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After The Trial Blog

The After The Trial blog presents insights on ongoing and recent trials around the state of Alabama, including weekly criminal law round-ups.

CCA Caselaw Update - September and October 2015

J.D. Lloyd - Thursday, November 12, 2015

Bolden v. State (CR-14-0657) (Fourth Amendment - Warrants)

Bolden was convicted of trafficking in marijuana and sentenced to life imprisonment as a habitual felony offender. The central issue of this case was whether the affidavit for the search warrant that led to the discovery of the marijuana here was so lacking in probable cause that the evidence was due to be suppressed. AFFIRMED. Here, the Court took a rather quick look at the “totality of the circumstances” test under Illinois v. Gates and concluded that the warrant was sufficient. The Court also concluded that the “good faith” exception applied. Judge Welch wrote a rather scathing dissent, attacking the majority’s “totality” finding. I agree with Judge Welch here that the State’s affidavit was massively speculative and was not constitutionally sufficient under McIntosh v. State, 64 So. 3d 1142 (Ala. Crim. App. 2010). This is a disappointing decision in the realm of Fourth Amendment litigation.

Knox v. State (CR-12-2019) (Traffic Stop; Reasonable suspicion to prolong detention)

This case stems from the circuit court’s granting of Knox’s motion to suppress marijuana found in his car pursuant to a warrantless search. Police became suspicious of Knox after they observed him driving at a very low speed on I-59. Knox saw the police officer and appeared startled and pulled his car into the emergency lane and stopped. The officer drove on and pulled over to wait until Knox resumed driving. Eventually, Knox passed the officer and changed lanes without signaling; Knox was stopped. The officer observed that Knox was driving a rental car that had a single key. Knox was “very nervous” during the encounter. Knox told the officer he was coming up from Houston. The officer told the court he was suspicious of someone coming from Houston since he knew many narcotics traffickers come from the southwest. Knox told the officer he was driving to Chattanooga for a family member’s funeral. He then changed his story that he was going to a close friend’s funeral. He told the office he did not know the deceased’s name. The passenger in the car also gave suspicious reasoning for going to Chattanooga and didn’t mention a funeral. The officer issued the citation and asked if they could continue on in a consensual encounter. Knox consented. The officer asked for consent to search, but Knox refused. A few minutes later, another officer arrived with a drug-sniffing dog, which alerted on the trunk. Marijuana was found inside. AFFIRMED. The Court found the totality of the circumstances justified further detention of Knox. NOTE: This case was on remand from the Alabama Supreme Court’s reversal in Ex parte Knox, No. 1131207, June 26, 2015. There, the Supreme Court concluded that the Court of Criminal Appeals improperly considered an argument raised by the State of Alabama for the first time on appeal. For those of you who have read my discussions and complaints of Pollard v. State and the Court of Criminal Appeals’ ludicrous “preservation” discussion therein, Ex parte Knox is worth the read as it limits the atrocious holding in Pollard.

Bonds v. State (CR-13-1570) (Statutory Interpretation - School Employee Sex Offense)

Bonds pleaded guilty to one count of school employee who engaged in a sex act with a student under the age of 19, a violation of § 13A-6-81. At the time, Bonds was a resource officer with the Dothan High School. However, Bonds, at all relevant times, was an employee of the City of Dothan as an officer with the police department.

This case focused on whether Bonds was an “employee” of the school, and thus falling under the purview of this statute. The director of personnel for the city schools testified Bonds was not considered an employee of the school system and that school-resources officers were considered employees of the city, not the school. The personnel director for the city likewise testified that Bonds was considered an employee of the city, not the schools. Bonds moved to dismiss his indictment on the grounds that he was not a school employee as contemplated by the statute, but the court denied the motion. AFFIRMED. Even though Bonds is not considered a school “employee” by anyone, the Court affirmed Bonds’ conviction because the definition of “school employee” included people that are not actually “employees” of a school. Section 13A-6-80, Ala. Code 1975, provides: "For purposes of this article, school employee includes a teacher, school administrator, student teacher, safety or resource officer, coach, and other school employee.” Relying upon the plain wording of § 13A-6-80, the Court concluded that Bonds was, in fact, an employee of the school. Welch vehemently dissented here.

