GPS Before the S Ct in Nov!

OK, here's an exciting issue slated for oral argument in the S Ct on Nov 8.

United States v. Jones, No. 10-1259.

Questions Presented:

Does the warrantless use of a tracking device on a vehicle to monitor the vehicle's movements on public streets violate the Fourth Amendment?

Does the government violate a person's Fourth Amendment rights by installing a GPS tracking device on that person's vehicle without a valid warrant and without the person's consent?

We have seen more and more GPS cases in the district, so this issue is one to bear in mind!  Preserve it!

Format

The blogger program is changing its interface and blog formatting is not turning out well!  Sorry.  Hopefully, it will be smoothed out soon!

There's a Rhino in Central Park! Is It Loose or in the Zoo?!

United States v. Beauchamp, No. 10-5102 (6th Cir. Oct. 25, 2011) (to be published). Panel of Judges Moore, Kethledge, and Marbley (S.D. Ohio).

Fourth Amendment issues.

Facts:

Cops were patrolling a housing project because "they were receiving a 'ton' of narcotics complaints." One officer noticed an African-American man with another individual. This man walked away when he saw the police, not making eye contact with the authorities. One officer told the other to stop the "suspicious" subject. No reasoning for the stop was given. The man was simply out at 2:30 a.m.

An officer followed the man in the patrol car, parked near the man, and got out and instructed the man to stop. The man stopped. The officer claimed later that the man appeared very nervous and was shaking. The officer asked the man where he was coming from and the man answered vaguely: "down there."

An officer frisked the man for weapons. No weapons found. The officers sought consent to search and the man consented. An officer found $1,300 cash and a cell phone. Sticking out from the man's boxers was a plastic bag the officers assumed contained drugs.

During or after the search, another officer who recognized the man arrived at the scene. The officers pulled back the boxers and found something. The man tried to run, but the officers restrained him. The plastic package contained 18 rocks of crack.

Procedural History:

The man was charged with controlled-substance offenses. He moved to suppress the evidence. The defendant pleaded guilty, but preserved his right to appeal the district court's denial of his motion to suppress. Defendant received a within-guidelines sentence of 84 months.

Analysis:

A reasonable person would not have felt free to leave in these circumstances. The defendant had walked away from the officers twice and the officers then targeted him by driving up to him, telling him to stop, and instructing him to turn around and walk to the officers. It was reasonable to assume that the two encounters with different officers were connected.

A reasonable person would have perceived the officer's instructions as compelling him to obey. One would not feel free to disregard the instructions. The defendant had indicated, by walking away, that he did not want to talk to the officers. But a reasonable person would not have felt free to disregard the instructions.

The defendant was seized when he complied with the officer's orders. A "high-drug-complaint" location and late/very early hour do not give rise to reasonable suspicion. Nor do talking with someone else and walking away from the police. Nothing here transformed "a permissible walk away from a police officer into a suspicious act."

Interesting note: "An inquiry into reasonable suspicion looks for the exact opposite of ambiguity: objective and particularized indicia of criminal activity."

Other factors only became known after the seizure. So these factors cannot justify the seizure.

Next questions are: 1) was the consent to search voluntary, and 2) did that consent dissipate the taint of the seizure? Court finds that police coercion vitiated any consent given here. Consent was not voluntary. And even if the consent had been voluntary, it was tainted by the illegal stop. The evidence was discovered before the defendant struggled to flee, so the struggle is not an intervening circumstance.

The Court notes that "the purpose and flagrancy of the officer's conduct do not tend to dissipate the taint." The officers' conduct was investigatory. The officers did not stop until they found contraband on the defendant. This conduct is exactly the type of conduct the law seeks to deter.

Conclusion:

The Court reversed the district court's denial of the motion to suppress, and remanded.

