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Kirk Redmondhttp://www.blogger.com/profile/05149425706408433721noreply@blogger.comBlogger501125
Updated: 2 hours 5 min ago

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:

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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.

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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."

Amen.

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

Testimony on drug courier profiles alone cannot establish guilt

Sun, 05/13/2018 - 18:01

Expert testimony on drug courier profiles is inherently prejudicial. It has the potential for “including innocent citizens as profiled drug couriers” because simply matching a defendant to a drug profile “suggests to the jury that otherwise innocuous conduct or events demonstrate criminal activity.” Hence the reversal last week by the Ninth Circuit in United States v. Espinoza-Valdez where the government hung their hat “almost exclusively” on drug courier profile testimony.
In Espinoza-Valdez, evidence at trial demonstrated Espinoza-Valdez’s presence with two unknown men in a known drug-smuggling corridor close to the Mexican border near what appeared to be a camp for drug trafficking scouts. Evidence also demonstrated “the seizure of items that were suspicious in this context.” Nevertheless, “there was insufficient evidence for a jury to find beyond a reasonable doubt that Espinoza-Valdez entered into a conspiratorial agreement to import or distribute marijuana[,]” wrote D.C. District Court Judge Friedman sitting in designation for the Ninth Circuit. And this was true despite the introduction of 404(b) evidence that agents had previously apprehended Espinoza-Valdez in the same area, and that he had told the agents at that time that he and others were backpacking marijuana across the desert.
In short, the government may not rely on inherently prejudicial “expert testimony of drug courier profiles alone to establish guilt.” In Espinoza-Valdez the government presented no evidence of drugs that actually passed through or were intended to pass through the area under Espinoza-Valdez’s watch. “There simply [was] no evidence as to what (if anything) was specifically agreed to, who agreed to it, or what any agreement was intended to accomplish.”
“While it is possible, perhaps even probable, that Espinoza-Valdez was on the mountaintop to act as a scout for drug traffickers, a reasonable suspicion or probability of guilt is not enough.” Guilt, “according to the basic principles of our jurisprudence,” Judge Friedman stresses, demands more.

Lifetime supervised release for drug addict substantively unreasonable

Tue, 05/08/2018 - 18:38
Say your recently released federal client repeatedly tests positive for marijuana, picks up a state drug-possession case, is referred to drug treatment, and then repeatedly fails to report for scheduled drug testing. Not a great situation, but certainly not the worst thing a client ever did on supervised release, is it? Not so bad that you would expect him to be revoked, sentenced to 12 more months in prison, and then placed on lifetime supervised release, is it?

Or is it? Because that's what happened in United States v. Brooks, at least until the Second Circuit stepped in. Placing this defendant on lifetime supervised release was substantively unreasonable, held the Circuit.

Some of the good bits:

Supervised release is "a serious sanction that imposes significant limitations on a defendant’s liberty."

A court "may not take account of retribution . . . when imposing a term of supervised release."

"A lifetime of supervised release is . . . to some degree, at odds with the rehabilitative purpose of supervised release, as it presumes that the need for supervision will never end and that the defendant is essentially incorrigible."

"Given the non-violent nature of Brooks’s violations and the difficulty faced by so many offenders in controlling addiction, we conclude that his behavior was not so extreme or unusual as to justify a life term of supervised release."

Section 924(c)(3)'s residual clause held unconstitutionally vague

Sun, 05/06/2018 - 19:52


There are no qualms about it in the Tenth Circuit: 924(c)(3)’s residual clause is unconstitutionally vague. In United States v. Salas, the Tenth Circuit held that section 924(c)(3)(B), which defines a “crime of violence” that may enhance a sentence for a conviction under that section, “possesses the same features as the ACCA’s residual clause and [section] 16(b) that combine to produce more unpredictability and arbitrariness than the Due Process Clause tolerates[.]” As such, the Supreme Court’s holdings in Johnson v. United States invalidating the ACCA’s residual clause, and the Court’s reasoning last month in Sessions v. Dimaya invalidating 18 USC § 16(b)—the criminal code’s general definition of a “crime of violence”—applies equally here. “Vague laws invite arbitrary power,” Justice Gorsuch aptly noted in his concurrence in Dimaya. Through Salas the Tenth Circuit has thus made certain—and on plain-error review at that—that a sentencing court may not rely on section 924(c)(3)’s residual clause to enhance a defendant’s sentence.

So what if you haven't built a fortress---your property may still be protected curtilage

Tue, 05/01/2018 - 18:27
Officers found drugs in a third-party's car parked on the street in front of a resident's driveway. So naturally the officers decided to nose around the area for more drugs, ultimately walking to the back of the resident's driveway, scanning the area with a flashlight, and finding two guns in a bag on a chair. Bad call, said the Seventh Circuit, holding that this warrantless search (which lacked either a warrant or probable cause) violated the Fourth Amendment, and the guns must be suppressed. 
The driveway ran alongside the home and ended 80 feet back from the street in front of a shed that was just a few steps from the home's back door. While the driveway's primary use was for parking cars, the resident occasionally used the driveway area in front of the shed for outdoor events such as barbecues. This area was---like the front porch in Jardines---part of the home's protected curtilage. This was so despite the visibility of the area from the street and the absence of a fence in front of it. As the Seventh Circuit explained, "it is not necessary to turn a residential property into a fortress in order to prevent the police from 'trawling' one's yard . . . unencumbered by the constitution." United States v. Alexander, No. 16-3708 (7th Cir. May 1, 2018).