From an interpretive standpoint, this is one of the strangest and worst decisions we’ve seen out of the Court of Criminal Appeals. Here, the Court was faced with statutory language creating something that does not exist in reality -- an employee-employer relationship between Bond and the school system. The Court completely ignores how this statute must defer to reality -- if someone is not, in actuality, an employee of the school, the statute does not contemplate their inclusion. I look forward to seeing this fight at the Alabama Supreme Court.

McDaniels v. State (CR-13-1624) (Lesser-Included Instructions)

McDaniels was convicted of manslaughter after someone he sucker-punched at a bar died from a cranial hemorrhage. The victim head’s hit the ground extremely hard after McDaniels suck-punched him. However, other witnesses testified that the victim was picked up, seated in a chair, fell from the chair and hit his head again after being punched by McDaniels. At trial, McDaniels asked for a lesser-included instruction on assault 3rd -- with intent to cause physical injury to another person, he caused physical injury to any person. The trial court denied and McDaniels was convicted of manslaughter. REVERSED. The Court reversed, holding the evidence would have supported a conclusion that McDaniels only acted with the intent to injure the victim.

Demouey v. State (CR-14-0289) (Right to Public Trial; Closing a Trial)

Demouey was charged and convicted of various sex offenses involving C.F. When it was C.F.’s turn to testify, the State moved to close the proceedings on the ground that C.F. was shy and the testimony was difficult for her. The defense objected, but the court allowed the clearing of the court room. REVERSED. In reversing Demouey’s conviction, the Court detailed the history of challenges involving a defendant’s right to a public trial and the different showings required for partial closures (not everyone removed) and total closures (everyone removed). The focal point of these cases is Waller v. Georgia, 467 U.S. 39 (1984). There, the Court set forth a four-part test, which included the moving party showing “an overriding interest that is likely to be prejudiced” in order to obtain a total closure. Later, in Judd v. Haley, 250 F. 2d 1308 (11th Cir. 2001), the Eleventh Circuit -- on 2254 review of an Alabama conviction -- concluded that even a temporary closure -- such as the closure for one witness like in this case -- constitutes a “total closure” and requires analysis under the four-part Waller test, including a showing of an “overriding interest.”

Here, the Court determined that removing everyone from Demouey’s trial during C.F.’s testimony constituted a total closure, but that total closure was not justified by an “overriding interest.” 

State v. Walker (CR-14-0765) (Dismissing indictments under Rule 13.5(c))

Walker was indicted for one count of first-degree theft of services. Walker had an agreement with a cab company that he would pay for services rendered within 30 days. Walker gave the cab company a check, but the bank would not honor the check as the account had been closed. Walker was still within the 30-day period. Prior to trial, Walker argued that he intended to pay before the 30-day window was up, that his matter was “essentially a civil suit,” and moved to dismiss the indictment on that ground. The court dismissed the indictment without explanation. REVERSED. The Court concluded that the circuit court did not have the power to dismiss the indictment because the issue Walker raised was not one enumerated n Rule 13.5(c)(1), Ala. R. Crim. P., which limits the grounds upon which an indictment would be dismissed. Walker argued that his claim presented a pure question of law and thus the circuit court could consider the issue under Ex parte Ankrom, 152 So. 3d 373 (Ala. Crim. App. 2011), which created a de facto-summary judgment mechanism to challenge whether actions could be contemplate by a criminal statute. The Court disagreed, concluding that the factual question of “intent” differentiates contract disputes and criminal theft cases.

Collins v. State  CR-13-1199 (Impeaching Witnesses; Rule 613, Ala. R. Evid.)

Here, the Court of Criminal Appeals took the extraordinary move of granting the State’s application for rehearing and switching it’s decision to reverse in August to affirming the conviction in October.  

