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Kirk Redmondhttp://www.blogger.com/profile/05149425706408433721noreply@blogger.comBlogger724125
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"[I]t is easy for a geofence warrant . . . to cross the threshold into unconstitutionality"

Mon, 06/14/2021 - 18:17

A geofence (or "geo-fence") is a virtual perimeter around an actual area. A geofence warrant is a court order authorizing the government to collect digital location-history data from private companies (such as Google) for a particular geographic area over a particular time frame. This data will (presumably) identify (nearly) every person who carried a cellphone (whether walking or driving or cartwheeling) through or past the area during the designated time frame.

Geofence warrants raise a host of Fourth Amendment questions. Do they authorize "searches" in the Fourth Amendment sense? What kind of probable-cause showing is required to support them? What about particularity? Are all geofence warrants unconstitutional general warrants? Or can they be sufficiently narrowed to satisfy Fourth Amendment requirements?

Few courts have grappled with these questions to date. A Westlaw search of all state and federal databases for "geofence warrant" yields only five results: one state trial court order and four federal district court orders. The most recent of these is an order from a D. Kan. Magistrate Judge denying (without prejudice) the government's application for a geofence warrant targeting the area around a building where a federal crime allegedly occurred. In the Matter of the Search of Information that Is Stored at the Premises Controlled by Google, LLC, 21-mj-5064-ADM, 2021 WL 2401925 (D. Kan. June 4, 2021).

In the order, the magistrate judge notes that "it is easy for a geofence warrant, if cast too broadly, to cross the threshold into unconstitutionality because of a lack of probable cause and particularity, and overbreadth concerns under Fourth Amendment jurisprudence." The magistrate judge then explains how the affidavit submitted in support of this warrant failed on both the probable-cause and particularity fronts.

First, probable cause that a crime was committed at the location is not enough. The government must also show probable cause that evidence of the crime will be found in the location data sought. Second, particularity requirements apply to both the geographic area and the time frame. If the government seeks a full hour of data, for instance, it must explain why. In sum:

The court simply issues this opinion to provide fair notice that geofence warrant applications must sufficiently address the breadth of the proposed geofence and how it relates to the investigation. It is not enough to submit an affidavit stating that probable cause exists for a geofence warrant because, given broad cell phone usage, it is likely the criminal suspect had a cell phone. If this were the standard, a geofence warrant could issue in almost any criminal investigation where a suspect is unidentified. The Fourth Amendment requires more, particularly where the warrant implicates the privacy interests of individuals who have nothing to do with the alleged criminal activity.

Want to read more? Check out this recent Harvard Law Review Note on the subject, and this Electronic Frontier Foundation article. Ask whether a geofence warrant was used in your case; request related discovery; and consider moving to suppress the fruits of the warrant. As the EFF has warned, "[i]ndiscriminate searches like geofence warrants both put innocent people in the government’s crosshairs for no good reason and give law enforcement unlimited discretion that can be deployed arbitrarily and invidiously. But the Framers of the Constitution knew all too well about the dangers of overbroad warrants and they enacted the Fourth Amendment to outlaw them."

"There are dogs around the corner"

Tue, 06/08/2021 - 16:09

It's been a while since we've rounded up Fourth Amendment decisions. Here are a few recent ones you might find useful:

In United States v. Suggs, the Tenth Circuit held that a search warrant lacked particularity and could not be saved by the severability doctrine. The warrant authorized officers to search Mr. Suggs’s home for “[a]ny item identified as being involved in crime.” The absence of any article modifying “crime” (such as “the crime,” which might have referred back to the crime identified in the search warrant affidavit) made this a “general warrant” that licensed exactly “the sort of general rummaging outlawed by the Fourth Amendment.” 

In United States v. Celes, 2021 WL 2292784 (E.D. Cal. June 4, 2021), the E.D. Calif. District Court held that an officer lacked reasonable suspicion to detain Mr. Celes in a driveway. The detention began either when the officer took Mr. Celes's ID and held it, or, at the very latest, 30 seconds later when he told Mr. Celes not to run because "I can run faster," and "[t]here are dogs around the corner in another car, okay?" The government's reliance on high-crime area + suspicious behavior did not add up to reasonable suspicion under the evidence presented here.

In United States v. Hall, the D. Kan. District Court held that, under the totality of circumstances, officers lacked exigent circumstances to excuse their warrantless entry into Mr. Hall's home during a knock-and-talk to investigate a report of shots fired into the air from an outdoor balcony at Mr. Hall's apartment complex.

