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Kirk Redmondhttp://www.blogger.com/profile/05149425706408433721noreply@blogger.comBlogger509125
Updated: 48 min 28 sec ago

No officers, you may not ignore plainly exculpatory evidence when making a seizure

Sun, 08/19/2018 - 17:24
One angry teenager accuses his parents of bizarre acts of child abuse.

But five younger siblings deny abuse and say they love their parents; a doctor who examines the children finds them healthy with no signs of abuse; and a month earlier an investigator had "unsubstantiated" the teenager's claim of abuse.

Can officials seize the children anyway?

Of course not. This was "a child abuse situation that cried out for investigation and confirmation." But "[a]n officer contemplating an arrest is not free to disregard plainly exculpatory evidence, even if substantial inculpatory evidence (standing by itself) suggests that probable cause exists." And "[l]ike probable cause, suspicion to seize children must exist at the moment of the seizure, and an official is not free to disregard plainly exculpatory evidence when it undermines substantial inculpatory evidence that reasonable suspicion exists."

So says the Eighth Circuit, in an opinion affirming the district court's denial of one official's motion to dismiss the parents' 1983 action on qualified-immunity grounds.

20 seconds of questioning unlawfully extends traffic stop

Sun, 08/12/2018 - 16:22

When does unrelated questioning “measurably extend” a traffic stop such that it becomes unlawful under United States v. Rodriguez
In United States v. Lujan, 2018 WL 3742452, 2018 U.S. Dist. LEXIS 132229, the District Court for the Eastern District of Tennessee found that 20 seconds of unrelated questioning is enough. An officer had stopped defendant's vehicle because the officer was unable to read the vehicle’s tag. As the officer approached the vehicle, however, he learned the tag was “legal.” (Note: the Lujan court recognized that under Tenth Circuit precedent the officer “would have been permitted to merely explain the reason for the stop but then let Defendant ‘continue on [his] way without requiring [him] to produce [his] license and registration.’”). But under the circumstances here, the traffic stop quickly turned into a 20 second “roadside interrogation”: “why are you nervous?”, “where do you work?”, are the van’s passengers “legal”?  The Lujan court acknowledged that those 20 seconds of investigative questioning unrelated to the stop’s purpose were “brief.” But “Rodriguez is not focused on vaguely assessing time, measuring it against arbitrary notions of what constitutes promptness.” Rather, “Rodriguez requires that courts look at the officer’s actions and determine whether he inevitably prolonged the stop beyond its original mission.” Hence the Court’s conclusive holding that those 20 seconds of unrelated, investigative questioning unlawfully, "measurably extended” the traffic stop. 
Motion to suppress granted. 

No nexus? No good faith.

Thu, 08/09/2018 - 15:43
A 17-year-old drug conviction on the part of the homeowner.

A 4-month-old anonymous tip about the home.

A recent stop of unclear duration in the driveway by a suspected drug dealer.

These were the core allegations in an affidavit for a search warrant of Curtis Tucker's home. The district court agreed that these allegations did not provide a minimally sufficient nexus between suspected drug dealing and the home, and further agreed that the agents who executed the search warrant lacked good faith. The district court suppressed the fruit of both this search and the execution of a second search warrant that was based in large part on the fruits of the first one.

The government appealed, and the Sixth Circuit affirmed, finding the problems with the first affidavit "so glaringly obvious that the Leon exception does not apply"---either to the first or the second search.