J. Kethledge's Dissent:

Focused on standard of review. The dissent concludes that the majority is not deferring to the district court's findings as it should. The dissent also finds that the consent was voluntary, that a police frisk does not render consent involuntary. The dissent suggests that the majority is creating a circuit split "by holding . . . that a police officer's protective frisk renders coercive the rest of his encounter with the person who was frisked."

Footnote 3 of the majority opinion discusses the dissent's position, appellate factfinding, and de novo review. It's worth a read. The Court explains that it is not weird to see a rhinoceros in Central Park if there is a zoo there. . . .

Cop Gets 225 Years for Setting Up Drug Deals for $

United States v. Sease, No. 09-5790 (6th Cir. Oct. 21, 2011) (to be published). Panel of Judges Cole, Rogers, and Griffin.

Former Memphis police officer appealed convictions stemming from a conspiracy to set up drug buys for the purpose of seizing drugs and money for personal profit. Jury convicted him on 44 counts, including charges of conspiring to deprive another of civil rights under color of law, and robbery and extortion under color of official right. Ct sentenced defendant to 225 years.

Defendant challenged the sufficiency of the evidence. Argued he did not violate the rights of the drug-buy participants b/c there was probable cause to arrest the drug dealers and seize the drugs and money. COA affirmed the convictions.

There was a question regarding whether the defendant was challenging the sufficiency of the evidence or just a jury instruction. Ct found it was the former.

Defendant looked to Whren v. United States, 517 U.S. 806 (1996), to argue his position. (Whren is the pretextual-traffic-stops-are-OK case.) Ct rejected the defendant's reasoning, finding that "it is inherently improper for officers to set up drug deals for the purpose of taking the money and drugs for themselves, regardless of the context." The defendant's "actions are improper in an entirely different way and to an entirely different degree than the actions of the officers in Whren."

Whren’s holding that an officer's intentions are irrelevant in the Fourth Amendment analysis "comes out of a concern that courts are poorly positioned to engage in post hoc analysis of officer motivations, particularly in light of the snap decisions that law enforcement officers must make in stressful situations." This defendant, however, "was not faced with a complex set of assessments when he made his stops—the stops were pre-planned and staged to accomplish his criminal purpose."

The punitive purpose of 18 U.S.C. 242 "would be undermined were the court to allow a corrupt officer to hide behind the policy goals of the exclusionary rule." While the subjective intent of officers is irrelevant for purposes of the exclusionary rule, in the § 242 context, courts may inquire whether an officer acted with a corrupt, personal, and pecuniary purpose.

Unlike in the exclusionary rule context, a court must inquire into the subjective intent of the officer because willfulness is an element of an offense under 18 U.S.C. § 242, so there is no additional evidentiary burden to justify ignoring an officer's subjective intent. And while there are "few reported cases that deal with this level of officer misconduct, those that do exist all agree that purely illegal activities by law enforcement constitute a constitutional violation."

The Court cites United States v. Parker, 165 F. Supp. 2d 431, 441 (W.D.N.Y. 2001), in which "three Buffalo police officers, along with a DEA agent, entered into an agreement with a 'known drug trafficker' to arrange a meeting with a more prominent 'Jamaican drug dealer.' The plan was for the officers to rob the drug dealer’s safe house and divide the proceeds from the robbery between themselves, as well as detain the drug dealer and take cash and drugs off his person. In truth, the 'Jamaican drug dealer' was an FBI undercover agent and the officers’ contact was an FBI confidential informant." The officers in that case had also cited Whren in advancing arguments similar to those in Sease's case. The appellate court rejected the arguments, finding that willful conduct by officers, done with the specific intent to violate people's rights, supports conviction under § 242. The appellate case is United States v. Ferby, 108 F. App’x 676 (2d Cir. 2004).

Court here found "where, as here, there is clear evidence that the officers were not engaged in bona fide law enforcement activities, but instead acted with a corrupt, personal, and pecuniary interest, the officers violate the civil rights of those that are stopped, searched, or have their property seized." The defendant "deprived those that he targeted of their constitutional rights, and thus his convictions under 18 U.S.C. §§ 241 and 242 are supported by sufficient evidence."