The lesson in each of these decisions is the same: Train your eagle eye on every word of the warrant, every movement in the video, and every fact in evidence countering the officers' claimed justifications for their conduct. They say that the devil is in the details (that is, a thing that looks simple is actually complicated). But we know better. The more apt saying for our purposes is that God is in the details, meaning simply that details are important, and we must be thorough in our work.

With 44,778 collateral consequences nationwide, how do you know which ones affect your client?

Sun, 06/06/2021 - 16:30

Wait---how many collateral consequences? That's right, count 'em, 44,778. That's the number returned on an unlimited search for collateral consequences across all jurisdictions in the National Inventory of Collateral Consequences of Conviction.

That raw number's not very helpful when you want to advise a particular client whether a felony conviction will interfere with her work as a podiatrist, a pawn broker, or a pest-control professional. But the collateral consequences inventory can help. You can search by any combination of jurisdiction, consequence, key word, and offense type to narrow your results and answer your client's questions.

If your client is not a US citizen, you'll also want to consult the latest report on Immigration Consequences of Criminal Activity by the Congressional Research Service. There you can learn what criminal convictions trigger inadmissibility and deportation, or affect naturalization, relief from removal, or immigration benefits. Remember: we have a constitutional duty to accurately inform our clients of these consequences. See, e.g., United States v. Johal, No. 19-17244, 2021 WL 1511504 (9th Cir. Apr. 16, 2021) (IAC to overstate deportation risk, causing client to reject plea options that may have avoided deportation and proceed to trial).

Want to read more about collateral consequences and recent efforts to limit them? Check out the Collateral Consequences Resource Center; reports from the Prison Policy Initiativethis article about bipartisan momentum for clean-slate and fair-chance policies; and this essay about how collateral consequences flowing from criminal records entrench racial inequality.

Finally, once you learn how many (both temporary and lifelong) collateral consequences your client faces, consider arguing that the district court should take those consequences into account at sentencing. See, e.g., United States v. Jaime, 235 F. Supp. 3d 262 (D.D.C. 2017).

A Criminal Injustice

Thu, 05/27/2021 - 23:06

 This is just phenomenal reporting by Michael Harriot at The Root: A Criminal Injustice: How a City Ignored the Rape, Murder and Terrorism of Black Women for Four Decades

This is a story about a law enforcement officer in Kansas City, Kan., who elected officials, private citizens, lawmakers and fellow police officers who have [been] publicly accused of corruption, sexual assault and even murder. But this is not a story about a man. This is not a story about a police officer. This is not a story about Kansas City, a rapist, a serial killer, policing or America. This is a story about us.

The players are all-too-familiar to the Kansas defense bar, as are the stories of prosecutorial  corruption and police violence: AUSA Terra Morehead, former WyCo DA Jerome Gorman, former KCK police Chief Terry Zeigler,  and former KCK Detective Roger Golubski. Again we find that investigative journalists are doing the hard work that has been buried or abandoned by the Department of Justice or the Kansas Disciplinary Administrator

Harriot expounds on the facts that we already know to explain the deep racism where "white America ignored the way law enforcement officers treated Black people." For example, he retells the facts about police and prosecutors coercing false testimony from witnesses in order to convict Lamont McIntyre:

"Golubski, two detectives and Terra Morehead showed up at my door,” Niko [Quinn] told The Root. “I wasn’t home. But they told my aunt and my cousin who was living with me at the time to tell me that I need to get in touch with her. And if I did not contact her ‘sooner than later,’ she was gonna take my kids from me, and I’ll never see my kids again...That was the first threat she made. 

Harriot's survey is not limited to that one case.  As one person noted, "We don't know how many Lamont McIntyre's are behind bars." Instead, "The Root has interviewed dozens of witnesses, reviewed dozens of court cases and pored over thousands of pages, uncovering one of the widest-ranging examples of state-sponsored terror against Black women this country has ever seen." He lists at least a dozen Black women who have died in Wyandotte County, and "each of these unsolved murders are connected in some way to the king of the Kansas City Police Department’s detective unit, Roger Golubski." 