Legal protections do not hang on the whims of government officials

Sun, 08/05/2018 - 10:00
In United States v. Ochoa-Oregal last week, the Ninth Circuit reversed the defendant’s unlawful-reentry conviction because his prior removal orders (the latter being an expedited removal order contingent upon the first) were deemed “fundamentally unfair” and as such, could not serve as the requisite predicate removal order for the offense.  In 2008, at the time he was first ordered removed based on a California battery conviction, Mr. Ochoa-Oregal was a legal permanent resident (LPR). The removal order was entered in absentia, however, which deprived Mr. Ochoa-Oregal of opportunity to exhaust or seek judicial review. What’s more, 2008 Circuit precedent established that a California battery conviction was not a categorical crime of violence. Hence, the 2008 removal order was erroneous and could not serve as a predicate for an unlawful-reentry conviction. Neither could the latter expedited removal order in 2011 serve as a predicate for the unlawful reentry conviction. The Ninth Circuit determined that expedited removal order was “infect[ed]” and thereby invalidated by the erroneous 2008 removal order; Mr. Ochoa-Oregal had been removed in 2011 for presenting invalid entry documents, but if Mr. Ochoa-Oregel was a lawful permanent resident, then his entry documents were not invalid. Notably, the Ninth Circuit rejected the government’s argument that Mr. Ochoa-Oregal could not demonstrate prejudice despite the erroneous removal order because he was an aggravated felon who could have been removed anyway, and he would have been denied discretionary relief. The Court held that “even if the government might have been able to remove him on other grounds through a formal removal proceeding, his removal on illegitimate grounds is enough to show prejudice.” In so finding, the Ninth Circuit cogently concluded that the “important legal protections of lawful permanent resident status do not hang on the whims of government officials, they stand on much more secure footing of lawful due process.”

Being a migrant is not a crime

Sun, 07/29/2018 - 19:46

“The Constitution protects citizens and non-citizens.” That means, as the Second Circuit was required to remind us in Zuniga-Perez v. Sessions, that the contours of the Fourth and Fifth Amendments do not bend on the basis of one’s race or citizenship. 
Zuniga-Perez took place in upstate New York. Law enforcement went to a home late at night in search of a fugitive, as well as “known Hispanic migrants.” Law enforcement surrounded the home, shone flashlights through windows, and demanded the residents open the door and windows. A resident finally lets the authorities in because “they gave him no choice.” And once inside, law enforcement questioned the residents for the whereabouts of this alleged fugitive. Come to find, he’s not there. But also come to find, two residents are citizens of Mexico residing in the United States. Those two are arrested, and removal proceedings commence.  
But, the Second Circuit notes, “it is not a crime for a removable alien to remain present in the United States.” And thus, being a “Hispanic migrant is not a crime.” Where law enforcement exceed the scope of a warrant (or alleged warrant in this case), or where that warrant fails to state with particularity the place to be searched and items to seized, it violates the Fourth Amendment. A protective sweep that last longer than necessary also violates the Fourth Amendment. When a person is subjected to random or gratuitous questioning related to his immigration status, it violates the Fourth Amendment. And, Miranda protects citizens and non-citizens alike.
To permit such unconstitutional conduct by law enforcement against non-citizens would be, as the Second Circuit reiterated, to “condone ethnic harassment” and to rubber-stamp an immigration policy that “teeters on the verge of ‘the ugly abyss of racism.’” Hence the reversal in Zuniga-Perez where a reasonable fact-finder could conclude that an “egregious constitutional violation” had occurred—that is, that authorities had targeted petitioners "merely because they appeared to be Hispanic migrants." 

How to preserve a confrontation objection

Thu, 07/26/2018 - 13:48
In a cautionary tale from the Tenth Circuit this week, the Court held that a defendant forfeited any confrontation-clause challenge to limits on his cross-examination of a government witness because he failed to preserve the issue properly for appeal.

How should such a challenge be preserved? The Tenth Circuit offers clear advice:

First, make a proper proffer by describing the evidence with specificity and what it tends to show.

Second, make a proper objection by identifying the grounds for admitting the evidence. If there are multiple grounds (statutory and constitutional, say), identify them all. Invoking an evidentiary rule won't work to preserve a constitutional claim (or vice versa).

Third, explicitly link the two (the evidence with the grounds for admission).

Sounds simple, right?

