Kansas Federal Public Defender's Blog
The police may not impound a car "simply as an excuse to look inside for evidence of a crime." But how do we know when an impoundment is pretextual? The Tenth Circuit offered a roadmap for this inquiry last month in United States v. Woodard, holding that a pretextual impoundment violated the Fourth Amendment.
As the Court explained in Woodard, if a car is parked on private property, impoundment will only pass Fourth Amendment muster if:(1) the car is blocking traffic, (2) the car is posing an imminent threat to public safety, or (3) the impoundment is justified by a standardized policy and a reasonable, non-pretextual rationale of community caretaking.
Mr. Woodard's car was about to be stranded in a QuikTrip parking lot upon his arrest on an outstanding misdemeanor warrant. The police impounded the car absent any proper justification. The Tenth Circuit concluded that the impoundment both fell outside the local impoundment policy and was pretextual. On this latter point, the Court considered several factors, and found that every one pointed to pretext:
First, the car was on private property.
Second, the officers did not consult the property owner.
Third, Mr. Woodard asked if he could call someone to pick up the car, and the police refused.
Fourth, the car was not itself evidence of a crime.
Fifth, Mr. Woodard did not consent to impoundment.
Finally, the Court considered the acts and statements of the police that were captured on their body cameras. These included comments from one officer that he thought Mr. Woodard was "fighting a huge drug case" and from another officer that he was going to search the car and “friggin’ light [Mr. Woodard] up with whatever we can.”
Are you challenging an impoundment? Watch those body-cam videos and be sure to read Woodard.
A drug dealer sends his supplier to pick up a box of cash from the dealer's wife. Can we assume without more that the dealer was his wife's "manager or supervisor," U.S.S.G. § 3B1.1(b), or that he "used . . . affection" to involve her in his drug crimes, U.S.S.G. § 2D1.1(b)(16)(A)?
Of course not. This is the twenty-first century. C'mon people.
See United States v. Sampel, 2021 WL 2793548 (2d Cir. July 6, 2021) ("Evidence that Sampel told a person to pick up money from his wife does not establish that Sampel “exercised [any] degree of control” over her . . . or that he in any way directed her involvement in the drug business. Likewise, this evidence does not support the conclusion that Sampel used affection to involve his wife in the crimes at issue. Simply put, more is needed.") (reversing and remanding for resentencing).
See also State v. Donkers, 867 N.E.2d 903, 939 (Ohio App. 2007) ("In today's society, regardless of what individual couples believe and practice, the law does not recognize the husband as the 'one public voice' or as the automatic head of household with supreme authority over his nonresponsible feme covert."); United States v. De Quilfeldt, 5 F. 276, 278 (C.C.W.D. Tenn. 1881) ("It is almost an absurdity in this day to pretend that husbands can or do coerce their wives into the commission of crimes . . . ; but to hold it to be presumed as a fact, in all cases where the husband is present, is the relic of a belief in the ignorance and pusillanimity of women which is not, and perhaps never was, well founded, and does them no credit."); but see Gray v. State, 527 P.2d 338 (Okla. Crim. App. 1674 1974) (noting "general rule that a wife committing a crime is presumed to have acted under her husband's coercion" if the husband is physically present at the time of the crime).
Accessing stored data from Baltimore's experimental panopticon-like aerial surveillance program is a search for Fourth Amendment purposes, and can't be done without a warrant. So said the en banc Fourth Circuit in Leaders of a Beautiful Struggle v. Baltimore Police Department.
Read Leaders of a Beautiful Struggle for a full description of Baltimore's now-abandoned "citywide prolonged surveillance campaign," which captured massive amounts of data in the form of aerial images that could be magnified to a point where people and cars were visible (only as blurred dots and blobs, but trackable nonetheless). Adding to the Big Brother factor, this data could be integrated with other data (license plate readers, gunshot detectors, etc.) to identify those dots and blogs and glean insight into the whole of an individual's movements.