The trauma to these families and to this community is impossible to fully describe or quantify. But they are Black families and a Black community, and that explains, in part, why there has been no reckoning. As of today, no law enforcement or prosecutor has been held to account for their abusive conduct or forced to explain what happened to these murdered Black women. Harriot continues:

That the most powerful white people simply chose not to care about rape, corruption and dead bodies popping up everywhere is a disconcerting thought for most people. For me, their naive astonishment is the most astonishing part. It is stunning how many people can’t believe a thing like this can happen, even knowing that things like this have always happened. According to one report, police sexually assault at least 100 women every year. The most likely reason Golubski was never arrested is also the most unsettling:

           Because his victims were Black women. 

It is clear that we cannot entrust restorative justice to prosecutors, including those who promise conviction integrity review. Federal prosecutors protect their own, including their own law enforcement. The question now is whether those in power like Governor Laura Kelly, Representative Sharice Davids, and the Kansas Supreme Court--the court that literally gives license to these prosecutors--will finally demand some answers. But they been silent so far.

-- Melody


She blinded me with junk science

Tue, 05/25/2021 - 16:36

The rules of evidence don't apply at sentencing. FRE 1101(d)(3). But that doesn't mean that anything goes. At the very least, sentencing evidence must be reliable, whether it comes from police officers, codefendants, girlfriends, drug addicts, or confidential informants. See, e.g., United States v. Padilla, 793 Fed. Appx 749 (10th Cir. 2019) (police report); United States v. Dahda, 852 F.3d 1282 (10th Cir. 2017) (codefendants); United States v. Fennell, 65 F.3d 812 (10th Cir. 1995) (girlfriend); United States v. Richards, 27 F.3d 465 (10th Cir. 1994) (drug addict); United States v. Ortiz, 993 F.2d 204 (10th Cir. 1993) (confidential informant); accord USSG 6A1.3(a) ("In resolving any dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.") (emphasis added).

To that end, why not argue that scientific, technical, and specialized evidence should be subject to something like a Daubert inquiry before your sentencing court relies on it? Think risk-assessment tools, mental-health evaluations (especially those done in jail/prison settings), traditional forensic evidence, cash-equivalency assessments, drug-quantity approximations---you get the picture. After all, reliability is the touchstone of Daubert. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 589 (1993) ("[t]he trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable").

For more on this front, check out Maneka Sinha, Junk Science at Sentencing, 89 Geo. Wash. L. Rev. 52 (2021).

And remember: Object to any statements in the PSR that lack a reliable evidentiary source, and put the government to its burden of proving reliability at sentencing.

The Myth of Objectivity in Fourth Amendment Jurisprudence

Thu, 05/13/2021 - 22:53

From Juval Scott, FPD WDVa, The Myth of Objectivity in Fourth Amendment Jurisprudence is part of the ABA Criminal Justice Section Spring 2021 edition on Racial Justice. From a  historical perspective, Scott explains how  "objectivity" is a myth and why we need a racially informed approach to the Fourth Amendment:  

People of color, especially Black and Indigenous Americans, do not have the luxury of revising history and how it defines our existence in the United States. . . . . Embedded in the fabric of this country is a horrific history, and our legal system continues to perpetuate the less-than-equal historical legacy among Black, Indigenous, and people of color (BIPOC).

This is a powerful piece of writing, and should be required reading for all defense attorneys. Because the courts have largely failed to do so, it is incumbent on the defense bar to invoke "the influence of history, community dynamics, and policing practices in assessing whether citizens feel free to terminate an encounter with law enforcement." Does anyone really believe that a young person of color would feel free to walk away from the police? That is a myth perpetuated by police and prosecutors and embraced by the courts under the guise of objectivity.   

One particular lesson is this: Whren must be overturned. Whren says that police may stop someone for a pretextual reason when they don't have sufficient cause to stop for the real reason. It was bad law when authored by Justice Scalia in 1996, and it is worse today. "Whren provided the playbook for law enforcement to prey on communities of color under the guise of necessary traffic enforcement." When the judiciary condones and encourages police to lie--which is the foundation of Whren--the system is complicit in corruption and abuse. And that judicially-granted entitlement to lie is a significant reason that the "BIPOC community has been and still is terrorized by the police." 

Likewise, when courts continue "to protect police under the guise of qualified immunity, and, at the same time, admits illegally obtained evidence by those same officers, [they are]  complicit in gutting constitutional rights for the BIPOC community." This evinces a greater interest in "police welfare and perception than the [constitutional] deprivation itself." 