Collins and co-defendant Walton were charged with numerous offenses stemming from a home invasion in Montgomery. At trial, Walton testified for the State, giving damning testimony for the prosecution. On cross-examination, the defense asked Walton, “"Have you ever made a statement to Mr. Collins that folk protect folk or disciples protect disciples, that that's why you were doing -- testifying in this case the way you have against Mr. Collins?" Walton denied making the statement. He admitted being a member of the “Disciples” gang, but stated that his testimony against Collins had nothing to do with the gang affiliation. Essentially, the defense’s theory was that Walton’s testimony was not truthful and was protecting some third party. The defense proffered the testimony of Marvin Gaston, a man who was incarcerated with Collins and Walton in a holding cell at the Montgomery County jail. Gatson would testify that Walton did make the statement. However, the trial court would not allow Gatson’s testimony on the grounds that it was hearsay. AFFIRMED. In August, the Court concluded that the circuit should have allowed the defense to impeachment Walton with Gaston’s testimony. Such impeachment evidence would have been proper under Rule 613, Ala. R. Evid. and, contrary to the trial court’s finding, was definitionally non-hearsay. However, on rehearing, the Court revisited that decision and concluded that the defense did not provide Walton with sufficient information regarding the particular circumstances under which the statement was made. The Court also concluded that if there were error here, the error was harmless under Rule 45, Ala. R. App. P. because of the strength of the State’s case against Collins.

This case goes to show that the Court of Criminal Appeals will reconsider on application for rehearing if you give them a good enough reason to.

Porter v. State (CR-13-1463) (Juror misconduct during voir dire)

Porter was convicted of capital murder and sentenced to LWOP. In her motion for new trial, Porter argued that juror misconduct entitled her to relief under Ex parte Dobyne and Ex parte Dixon. Specifically, Porter argued that a juror failed to disclose that he had six pending felony charges even though the State asked if any juror had been charged or convicted with any felonies. Porter alleged that she would have struck this juror had she known about his pending charges. The circuit court refused to grant relief, finding that there was “actual prejudice” from the juror’s failure to disclose. REVERSED. The Court held strong to the precedents in Ex parte Dobyne and Ex parte Dixon. The Court reaffirmed that a movant in this situation need only prove “probable prejudice,” which is satisfied by a showing that the movant would have struck the complained-of juror had the withheld information been disclosed.

Rudolph v. State (CR-14-1067) (Sexual abuse; Double-Jeopardy)

Rudolph was convicted of one count of first-degree rape of a child under the age of 12, one count of first-degree rape by forcible compulsion and one count of first-degree sexual abuse by forcible compulsion. The two rape convictions stemmed from the same incident; the sexual abuse conviction stemmed from an incident where he “pulled” on the accuser’s shoulders and tried to get on top of her, but she hit him in the head with a baseball bat, ending the encounter. He was sentenced to terms of 50 years’ imprisonment for the rape convictions and 10 years’ imprisonment for the sexual abuse conviction, all running consecutively. AFFIRMED IN PART; REVERSED AND RENDERED IN PART; REMANDED FOR RESENTENCING. First, the Court concluded that the evidence was sufficient to sustain the two rapes convictions. However, the Court reversed and rendered the sexual abuse conviction on the grounds that the alleged contact could not satisfy the definition of sexual contact under § 13A-6-60. The Court also observed a jurisdictional defect: Rudolph’s rape convictions stemmed from the same event and did not constitute separate offenses, and thus, he could only be punished once under the Double Jeopardy clause.

Washington v. State (CR-13-1369) (Felony murder/“felonies dangerous to human life)

Washington was convicted of felony murder and second-degree kidnapping. On appeal, Washington argued that his felony murder was based upon the a second-degree kidnapping, and, as such, his conviction should be vacated as second-degree felony is not an enumerated offence under § 13A-6-2(a)(3). AFFIRMED; REMANDED FOR RESENTENCING. The Court affirmed Washington’s felony murder conviction on the grounds that a felony murder may be based upon any “felony clearly dangerous to human life.” The Court stated that it applies a factual, case-by-case analysis to felonies used as a bases for felony murder convictions under this clause. Under the facts here, the Court found that the second-degree kidnapping was clearly dangerous to human life. The Court remanded for the circuit court to vacate one of Washington’s sentences on the grounds that his LWOP sentences for both felony murder and second-degree kidnapping violated Double Jeopardy principles as one cannot be sentenced for felony murder and the underlying felony.

