Med MJ Issues

Just posted this one to the Sixth Circuit blog too.

United States v. Duval, Nos. 12-2338/2339 (6th Cir. Feb. 7, 2014) (for publication).

Med MJ issues.

Panel of Judges Cole, Gilman, Donald. 

Issues:
* Was compliance with Mich Med MJ Act (MMMA) relevant to search-warrant application?  COA said no.
* Did the indictment allege a federal crime even though one of the defendants was a registered "caregiver" under the MMMA and qualified for the "practitioner exception" under 21 U.S.C. 802(21)?  COA said yes.
* COA affirmed district court.

Discussion:
* Defendants said search warrant invalid b/c deputy omitted defendants' status as registered patients and caregivers under Mich law.  Gov said issue waived b/c not raised in dist ct.  COA rejected gov's contention---defense counsel probed issue sufficiently in dist ct, though not quite explicitly. 
* Deputy did not have "clear and uncontroverted evidence" that defendants were complying fully with MMMA at time of search-warrant application.  Actually seemed like the defendants were not complying, given what officer knew.  The deputy did not know another officer had advised the defendants earlier about complying with the MMMA.  So failing to include that info in warrant application could not be deliberate.  Info not imputed here.  No evidence the officers communicated.
* Application for warrant was to state magistrate, rather than the federal magistrate judge, despite fact deputy was detailed to a federal agency.  But deputy's position gave him flexibility to choose whether investigation would go state or federal.   
* No error in failing to suppress evidence. 
* Defendants waived and forfeited chance to challenge sufficiency of indictment.  Issue raised first time on appeal.  Won't fly unless the alleged defect is jurisdictional.  No jurisdictional defect here.  COA cited United States v. Marcinkewciz, No. 12-2441 (6th Cir. Oct. 29, 2013). 

GPS Tracking, Warrants, and Good Faith

OK, life has been moving along post-Jones. 

Things were good in the Third Circuit.

"The police acted in the face of unsettled law at a time when courts were becoming more attuned to the argument that warrantless GPS surveillance violated the Fourth Amendment. Excluding the evidence here will incentivize the police to err on the side of constitutional behavior and help prevent future Fourth Amendment violations. We therefore conclude that the police actions taken here do not qualify under the good faith exception and hold that the exclusionary rule should apply in this case."

United States v. Katzin, 732 F.3d 187, 214 (3d Cir. 2013).

So no good-faith exception to the warrant requirement. . . .

BUT

On December 12, 2013, the Third Circuit granted rehearing en banc.  Set for May 28, 2014.  I guess we'll just stay tuned.   

Detainers: A Brief Primer

In Ortega v. United States Immigration and Customs Enforcement, No. 12-6608 (6th Cir. Dec. 10, 2013) (for publication), the COA gives a short discussion of immigration detainers.  Thought it would be helpful to post.  Panel was Judges Keith, Sutton, and Black (S.D. Ohio).  Judge Keith dissented. 

The COA explained:

Immigration authorities focus on individuals accused of breaking other laws.  Using a database, authorities determine whether an individual convicted of a state or federal offense is in the country illegally.  If the agent determines that the person is here illegally, the agent will issue a detainer to the authority that is then holding the person.  This detainer requests that the latter authority keep the person in custody or let the immigration agency know when the person is about to be released. 

8 C.F.R. 287.7 regulates detainers. 

The COA admonishes that federal detainers do not normally raise constitutional questions:

"If a local prison keeps tabs on someone until his release, even if it moves him from one prison setting to another, it is difficult to see how that continued custody is any business of the Due Process Clause or for that matter the Fourth Amendment."  Likewise, the local prison may notify federal immigration authorities before an inmate's release to allow the authorities to take custody of the inmate to begin removal proceedings. 

As the COA points out, however, things get complicated in less straight-forward cases.  What if an arrest is based solely on the detainer?  What if a state refuses to release someone, because of an immigration detainer, who has posted bail?  What if a state keeps a person in custody, because of a detainer, when the sentence was weekend confinement?  Or the person is on home confinement and gets moved to a prison? 
  Once a person is convicted and sentenced, deprivation of liberty is permissible.  Deprivations caused by moving prisoners, and things like that, do not raise due-process concerns.  A shift from home confinement to prison, however, may implicate due-process concerns. 

Here, the plaintiff sued ICE b/c he was on home confinement, and an American citizen, and a detainer was erroneously issued, which caused authorities to incarcerate him for four days.  For both the due-process and Fourth Amendment claims, however, the COA just found that the law was unsettled and so qualified immunity protected the defendants. 

Judge Keith dissented.