Trial penalties and the Sixth Amendment

Sun, 07/22/2018 - 20:54

To penalize an individual because he chooses to exercise his fundamental right to trial by his peers violates the Sixth Amendment.
Hence the remand for resentencing by the Ninth Circuit in United States v. Hernandez, this month where the record reflected that the district court penalized the defendant “by increasing his sentence based on his decision to go to trial.” Writing for the majority, Judge McKeown quipped that a district court merely reciting a boilerplate statement regarding its consideration of Section 3553(a) factors, while “chastising” the defendant for going to trial, cannot “cure the infirmities” in the sentence imposed.   
Importantly, the Hernandez court recognized, too, that “a judge cannot rely upon the fact that a defendant refuses to plead guilty and insists on his right to trial as the basis for denying an acceptance of responsibility adjustment.” It’s a good reminder that a defendant may neither be penalized for exercising his fundamental right to a jury trial nor automatically precluded from receiving an acceptance-of-responsibility reduction after going to trial.
In remanding for resentencing in Hernandez, Judge McKeown aptly noted that “[e]nhancing a sentence solely because a defendant chooses to go to trial risks chilling future criminal defendants from exercising their constitutional rights. And imposing a penalty for asserting a constitutional right heightens the risk that future defendants will plead guilty not to accept responsibility but to escape the sentencing court’s wrath.”
We must continue to jealously safeguard these axiomatic principles upon which our liberty is founded. NACDL’s recent report, The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It (worthy of a full read) reiterates what we well know: we are functioning within a system in which over 97% of defendants—including those innocent of the crimes charged—choose to plead guilty to avoid the risk of an astronomically increased sentence if convicted after trial. As a result, society is being deprived (at an ever-increasing and alarming pace) of necessary and vital checks on the excesses of prosecutorial power and the criminal justice system as a whole. “When the risk of exercising this crucial human right are too great for all but 3% of federal criminal defendants, the system is in need of repair.”
Hernandez and NACDL’s Report may be used to combat post-trial sentencing practices that undermine the Sixth Amendment's right-to-trial guarantee--that is, challenge on Sixth Amendment grounds unwarranted sentences, sentencing disparities, and denial of acceptance-of-responsibility reductions for those increasingly rare clients who do choose to exercise the fundamental right to a trial by their peers. 

The Fourth Amendment: Have we mentioned it's not dead yet?

Thu, 07/19/2018 - 16:26
"Border search" six years after border crossing? Um, no.  

The year is 2012. Border agents seize a traveler's cellphone and analyze it without a warrant---which is okay under the border-search exception. They don't search the cellphone's contents. They do, however, hang on to the phone (and to the traveler, for that matter).

Fast forward to 2018. The traveler is about to stand trial for sex trafficking and other crimes. A week before jury selection, the government reveals that it has, just this month, searched the cellphone's contents. Without a warrant. And, according to Southern District of Texas Chief Judge Lee Rosenthal, without any applicable warrant exceptions:
The government’s second, warrantless search of Gandy’s phone did not occur at a border or at the time of the crossing. It happened six years after Gandy returned to the United States . . . . Gandy and his phone have both been in custody since 2012, within the United States. Searching Gandy’s phone had no connection to the government’s interest in preventing illegal entry or contraband smuggling at an international border. Extending the border-search exception to the government’s warrantless search would both undervalue the core Fourth Amendment protection afforded cell phones under Riley and untether the border-search exception from the justifications underlying it. United States v. Gandy, No 12-cr-00503, 2018 WL 3455534 (S.D. Tex. July 17, 2018) (rejecting as well government's independent-source, inevitable-discovery, attenuation, and good-faith arguments).

Motion to suppress granted.  

No current or corroborated nexus? No probable cause.

An affidavit that relies on speculation, stale information, old criminal history, and uncorroborated informant tips does not supply probable cause for a search warrant. So said the Sixth Circuit last month in United States v. Christian, 893 F.3d 846 (6th Cir. 2018). And the Court declined to apply Leon's good-faith exception: "By suppressing the evidence in this case, we will incentivize the police to take such corroborative action in the future."