Green v. State (CR-14-1083) (Allocution)

Green pleaded guilty to manslaughter and was sentenced to 19 years’ imprisonment. However, before he was sentenced, the Court did not allow him the opportunity to speak. SENTENCE VACATED. The Court held that Rule 26.9(b), Ala. R. Crim. P., requires the Court to afford the defendant an opportunity to speak prior to sentencing. Failure to comply with that demands reversal of the sentencing hearing.

Crow v. State (CR-13-1659) (Unavailability of Child Witness under 15-25-31, 32)

In this child abuse case, the circuit court allowed out-of-court statements of the child-accuser on the grounds that the defendant had her sister remove the child from the jurisdiction. AFFIRMED. This case presents a strange, interesting factual discussion about what the defendant may or may not have done to cause the child-accuser to be absent from the jurisdiction. This case is light on legal discussion and heavy on facts.

Bradshaw v. Town of Argo (CR-14-1308) (Perfecting appeals from muni court)

This case involved the appeal from municipal court to circuit court and the defendant’s attempt to have his municipal charges dismissed on the grounds the municipal court failed to have his record timely transmitted pursuant to Rule 30.4, Ala. Crim. P. AFFIRMED. The Court concluded that the record on appeal did not clearly demonstrate that Bradshaw’s appeal was perfected on the date he alleged. As such, the transmission was timely under Rule 30.4.

Alabama Criminal Law Round-Up November 9th, 2015

J.D. Lloyd - Tuesday, November 10, 2015
Here are a few of the biggest criminal law stories from around the state of Alabama over the past week:

If you or someone you know has been convicted of wrongful criminal charges, there is hope after the trial. Contact us today by clicking HERE.

Alabama Criminal Law Round-Up November 2nd, 2015

J.D. Lloyd - Tuesday, November 03, 2015
Here are a few of the biggest criminal law stories from around the state of Alabama over the past week:

If you or someone you know has been convicted of wrongful criminal charges, there is hope after the trial. Contact us today by clicking HERE.

Alabama Supreme Court Ruling Makes Illegal Hunting Prosecutions Tougher for the State

J.D. Lloyd - Saturday, October 31, 2015
The Alabama Supreme Court released an interesting opinion reversing some hunting-offense convictions today. In Ex parte Ex parte W.F., W.L.C., and R.J.J. the Court threw out the youthful offenders convictions for hunting after dark, hunting from a public road, and hunting with the aid of an automobile.
As deer season approaches, all the hunters out there might want to pay close attention:
Basically, a conservation officer believed he heard shots being fired from a truck driven by these defendants around 6:30/6:45 at night. He didn't see anyone fire a weapon or even a muzzle flash --essentially, he only heard what he thought were shots fired from a gun. No shell casings were recovered and the deputy sheriff that later investigated couldn't determine whether shots had recently been fired from the rifle found in the defendant's vehicle.
The defense argued the State couldn't make a prima facie case based on this paltry evidence. The State relied on Rogers v. State, 491 So. 2d 987 (Ala. Crim. App. 1985) to defend the sufficiency of its showing, which held that the State presents a sufficient case of "night hunting" when it shows "that the accused (1) is in an area which deer or other protected animals are thought to frequent, (2) has in his possession a light, and (3) has in his possession a weapon or other device suitable for taking, capturing, or killing an animal protected by state law, (4) at night." The circuit court and Court of Criminal Appeals agreed, relying on Rogers for all the offenses.
The Court rejected Rogers on the theory that attempts to commit these hunting offenses require more than the Rogers standard provides. The Court's discussion here is an interesting look into  "the commencement of consummation" of a criminal offense, focusing on the holding of ATM v. State, 804 So. 2d 171 (Ala. 2000). Because Rogers did not accurately encompass "attempt" jurisprudence, the Court overruled that decision. In applying the accurate law regarding attempts, the Court found the State's case insufficient and vacated and rendered the convictions.
This case is a great standard for assessing the sufficiency of "attempt" prosecutions.


If you or someone you know has been convicted of wrongful criminal charges, there is hope after the trial. Contact us today by clicking HERE.

