Suzanne Bailey, Senior Attorney

   American society holds those who prey upon children sexually in particular disrepute. Nowhere is this better illustrated than in the enhanced criminal penalties imposed upon those convicted of child sexual abuse, including required registration on state sex offender lists and more restrictive terms of probation. As recent decisions from two state supreme courts demonstrate, this heightened oversight of child sex offenders by state legislatures can often result in sentencing errors.

   In People v. Smith, SC: 168200 & (69), 2026 Mich. LEXIS 1700, 2026 LX 487945, 2026 WL 2658449 (Sept. 9, 2026), the Supreme Court of Michigan considered the propriety of requiring the defendant, who was convicted of first degree criminal sexual conduct ("CSC-I"), i.e., rape, of his 15-year-old stepdaughter in 1995 and second degree criminal sexual conduct ("CSC-II"), i.e., sexual contact, with his 13-year-old biological daughter in 2010, to register under the Sex Offenders Registration Act ("SORA"), as amended and made effective in 2021 ("the 2021 SORA"). He pleaded no contest to both charges in 2010 and was sentenced to between 15 and 30 years in prison for the CSC-I conviction and to between three and 15 years in prison for the CSC-II conviction. For a statement of facts, see the underlying Michigan Court of Appeals decision, People v. Smith, No. 366923, 2025 Mich. App. LEXIS 504, 2025 LX 241244, 2025 WL 272497 (Jan. 22, 2025).

Cassidy Crockett-Verba—Senior Attorney

     Geofence warrants, which allow law enforcement to acquire an individual’s cell phone location data from Google, have been subject to repeated challenges under the Fourth Amendment’s prohibition against unlawful search and seizure. The U.S. Supreme Court recently addressed the issue, holding in Chatrie v. United States, 609 U.S. ___, 146 S. Ct. 2193 (2026), that geofence warrants are considered searches under the Fourth Amendment, and that law enforcement must obtain a warrant before using them.

CRIMINAL LAW:  Supreme Court Limits What Is Extraordinary and Compelling for Compassionate Release

Robert Westendorf—Senior Attorney

     In two separate opinions recently handed down, the Supreme Court took a narrow view on what constitutes “extraordinary and compelling” reasons that justify early release. In Fernandez v. United States, No. 24-556, 2026 U.S. LEXIS 2295, 146 S. Ct. 1292 (May 28, 2026), the defendant was convicted of murder for hire and sentenced to two life sentences. Id. at *8. Eventually, after his habeas challenge failed, the defendant filed a motion for compassionate release under 18 U.S.C. § 3582, which allows district courts to shorten prison sentences for extraordinary and compelling reasons. Id. at *7-11. He argued that he was actually innocent, which warranted a sentence reduction. Id. at *11. The district court agreed and granted the motion, but the Second Circuit reversed. Id. at *11-12. The Supreme Court granted certiorari and in an opinion by Justice Barrett that was joined by the other conservative justices, affirmed. Id. at *12-26. The Court noted that collateral attacks on conviction are governed by the habeas statute of 28 U.S.C. § 2255, which imposes “tight procedural constraints.” Id. at *13. The defendant’s motion under Section 3582 is “a collateral attack outside the rigorous habeas framework. . . . Challenging the validity of a conviction through a compassionate release motion circumvents the exacting requirements of §2255.” Id. at *15.

CRIMINAL LAW:  Marijuana Weed Crumbs on Floor Do Not Violate California’s “Open Container” Law, or Support Probable Cause

Trish Sifka—Senior Attorney 

     When California voters approved 2016 Proposition 64 legalizing the possession and transportation of recreational marijuana under 28.5 grams by individuals 21 years or older, the voters preserved certain limitations. The legislation was subject to Health and Safety Code §§ 11362.2, 11362.3, 11362.4 and 11362.45. Health and Safety Code § 11362.3(a)(4) makes it unlawful to “[p]ossess an open container or open package of cannabis or cannabis products while driving, operating, or riding in the passenger seat or compartment of a motor vehicle.” Voters included cannabis in this law to curtail marijuana-impaired driving. Cal. Health & Safety Code § 1136.3(a)(4).

CRIMINAL LAW:  The Extent of Judicial Power in Sentencing Pursuant to a Federal Plea Agreement 

Suzanne Bailey—Senior Attorney

       A recent decision from the U.S. Court of Appeals for the Fourth Circuit, United States v. Toebbe, 85 F.4th 190 (4th Cir. 2023), illustrates both the binding nature of plea agreements entered into pursuant to Rule 11 of the Federal Rules of Criminal Procedure and the ultimate authority of the judge in sentencing. Diana Toebbe, a high school humanities teacher with a Ph.D., and her husband, Jonathan Toebbe, a nuclear engineer assigned to the Reactor Engineering Division of the Naval Nuclear Propulsion program and possessing both an active Top Secret security clearance through the Department of Defense and an active “Q clearance” through the Department of Energy, decided to supplement their income by selling Restricted Data of the U.S. Navy relating to Virginia-class-nuclear-powered submarines to a foreign government. Unfortunately for the Toebbes, the foreign government alerted the FBI to the couple’s proposed scheme, and all of the “dead drops” of information Jonathan thought he was making to the foreign government—with Diana acting as look-out—were actually left for an FBI undercover investigation team. Both Toebbes were indicted and charged with “one count of conspiracy to communicate Restricted Data, in violation of 42 U.S.C. § 2274(a), and two counts of aiding and abetting the communication of Restricted Data, in violation of § 2274(a) and 18 U.S.C. § 2," 2023 U.S. App. LEXIS 28366, at *7-8, and both faced a potential sentence of life in prison.

