ___, No. 08-0594/MC (C.A.A.F. June 11, 2009).

This is another of those competing consent/no consent cases.

As is typical, the accused is held at NCIS and denies a consent to search his home.  The enterprising agents rush of to the next room and get wifey to consent.  As usual they don’t tell wifey that the accused has not consented to a search, they’ve kept him incommunicado from wifey, and taken his cell phone away as he was trying to call a lawyer.  This same lawyer later talked to wifey who – too late – withdrew her consent.  CAAFLog has this comment on the potential next step in the case.

In another of a series of cases the Air Force Court of Criminal Appeals has decided a personal jurisdiction issue adverse to the accused.

United States v. Blanton, ACM S31536 (A.F. Ct. Crim. App. 9 June 2009).

Basically the issue relates to the “accounting of pay” part of whether an accused is properly discharged.  The accused was under investigation but no preferred charges existed.  The accused receives his DD214, but no final accounting of pay.  An additional aspect was a finding that the accused had been placed on legal hold pending an investigation.

Professor Tillers has this interesting post on his blog.

In Brown v. Perlman, 2008 U.S. Dist. LEXIS 37546 at n. 41 (May 8, 2008), Judge Magistrate Peck said:

     A prosecutor’s failure to conduct forensic tests does not violate a federal constitutional right. See, e.g., Arizona v. Youngblood, 488 U.S. 51, 58-59 (1988).

Joe Ryan, A swaggering defense attorney who authorities say turned his back on the law, The Star-Ledger (NJ.com), 31 May 2009.

Last August, authorities say, Paul Bergrin traveled from Newark to Chicago hoping to meet a hit man.

Bergrin, who investigators describe as a go-to lawyer for Newark street gangs, was working on the case of an alleged Monmouth County cocaine kingpin. Authorities say the attorney wanted someone in Chicago to silence a potential witness.  That would-be triggerman, however, wound up working on a different case. He was an informant for the federal Drug Enforcement Administration. And his case was against Bergrin.

USPO’s delivery guarantee creates no constitutional possessory interest in a package in transit:  The post office delivery guarantee does not create a constitutional possessory interest such that US Postal Inspectors could delay a package in Juneau, Alaska for a dog sniff and a search warrant to open it before delivery. United States v. Jefferson, 2009 U.S. App. LEXIS 11169 (9th Cir. May 26, 2009).

Overbroad search warrant was general warrant exposing officer to civil liability:  A search warrant for any evidence of crime was unconstitutionally overbroad and not limited by the affidavit. Severance was not possible. Cassady v. Goering, 07-1092 (10th Cir. May 28, 2009).  This case has value on what might lead to a successful challenge for overbreadth in a search warrant.

Extreme nervousness, lying about activities, and shaking hands was reasonable suspicion. Thayer v. State, 2009 Ind. App. LEXIS 841 (April 24, 2009).  I posted on the issue of general nervousness about being confronted by the police other day.  The facts of Thayer are consistent.  In Thayer there were other statements and objective indicators to suggest to the police that the accused was more than just a nervous innocent citizen.

Courtesy of FourthAmendment blog.

Splitting 5-4, the Supreme Court on Tuesday overruled its 23-year-old ruling in Michigan v. Jackson on the rights of a criminal suspect in police custody who has asked for a lawyer.  The Court did so in Montejo v. Louisiana (07-1529), in an opinion written by Justice Antonin Scalia.  After Scalia announced the decision, Justice John Paul Stevens spoke orally for the dissenters — a somewhat unusual gesture.  Stevens was the author of the 1986 decision that was cast aside; he was the only member of the Court then who is still sitting.

The Court had signaled in late March that it was considering overruling the Jackson decision, a decision designed to assure that the right to a lawyer is not lost during police questioning of a suspect they are holding, resulting in a confession to the crime.  The Court ruled there that, once a suspect has claimed the right to a lawyer, any later waiver of that right during questioning would be invalid, unless the suspect initiated communcation with the officers.  Among others calling for it to be overruled was U.S. Solicitor General Elena Kagan, who argued it was no longer necessary to protect the rights of those in police custody.

Courtesy of SCOTUSBlog.

This case shows one of the downsides of constantly having a cellphone at your side, pocket, or hip.

A man is arrested. Pursuant to the Supreme Court’s opinion in United States v. Robinson, 414 U.S. 218 (1973), "[a] full search of the person, his effects, and the area within his immediate reach at the time of a lawful custodial arrest may be conducted without regard to any exigency or the seriousness of the offense, and regardless of any probability that the search will yield a weapon or evidence of the crime for which the person is arrested." As part of a valid search incident to a lawful arrest, however, can an arresting officer search the contents of the arrestee’s cell phone, and if so, how thorough can that search be? Those were the questions posed to the United States District Court for the District of Massachusetts in United States v. Wurie, 2009 WL 1176946 (D.Mass. 2009).

Colin Miller, Can You Search Me Now? 23 May 2009.

I’ve noted before that people get nervous when stopped and questioned by the police.  Being nervous is not by itself a sign that the person is lying or a criminal or doing something wrong.  Although of course NCIS/OSI/CID will often say it is so. 

As the writer notes here,

The very presence of a police officer is, in most cases, enough to unnerve the general public. Think about how you respond when a police car appears in your rearview mirror.

The National District Attorney Association has a pending Third Edition to the National Prosecution Standards pending.  You need a key to read it, gosh forbid the public might be allowed to know the standards, and perhaps comment on them.

Recruiters and fake high school graduation and home schooling certificates, and now this:

The U.S. Army is investigating soldiers who bought degrees from an illegal diploma mill that was based in Spokane and resulted in prison time for its operators.

The Army’s Human Resources Command is using a list of customers of the diploma mill operated by Dixie and Steve Randock obtained and posted online last summer by The Spokesman-Review.