Concurrent vs. Consecutive Sentences for SRVs

United States v. Stevenson, No. 10-6510 (6th Cir. Oct. 13, 2011) (unpublished). Panel of Judges Moore, Griffin, and White.

Defendant appealed 24-month consecutive sentence for supervised-release violation. Argued sentence was procedurally unreasonable b/c ct failed to appreciate that it had the discretion to impose a concurrent sentence.

COA remanded for resentencing.

GL range for violations was 21 to 27 months. Sentencing ct imposed a 24-month sentence to be served consecutively to any state term defendant was serving.

COA found that the dist ct had attempted to address all of the defendant's arguments, so the sentence was not procedurally unreasonable b/c of a failure to consider the arguments.

Defendant argued that the dist ct wrongly concluded that the Bureau of Prisons would not honor a recommendation that the SR sentence and the undischarged state sentence be concurrent. Defendant argued that the dist ct did not mention or consider 5G1.3(c) (addressing concurrent and consecutive sentences and factors to consider).

COA considered 5G1.3(c) and 7B1.3(f) (which provides for consecutive sentences in the SRV context). Citing its recent decision in United States v. Johnson, 640 F.3d 195 (6th Cir. 2011), the appellate court reiterated that 7B1.3(f) does not strip a district court of the discretion to impose a concurrent sentence for a supervised-release violation. In this case, the Sixth Circuit found that "Unlike in Johnson, it is not clear from the district court's remarks whether it understood it had discretion to impose a concurrent sentence." So COA remanded.

More SCOTUS

Another case to watch is from the 6th Cir. with argument set for Halloween.

Lafler v. Cooper, No. 10-209.

Decision for 6th Cir. is 376 F. App`x 563.

Defendant charged with assault with intent to commit murder. Counsel advised him to reject plea offer b/c of a misunderstanding of Michigan law. Defendant rejected the offer. He was convicted as charged. (No trial error asserted.)

On habeas review, the 6th Cir. found that there was a reasonable probability that the defendant would have accepted the plea offer had he been properly advised. So his Sixth Amendment rights were violated. The writ was conditioned on the state once again offering the plea deal.

Questions presented are:

Whether a state habeas petitioner is entitled to relief when counsel deficiently advised him to reject a favorable plea deal, and defendant is later convicted after a fair trial.

What remedy, if any, should be provided for ineffective assistance of counsel during plea negotiations if a defendant is later convicted under constitutionally adequate procedures?

SCOTUS and Strip Searches

Sixth Circuit opinions are all immigration decisions this morning, so we're back in the S. Ct.

The Court heard argument yesterday in Florence v. Board of Chosen Freeholders, No. 10-945. Issue is whether the Fourth Amendment allows jails to conduct suspicionless strip searches of all arrestees, even those arrested for only minor offenses, regardless of the circumstances.

The petition for a writ of cert was granted April 4, 2011. The Solicitor General moved the Court for leave to participate in argument, and the Court granted the motion.

Cert Granted re Double Jeopardy

Double rainbow, double jeopardy. . . .

No 6th Cir opinions today. But the S Ct granted cert in Blueford v. Arkansas, No. 10-1320. The Ct's going to consider whether, if a jury is deadlocked on a lesser-included offense, double jeopardy bars reprosecution for a greater offense after a jury has announced that it has voted against guilt on that offense.

Stay tuned!

Habeas

Sorry for the delay in posting. It's been hectic. (The picture, like this case, demonstrates long delays and congestion.)

Published habeas decision today: United States v. Van Hook, No. 03–4207 (6^th Cir. Oct. 4, 2011). Panel of Judges Merritt, Martin, and Moore.

