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Kirk Redmondhttp://www.blogger.com/profile/05149425706408433721noreply@blogger.comBlogger471125
Updated: 30 min 34 sec ago

Cert Grant Series: For the Bikers.

Sun, 12/10/2017 - 21:16
Collins v. Virginia is about a motorcycle. One that was covered, parked in an enclosed area of a driveway right next to a house, and then searched without a warrant, pursuant to the “automobile exception.”

The facts distill to this: the cops thought that Ryan Collins had eluded them on a couple of high-speed motorcycle chases, but they couldn’t be sure. They went to a ranch-style house where Ryan stayed. The house had a driveway that led through the front yard and then beside the house. The police saw a motorcycle covered in a white “tarp” (see below) parked in the driveway, behind a car and beside the house. “This portion of the driveway was enclosed on three sides: the home on one side, a brick retaining wall on the opposite side, and a brick wall in the back.”

You know the rest of this hackneyed story. Without permission and without a warrant, the police walk into the driveway, remove the cover to get the tag and VIN, and the bike comes back stolen. When Collins was charged with possession of a stolen motorcycle, he challenged the search.  

Not a problem, said the Supreme Court of Virginia. The police did not need a warrant because the automobile exception applies to any “readily mobile” vehicle. But Collins argues that the Supreme Court has always stopped short of “applying that rule on private, residential property.” Furthermore, if “police can search a car wherever they find it with no warrant, this Court’s protection of the curtilage will lose much of its value.” 

The question presented:
Whether the Fourth Amendment's automobile exception permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house.
This is not a case about probable cause (that was assumed) or about whether lifting the motorcycle cover was a search (it was). The case juxtaposes the privacy expectations in an automobile with the privacy and property rights within the curtilage of the home. Virginia focused only on the former. Collins argues that both privacy and property interests protected the covered motorcycle from a warrantless search because it  was parked, and covered, within the curtilege of the house. Those interests in the house should control this inquiry.
The Tenth Circuit, by the way, acknowledges that the automobile exception “‘may not apply when [a vehicle] is parked at the residence of the criminal defendant challenging the constitutionality of the search.’” United States v. DeJear, 552 F.3d 1196, 1202 (10th Cir. 2009).

That this was a motorcycle should not matter, warns the American Motorcyclists Association. The AMA amicus brief, more philosophy than law, invokes Marlon Brando in The Wild One and quotes Zen and the Art of Motorcycle Maintenanceto argue, first, there is nothing inherently suspicious about owning or using a motorcycle; and, second, it was a motorcycle cover, not a tarp, as it was mistakenly described below, and those covers serve lawful purposes: to protect against elements, for privacy, and to guard against theft. Removing the cover was intruding into the vehicle, like opening a car door. “When the police removed the cover from Petitioners’ motorcycle, a search occurred.”

Collins is set for argument January 9, 2018.

This is what "substantial interference" with a defense witness looks like

Thu, 12/07/2017 - 19:50
Has your defense witness suddenly taken the Fifth after receiving a warning from the prosecutor? You might want to find out exactly what the prosecutor said. Because if the prosecutor "assertive[ly]" threatened to make trouble for your witness if he so much as testified (whether or not he committed perjury), that warning just might be a Sixth Amendment violation.

Such was the case in United States v. Orozco, in which Chief District Judge Robinson (Kansas) vacated the defendant's convictions post-trial and dismissed his charges with prejudice: "While a limited warning of consequences for committing perjury is proper, a warning of consequences for simply taking the witness stand crosses the boundary line into improper witness interference." Dismissal with prejudice was necessary here because the prosecutor acted in bad faith and her interference prejudiced the defendant in several ways.

Cert Grant Series: “If this is the law, nobody is safe.”