Motion to suppress should have been granted.

"It doesn't hurt to ask" is not reasonable suspicion.

Officer stops car for illegal left turn; completes traffic stop; continues to question driver even when driver indicates he wishes to leave; ultimately gets driver's exasperated "consent" to search ("I mean, shit, I don't care"). But officer can't seem to articulate why he wanted to search. He had a "suspicion," a "feeling," "I guess you would call it something"---what the heck, "it doesn't hurt to ask." This was (duh) not reasonable suspicion. In the words of Northern District of Alabama Judge Madeline Hughes Haikala, "[t]he ‘it doesn't hurt to ask’ standard is not even ‘unparticularized suspicion.’ At best, Officer Long had a hunch." United States v. Wilson, No. 17-cr-00428, 2018 WL 3428635 (N.D. Ala. July 16, 2018) (also explaining why driver's consent not consensual, why passenger was also illegally detained, and why evidence found during passenger pat-down was fruit of illegal detention).

Motion to suppress granted.

Supervised release: rehabilitation, or trap?

Tue, 07/10/2018 - 13:28
A must read from E.D.N.Y. District Court Judge Weinstein last week, in United States v. Trotter. Here is the introduction to Judge Weinstein's 42-page decision terminating Mr. Trotter's supervision not despite, but because of his marijuana addiction:

This case raises serious issues about sentencing generally, and supervised release for marijuana users specifically: Are we imposing longer terms than are needed for effective supervised release? Should we stop punishing supervisees for a marijuana addiction or habit?

After revisiting and reconsidering these issues, I conclude: (1) I, like other trial judges, have in many cases imposed longer periods of supervised release than needed, and I, like other trial judges, have failed to terminate supervised release early in many cases where continuing supervision presents such a burden as to reduce the probability of rehabilitation; and (2) I, like other trial judges, have provided unnecessary conditions of supervised release and unjustifiably punished supervisees for their marijuana addiction, even though marijuana is widely used in the community and is an almost unbreakable addiction or habit for some. As a result of these errors in our sentencing practice, money and the time of our probation officers are wasted, and supervisees are unnecessarily burdened.

In summary, in this and my future cases I will: (1) impose shorter terms of supervised release as needed; (2) give greater consideration to the appropriateness of conditions; (3) provide for earlier termination where indicated; and (4) avoid violations of supervised release and punishment by incarceration merely for habitual marijuana use.

Lots of important stuff in this opinion. I'll just note three basic points here that are good starting places: 1. "Supervised release is required by statute in less than half of all federal cases, but imposed as a part of nearly every sentence." We need to reverse this trend. 2. "A district court may terminate supervised release before the expiration of a mandatory minimum period." Don't be shy about asking for early termination. 3. Conditions of supervised release may be modified at any time. 18 U.S.C. 3583(e)(2). Your client may have completely different needs upon release than at sentencing. Don't be shy about moving to modify conditions that were imposed months or years ago.

No probable cause from an officer-induced traffic violation

Sun, 07/08/2018 - 11:34
The District Court of the Eastern District of Michigan reminds us this last week that an officer cannot himself create the alleged traffic violation to justify a traffic stop.  

In United States v. Belakhdhar, 2018 WL 3239625, 2018 U.S. Dist. LEXIS 110514 (E.D. Mich. July 3, 2018), the defendant challenged a traffic stop as pretextual for a criminal investigation where law enforcement allegedly stopped him for driving 2 mph below the speed limit. 

The court agreed with Mr. Belakhdhar that the officer lacked probable cause to conduct the traffic stop because, for one, the officer himself caused Mr. Belakhdhar to slow down when he pulled out behind and then drove next to Mr. Belakhdhar, eerily "peering into his vehicle." (Not to mention driving 2 mph below the speed limit did not actually violate any law.)

