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Posts Tagged ‘vagueness’

The Fourth Circuit today joined the Seventh and Eighth Circuits in their split from the Ninth Circuit over the correct application of Georgia v. Randolph, 547 U.S. 103 (2006), in a situation in which consent to search a shared home was given by one person with authority to consent in the absence of another individual who had previously refused consent. Compare United States v. Henderson, 536 F.3d 776 (7th Cir. 2008) (requiring physical presence of objecting co-tenant), and United States v. Hudspeth, 518 F.3d 954 (8th Cir. 2008) (en banc) (same), with United States v. Murphy, 516 F.3d 1117, 1125 (9th Cir. 2008) (allowing prior co-tenant’s refusal to operate even in the absence of continuing physical presence).  The court also upheld the federal anti-stalking statute, 18 U.S.C. § 2261A(2)(A), against a vagueness challenge. Judge Wilkinson wrote the opinion for the court in United States v. Shrader, which was joined in by Judge Motz and Judge Shedd.

With respect to the circuit split over Georgia v. Randolph, the opinion states that the Ninth Circuit’s approach of allowing refusal to operate even in the absence of the objecting co-tenant raises practical problems:

How broadly is constructive knowledge of a suspect’s prior refusal to consent to be imputed to other officers? Must a suspect expressly indicate that he has changed his mind in the future, or may that be assessed from the totality of the circumstances? Is there some point at which the passage of time renders a prior objection inoperative? The Murphy interpretation of Randolph would involve courts in such questions, diverting attention from the basic social expectations that underlie not only the opinion in Randolph, but the larger corpus of Fourth Amendment jurisprudence. Careful observance of the requirement that an objecting cotenant be physically present thus not only shows fealty to the Supreme Court’s precedent, but also focuses police and courts on the customary norms that form the basis for this area of law.

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For several years, Richard Jaensch used a fake ID to get through airport security faster by giving TSA agents the impression that he was a foreign diplomat. The government eventually caught up with him, and he was convcted under 18 U.S.C. § 1028(a)(1), which criminalizes the use of a false identification document that appears to be issued by or under the authority of the federal government. He was convicted and sentenced to a $750 fine and one year of probation. On appeal, Jaensch argued, among other things, that § 1028(a)(1).

In a published opinion in United States v. Jaensch, the Fourth Circuit held unanimously that the statute was not vague as applied to Jaensch. The panel also rejected Jaensch’s other challenges and affirmed his conviction and sentence. Judge Wynn wrote the opinion, which was joined by in Judge Agee and Senior Judge Hamilton.

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