August 26, 2013 4th Circuit published opinions

United States v Cabrera-Umanzor

Cabrera-Umanzor’s sentence was increased based on the district court’s ruling that a prior Maryland child abuse conviction was a crime of violence under the modified categorical approach. The panel reversed. It held that the Maryland child sex abuse statute was not divisible as there were not multiple offenses within it. Applying the elements test, the panel held the statute was not a crime of violence as it did not require gratification of sexual desire, use or threat of force or even the slightest touch of the child victim. The case was remanded for resentencing.

Waugh Chapel South, LLC v United Food and Commercial Union Local 27

Waugh and another developer sued Local 27 and other entities alleging unfair labor practices arising form over a dozen lawsuits aimed at stopping the development of shopping malls which would include a nonunion grocery store. The district court dismissed the case ruling the lawsuits were protected conduct and one defendant was not a labor organization. The panel affirmed in part, reversed in part and remanded in part. The panel first held that it had jurisdiction to hear the case despite the technical interlocutory status of the case as it could and did treat a conditional dismissal of one part of one count as a full dismissal with prejudice. It next held that because the district court relied on documents not attached to the complaint in reaching its decision, the case was one involving summary judgment at it therefore used that standard of review. The panel affirmed the decision that one of the entities is not a labor organization as that entity is prohibited by its charter form engaging in collective bargaining and there was no evidence that it ever participated in two way interaction with any employer on labor issues. Because this case involved multiple litigations as the basis for the complaint, the panel joined other circuits in holding the correct test is whether the series of prior litigations demonstrated the administrative and judicial process have been abused being aimed at an illegal outcome. Applying here, the panel concluded the prior cases were abusive because all but one of the previous cases were objectively unreasonable as lacking standing, being based on conjecture or being barred by issue preclusion. Other evidence of bad faith included seeking an injunction that would have eliminated environmental remediation Local 27 and the other parties superficially sought in their suits and 10 suits were withdrawn in suspicious circumstances to prevent subpoenaing Local 27’s financial records. Thus, remand was necessary to determine whether or not the litigation strategy used by the defendants was a sham and thus constituted unfair labor practices.

United States v Jackson

Police took two bags of trash from the trash can of Jackson’s girlfriend’s apartment. After obtaining a warrant they searched the apartment and discovered drugs and other evidence of trafficking. Jackson moved to suppress the evidence discovered in the trash pull and subsequent search. The district court denied the motion. The panel, 2-1, affirmed. The majority held that as the officers testified the can was partially on a common sidewalk and not tied up inside a laundry room, the district court did not clearly err in concluding the trash can was actually on the sidewalk. The panel held that the sidewalk and adjacent grass strip was not part of the apartment’s curtilage as it was 20 feet from the back door, no efforts were made to shield it from view and by contract and practice the area was a common resource for all residents. The majority finally held that because Jackson’s girlfriend had placed the trash can and its contents in an area where the public had access to it, there was no reasonable expectation of privacy in the contents. Thus, the majority affirmed. The dissent argued that the district court was unclear as to where the trash can was located and that the officers gave conflicting shifting testimony that consistently moved the can further from the rear of the apartment. Additionally, the dissent noted that residents testified no trash can were ever left where the officers said they found the can. The dissent argued that the trash can was in close proximity to the apartment, the apartment was nearly enclosed, there was evidence that the area was ever used by the public and the no trespassing signs and acknowledgement of the management that the area is private all lead to the conclusion that the area was part of the curtilige and the search violated Jackson’s girlfriend’s property rights. The dissent finally argued the search violated the reasonable expectations of privacy because the can was not placed where trash is collected and the location is 50 yards from the collection site, is partially surrounded and not a public area.

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