The government's argument in the alternative--that law enforcement had reasonable suspicion of criminal activity justifying the stop--fell just as flat. Mere propinquinity (or in this case, "tandem driving"), "with a vehicle suspected of drug activity, alone, is an insufficient basis for reasonable suspicion." The fact that Mr. Belakhdhar's car had a temporary Illinois plate didn't change the equation since, as the court noted, "vehicles with temporary Illinois plates travel on I-94 every day." 

Accordingly, motion to suppress granted.

Happy Fourth of July

Wed, 07/04/2018 - 10:08
 "True patriotism hates injustice in its own land more than anywhere else."
 ---Clarence Darrow 

Cert grant: dual sovereignty

Sun, 07/01/2018 - 23:19
Under the doctrine of “dual sovereignty,” the Supreme Court has long held that a successive prosecution of an individual for the same act will not trigger the Fifth Amendment’s protections against double jeopardy if it is brought by a “separate sovereign”—that is, an entity that derives its power to prosecute from a wholly independent source.  Because the states’ authority to prosecute originally derived not from the federal government but rather from the “inherent sovereignty” belonging to them before their admission to the Union, the High Court has deemed states separate sovereigns from the federal government (and from one another) under this doctrine, which is seemingly alive and well. See, e.g., United States v. Morales.
But is it?  
Last Thursday the Supreme Court granted certiorari in Gamble v. United States to squarely address whether the Court should overrule the “separate sovereigns” exception to the Fifth Amendment’s safeguard against double jeopardy. The murmurs have already begun to reverberate that the Court is poised to overrule the exception. Indeed, the groundwork has been laid for the Court to do just that. Most recently, in Puerto Rico v. Sanchez Valle, Justice Ginsburg wrote a concurrence, in which Justice Thomas joined, to express concern that the separate-sovereigns exception “hardly serves” the double jeopardy’s proscription “to shield individuals from the harassment of multiple prosecutions for the same misconduct.”
Perhaps soon, at least when it comes to state and federal courts, the Fifth Amendment will again mean what the Framers intended--that no person shall be “twice put in jeopardy of life or limb” for “the same offence.”

Digital is different. Where do we go from here?

Tue, 06/26/2018 - 17:24
Supreme Court Chief Justice Roberts doesn't like the idea of the government having easy access to five years' worth of his personal location data ("this newfound tracking capacity runs against everyone"---not just suspected criminals!). So we learned last week in Carpenter v. United States, which held that the government violated the Fourth Amendment when it accessed 127 days of Mr. Carpenter's cell site location information (CSLI) without a warrant.

This was a search because it invaded Mr. Carpenter's reasonable expectation of privacy in "the whole of his physical movements." Mr. Carpenter's expectation was reasonable despite the third-party doctrine (that is, despite the fact that he knowingly shared his location information with the phone company). The doctrine takes a pretty hard hit in this opinion, though it remains the law at least in some limited arenas for now.

The bottom line:

"Before compelling a wireless carrier to turn over a subscriber's CSLI, the government's obligation is a familiar one---get a warrant."

That's all good news, but how far does it go? It's not easy to tell from the opinion. The majority emphasizes the "deeply revealing nature" of historical CSLI and explicitly says that its decision "is a narrow one." But there's plenty of food for thought in both the majority's opinion and Justice Gorsuch's dissent (Justice Gorsuch would scrap the Katz reasonable-expectation-of-privacy analysis, and suggests that our property interest in our digital information is sufficient to give it Fourth Amendment protection).

Want to dive deeper? Here are links to some worthy early analyses:

Orin Kerr

Concurring Opinions

Harvard Law Review Blog

A blind eye to easily discoverable facts does not a lawful arrest make

Sun, 06/24/2018 - 14:07
The Birmingham police were after a suspect. While wearing a partial face mask and presenting a note identifying himself as a bomb specialist carrying explosives, this suspect robbed a Walgreens pharmacy. And, according to the police’s theory, that same suspect carried out the exact same scenario at a Rite Aid pharmacy the next day.