It is past time for a radical change in how we understand and apply the Fourth Amendment, if it is to ever have any meaning or credibility for our clients of color. "[I]t is past time for an honest conversation about race and the Fourth Amendment." 

-- Melody


     

Speedy trial & release rights during a pandemic

Mon, 05/03/2021 - 15:59

We want to keep our families, our clients, and our communities healthy during a pandemic. But we also want to protect our clients' rights---including their statutory and constitutional rights to a speedy trial (or at the very least release pending a delayed trial). And yet emergency order after emergency order has halted trials in district courts around the country. Something's gotta give at some point---right?   

Not yet (but maybe soon), at least according to a pair of cases decided by the Ninth Circuit last month.

Client on release; continuance authorized under Speedy Trial Act. In United States v. Olsen, the Ninth Circuit held that a district court abused its discretion when it granted Mr. Olsen's motion to dismiss based on the Speedy Trial Act. Specifically, the district court erred when it concluded that the pandemic did not justify an "ends of justice" continuance over Mr. Olsen's objection. Here's what the Circuit had to say about the ends of justice and COVID-19:

It is true “that the ends of justice exclusion . . . was intended by Congress to be rarely used, and that the provision is not a general exclusion for every delay.” . . . . But surely a global pandemic that has claimed more than half a million lives in this country, and nearly 60,000 in California alone, falls within such unique circumstances to permit a court to temporarily suspend jury trials in the interest of public health.

Client detained; release may soon be required on due-process grounds. In United States v. Torres, the Ninth Circuit affirmed a district court's denial of Mr. Torres's statutory and due-process-based motion for release. But the Circuit cautioned in Torres that "the length of Torres's pretrial detention is likely approaching the outer bounds of due process":

On balance, we conclude that Torres's twenty-one-month detention does not yet violate due process, but we caution that the length of Torres's detention is approaching the limits of what due process can tolerate. The length of Torres's pretrial detention is significant under any metric and is deeply troubling. But the lack of any prosecutorial contribution to the delay and the strength of the evidence supporting Torres's detention lead us to conclude that Torres's detention is rationally connected to a regulatory purpose—preventing danger to the community and ensuring Torres will appear as required. . . . However, all parties agree that at some point, regardless of the risks associated with Torres's release, due process will require that he be released if not tried. . . . And if Torres is not tried by his current trial date of May 25, 2021, the district court and the prosecution must consider whether further prolonging Torres's pretrial detention crosses the line from regulatory to punitive detention.

Challenging guilt by (gang) association

Sun, 04/25/2021 - 12:07

How does your state or city define and track criminal street gangs, gang members, and gang associations? What role do those labels play in Terry stops, at trial, or at sentencing? A new lawsuit against the Wichita Police Department's gang list sheds light on how easy it is to land on the list and how hard it is to get off of it---and how unreliable such a listing is for any law-enforcement or truth-finding purpose.

The ACLU, Kansas Appleseed, and others have sued the City of Wichita, challenging the constitutionality of K.S.A. 21-6313 (state law defining "criminal street gangs") as well as Wichita's practices and policies under the law. The complaint alleges, among other things, that the Wichita Police Department's "practices and policies surrounding its Gang List disproportionately target and harm individuals and communities of color and violate the First, Fourth, and Fourteenth Amendments to the United States Constitution."

The next time an officer claims to have stopped your client because he is a "known gang member," demand the evidence to back up that claim, and demand the evidence underlying that evidence. You may find a whole lot of nothing and a decent challenge to reasonable suspicion (or relevance at trial, or a sentencing enhancement).

Kansas CJA Panel applications now being accepted

Sun, 04/18/2021 - 16:30

The Criminal Justice Act Panel is a group of qualified attorneys selected by a committee of judges and experienced attorneys to represent individuals in criminal cases who are financially unable to retain counsel. The appointments are made on a rotating basis; the goal is for each attorney on the general panel to receive about six felony appointments each year. The current attorney hourly rate is $155.

Kansas CJA Panel applications are now being accepted until May 3, 2021. The new three-year term begins on July 1, 2021. Qualifications for panel members can be found in the district’s CJA Plan at section IX(C)(3) which can be found here. And panel applications can be found here.

If you have any questions about the application process or the CJA program in general, please contact Laura Shaneyfelt, CJA Resource Counsel, at laura_shaneyfelt@fd.org or 316-761-3652.

