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Kirk Redmondhttp://www.blogger.com/profile/05149425706408433721noreply@blogger.comBlogger501125
Updated: 2 hours 3 min ago

The new phone book is here!

Thu, 04/12/2018 - 21:17
Well, not quite yet. But the Sentencing Commission has announced its 2018 Sentencing Guideline Amendments. These amendments will go to Congress, and unless specifically rejected, they will go into effect on November 1, 2018.
Not surprisingly a number of the amendments will results in longer sentences for our clients, including a number of fentanyl related enhancements. But one little gem may be helpful for a category of our clients. A new application note to § 5C1.1 recommends no incarceration for defendants who fall in Zones A or B, who have no prior history, and the offense does not involve threats or violence or the possession of a gun. The proposed language reads:
    “If the defendant is a nonviolent first offender and the applicable guideline range is in Zone A or B of the Sentencing Table, the court should consider imposing a sentence other than a sentence of imprisonment, in accordance with subsection (b) or (c)(3). See 28 U.S.C. § 994(j). For purposes of this application note, a “nonviolent first offender” is a defendant who has no prior convictions or other comparable judicial dispositions of any kind and who did not use violence or credible threats of violence or possess a firearm or other dangerous weapon in connection with the offense of conviction. The phrase “comparable judicial dispositions of any kind” includes diversionary or deferred dispositions resulting from a finding or admission of guilt or a plea of nolo contendere and juvenile adjudications.”
Even though these amendments won't go into effect until November, we can argue today that the proposed amendment is evidence of the suggested outcome for these defendants by the sentencing commission. 

Unconscious, handcuffed, and zip-tied

Tue, 04/10/2018 - 12:38
Question: Once officers have subdued a potentially violent suspect by rendering him unconscious with a carotid restraint, handcuffing him, and zip-tying him, is it reasonable for those same officers to revive the suspect, strike him more than ten times, and---as he cries out "Oh God, please help me, please help me"---choke him unconscious again with a second carotid restraint?

Answer: Really? Who even needs to ask this question? Four Hutchinson, Kansas police officers, that's who. The Tenth Circuit set those officers straight this week in McCoy v. Meyers, et al., reversing the district court's grant of qualified immunity in Mr. McCoy's civil-rights suit against the officers, and holding that the officers' post-restraint force violated Mr. McCoy's "clearly established right to be free from continued force after he was effectively subdued."

The government intended what it wrote

Sun, 04/08/2018 - 11:44

“Many good Fourth Amendment stories begin with dogs[,]” writes Judge Thapar of the Sixth Circuit Court of Appeals. “And so it is here.” But the Sixth Circuit's decision in United States v. Perkins this last week does not actually focus on the conduct of a dog who alerted law enforcement to investigate a potential crime. Instead, Perkins poses the question that if courts are to read warrants in a commonsense fashion rather than hypertechnically, how does a court decipher between a common-sense construction of an anticipatory event and an unintended hypertechnicality that a court should overlook? The answer is a simple one according to the Sixth Circuit: “Common sense dictates that the government intended what it wrote.” Where the triggering event for an anticipatory warrant required delivery of a package to a specific person, at a specific place, a common-sense reading of the warrant requires that the package actually be delivered to that person, at that place.

The “replace-some-words canon of construction has never caught on[,]the Sixth Circuit noted, affirming the district court’s grant of the defendant’s motion to suppress.

Excited about that Microsoft Supreme Court case?

Thu, 04/05/2018 - 21:58
Well I have some bad news for you. The fight in the Supreme Court over the government's ability to force domestic companies to turn over user data that is stored abroad appears over (for now). On March 23, 2018 Congress passed, and the President signed the CLOUD Act which, generally, provides a procedure to obtain warrants in cross-border situations.

But how does that resolve a warrant that was issued under the old statute you might ask? Good question. The government withdrew that warrant, and has obtained a new warrant under the CLOUD Act's procedures. Microsoft has consented to the government's request to remand the case.