10-22-2015 11th Circuit Court of Appeals Summary

J.D. Lloyd - Friday, October 23, 2015

John A Cunningham (CR-14-14993)

Cunningham failed to register as a sex offender and was originally sentenced to 30 months of imprisonment followed by supervised release.  After he was released from prison, Cunningham violated the terms of his supervised release and was sentenced to another eight months in prison followed by an additional 24 months of supervised release.  Cunningham once again violated the terms of his supervised release after serving his term in prison and was sentenced to another 14 months in prison followed by 14 months of supervised release.  Cunningham was released from prison after serving his term, but he violated his supervised release for the third time.  Cunningham was sentenced to 24 months’ imprisonment after his supervised release was revoked for the third time.  Cunningham argued at his revocation hearing that his revocation sentence of 24 months’ imprisonment was illegal because it exceeded the remaining 14 months he had left of his supervised release after his last revocation.  The district court heard Cunningham’s argument but still sentenced him to 24 months in prison with no supervision to follow.  Cunningham appealed.


The Court held that a defendant may be sentenced to the felony class limits under 18 U.S.C. § 3583(e)(3) upon each revocation of supervised release without taking into account any previously served prison terms for revocation of supervised release.  The Court recognized that several other circuit courts had already rejected arguments like the one in Cunningham’s case.  The Court refused to import the language from 18 U.S.C. § 3583(h), stating an aggregate limitation on revocation imprisonment, into the language of § 3583(e)(3).  The court explained that the amendment history of § 3583(e)(3) supports the legislature’s intent to not limit this section by aggregate limitations like those in § 3583(h).  Accordingly, the court affirmed Cunningham’s sentence to 24 months of imprisonment.

Ellisa Martinez (CR-11-13295)

The 11th Circuit previously affirmed Martinez’s conviction under 18 U.S.C. § 875(c) for knowingly transmitting a threatening communication.  The Supreme Court, however, vacated the opinion and remanded the case to the 11th Circuit so the Court could consider Martinez’s case in light of Elonis v. United States, 575 U.S. __, 135 S. Ct. 2001 (2015).  The Supreme Court in Elonis held that a jury instruction stating “that the Government need prove only that a reasonable person would regard [the defendant’s] communications as threats” was error because it failed to address the defendant’s mental state at the time of the alleged crime, which is a necessary element to support a conviction.  In Martinez’s case, she asserted that her indictment was insufficient because it failed to allege that she subjectively intended to convey a threat to others.  Martinez also asserted that § 875(c) was unconstitutionally overbroad if it did not require subjective intent.


The Court rejected both of Martinez’s arguments, relying on United States v. Alaboud, 347 F.3d 1293 (11th Cir. 2003), which held that the inquiry for a conviction under § 875(c) is an objective one.  Based on the Supreme Court’s decision in Elonis, the Court held that Martinez’s indictment was insufficient because it did not allege an essential element of § 875(c), specifically being that Martinez intentionally made the statement as a threat to injure others.  Therefore, the Court vacated Martinez’s conviction and sentence and remanded the case to the district court with instructions to dismiss Martinez’s indictment without prejudice.

Wayne Walker (CR-15-10710)

Walker was convicted of one count of manufacturing counterfeit money in violation of 18 U.S.C. § 471.  On February 28, 2014, two police officers were working the night shift and received information that a man with an outstanding warrant, Michael Upshaw, could be found at Walker’s house.  The two officers went to Walker’s house at 9:00 pm that night and knocked on the doors of Walker’s home but no one answered.  The officers returned at 11:00 pm that night and knocked again but no one answered.  At this point, the officers noticed a car parked in the open-sided carport that had not been in the driveway earlier.  At 5:00 am the following morning the officers drove past Walker’s home once again and noticed some house lights were on as well as the dome light inside of the car parked in the carport.  The officers walked up the driveway and approached the car, noticing that a person was inside of the car.  The person inside of the car ended up being Walker.  When the officers told Walker they were looking for Upshaw, Walker told the officers that they “were more than welcome” to go into the house and look for him.  The officers entered the house and saw counterfeit $100 bills sitting in plain view on a shelf.  The officers subsequently arrested Walker on probable cause.  Walker appeals the district court’s denial of his motion to suppress evidence of the counterfeit bills found in his home because the officers did not comply with the “knock and talk” exception to the Fourth Amendment’s warrant requirement and entered his home at an unreasonable hour.