The Death of Daunte Wright

Fri, 04/16/2021 - 09:48

 

Much has already been written about 20-year-old Daunte Wright, a Black man killed by a veteran police officer during a traffic stop for purportedly expired tags. And now we have the same debates, the same police excuses, the same empty calls for more police training, the curfews designed to justify more arrests, and police concern about looting.

As public defense lawyers, the next time the government dares to argue that your young client of color should have felt free to walk away from police, that it was a consensual encounter, that their consent to search was voluntary, remember Daunte Wright on the phone with his mother. Remember Caron Nazario, the Black Army officer pepper-sprayed, threatened, struck, and handcuffed by Virginia police. Remember 13-year-old Adam Toledo who was killed by police with his empty hands in the air. Remember that for them, the choice of walking away or refusing to consent is isn't about a constitutional right. It is about whether they will die for doing so. 


A rare (and disturbing) peek into jury deliberations and race

Mon, 04/12/2021 - 17:10

Have you previously tried--and failed--to convince a judge to discuss racial and other biases (conscious or unconscious) during jury selection? Perhaps your judge is simply an optimist. Next time, point your judge to Harden v. Hillman for a peek behind the jury-deliberations curtain. Mr. Harden sued Officer Hillman for violating his constitutional rights. Both Mr. Harden and Officer Hillman are Black. A jury returned a verdict in favor of the officer.

A few months later, the only Black person on the jury came forward via affidavit to report that her service was so painful, humiliating, and embarrassing that she never wanted to serve again. She detailed other jurors' assumptions that Mr. Harden was a crack addict who had sued the officer just to get some money, and their denigration of Mr. Harden's Black lawyer and law team as "the Cosby show." She explained that the jurors had spoken freely in front of her, thinking she was Latina (because of her complexion and her name). She believed that Mr. Harden did not get a fair trial because of the jurors' blatant racial stereotyping.

Despite this evidence, the district court denied Mr. Harden's motion for a hearing to investigate juror bias in connection with his motion for a new trial. The Sixth Circuit reversed. Setting aside the procedural questions at issue in Harden, the case is a useful lesson for judges who don't think jurors need an anti-bias nudge. Is it actually effective to put the dangers of biases on the table during voir dire? I don't know, but surely it couldn't hurt. And it may emboldened some jurors to push back when biases bubble up during deliberations, and refocus the discussion on the evidence.

Kansas FPD now accepting applications for Second Chair Program

Thu, 04/08/2021 - 16:00

Applications for the 2021 Kansas Federal Public Defender's Second Chair program are now being accepted, through May 31, 2021.

Second Chair is a year-long training and mentoring program for attorneys who want to apply for the CJA panel but lack the requisite federal experience. The program is led by the FPD and will take place in Kansas City beginning July 2021.

The program includes an intensive monthly orientation that covers all phases of a federal criminal case and the federal Sentencing Guidelines. Attendance at these sessions is mandatory for continued participation in the program. Sessions will be held remotely if necessary.

Each participant will also be assigned to an experienced mentor attorney to shadow on selected federal criminal cases.

Participants should plan to commit about 8-10 hours per month. Materials and compensation ($70 per hour) are provided courtesy of the District of Kansas Bench-Bar Committee.

If you would like to apply, please send a letter of interest, resume, and the names of three references to Dana Burton at dana_burton@fd.org.


Who We Are: A Chronicle of Racism in America

Thu, 04/01/2021 - 20:43

 Jeff Robinson has "dedicated his career to chronicling racism." As a public defender and a trial lawyer, he knows how the criminal legal system has failed and he has seen the crushing injustice our clients of color endure. 

Jeff is also a captivating storyteller and teacher. Every time I hear Jeff speak, I learn something completely new or I see something from an entirely different perspective. He is as much a historian as a lawyer. And now one of his presentations is the basis of a feature-length documentary, "Who We Are: A Chronicle of Racism in America." This film just  premiered at SXSW last month.  



Today, Jeff is the Director of the Who We Are Project. His goal is to correct the narrative about the history of white supremacy and anti-Black racism in America. The Who We Are podcast offers six episodes discussing the history of racism in our country, including voter suppression, mass prosecution, inequities in medical care, and discriminatory housing practices. As  Jeff says, we "can't change our future if we don't understand our past." Listen here
-- Melody

 

"We arrest you, madam."

