Pro se appellant wins a new trial on search and seizure claim

This is one of the more interesting cases of the year. A pro se appellant convinces the Court of Appeals to order a new trial on his police misconduct case because the trial court did not properly charge the jury on the elements of his search and seizure case.

The case is Hester v. Kelly, a summary order issued on July 16. Hester's case went to trial in the Northern District of New York. He claimed that, in executing a search warrant into his building, they conducted an unlawful visual cavity search. At trial, he was represented by counsel, who did not object to the initial jury charge. Failure to object in that circumstance increases the burden on appeal: you have to show the bad charge was "plain error" as opposed to mere error.

But then something happened during jury deliberations: the jury got confused and asked the trial judge to clarify how to determine when a visual cavity search is conducted in a reasonable manner. Plaintiff's lawyer asked the court at this point to issue supplemental jury instructions that would have directed the jury to consider more than just whether the officers had reasonable suspicion to search Hester, based on the principle that even if the police had reasonable suspicion to conduct the search, the search itself still must be done in a reasonable manner. The judge doubled down on the original charge and told the jury to only consider whether it was reasonable for the officer to conduct a visual cavity search. The judge did not, as required under settled law, ask the jury to consider whether that search was conducted in a reasonable manner. Even under a plain error standard of review, the trial court's response to this jury question was wrong and compels a new trial.

The Supreme Court said in Bell v. Wolfish 441 U.S. 520 (1979), that these searches must be conducted in a reasonable manner. It is not enough that the officer had good reason to conduct the search in the first instance. Not only was the judge's response to the jury question plain error but, it affected the plaintiff's substantial rights, which asks whether the error affected the outcome of the trial. Handling the appeal pro se, plaintiff wins a new trial because, at the first trial, the parties sharply disputed how the cavity search was conducted, including how many officers were present for the search and whether it was conducted in the view of the other arrestees. If the jury credits plaintiff's testimony, it could find the visual cavity search was conducted in an unreasonable manner, the Court of Appeals (Lynch, Lee and Nathan) holds. This is because, under the rules, searches like this must be conducted in a manner that provides a degree of privacy for the suspect. Without the proper jury charge, plaintiff was less likely to win his trial.