The officers had little to go on. Two eye witnesses had identified an individual in a lineup, but police rejected that identification when they determined the individual was incarcerated at the time of the robberies.But after a Crime Stoppers aired a surveillance video of the Rite-Aid incident, police received two tips—one anonymous and one from an informant—that an individual named Cozzi resembled the half-masked subject in the video. The informant also told police where Cozzi lived and that Cozzi had a Lortab addiction. Police obtained a search warrant and searched Cozzi’s home. “[O]fficers found no mask, no note, and no clothing that matched the perpetrator’s.” They did find a bag containing 32 loose pills. But during that search of Cozzi’s home, a roommate pointed out to officers that the photograph of the suspect taken at the crime scene was obviously not Cozzi because the suspect had “numerous tattoos up and down his arm”—Cozzi had only one on his hand. Undeterred, police arrested Cozzi, took him to the station, questioned him, and released him the next day, “unable to find something that could substantiate for his arrest.”
Despite the tipsters’ detailed suspicions about Cozzi’s potential guilt, and despite the arguably corroborating pills found in Cozzi’s house, the Eleventh Circuit found that the officers lacked probable cause to arrest Cozzi given the “easily verifiable exculpatory information” regarding Cozzi’s tattoos (or lack thereof) available to them at the time. In fact, according to the Eleventh Circuit, there wasn’t even “arguable probable cause” that would entitle the officer to qualified immunity under the facts presented.
The probable-cause-to-arrest assessment must, the Eleventh Circuit emphasized, be assessed under the totality of the circumstances. An “officer may not turn a blind eye to evidence suggesting that a suspect is innocent” by choosing “to ignore information that has been offered to him” or by electing “not to obtain easily discoverable facts.” That arrest without arguable probable cause, let alone probable cause, violated Cozzi’s “clearly established Fourth Amendment right to be free from unlawful arrest.”

Palpably pretextual assertions can't cut it

Sun, 06/17/2018 - 16:45
As the Second Circuit reminds us this last week, a valid exception to the warrant requirement better apply before law enforcement goes traipsing through someone’s home without a warrant; palpably pretextual assertions later lodged as an exception cannot withstand scrutiny, especially when it comes to warrantless searches of the home, the “first among equals” under the Fourth Amendment. Florida v. Jardines, __U.S.__, 133 S.Ct. 1409, 1414 (2013) (“At the Amendment’s very core stands the right of a man to retreat into his own home and there be free from unreasonable government intrusion.”) (cleaned up). 
In United States v. Diaz-Jimenez, law enforcement carried out a warrantless search of a suspect’s home more than eight hours after the completion of an armed bank robbery. The search also took place after the two suspects had already been arrested. The district court denied Mr. Diaz’s motion to suppress evidence seized from the warrantless intrusion, and he was convicted by a jury after a joint trial. 

But the Second Circuit vacated Mr. Diaz’s conviction finding that the district erred in not suppressing the evidence. Neither Buie’s protective-sweep exception nor voluntary consent—“the only even arguably relevant exceptions to the warrant requirement”—could salvage the evidence. The government did not present any evidence to support a reasonable inference that at the time of the intrusion, law enforcement believed there was someone armed in the home—let alone anyone at all—to pose an ongoing threat. And the government’s second bite of the apple as to an exception authorizing the warrantless search, too, was without merit; any consent to search obtained from Mr. Diaz as he stood handcuffed outside his home surrounded by a SWAT team that had already conducted a sweep and discovered incriminating evidence could not be deemed voluntary. (As the Second Circuit noted, “[t]he prosecution did not even attempt to make such a showing.”) 

The court’s error, the Second Circuit concluded, “was certainly not harmless beyond a reasonable doubt” given that the evidence was “central” to the government’s case.

Guns guns guns

Tue, 06/12/2018 - 17:31
The Tenth Circuit wants us to know a couple of things about gun charges and gun sentencing enhancements.