Sun, 03/28/2021 - 14:07

"The application of physical force to the body of a person with intent to restrain is a seizure, even if the force does not succeed in subduing the person." The slightest touch might suffice. "[T]he appropriate inquiry is whether the challenged conduct objectively manifests an intent to restrain."

So said the United States Supreme Court last week in Torres v. Madrid.

Read Torres for a summary of the two ways in which a seizure may occur: [1] With contact, regardless of submission; or [2] without contact, so long as there is (a) an assertion of authority and (b) submission to that authority.

(*Not actually the same
Countess of Rutland)Read Torres also for the historical context of the Court's holding, which includes this description of a genteel arrest in the Countess of Rutland's Case:

In that case, serjeants-at-mace tracked down Isabel Holcroft, Countess of Rutland, to execute a writ for a judgment of debt. They “shewed her their mace, and touching her body with it, said to her, we arrest you, madam.”

These days, seizures look a bit different, as the Torres majority notes: "There is nothing subtle about a bullet, but the Fourth Amendment preserves personal security with respect to methods of apprehension old and new."

The parsimony principle is real

Wed, 03/24/2021 - 16:39
Is prison time appropriate for every supervised-release violation---or for every crime, for that matter? Of course not. One of criminal law's core principles is that "punishment should be proportionate to the offender's wronging and blameworthiness." Robinson, Paul H., Criminal Law’s Core Principles (February 10, 2021) (forthcoming). But courts rarely articulate or explicitly enforce this principle. For a reminder of the key role it plays in federal sentencing, read this Seventh Circuit decision and remember to invoke the parsimony principle at your next sentencing hearing:Sentences must always conform to the “broad command” of the parsimony principle, which requires that sentences be “‘sufficient, but not greater than necessary to comply with’ the four identified purposes of sentencing: just punishment, deterrence, protection of the public, and rehabilitation.” Dean v. United States, 137 S. Ct. 1170, 1175 (2017), quoting 18 U.S.C. § 3553(a). This principle is especially important in a case like this where the alleged violations were not criminal, the defendant asserted a lack of intent, and there was evidence of reasonable efforts and good faith, putting in question which of the purposes of sentencing apply.

The Supreme Court has observed that prison is not necessarily appropriate for every violation of a condition of release, such as where, as the defendant asserts here, the defendant made bona fide efforts to comply and does not obviously pose a threat to society. Bearden v. Georgia, 461 U.S. 660, 668–70 (1983). “The congressional policy in providing for a term of supervised release after incarceration is to improve the odds of a successful transition from the prison to liberty.” Johnson v. United States, 529 U.S. 694, 708–09 (2000). Sending a defendant back to prison for a violation that occurs despite reasonable and good faith efforts to comply may well undermine that transition. 

Trying to exercise Fourth Amendment rights "is difficult and dangerous work"

Sun, 03/14/2021 - 17:39

Race is relevant to whether a person consented to a search (or to waive Miranda rights, or to “confess”). See United States v. Mendenhall, 446 U.S. 544, 558 (1980) (it was not irrelevant to the question of consent that “the respondent, a female and a Negro, may have felt unusually threatened by the officers, who were white males”). See also Beau C. Tremitiere, The Fallacy of A Colorblind Consent Search Doctrine, 112 NW. U. L. REV. 527 (2017). That's because the question of consent when it comes to searches and confessions is subjective: whether this person's consent was voluntary.

But race is not relevant to whether a person consented to a police encounter. United States v. Easley, 911 F.3d 1074, 1080-82 (10th Cir. 2018). That's because the initial seizure question is objective: whether a reasonable person would feel free to leave.

Why the difference? Search me. Better yet, read the majority and concurring opinions in the Eleventh Circuit case United States v. Knights, issued last week after the panel revisited its own previous decision on the issue.

The first time around, the Eleventh Circuit published an 11-page unanimous decision affirming the district court's denial of Mr. Knights's motion to suppress after finding that the law-enforcement "interaction" that Mr. Knights challenged was a consensual encounter. Among other things, Mr. Knights had argued that young African-American men do not feel free to walk away from multiple police officers "without risking arrest or bodily harm." Rejecting this argument, the panel concluded that, "[a]lthough the presence of multiple officers and the age and race of a suspect may be relevant factors . . . the totality of the circumstances establish that this encounter was not coercive."

