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.

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.

The Lawletter Vol 40 No 12

Mark Rieber, Senior Attorney, National Legal Research Group

     Two recent opinions in Arizona have come to different conclusions about the significance of the smell of marijuana in the determination of probable cause in light of the passage of the Arizona Medical Marijuana Act ("AMMA"), albeit in very different factual situations. In State v. Sisco, 359 P.3d 1 (Ariz. Ct. App. 2015) the court held that with the passage of the AMMA, the mere scent of marijuana coming from a warehouse, standing alone, was insufficient to provide probable cause for the issuance of a search warrant to search the warehouse. The court observed that its holding accorded "with well-reasoned jurisprudence from several other jurisdictions." Id. at 8, ¶ 29 (citing cases).

     In State v. Cheatham, 353 P.3d 382 (Ariz. Ct. App. 2015), however, the court distinguished Sisco and held that the odor of burnt marijuana from inside a vehicle lawfully stopped by police provided probable cause to search the vehicle. The court explained that the AMMA does not decriminalize marijuana possession or use, but, instead, where applicable, it provides immunity for possession or use consistent with the immunity provision of the AMMA. Thus, the possession or use of marijuana remains a crime under Arizona law, albeit a crime subject to immunity if undertaken consistently with the AMMA. It is a defendant's burden to plead and prove immunity under the AMMA. "The fact that a registered patient under the AMMA with a valid registry identification card can affirmatively claim immunity for arrest, prosecution or penalty for possession or use of marijuana . . . does not eliminate the significance of the smell of marijuana as an indicator of criminal activity in this case." Id. at 386. Thus, the court concluded that the AMMA does not mean that the plain smell of marijuana is no longer sufficient to establish probable cause under Arizona laws.

The Lawletter Vol 40 No 8

Mark Rieber—Senior Attorney, National Legal Research Group

     The Fourth Circuit recently held that the Government's warrantless procurement of historical cell site location information ("CSLI"), for an extended period of time, recorded by the defendant's cell phone service provider, was an unreasonable search in violation of the defendant's Fourth Amendment rights, even though the CSLI records were kept by cell phone companies in the ordinary course of business. United States v. Graham, Nos. 12-4659 & 12-4825, 2015 WL 4637931 (4th Cir. Aug. 5, 2015). The court stated that the examination of a person's historical CSLI can enable the Government to trace the movements of the cell phone and its user across public and private spaces and thereby discover the private activities and personal habits of the user. Id. at *8.

The Lawletter Vol 40 No 4

Mark Rieber, Senior Attorney, National Legal Research Group

      In Commonwealth v. Canning, 28 N.E.3d 1156 (Mass. 2015), the court held as a matter of first impression that with the Commonwealth's new medical marijuana law ("the Act") in effect, if the police seek a warrant to search a property where they suspect an individual is cultivating or possesses marijuana, then they must first offer information sufficient to provide probable cause to believe that the individual is not properly registered under the Act to possess or cultivate the suspected substance. The court rejected the Commonwealth's argument that any cultivation of marijuana remained illegal even under the Act. That argument further asserted that to the extent that the Act permits a limited class of properly licensed or registered persons to grow marijuana, the existence of a license or registration is an affirmative defense for a defendant charged with unlawful cultivation to raise at trial—the Commonwealth is not obligated to disprove such a status in, or to conduct a search at the outset of, the investigation.

The Lawletter Vol 39 No 12

Mark Rieber, Senior Attorney, National Legal Research Group

      Typically, the courts find that the retroactive application of sex offender registration statutes does not violate the Ex Post Facto Clause, because such statutes are found to be nonpunitive. See, e.g., Smith v. Doe, 538 U.S. 84 (2003). Recently, however, the Supreme Judicial Court of Maine held that particular amended provisions of the Maine Sex Offender Registration and Notification Act ("SORNA"), as applied to Doe, the registrant in the case before it, Doe v. Anderson, 2015 ME 3, 2015 WL 149030 (not yet released for publication), were punitive and that their retroactive application to Doe violated the bill of attainder clause in the state constitution. The amended statutory provisions at issue in Doe were a retroactively added list of offenses to which SORNA applied, including the offense for which the registrant had been convicted, and an amendment that changed the triggering event for a duty to register: That duty no longer required a court determination but only a simple notification from the court or one of the named agencies.