4th U.S. Circuit Court of Appeals
The affidavit supporting a warrant to search the appellant’s cell phone was insufficient to support probable cause, but the detective knew the appellant had used a phone in furtherance of sexually abusing minors. This additional information supported probable cause to search his phone after arrest. Therefore, sexually explicit images and videos of children found on the phone were admissible under the good-faith exception to the Fourth Amendment.
The omission of this information from the affidavit is “inadvertent” even if the detective intentionally didn’t disclose it, pursuant to the police department’s policy to limit warrant affidavits to the minimum facts necessary to support probable cause. The detective’s intent was to obtain a valid warrant by presenting supporting facts, so his failure to adequately support the warrant was inadvertent.
After challenging his initial sentence under Johnson v. United States, 135 S. Ct. 2551 (2015), the appellant was re-sentenced to imprisonment for time served, followed by two years of supervised release to expire in April 2019.
The appellant’s challenge to his new sentence is to moot. The custodial and supervised release portions of his sentence should be treated as unitary, not separate. Thus, he can challenge his sentence even after incarceration has ceased, because he continues to serve a term of supervised release. Although the underlying prison sentence has been served, a case is not moot when an associated term of supervised release is ongoing, because on remand a district court could grant relief to the prevailing party in the form of a shorter period of supervised release.
Nevertheless, any re-sentencing error was harmless because it did not in fact affect his substantial rights. Although the district court did not explain its variance from the Guidelines range, it expressly recognized that Ketter had “over-served his time” and significantly reduced his supervised-release term for that reason.
U.S. District Court – Virginia Western
The defendant’s indictment for illegally reentering the United States in violation of 8 U.S.C. § 1326 will be dismissed, on grounds that the notice to appear issued to him following his apprehension by Border Patrol failed to specify the time and date of the removal proceedings against him.
No evidence establishes that the defendant ever received actual notice of the time and date of any hearing in the deportation proceedings. The immigration court issued a deportation order with the defendant in abstentia, and he can show a reasonable probability that, but for the deficient notice, he would not have been deported.
Even if the government is correct about the defendant’s ineligibility for voluntary departure at the conclusion of his removal hearing under 8 C.F.R. § 1240.26(c)(1), he was still prejudiced by immigration officials’ failure to provide notice of the date or time of his master calendar hearing.
Accordingly, the defendant’s indictment has been dismissed with prejudice and the case stricken from the court’s active docket.
Categories: Daily Dockets