First, the bitter. In United States v. Melgar-Cabrera, the Tenth Circuit overruled circuit precedent to hold that 18 U.S.C § 924(j) (providing enhanced penalties for section 924(c) deaths) is a discrete, stand-alone crime. It is not just a sentencing enhancement. A person may be convicted and sentenced under section 924(j) even absent a conviction under section 924(c).

And now for the sweet. In United States v. Francis, the Tenth Circuit held that the government must prove two things before a district court may impose the 4-level firearms-trafficking enhancement at USSG § 2K2.1(b)(5). That section applies if (among other conditions) the defendant transferred (or intended to transfer) two or more firearms to another person and knew or had reason to know that the other person's possession would be unlawful because that person had a prior conviction for a crime of violence, a controlled substance offense, or a misdemeanor crime of domestic violence. Got that? Okay. Here's what the government must prove:

(1) that the transferee actually had such a prior conviction at the time of the transfer (i.e., was not just an undercover agent pretending to have such a prior conviction); and

(2) that the defendant knew or had reason to know that the transferee fell into the guideline's narrow category of unlawful possessors (i.e., not just that the defendant knew or had reason to know that the transferee had some garden-variety felony): "The proper focus is on what the defendant knew about the specific transferee, not whether by the law of averages any given customer might qualify as an unlawful possessor as defined by § 2K2.1 cmt. n.13(A)(ii)(I), (B)."

Circuit split: USSG § 4B1.2's "commentary offenses"

Sun, 06/03/2018 - 17:31
We have over the past several years blogged about advocates’ need to be weary of enumerated “commentary offenses” that are inconsistent with the guidelines themselves. (See, e.g., hereand here.) And last week, in United States v. Winstead, the D.C. Circuit created a new and notable circuit split on the issue.

The Winstead court acknowledged that in Stinson v. United States, 506 U.S. 36 (1993) the U.S. Supreme Court held that the commentary to the guidelines should be treated as an agency’s interpretation of its own legislative rule. (Citing Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)). “Thus, under this Seminole Rock deference, commentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.”  
Irrespective of sister-circuit precedent holding otherwise, the D.C. Circuit found that “there is no question” that the commentary to § 4B1.2 is inconsistent with the guideline in that the commentary adds inchoate crimes that are not included in the guideline itself. (In this case specifically, the crime of attempted distribution). In so doing, the the U.S. Sentencing Commission has exceeded its authority under Stinson

Section 4B1.2(b) presents a very detailed “definition” of controlled substance offense that clearly excludes inchoate offenses . . . . [T]he Commission showed within § 4B1.2 itself that it knows how to include attempted offenses when it intends to do so. See USSG § 4b1.2(a)(1) (defining a “crime of violence” as an offense that “has an element the use, attempted use, or threatened use of physical force . . . .”) . . . . [S]urely Seminole Rock deference does not extend so far as to allow the Commission to invoke its general interpretive authority via commentary . . . to impose such a massive impact on a defendant with no grounding in the guidelines themselves.
The D.C. Circuit’s conclusion: Counsel’s failure to raise this sentencing issue before the district court, which categorized the defendant as a career criminal under § 4B1.1(a), constituted ineffective assistance of counsel under Strickland as a matter of law. “If the Commission wishes to expand the definition of ‘controlled substance offenses’ to include attempts, it may seek to amend the language of the guidelines by submitting the change for congressional review.”

Curtilage beats automobile exception

Tue, 05/29/2018 - 17:50
Everyone knows that rock crushes scissors, scissors cuts paper, and paper covers rock. And now we know that curtilage wipes the floor with the automobile exception. So said 8 out of 9 justices of the United States Supreme Court in Collins v. Virginia, decided this week. The Fourth Amendment does not permit a police officer "uninvited and without a warrant, to enter the curtilage of a home in order to search a vehicle parked therein." Put another way:

"The automobile exception does not afford the necessary lawful right of access to search a vehicle parked within a home or its curtilage because it does not justify an intrusion on a person’s separate and substantial Fourth Amendment interest in his home and curtilage."


p.s. Justice Thomas wants to reconsider imposing the exclusionary rule on the states, and Justice Alito believes that, while "[t]he Fourth Amendment is neither an 'ass' nor an 'idiot,'" the majority's opinion in Collins is both.

