March was another slow month, but brought a couple of cases potentially relevant to our practice with respect to a delayed search of a cell phone, the use of suggestive lineups, the constitutionality of laws governing short-barreled rifles, and an argument that the Sixth Amendment applies to criminal restitution orders:
United States of America v. Jaron Jay Jackson, No. 23-3205: This is an interesting Fourth Amendment case involving the search of a cell phone. Jackson was arrested and held in the Milwaukee County jail. His cell phone was seized upon arrest and remained in the custody of the state. 40 days after its seizure, police sought a warrant to analyze its contents. Jackson avers that this delay rendered the search unreasonable. The Seventh holds that because the phone was continuously in the possession of the State and Jackson had no possessory interest while he was in custody, the search was reasonable. It distinguishes, however, the situation where police retain a phone in such a way that a person’s possessory interest is restricted (as, for example, when police seize a phone following a traffic stop and the out-of-custody suspect is therefore prohibited from using this important tool of modern life).
Eric Blackmon v. Gregory Jones, et al, No. 23-3288: After years of litigation, Blackmon was finally able to reverse his conviction on habeas review. He now pursues a § 1983 claim. However, following recent SCOTUS precedent, the Court holds that conducting an improperly suggestive lineup is not a claim for which he can pursue relief. Although Blackmon had a trial right to not have that identification used against him, the police did not violate his constitutional rights by conducting the improper identification procedure in the first place.
United States of America v. Jamond M. Rush, No. 23-3256: A case potentially relevant for state court litigators grappling with prosecutions under § 941.28 (prohibiting the possession of short-barreled firearms), this case analyzes a similar federal statute and holds there is no 2nd Amendment challenge and that the prosecution thus survives even under SCOTUS’s more stringent firearms jurisprudence.
United States of America v. Brian Gustafson, No. 24:1599: The core issue at dispute in this appeal is of little interest to most of our readers (interpretation of the federal wire fraud statute) so we’ll skip it. The case does touch on two other interesting issues. First, it rejects a commonly-litigated claim, that a prosecutor’s statements during rebuttal closing arguments were an implied comment on the defendant’s right to remain silent. Specifically, the prosecutor told the jury that a key witness, who claimed that he made illicit payments to his codefendant (Gustafson), was “uncontradicted” and that “No one came in here and said anything different than that.” The Court holds that the comments were not objectionable and not prejudicial. Second, Gustafson also avers that the criminal restitution order violated the Sixth Amendment because it was not determined by a jury. The Court rejects the argument out-of-hand.