Read Leaders of a Beautiful Struggle as well for the majority's discussion of the disparate impact of large-scale surveillance on vulnerable communities:
Baltimore is a thoroughly surveilled city. See generally J. Cavanaugh Simpson & Ron Cassie, Under Watch, Balt. Mag., Mar. 2021, at 96 (discussing cell site simulators, helicopters, security cameras, police access to residential cameras, police body cameras, and facial recognition software). “[Mass surveillance] touches everyone, but its hand is heaviest in communities already disadvantaged by their poverty, race, religion, ethnicity, and immigration status.” Barton Gellman & Sam Adler-Bell, Century Found., The Disparate Impact of Surveillance 2 (2017). While technology “allow[s] government watchers to remain unobtrusive,” the impact of surveillance “[is] conspicuous in the lives of those least empowered to object.” Id. Because those communities are over-surveilled, they tend to be over-policed, resulting in inflated arrest rates and increased exposure to incidents of police violence.
That is not to express our opposition to innovation in policing or the use of technology to advance public safety. It is only to emphasize that the role of the warrant requirement remains unchanged as new search capabilities arise. . . . The Fourth Amendment must remain a bastion of liberty in a digitizing world.
Finally, read the concurring and dissenting opinions in Leaders of a Beautiful Struggle for a fascinating debate about who gets to speak for "the community"; how Baltimore is both overpoliced and underpoliced; and whether more policing is the answer to violence.
On an unrelated note: If you subscribe to this blog, you may have missed a few posts recently as we've transitioned to a new email notice provider. Be sure to scroll down and read our posts about defining reasonable doubt and waiving restitution interest. If you haven't subscribed, or if you think you are still missing our email notices, please consider submitting your email address in the Follow by Email box at the top of the right-hand column on this page. Thank you!
Surely not. And that is because our decisions to engage in everyday tasks "rest on the fallacious comfort that because these activities did not result in chaos yesterday, they will not today." This fallacy is necessary to navigate the world. But it is not a fallacy we want jurors to indulge when they decide whether a person has committed a crime.
And that is why last month the Ninth Circuit reversed two drug-importation convictions in United States v. Velazquez. During closing arguments in Velazquez, the prosecutor assured the jurors that reasonable doubt is "something you use every single day in your life," offering as examples getting up, eating a meal, and driving a car, even though it's possible that you might get sick or have an accident. But, as the Ninth Circuit explained, "[s]uch decisions involve a kind of casual judgment that is so ordinary and so mundane that it hardly matches our demand for 'near certitude' of guilt before attaching criminal culpability."
The prosecutor's argument was inappropriate, misleading, and reduced the government's burden of proof. "The process of adjudicating guilt is a major and meticulous undertaking. People do not, 'every single day,' bear the solemn task of examining evidence and determining an accused's guilt. The comparison—to reflexive, quotidian decisions like 'getting up,' 'having a meal,' and 'travel[ing] to ... court'—is flagrant and seriously distorts the standard."
Going to trial any time soon? Listen carefully to how the government talks about reasonable doubt. Object. Ask for a curative instruction. The reasonable-doubt standard is indispensable. Don't let the government dilute it.
Unfortunately, some people make regular payments on their restitution judgment while serving their federal prison sentence, only to get released and find that they still owe tens of thousands of dollars more than was originally imposed. The reason? Interest.
When a judge imposes restitution of more than $2,500, interest is automatically imposed by statute. 18 U.S.C. § 3612(f). Interest is calculated according to a formula set in the statute.But! The court can waive interest. "If the court determines that the defendant does not have the ability to pay interest" the court can "waive the requirement for interest" (or limit the interest). 18 U.S.C. § 3612(f)(3).
There is a box on the judgment form for the court to check to waive the interest on restitution (or a fine).Judges may often waive interest on their own when they impose restitution. But keep an ear open. If the judge imposes restitution on your indigent client and doesn’t say anything about waiving interest, ask that it be waived at the sentencing hearing. The court need only say that the interest is waived and check the box on the judgment. Easy. And it might save your client thousands of dollars later on.
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."
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.
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 Initiative; this 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).
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.
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.
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."
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.
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).
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 firstname.lastname@example.org or 316-761-3652.
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.