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.

Jason Holder-Senior Attorney, National Legal Research Group

            On what the court in United States v. Bosyk, 933 F.3d 319 (4th Cir. 2019), described as a "secretive online message board," id. at 322, a link appeared with a message explaining that the link would lead to multiple videos of child pornography.  On the same day that this link appeared, an IP address associated with Bosyk's house accessed the link to view the advertised materials.  Id.  Armed with these facts, and a brief description regarding the characteristics of individuals who possess and access child pornography, investigators were able to obtain a search warrant for Bosyk's residence authorizing the seizure of "computers, digital devices, storage media, and related evidence."  Id. at 323.

Mark Rieber—Senior Attorney, National Legal Research Group

            In Commonwealth v. Hicks, No. 56 MAP 2017, 2019 WL 2305953 (Pa. May 31, 2019), the Pennsylvania Supreme Court overruled precedent from the Pennsylvania Superior Court in Commonwealth v. Robinson, 410 Pa. Super. 614, 600 A.2d 957 (1991), and held that the mere possession of a concealed firearm does not provide reasonable suspicion of criminal activity to justify a stop pursuant to Terry v. Ohio, 392 U.S. 1 (1968).  The court explained that the prior holding in Robinson, upholding such stops (the Robinson rule) improperly dispensed with the requirement of individualized suspicion and, in doing so, misapplied the overarching totality of the circumstances test.

Mark Rieber—Senior Attorney, National Legal Research Group

            In an unusual case, and one apparently of first impression, the Virginia Court of Appeals has very recently upheld the constitutionality of the state's statute prohibiting bestiality.  Va. Code Ann. § 18.2-361(A); Warren v. Commonwealth, No. 2086-17-3, 2019 WL 189386 (Va. Ct. App. Jan. 15, 2019).  The defendant in Warren was convicted of soliciting another person to "carnally know a brute animal or to submit to carnal knowledge with a brute animal" in violation of Va. Code Ann. §§ 18.2-361(A) and 18.2-29 (criminal solicitation).  The evidence against the defendant included videos of the prohibited activities.  The defendant argued that the bestiality statute was unconstitutional under Lawrence v. Texas, 539 U.S. 558 (2003), because the activities at issue amounted to nothing more than private sexual conduct of consenting adults.

Mark Rieber, Senior Attorney, National Legal Research Group

        Cell-site location information ("CSLI") is location information generated by cellular phone providers that indicates which cell tower a particular phone was communicating with when a communication was made. United States v. Curtis, No. 17-1833, 2018 WL 4042631, at *1 (7th Cir. Aug. 24, 2018). It is capable of pinpointing a phone's location within 50 meters. Id. Because cell phones are in constant communication with the nearest cell site—often affixed to a cell tower—they can collect CSLI as frequently as several times a minute. Id.

            In June 2018, in Carpenter v. United States, 138 S. Ct. 2206 (2018), the Supreme Court extended Fourth Amendment protection to CSLI and held that the government conducts a "search" when it accesses historical cell phone records that provide a comprehensive chronicle of the user's past movements. The Court concluded that the government must generally obtain a warrant supported by probable cause before acquiring such records and rejected application of the "third-party doctrine," even though the records at issue were held by a wireless carrier.

John Stone—Senior Attorney, National Legal Research Group

            The Gun Control Act of 1968 bars firearm possession by certain groups of individuals, including convicted felons and those “adjudicated as a mental defective or who ha[ve] been committed to a mental institution.” 18 U.S.C. § 922(g)(1), (4). In 1996, Congress added a domestic violence misdemeanant restriction.  Id. § 922(g)(9). Recognizing  that  “[e]xisting felon-in-possession  laws . . . were not keeping firearms out of the hands of domestic abusers, because many people who engage in serious spousal or child abuse ultimately are not charged with or convicted of felonies,” Congress extended the federal firearm prohibition to persons convicted of misdemeanor crimes of domestic violence to “close this dangerous loophole.” United States v. Hayes, 555 U.S. 415, 426 (2009) (internal quotation marks, citation, and bracket omitted).

Jason Holder, Senior Attorney, National Legal Research Group

            Early in the morning on March 16, 2008, the D.C. Police received a complaint of loud music coming from a house in Northeast D.C. District of Columbia v. Wesby, 138 S. Ct. 577, 583 (2018). When officers responded to the house, they found it in a state of disarray with beer bottles and cups of liquor all over. Id. The floor was so dirty, the officers noted, "that one of the partygoers refused to sit on it while being questioned." Id. Although it had working electricity and plumbing, the house contained no furniture aside from a few folding chairs. A further inspection of the house found the living room transformed into "a makeshift strip club," and "more debauchery upstairs." Id.