Not on the rental agreement? No problem.

Tue, 05/22/2018 - 20:13
As you've likely heard by now, the Supreme Court held last week in Byrd v. United States that a driver of a rental car who is not listed on the rental agreement nonetheless (usually) has standing to challenge a search of the car.

Here are some bits you may not have heard:

 1. If the driver gained possession of the car by fraud, that fact may deprive him or her of standing: "[I]t may be that there is no reason that the law should distinguish between one who obtains a vehicle through subterfuge . . . and one who steals the car outright."

2. Whether or not the driver violated the rental agreement is not likely relevant to the question of standing: "[T]he Government fails to explain what bearing this breach of contract, standing alone, has on expectations of privacy in the car."

3. Standing to challenge a search might be shown either by establishing a reasonable expectation of privacy in the place or thing searched (the basis on which Byrd won), or by establishing a property interest in the place or thing searched, that is, a "right to exclude others." Check out the Thomas/Gorsuch concurrence on this point, and note that the majority folded the property concept into its expectation-of-privacy analysis. See also United States v. Ackerman, 831 F.3d 1292, 1307 (10th Cir. 2016) ("In light of the Fourth Amendment’s original meaning, Jones explained that government conduct can constitute a Fourth Amendment search either when it infringes on a reasonable expectation of privacy or when it involves a physical intrusion (a trespass) on a constitutionally protected space or thing ('persons, houses, papers, and effects') for the purpose of obtaining information.") (emphasis original).

"Surplus" does not make an otherwise legal wiretap order insufficient

Sun, 05/20/2018 - 13:32

The Supreme Court decided Dahda v. United States, 2018 WL 2186173 (U.S. May 14, 2018), this past week. As you may know, this case originated from Kansas and involves the federal wiretap statute (18 USC 2510-2518). We previously blogged about the case here. In Dahda, the Supreme Court affirmed the Tenth Circuit's decision, but rejected its reasoning. The Supreme Court was not kind to the Tenth Circuit’s analysis, calling its interpretation of the statute “too narrow” and reminding the Tenth that the statute “means what it says.”

The wiretap statute includes a statutory suppression remedy (or an exclusionary rule), which applies in three instances: (1) where a communication was unlawfully intercepted; (2) where the order authorizing the intercept was "insufficient on its face"; and (3) where the intercept did not conform with the order authorizing the interception. 

Dahda involved the second provision. The Court held that an order's sufficiency is measured via 2518(4), which requires the order to include the “identity of the person, if known, whose communications are to be intercepted,” “a particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which it relates." The Dahdas objected to something else: a sentence within the order authorizing interception of phones located “outside the territorial jurisdiction of the court,” and further authorizing the interception to “take place in any other jurisdiction within the United States.”

In a bit of a brain buster, the Court held that this sentence did not make the order insufficient (even though it was “without legal effect” because the order could not legally authorize a wiretap outside Kansas). Instead, the sentence was surplus. “Were we to remove the sentence from the Orders, they would then properly authorize wiretaps within the authorizing court's territorial jurisdiction. A listening post within the court's territorial jurisdiction could lawfully intercept communications made to or from telephones located within Kansas or outside Kansas.” And here, the government did not use any evidence at trial that was obtained from a listening post outside of Kansas.

This last fact appears dispositive. Nothing from outside of Kansas was admitted, so nothing outside of Kansas should have been (but was not) suppressed. The territorial language, right or wrong, did not make the order insufficient. So the Dahdas lose (in a unanimous decision). 

As an aside, the Court does not address what would have happened if communications seized from a listening post outside of Kansas, from phones not located within Kansas, were admitted at trial; perhaps they would have to be excluded as “unlawfully intercepted.”

It's a short decision worth the read. 

--Dan Hansmeier