Sun, 12/03/2017 - 21:38
On its face, United States v. Marinello is about mens rea: Can one be convicted of obstructing the IRS if they are unaware that the IRS is conducting an investigation? In practice, though, this case is really about prosecutorial abuse of power, which is attracted when a criminal statute reaches innocent conduct. The dissenting judges in the Second Circuit recognized this danger: “Prosecutorial power is not just the power to convict those we are sure have guilty minds; it is also the power to destroy people.”
The statute, 26 USC § 7212(a), allows prosecution of one who “in any . . . way corruptly or by force . . . endeavors to obstruct or impede the due administration” of the IRS. The Second Circuit, where this case originated, does not require that the defendant know of an IRS investigation. It does not require contemporaneity of the obstructive act and IRS investigation. It does not even require that the act obstruct a particular investigation. As Mr. Marinello argues, the statute is “a general prohibition on conduct that hinders the IRS in any way."
The facts are that Mr. Marinello ran a rather sketchy business in upstate New York: he was a poor bookkeeper, paid employees cash, did not keep bank statements or business records, and, well, didn’t always file tax returns. These activities spanned 1992 to 2010. The IRS investigation began, unbeknownst to him, in 2009. Eventually he was prosecuted for his bad business style, and convicted for obstructing an IRS investigation when he did not know there was an IRS investigation.
SCOTUS granted cert on this question:
Whether § 7212(a)’s residual clause requires that there was a pending IRS action or proceeding, such as an investigation or audit, of which the defendant was aware when he engaged in the purportedly obstructive conduct.
A circuit splitarises from the more reasonable Sixth Circuit, which reads into the statute a saving mens rea requirement. The First, Second, Ninth and, yes, Tenth fall on the wrong side of this divide. See United States v. Sorensen, 801 F.3d 1217 (10th Cir. 2015).
Two Second Circuit judges issued a powerful dissent from the denial of en banc review, with a scathing indictment of the panel opinion. Some choice quotes:
The panel “cleared a garden path for prosecutorial abuse.”
“How easy it is under the panel's opinion for an overzealous or partisan prosecutor to investigate, to threaten, to force into pleading, or perhaps (with luck) to convict anybody.”
The statute “affords the sort of capacious, unbounded, and oppressive opportunity for prosecutorial abuse that the Supreme Court has repeatedly curtailed.”
The panel had misconstrued the statute as “a prosecutor’s hammer that can be brought down upon any citizen,” rather than as a “specialized tool” to prevent obstruction of “active IRS investigations.”
The dissent, “decline[d] to defer to the Department of Justice’s views to determine the scope of a criminal statute.”
And, “If this is the law, no one is safe.”
The case will be argued this Wednesday, December 6, 2017.

Racial profiling is illegal in Kansas: now what?

Tue, 11/28/2017 - 17:59
Kansas law prohibits law-enforcement officers from using race or other prohibited factors when deciding whether to conduct a stop, arrest, or search. K.S.A. 22-4606, et seq.

Last month, the Kansas Supreme Court held in State v. Gray, 403 P.3d 1220 (Kan. 2017), that suppression is an appopriate remedy in state court for an officer's violation of this law. This is a must-read case for all Kansas state practitioners.

But how can this state law help our federal clients? The Supreme Court has held that violations of state law do not by themselves render a search or seizure unreasonable for Fourth Amendment purposes. See Virginia v. Moore, 553 U.S. 164 (2008). But a violation of Kansas's anti-profiling law might be decent fodder for cross-examining an officer who claims to be well trained and respectful of a client's legal rights.

Even better, violations of Kansas's anti-profiling law might render an officer's conduct flagrant for purposes of an attenuation analysis under Utah v. Strieff, 136 S.Ct. 2056 (2016). As we recently blogged, the discovery of an arrest warrant after an illegal stop will not remove the taint of a stop that resulted from racial profiling.

How else can we call upon this law to help our clients? Let us know your thoughts. The Kansas legislature did a righteous thing by adopting an anti-profiling law. Let's do our part to see that the law is enforced.

Risk of flight must be volitional under Bail Reform Act: "A defendant is not barred from release because he is a deportable alien."

Sun, 11/26/2017 - 22:28
An immigration "detainer" in effect at the time of an initial appearance in federal court is not enough, standing alone, to justify detention under the Bail Reform Act, according to a ground-breaking Tenth Circuit decision published last week. In United States v. Ailon-Ailon, the Court held that the risk of removal by ICE is not the same as a risk that the defendant will flee. This was an issue of first impression in this circuit.

Mr. Ailon-Ailon is charged with an immigration offense in the District of Kansas. The government moved to keep him in custody because an immigration detainer had been filed with the U.S. Marshal. That detainer was actually a form from ICE asking to take custody of the defendant if he were released from federal custody because he was (allegedly) subject to a reinstated deportation order.

The district court detained Mr. Ailon-Ailon based on a risk of flight. That is, the court determined that removal by immigration posed "a serious risk that such person will flee," a determinative factor under 18 U.S.C. § 3142(f)(2).

The Tenth Circuit reversed. "We conclude that the plain meaning of 'flee' refers to a volitional act rather than involuntary removal, and that the structure of the Bail Reform Act supports this plain-text reading." The Court observed, "As Ailon-Ailon noted at oral argument, one would not describe an individual who has been arrested at a crime scene and involuntarily transported to a police station as having fled the  scene." The government argued, unconvincingly, that it had no control over whether or when ICE would deport; the Court held that any fight over which federal agency has priority is for the Executive Branch to resolve.

The remedy was not a remand for further hearing on whether Mr. Ailon-Ailon should be released, but a directive to the lower court "to set appropriate conditions for Ailon-Ailon’s release pending trial. When the conditions of release have been met, the United States Marshals shall release Ailon-Ailon to ICE custody, pursuant to the detainer."

-- Melody