The Court held that the officers complied with the Fourth Amendment and acted reasonably when approaching the car where Walker was found.  The Court rejected Walker’s argument that the officers exceeded the scope of the knock and talk exception when they approached Walker’s vehicle because the officers did not objectively reveal a purpose to search the vehicle and because where the officers approached the vehicle underneath the open-sided carport was not outside of the geographic limit on the knock and talk exception.  The Court also held that the officer’s actions were not unreasonable due to the early morning hour because the surrounding circumstances made the actions reasonable.  Even though it was early in the morning, the officers saw lights on inside of the home as well as the car, and it was not unreasonable for the officers to think someone was inside of the car.  Therefore, the Court held that the district court did not err in denying Walker’s motion to suppress evidence of the counterfeit currency found in his home and affirmed the district court’s decision.

Raymond Edward Braun (CR-13-15013)

In 2013, Braun was sentenced under the “violent felony” provision of the Armed Career Criminal Act (“ACCA”) after pleading guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g).  Braun was convicted of being a felon in possession of a firearm once before in 2003, but during his 2013 trial, Braun objected to being qualified as an armed career criminal under the ACCA because he asserted that he did not have the required three prior violent felonies to be classified as such.  In Braun’s 2003 conviction, the court relied on a Presentence Report describing Braun’s prior convictions when sentencing Braun as an armed career criminal, and Braun did not object to the facts in the report or his sentencing under the ACCA.  However, in Braun’s 2013 trial, he objected to the court’s reliance on the 2003 Presentence Report submitted by the government to establish the three requisite violent felonies necessary to sentence him under the ACCA.  Braun argued that the Supreme Court decisions in Shepard v. United States, 544 U.S. 13 (2005), and Descamps v. United States, 133 S. Ct. 2276 (2013), disallowed the government to rely on a Presentence Report to establish that Braun was an armed career criminal.  Despite his objections, Braun was sentenced as an armed career criminal.  Braun appealed.


The Court held that the government failed to prove that Braun had three prior violent felony convictions that were necessary to support sentencing under the ACCA as an armed career criminal.  The Court found that the government did not prove that two of Braun’s four prior convictions – aggravated battery on a pregnant woman and battery on a law enforcement officer – were violent felonies.  First, the Court relied on Descamps when deciding whether Braun’s prior convictions qualified as violent felonies under the ACCA.  Based on Descamps, the Court realized that it could only look to the elements of the crime and not the underlying facts of the conduct that led to Braun’s conviction.  The Court also recognized that some statutes can be divided into multiple, alternative versions of the crime. Second, the Court relied on Shepard to determine which documents it could use to decide whether Braun’s prior convictions were considered violent felonies.  Examples of documents allowed in Shepard include the charging document, a plea agreement or transcript of the discussion between the judge and defendant including facts of the plea, or a comparable judicial record containing this information.

The Court first looked at Braun’s conviction for aggravated battery on a pregnant woman.  The Court determined that the statute for this crime was divided and could be committed three different ways under Florida law.  Because the statute was divisible, the Court used Shepard documents to determine which version of the crime Braun committed.  The Court held that the 2003 Presentence Report, however, could not be relied on because under Shepard and Descamps, the court may not use a document from an unrelated proceeding as a substitute for a Shepard document.  The Court, therefore, determined that Braun’s conviction for aggravated battery on a pregnant woman was not a violent felony.  Looking at Braun’s conviction for battery on a law enforcement officer, the Court used the same analysis it used for the aggravated battery on a pregnant woman conviction and determined that this conviction also did not qualify as a violent felony.  In conclusion, the Court held that the government could not prove that Braun had been convicted of three violent felonies in the past, and therefore the Court reversed and remanded this case.