Jason Holder, Senior Attorney, National Legal Research Group, Inc.

        Accused of sexually assaulting a patient while working as a certified nursing assistant, Terence Tekoh was interrogated “at length” by a Los Angeles County Sheriff’s Department Deputy. Vega v. Tekoh, 142 S. Ct. 2095, 2099, 213 L. Ed. 2d 479, 485 (2022). While the Deputy ultimately secured a written statement from Tekoh apologizing for inappropriate touching of a patient, the Deputy had failed to inform Tekoh of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Vega, 142 S. Ct. at 2099-2100. Following a mistrial, Tekoh was acquitted at the conclusion of his second trial. Id. at 2100. In both criminal trials, judges refused to suppress the un-Mirandized statement. Id.

Jason Holder—Senior Attorney, National Legal Research Group

          Arthur Lange (“Lange”) drove past a highway patrol officer with his windows down, music blaring, and repeatedly honking on his horn; in short, Lange “was asking for attention.” Lange v. California, 141 S. Ct. 2011, 2016 (2021). The officer followed Lange a short distance before turning on his overhead light and attempting to pull Lange over. Id. Lange was seconds away from his home, however, and chose to continue to his driveway and pull into his garage. Id. The officer continued his pursuit and confronted Lange with the subsequent investigation revealing, perhaps unsurprisingly, that Lange was under the influence of alcohol. See id. (blood test revealed Lange was more than three times the legal limit).

          Upon being charged with driving under the influence as well as a noise infraction, Lange moved to suppress all the evidence obtained by the officer’s warrantless entry into the garage. Id. In response, the prosecution argued that “the pursuit of a suspected misdemeanant always qualifies as an exigent circumstance authorizing a warrantless home entry.” Id. (emphasis added). The state courts accepted this argument and the U.S. Supreme Court granted review to resolve the conflict between the various state/federal courts regarding a categorical rule of exigency when in pursuit of a fleeing suspect. Id. at 2017.

Mark Rieber—Senior Attorney, National Legal Research Group

            In Doe v. Wasden, No. 1:20-CV-00452-BLW, 2021 WL 4129144 (D. Idaho Sept. 8, 2021), appeal filed (9th Cir. Oct. 1, 2021), the court granted the two offenders' (John Doe and Randall Menges) motion for preliminary injunction challenging the requirement of their registration for the Idaho Sex Offender Registry because of Doe's conviction under a Crime Against Nature statute and Menges's conviction under Idaho's Crime Against Nature statute for engaging in consensual oral or anal sex. The court held that both offenders were likely to prevail on their claims that Idaho was violating their constitutional rights, which included a substantive due process claim, a procedural due process claim, and an equal protection claim. The court found that Idaho could have no legitimate interest in requiring offenders to register as sex offenders for engaging in private, consensual sexual acts and that the offenders had a protected liberty interest in both engaging in private consensual sexual activity and being free from the burdens of sex offender registration.

Mark Rieber—Senior Attorney, National Legal Research Group

            In Andrus v. Texas, 140 S. Ct. 1875 (2020), the Supreme Court vacated the opinion of the Texas Court of Criminal Appeals denying habeas relief to the petitioner challenging his death sentence and claiming that his counsel was ineffective in failing to investigate and present mitigating evidence at the penalty phase of trial. At the guilty phase of defendant's capital murder trial, defense counsel essentially conceded guilt and indicated he would "be fighting" at the punishment phase. Counsel, however, presented limited evidence at sentencing and failed to investigate and overlooked "vast tranches of mitigating evidence." Id. at 1881. Counsel also failed to investigate the State's aggravating evidence. At the habeas hearing, counsel offered no tactical rationale for such failure, which was "all the more alarming given that counsel's purported strategy was to concede guilt and focus on mitigation." Id. at 1883. The Court easily found that counsel was ineffective at the penalty phase, despite the Texas state court's summary dismissal of such claim.

Mark Rieber—Senior Attorney, National Legal Research Group

            In Kahler v. Kansas, 140 S. Ct. 1021 (2020), the U.S. Supreme Court recently held that the Due Process Clause of the U.S. Constitution does not require a state to adopt a particular formulation of the insanity defense. The ruling came in a case out of Kansas where the state had adopted the "cognitive incapacity" test, which examines whether a defendant was able to understand what he was doing when he committed the crime. The Kansas statute does not incorporate the "moral incapacity" test, which is the inquiry into whether a defendant could not distinguish right from wrong when committing the crime.