Procedural History:

Long procedural history (pre-AEDPA case). Petitioner filed for federal habeas relief in 1995. Ohio courts had upheld petitioner’s death sentence. Ohio courts denied post-conviction relief. Initially, the federal district court denied the petition and the appellate panel reversed, finding that the petitioner’s confession was unconstitutionally obtained. The Sixth Circuit, sitting en banc, vacated that ruling. On remand, the panel again granted habeas relief, finding that trial counsel had been ineffective. Again, the Sixth Circuit sitting en banc vacated the decision. The panel found ineffective assistance on the next remand, but narrowed the scope of its holding. The Supreme Court granted cert and reversed. The case came back to the panel, and this decision is the next in the series.

Petitioner made three claims. He asserted a Brady claim that the the trial court and prosecution wrongfully withheld two pieces of exculpatory evidence from him at trial. He argued that his trial counsel was constitutionally ineffective because counsel failed to request an independent mental-health expert and requested a presentence report for the penalty phase. And he argued that his appellate counsel for his direct appeal was constitutionally ineffective for failing to raise two grounds for relief.

Brady:

Panel found that the State of Ohio had affirmatively waived the exhaustion of state remedies on the Brady issue. But the Brady evidence would not have added anything of note to the proof. If the three trial judges had not been persuaded by expert testimony to mitigate the punishment, the court found it was highly implausible that the two pieces of Brady evidence (which similarly suggested that the petitioner may have killed the victim because of a "homophobic panic") would have altered the judges’ conclusion. The evidence was weaker and less persuasive than the actual testimony and shined no new light on the issues.

The panel found that there was overwhelming expert testimony at the trial that the petitioner neither met the Ohio standard for insanity nor suffered from a mental disease. No expert testified that the petitioner met the standard for insanity, nor did any expert testify that the murder was the result of a mental disease. Neither of the two Brady documents stated that the petitioner met the standard for insanity or suffered from a mental disease or defect. So this evidence did not undermine confidence that the Ohio courts would have reached the same determinations regarding the petitioner’s mental condition.

Overwhelming evidence at trial showed that the petitioner satisfied the statutory aggravating factor of aggravated robbery. Even if the petitioner was motivated partially, or even entirely, at the precise time of the murder by a "homophobic panic," such a factor would not change the fact that the petitioner also stole some of the victim’s personal property by the use of serious physical harm, and thus committed robbery. The Brady evidence does not undermine confidence in the trial court’s determination regarding this aggravating factor. The court denied the petitioner’s Brady claim on the merits.

IAC for Trial Counsel:

The petitioner argued that his trial counsel was constitutionally ineffective because trial counsel failed to request an independent mental-health expert and requested preparation of a presentence report for the trial court during the penalty phase. The panel found that the Sixth Circuit, sitting en banc, had already rejected these arguments.

IAC for Appellate Counsel:

Petitioner argued his appellate counsel was constitutionally ineffective for failing to raise, among the assignments of error presented on direct appeal to the Ohio Supreme Court, two specific grounds for relief: 1) The trial court should not have admitted into evidence the victim-impact statements in which the victim’s mother and an arresting police officer urged the imposition of the death penalty; and 2) the prosecution committed misconduct by referring to the petitioner’s criminal history or capacity for future dangerousness during the penalty phase.

The petitioner, however, failed to follow the Ohio state procedural rules for timely filing claims of ineffective assistance of appellate counsel. And the petitioner’s delay was not one of days, but rather of years, so it did not matter whether the rule in effect at the time presumed timeliness if within ten days or ninety days. What mattered, under either rule, was whether the petitioner showed good cause for the six-year delay. The state appellate court reasonably found that he did not make the necessary showing.

The court found that the Ohio procedural rules constituted an adequate and independent state ground to foreclose review of the federal claim.

The panel found that the district court properly concluded that the petitioner’s claim of ineffective assistance of appellate counsel was procedurally defaulted. The petitioner presented no argument that his default should have been excused due to cause and prejudice. The panel held that the petitioner’s procedural default barred habeas relief on the claim.

The panel affirmed the judgment of the district court denying the writ of habeas corpus.