Update on United States v. Davis:
Back in December, I blogged a series of posts about a 6th Circuit opinion, United States v. Davis, in which a panel sua sponte raised the question of a traffic statute's constitutionality, struck down the statute as unconstitutionally vague, and then ruled that the unconstitutionality of the statute was not relevant to the outcome of the case. The Sixth Circuit later withdrew the opinion, and the State of Michigan filed a brief defending the statute.

  Readers who followed those earlier posts might be interested to know that the Sixth Circuit handed down a new opinion in the case last week. It's a 3-page unpublished decision that only addresses the probable cause issue. The opinion adds a footnote:
We thank the State of Michigan for submitting its views on whether this law is void for vagueness. Because Davis did not raise this question, we decline to reach it here.
Soronel Haetir (mail):
So how many defendants now have an incompetence claim against their attorney for not raising this argument?

And how long will it be before this issue is presented by someone who did preserve the issue?

Though the facts behind Davis, a state traffic stop leading to federal charges it might take awhile.

Also, I forget if this is still on direct reveiw, but if it is would the rule in Gant apply? Need to check back to see if this was a consent search or SIA.
5.4.2009 4:25pm
Soronel Haetir (mail):
Fun, this is a SIA case. Does the conditional plea prevent the CoA from applying Gant?
5.4.2009 4:28pm
Does this contradict the basic legal cannon of only presenting your strongest arguments on appeal? Seems like defendant would have been better served by an attorney with a shotgun approach.
5.4.2009 4:28pm
rosetta's stones:
Admitting that they first overeached, and are now narrowing their work? Some actual humility from a court? Who woulda thunk it?
5.4.2009 4:44pm

an obstruction of any size for any amount of time falls within it

that clearly can't be correct. What about the rearview mirror?
5.4.2009 5:01pm
Gabriel McCall (mail):
What about the rearview mirror?

A rearview mirror is not "a dangling ornament or other suspended object"; affixed is not synonymous with suspended. The same applies to inspection stickers et. al.
5.4.2009 5:12pm

affixed is not synonymous with suspended

So if his tweety bird was affixed he'd be OK? Not buying it.
I think affixed is within the meaning of suspended here.
5.4.2009 5:15pm
Nuts, the Circuit wimped out on the really interesting issue...

Maybe some enterprising counsel (with a client with really deep pockets) in a 6th Circuit jurisdiction will someday raise the issue and preserve it on appeal.
5.4.2009 5:30pm

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