There may be more litigation related to the original procedure or the procedure now authorized under the CLOUD Act. But the fight before the Supreme Court, for now, looks to be over.

Did you click "next"?

Tue, 04/03/2018 - 16:03
Today the Tenth Circuit reminded us how important it is to complete all steps when filing with the CM/ECF system. In Klein v. Olson, et al., the Court dismissed an appeal for lack of jurisdiction because the appellant failed to click on the "next" button to finish filing the notice of appeal in the district court:
On December 8, 2016, an employee of defendants’ counsel logged onto the district court’s Case Management/Electronic Case Files (CM/ECF) system, uploaded a notice of appeal document, and used a credit card to pay the appellate filing fee. The uploaded notice of appeal document, however, was not docketed because the employee prematurely exited the CM/ECF system before completing the third and final step in the online filing process. The third and final step requires a user to click or press a button in order to submit the uploaded document to be docketed. * * *[C]ontrary to defendants’ arguments, there is no basis to conclude that their notice of appeal was delivered to or received by the clerk of the district court on December 8, 2016. To conclude otherwise would turn the district court’s clear and unequivocal electronic filing rules into mere suggestions, and would effectively allow a pleading to be "filed" without the pleading being docketed and, in turn, without the district court’s clerk or the opposing party knowing about it.

Expungement Day: April 20

Sun, 04/01/2018 - 12:56

Who:         YouWhat:        Expungement DayWhere:      Topeka When:       April 20, 2018
The positive effect that the expungement of a criminal record can have on one’s life, as well as on the lives of one’s family members, and the community as a whole, is tried and tested. Old arrest-records or convictions often become formidable barriers for individuals when seeking employment, higher education, or professional licensing, or when scouring for affordable housing options (for themselves and their families). The removal of an old criminal record can therefore be of pivotal importance to many. 

We have previously blogged about Clean Slate Clearinghouse and its wonderful compendium of state-specific expungement resources, including electronic access to Kansas’s expungement application forms. This month we are fortunate to have The Expungement Day Project (a local, pro-bono service built upon the collaborative efforts of community leaders and organizations) take lead in providing assistance to those of us in the community needing to expunge qualifying arrests, convictions, or diversions. 
This means your help is needed and wanted! The Topeka Bar Association is offering a one-hour CLE on April 11, 2018, for attorney and non-attorney volunteers wanting to assist with Expungement Day on April 20. Goodell, Stratton, Edmonds & Palmer is sponsoring the CLE free-of-charge to all Expungement Day volunteers. 

You can register for the CLE here. (Note: registrations are requested by April 4.) And Expungement Day volunteer shifts are available in the morning (sign up here) and in the afternoon (sign up here) on April 20, 2018. 

We hope to see you there! And a big thank you to all who have made this Day possible.

Fourth Amendment Frolic

Thu, 03/29/2018 - 21:20
For your Friday reading pleasure, a few recent Fourth Amendment wins:

Before officers knew they were patting down a felon, they had no reason to reach into his pocket to retrieve what they thought was ammunition. Items that are neither weapons nor contraband---and ammunition is not contraband unless possessed by a felon---cannot be retrieved during a Terry search. This according to the Eleventh Circuit in United States v. Johnson.

Eleven minutes into a traffic stop, an officer had all the information he needed to issue citations and send the driver and passenger on their way. Instead he dragged his feet, waiting for a drug dog to arrive and only then handing out the citations. After the dog failed to alert, the officer extracted consent to search from the driver. Did the officer unreasonably extend the stop? He did, said the Seventh Circuit in United States v. Rodriguez-Escalera, affirming the district court's suppression order.

Probable cause that a person is a drug trafficker is not enough for a search warrant to search that person's home. So said the District Court for the Southern District of Indiana in United States v. Zamudio, rejecting the government's argument that "drugs are likely to be found where drug dealers live," and refusing to excuse the search on good-faith grounds.