"A salient truth"

Tue, 04/24/2018 - 20:20
They were standin' on the corner, they didn't mean no harm;Along came the po-lice, took 'em by the arm;It was down in Ohio, there was no cause for blame;The police said "boys, you better tell me your names."
And thus two Whitehall, Ohio city police officers stopped and handcuffed two men because one of the officers found it suspicious that the men were "just standing there."

"At this juncture," wrote S.D. Ohio District Court Judge Algenon Marbley in his order suppressing the fruit of this illegal stop, "the Court is compelled to note a salient truth: [the defendants] are both black."

Why is this a salient truth?

Because "when a white officer approaches a black civilian, racial dynamics might make the civilian feel unusually threatened by the police and . . . race should therefore be relevant in determining whether a reasonable person would feel free to leave a police encounter."

Because "[t]o permit law enforcement officers to detain and search individuals based on their own views of what 'types' of individuals appear, to them, to be 'suspicious' would inevitably and inexorably exacerbate overpolicing of the underprivileged and of communities of color."

Because "[f]or generations, black and brown parents have given their children ‘the talk’—instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them." 
In case Judge Marbley's message still isn't clear: When it comes to the Fourth Amendment, we need to talk about race.


No traffic law prohibits driving while black

Sun, 04/22/2018 - 21:53

It’s after midnight. An officer spies a car traveling just under the speed limit near a construction zone. The driver is “sitting upright and rigidly in his seat, staring straight ahead.” His hands are on the steering wheel at “ten and two.” All signs of a careful driver, no? 
'Nu-huh' says the officer—that driver is being too careful.
Thus commences what becomes a lengthy pretextual stop for a non-existent traffic infraction followed by an exhaustive fishing-expedition-of-an-investigation—complete with FSTs (passed “with flying colors”), cumulative background checks (nothing), drug dogs (no alert), et al. The investigation eventually leads to a consensual search of the passenger compartment, which reveals numerous debit, credit, and gift cards. The driver is charged with possessing counterfeit or unauthorized access devices. The district court declines to suppress the evidence. 
Enters the Sixth Circuit to handedly reverse
Letting a tire barely touch a lane line does not give rise to probable cause in Ohio. Likewise, mere weaving within a lane does not provide reasonable suspicion of intoxication. A different result in this case, the Court recognized, “would neglect our duty and would allow the police to stop you, demand your identification, check for outstanding warrants, and call for a drug dog—even if you are doing nothing wrong.”
“A driver’s conduct need not be the Platonic ideal of good driving to avoid a stop by a police officer.” That rule transgresses all races, creeds, and nationalities. While the law may allow a pretextual stop based on a minor traffic violation, “no traffic law prohibits driving while black.”
The Sixth Circuit remanded with directions to suppress the illegally-obtained evidence, holding that the protections of the Fourth Amendment do not afford “officers the power to over-police people of color under a broad definition of suspicious behavior.”

CJA applications & revised CJA plan

Tue, 04/17/2018 - 18:04
CJA applications due May 15, 2018
The deadline for submitting applications for the District of Kansas CJA panel is May 15, 2018. Applications for attorneys who are not currently on the panel and reapplications for those nearing the end of their three-year term, are available here. All attorneys whose terms are expiring (and thus need to reapply) have been notified by email. Please share this information with anyone who might be interested in applying for the panel. The new terms begin July 1, 2018 and end on June 30, 2021.

Revised CJA plan   A number of revisions were recently made to the Kansas CJA Plan. Some highlights are below. The Plan, which took effect on March 17, 2018, is here.Pretrial Service Interview. A number of changes will help ensure that counsel is provided as early in the process as practicable. Under the new Plan, the pretrial services officers are to provide counsel notice and a reasonable opportunity to attend the pretrial interview.Membership of CJA Selection Committees.  The term for panel attorneys to serve on the CJA Selection Committee has been set at three years. (The current panel committee members are Michael Shultz (Wichita); Dionne Scherff (KC); and Jason Hoffman (Topeka)).
Removal from the Panel. The new plan provides a process for removal of any attorney from the panel during their three-year term. Cause for removal includes failing to fulfill the requirements of CJA panel membership, including the failure to provide high-quality representation to CJA clients. If removal is considered by the Committee, the panel attorney will be provided notice of the specific allegations and will have an opportunity to respond. This process does not apply to attorneys who have reached the end of their term and are reapplying.Timely Submission of Vouchers.  Under the national rules, vouchers are to be submitted within 45 days of the final disposition of the case. The Kansas Plan acknowledges this but now requires that a Statement of Exceptional Circumstances be uploaded to any voucher that is submitted later than 180 days after the final disposition of the case. The Statement is to set forth the reasons for the late submission.

No certainty? No enhancement!

Sun, 04/15/2018 - 13:45
The Tenth Circuit recently reminded us that, before a court may treat a prior conviction as an ACCA predicate, "we must be 'certain' that the violent-felony moniker 'necessarily' applies." United States v. Degeare, 884 F.3d 1241, 1244 (10th Cir. 2018). How certain? The Court does not say (neither party briefed the issue), but "at least more certain than not" (emphasis the 10th's). Id. at 1248 n.1.

If you have a close case involving a prior conviction under a statute that does not clearly and necessarily qualify as an enhancement predicate, invoke this certainty principle as a reason your client's sentence should not be enhanced.

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