Judge Keith believes there was a clearly established liberty interest in home confinement.  And officers should have known that removing a person from their home and incarcerating them requires a minimum level of process. 

"The facts of this case are such that the unlawfulness of Metro Defendants’ conduct is readily apparent, even in the absence of clarifying case law. Metro Defendants seized Ortega, an American-born, United States citizen, from his home and took him to jail for four days, based upon an improper detainer, without a warrant or any semblance of process. In doing so, Metro Defendants did not allow him to produce any documentation that he was an American citizen."

Dissent also sees a problem with the lack of the detainer in the record. Cannot assess the reasonableness of the officer's error without being able to review the detainer.  

"To allow ICE to issue a detainer against an American citizen, with unlimited discretion and without any accountability, sets a dangerous precedent and offends any and all notions of due process."

Speedy Trial, Border Searches, CP Issues

United States v. Stewart, No. 12--1427 (6th Cir. Sept. 3, 2013) (for publication).

Panel of Judges Gilman, Griffin, and White. 

D convicted of violating 18 U.S.C. 2252A(a)(1). 

Facts:

* D flew into Detroit from Japan.  Randomly approached by customs officer at int'l bag claim.  Sent to secondary inspection area. 

* Customs officer attempted to search one laptop, but couldn't b/c battery dead and power cord required int'l converter.  While searching a second laptop, the officer found thumbnails of nude children.  Officer held laptops for further examination, but released the D.  ICE agent took computers to ICE office in Detroit. 

* Forensic analyst previewed one laptop and found suspected CP.  Officers got warrant.  Did forensic exam.  Found CP. 

* In '09, grand jury charged D with transporting CP. 

* D moved ct to dismiss case after passage of time based on speedy-trial grounds.  (An error in the CM/ECF calendaring program put the trial date beyond the seventy-day period.)  Ct dismissed case w/o prejudice. 

* Grand jury brought a second indictment a month later. 

Issues and Conclusions:

* Looking to U.S. v. Tinklenberg, 131 S. Ct. 2007 (2011), the COA concluded "the speedy-trial clock automatically stops when a defendant files any type of pretrial motion, including a motion to dismiss for a Speedy Trial Act violation."  B/c one day remained on the speedy-trial clock when the D filed the original speedy-trial motion, that motion tolled the clock and there was no violation. 

* The speedy-trial issue was reviewable here even though it was from the earlier case (otherwise, there could be no review).  Footnote 1 addresses.

* D was not entitled to dismissal with prejudice.  So subsequent indictment proper.

* The search of the computers in Detroit was not an "extended border search."  The computers never cleared the border.  This search was just a routine border search.  No 4th Am violation. 

* Cropping and brightening of pics could make the pics CP, even if original pics were not necessarily CP. 

Shocking! Medical Procedure Shocks the Conscience and Evidence Must Be Excluded

United States v. Booker, No. 11--6311 (6th Cir. Aug. 26, 2013) (for publication). 

Panel of Judges Gilman, Gibbons, and Rogers.  Judge Gibbons dissented. 

Defendant (D) had hidden crack in his rectum.  Police suspected the D had contraband in his rectum and took him to a doctor.  Without the D's consent, the doctor intubated the D for an hour, rendered him unconscious for 20 to 30 minutes, and paralyzed him for 7 to 8 minutes.  Using a finger, the doctor retrieved the crack and turned it over to the officers.

Even if the doctor was acting entirely for medical reasons, the D was under police control; in these circumstances, the procedure must be seen as attributable to the state for Fourth Amendment purposes.  The procedure, to which the D never consented, "shocks the conscience"; the evidence must be excluded. 

Case started with traffic stop.  Police knew the D from prior encounters.  Drug dog alerted near the D.  During pat down, officer noticed D allegedly "clenched his buttocks."  Officer found rolls of currency, but no drugs.  Search of passenger seat revealed baggies with marijuana and powder residue.  Police arrested D for possessing marijuana despite a an insufficiency of actual marijuana to justify the arrest under Tennessee law. 

Post-arrest, the D's actions made the officers believe he had something secreted in his buttocks.  Strip search conducted.  Officer claimed to see a string protruding.  After an altercation, the officers took the D to a hospital.  Doc told D that doc had to conduct the "procedure" (manually removing any drugs from the rectum) b/c the rectum can absorb drugs quickly, which could create a life-threatening situation.  Naked and cuffed, the D refused to submit.  The doc said he had a "duty" to remove any dangerous substance.  Police allegedly did not direct the doc to do anything. 

