New opinions — 3 criminal appeals, including two government losses and a major 4th Amendment case

I posted separately about today’s 2 civil opinions here. Below are the 3 criminal opinions.

First up is a big Fourth Amendment win for criminal defendants. From the introduction:

In nearly all circumstances, we require police officers
to obtain a warrant  supported by probable cause  before
engaging in a search or seizure of a person, their house, their
papers, or their effects. One of the few exceptions to this rule
allows police to conduct a  warrantless search or seizure when
exigent circumstances require them to act with such alacrity
that  requiring  them to first obtain a warrant would be
unreasonable. The question at the heart of this case requires
us to determine  whether  an exigency has abated such that
officers are no longer excused from the warrant requirement.

And from the conclusion:

We do not mean to underplay the dangers that
police officers may face when pursuing a suspect into an
unfamiliar building. Nonetheless, once the  officers  had
secured the premises and apprehended  Mallory, the
exigencies of the moment abated and the warrant requirement
reattached. We therefore affirm the order of the District
Court granting Mallory’s motion to suppress.

My crystal ball tells me a petition for rehearing is a near-certainty. Stay tuned.

The case is US v. Mallory. Opinion by Fisher, joined by Fuentes and Stark D.Del. by designation. Arguing counsel were Brett Sweitzer for Mallory and Robert Zauzmer for the government.

The second case also is a defendant win, and it also was argued by Zauzmer (AUSA in charge of appeals in EDPA) — first time I’ve seen that. Anyway, the defendant here put computer images of child porn in a shared folder on a file-sharing network. The prosecution was unable to show that anyone ever accessed them, but the defendant was convicted of distributing child porn.  Today CA3 reversed, holding: “A conviction for distributing child pornography cannot be sustained without evidence that another person actually downloaded or obtained the images stored in the shared folder.”

The case was US v. Husmann. Opinion by Fuentes, joined by Greenberg and Van Antwerpen EDIT: Van Antwerpen dissented. Arguing counsel were Theodore Forrence for the defendant and Zauzmer for the government.

The last case arises from the Hobbs-Act official-extortion convictions of Newark’s Deputy Mayor and his business associate. The defendants raised a host of issues on appeal, but CA3 affirmed.

The case is US v. Salahuddin. Opinion by Fisher, joined by Cowen and Tashima CA9 by designation. Arguing counsel were Thomas Ashley and Alan Zegas for the defendants and David Feder for the government.


2 thoughts on “New opinions — 3 criminal appeals, including two government losses and a major 4th Amendment case

  1. John

    Van Antwerpen dissented. Also, there was an opinion last night (one of rare opinions uploaded at the 6:30 posting). Was a major government loss.

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