J.D. Lloyd - Saturday, September 05, 2015

Ex Parte Jason Dean Tulley

J.D. Lloyd - Saturday, September 05, 2015
Click the link below for more details on this recent Alabama Supreme Court decision. Tulley - AL SC - REVERSED


J.D. Lloyd - Saturday, July 25, 2015

Alabama Courts Finally Adopt US Supreme Court Precedent 12 Years Later

J.D. Lloyd - Saturday, July 25, 2015
*This post contains more “mature” content than my usual posts, so please be aware before reading on* Law and justice concept, legal code Williams v. State of Alabama Background In two cases released on July 2, 2015, we see the Alabama Court of Criminal Appeals finally have a chance to apply the United States Supreme Court’s holding in Lawrence v. Texas to a challenge of Alabama’s sexual misconduct statute, sec. 13A-6-65. In Lawrence, the Supreme Court ruled that Texas’ anti-sodomy statute which only applied to homosexual conduct was unconstitutional under the Due Process Clause of the Fourteenth Amendment. In Williams, the Court of Criminal Appeals explained: “Section 13A-6-65(a)(3) provides: ‘A person commits the crime of sexual misconduct if … [h]e or she engages in deviate sexual intercourse with another person under circumstances other than those covered by Sections 13A-6-63 and 13A-6-64[, Ala. Code 1975]. Consent is no defense to a prosecution under this subdivision.’ The commentary to that statute notes that the specific subdivision ‘was changed by the legislature to make all homosexual conduct criminal, and consent is no defense.’ See Commentary to § 13A-6-65, Ala. Code 1975. Section 13A-6-60(2), Ala. Code 1975, defines ‘deviate sexual intercourse’ as ‘[a]ny act of sexual gratification between persons not married to each other involving the sex organs of one person and the mouth or anus of another.’ Williams – Conviction Reversed Williams was alleged to have sodomized another man against his will. He was prosecuted for first degree sodomy. At trial, Williams testified in his own defense and explained to the jury that he and the other man had engaged in consensual conduct. While the parties discussed how the jury should be instructed, the Court considered whether a sexual misconduct instruction should be given as a lesser-included offense of first-degree sodomy. Williams objected, arguing that in his case, a sexual misconduct instruction would allow the jury to convict him of consensual sodomy. Williams argued this conviction would be unconstitutional under Lawrence. The judge overruled the objection and Williams was convicted of sexual misconduct. The Court of Criminal Appeals reversed and rendered Williams’ conviction. The Court concluded that the sexual misconduct statute was unconstitutional under Lawrence as applied to Williams’ consensual conduct. Wesson – Conviction Affirmed Wesson was charged with engaging in acts of sodomy with a woman against her will. He was indicted on the charge of first-degree sodomy and sexual misconduct. Wesson pleaded guilty to the sexual misconduct charge and the sodomy charge was dismissed. He, like Williams, argued the sexual misconduct statue was unconstitutional as applied to him and appealed the constitutionality of his conviction to the Court of Criminal Appeals. The Court of Criminal Appeals affirmed. First, the Court rejected Wesson’s argument that the sexual misconduct statute was unconstitutional on it’s face. The Court concluded that Wesson didn’t raise that argument before the trial court, so they weren’t going to consider it on appeal. Next, the Court concluded that Wesson’s as-applied challenge under Lawrence was doomed to fail because he could not demonstrate that his conduct fell within the bounds of protected conduct described by Lawrence — namely, he couldn’t prove that the sex acts that occurred were consensual. Because he could not, Lawrence would not provide him any relief. Consent is Now a Defense After 12 years, an Alabama court has finally recognized that Lawrence prohibits the criminalization of consensual conduct covered by sec. 13A-6-65(a)(3).

SCOTUS – Administrative Searches – Los Angeles v. Patel

J.D. Lloyd - Saturday, July 25, 2015
The Court today released an interesting opinion on administrative searches in Los Angeles v. Patel. Under the Los Angeles Municipal Code, hotel operators are required to keep certain information in their hotel registry for 90 days. The Code requires the operators to allow the LAPD to inspect these registries upon request, or they could be charged with a misdemeanor. The hotels owners filed a facial challenge under the Fourth Amendment. The district court dismissed the challenge, but the Ninth Circuit reversed, finding this statutory scheme authorized unconstitutional administrative searches. AFFIRMED. The Court noted that the statutory scheme forced hotel operators with an unconstitutional “Comply or Else” dilemma without affording them any opportunity for administrative review of the validity of the search. The Court concluded that an administrative search scheme that does not create a mechanism for operators to seek administrative review of “on-the-spot” searches violates the Fourth Amendment as it authorizes an unconstitutional search. The Court noted that any administrative search carried out with an administrative warrant or as an exception to the warrant requirement would comply with the Fourth Amendment. The opinion is available here:

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