Mr. Knights moved for rehearing. The panel requested further briefing addressing "whether the race of a suspect may be a relevant factor in deciding whether a seizure has occurred under the Fourth Amendment," citing Easley.

Last week, the panel vacated its first decision but reaffirmed the district court's denial of Mr. Knights's motion to suppress, this time in a 51-page published decision (majority + concurrence). This time, the panel held that race is never a relevant factor when deciding the initial seizure question (following Easley).

Judge Rosenbaum concurred in a lengthy must-read opinion. She sets out all of the ways in which the "free to leave" test "is unworkable and dangerous." She recognizes that policing is itself "difficult and dangerous," but "so is being a citizen trying to exercise his Fourth Amendment right to be free from unreasonable seizures"---an "especially tricky dilemma for Black citizens, who studies indicate historically have disproportionately suffered violence in law-enforcement encounters."

Ultimately, Judge Rosenbaum feels bound by existing law to leave race out of the "free to leave" calculus. But she invites the Supreme Court to adopt a modest bright-line, race-neutral amendment to that calculus: officers must clearly advise a person they wish to question whether the person is free to leave, before any questioning begins. If they don't, the encounter is presumptively a seizure. If they do, the encounter is presumptively consensual. Not a perfect solution, but a decent start. 

While we wait for that bright-line rule, take Judge Rosenbaum's opinion as a model for arguing that the lack of a free-to-leave advisory is, if not controlling, at least relevant to the analysis and weighs against a finding of a consensual encounter.

Guidelines commentary and zones of ambiguity

Sun, 03/07/2021 - 16:46

Is your client looking at a sentence driven by a sentencing guideline commentary? Does that commentary interpret a genuinely ambiguous guideline? Does the commentary fall within the identified zone of ambiguity? What is a "zone of ambiguity" anyway?

Guideline commentary can only interpret a guideline--it can't add to it. But the test for when courts may rely on the commentary is complicated and disputed.

It's time to update our understanding of that test. Read these two recent cases from the Sixth Circuit (loss commentary) and the Third Circuit (career-offender commentary). Watch for a ruling on the cert petition in Tabb (career-offender commentary; distributed for conference of 3/19/2021).

And urge your district court to wake up from its "slumber of reflexive deference" to the sentencing guidelines commentary.

Discovery: DNA source code v. Sixth Amendment

Tue, 03/02/2021 - 18:28

 TrueAlleleis probabilistic genotyping  (DNA) software that prosecutors sometimes rely on when traditional DNA testing is inconclusive. Probablistic DNA testing can run different variations or hypothesis on small or complex DNA mixtures. Cybergenetics, which owns TrueAllele, says “it removes “human intervention, error, and bias” to get information “many crime labs can’t.” But how this works—that is, the proprietary source code*−is a protected trade secret.

 When trade secrets clash with the Sixth Amendment, the Sixth Amendment wins. At least, it did last week in EDPa in United States v. Ellis. There, the government wants to rely on TrueAllele results as evidence that the defendant’s DNA was on a gun. The government refuses to provide the source code and other data, citing Cybergenetics’ trade-secret claim. The defense sought a subpoena duces tecum, which the government opposed. After ten months of litigation, the federal district court ruled in the defense’s favor, albeit with a protective order. The defense should now be able to determine the basis of the results and, if necessary, challenge the government’s evidence under Daubert.

The ACLU and Electronic Frontier Foundation filed an amicus brief in support of the defense subpoena. From theEFF: “DNA analysis programs are not uniquely immune to errors and bugs, and criminal defendants cannot be forced to take anyone’s word when it comes to the evidence used to imprison them.” Miscoding in STRmix, a TrueAllele competitor, revealed misleading results. On this point, a New Jersey Superior Court opinion issued Feb. 3, 2021,State v. Corey Pickett, observed,

The defense expert's access to the [TrueAllele’s] proprietary information is directly relevant to that question and would allow that expert to independently test whether the evidentiary software operates as intended. Without that opportunity, defendant is relegated to blindly accepting the company's assertions as to its reliability.  

 Takeaway: challenge science that relies on proprietary software, such as DNA or facial recognition or location-monitoring. And Tom Bartee's reminder:  discovery under a protective order is commonplace in trade secret litigation, so courts should reject the claim that trade secret = not discoverable, period.  

More hereand here. Stay tuned for the government’s next move.

 *Source code is the string of commands or instructions that tells the computer how to execute the program.

 -- Melody