D contracted his muscles to preclude the doc's "examination."  Doc ordered injection of a muscle relaxant.  Encounter escalated.  Nurse administered a sedative and paralytic agent intravenously.  D intubated to control breathing.  During the paralysis, the doc removed the rock of crack (> 5grams).  Officer took the rock as evidence. 

Indictment followed.  D argued the officer lacked probable cause to arrest him for marijuana possession and that post-arrest treatment was unreasonable under 4th Am: invasion of privacy, dignity, and "liberty to refuse medical treatment."  Dist ct denied motion.  Jury convicted D.

Conclusions:

D’s "Fourth Amendment rights were violated. The officers brought [D] to [the doctor] and stood by while [the doctor] performed a highly intrusive and dehumanizing procedure on [D] without his consent. On the facts of this case, [the doctor's] actions are attributable to the state government and were so unreasonable as to shock the conscience. Because this conduct is sufficiently deliberate and culpable, suppression of the evidence was a proper remedy."

 

* Sufficient nexus to attribute doc's actions to police. 

 

* No solid evidence D consented to "procedure."  At most there could have been consent to an undrugged digital rectal examination, so D could avoid paralysis.  Doc admitted the D did not consent to paralysis. 

 

* No reasonable officer "could believe that, without direction from the police, and over the clear refusal to consent by a conscious and competent patient, a doctor could lawfully go ahead and perform such a procedure. Even if [this doctor] was motivated by benevolent medical ideals, his actions in paralyzing and intubating [the defendant] and performing a rectal examination without his express or implied consent constitute medical battery."

 

* Police used doc as tool to search D's person. 

 

* "Procedure" here unreasonable.  From a legal standpoint, "investigative conduct that would shock

the conscience for purposes of the Due Process Clause is 'unreasonable' for purposes of the Fourth Amendment."

 

* Factors to consider regarding constitutionality of forced surgery: 1) extent of procedure's threat to safety/health of individual; 2) extent of intrusion upon individual's dignitary interests in privacy and bodily integrity; 3) community's interest in fairly and accurately determining guilt or innocence.  "In addition, when there was time to obtain a court order and the police declined to seek one, the suspect’s privacy interests should be given particular solicitude."  These factors, analyzed in the circumstances presented, compelled the conclusion that the 4th Am was violated. 

 

* Exclusion necessary.  No good-faith exception to save evidence from exclusion: "Based on the circumstances of this case, a reasonably well-trained officer and physician would have known that the search was unlawful."

 

Judge Gibbons dissented.

 

She did not believe the doctor was a state actor.

 

She found that "[t]he district court reasonably found that the officers took [the D] to the emergency room because they believed he had a serious health problem.  There is no evidence that the officers had met [the doctor] prior to this incident, knew he would be at the emergency room they took [the D] to at that particular time of day, or knew that he had previously worked with the Sheriff’s Department.  In the absence of a record establishing these facts, the premise that [the doctor] was a mere 'tool' of the officers is unsupportable."

 

 

Terry Stops: 6th Cir. Provides New Guidance

Another snow picture!

United States v. Young, No. 11--2296 (6th Cir. Dec. 20, 2012) (designated for publication on Feb. 7, 2013).

Panel of Judges Siler, Cook, and Steeh (E.D. Mich).

Felon-in-possession case.

Procedural wrinkle:
* Defendant moved the district court to suppress evidence in 2007 during his original case.  He appealed that court's denial of the motion.  The COA affirmed b/c the defendant had not preserved the issue properly. 
* The defendant then filed a 2255 based on counsel's failure to preserve the issue.
* The district court vacated the original plea and accepted an amended conditional plea that preserved the issue.
* This appeal then followed.

Facts:
* On December 15, 2006, at 1:15 a.m., the defendant was sitting in the passenger seat of a car, in a reclined position, in a city-owned parking lot outside Julian's Bar and Restaurant in Grand Rapids, MI.  It was a lot regularly used by Julian's patrons. 
* Area had a recent history of violent crime, including shootings and assaults.
* Police officers testified that those waiting outside Julian's are more likely to be armed, as Julian's conducts pat-downs.
* Officers also testified that they look for those loitering, as loitering leads to "problems." 
* Under the city's loitering and trespassing ordinances, it was a crime to be in the lot without business at the adjacent establishments.
* Officers pulled into the lot.  They parked behind the defendant.  They observed the defendant for about a minute and a half.
* The officers approached the car in which the defendant was sitting.  They looked through the windows with flashlights.  One officer hit the passenger window with a flashlight.  After a fifteen-second pause, the defendant rolled down the window.  The officer requested ID.  When asked if he was "chillin'," the defendant replied that he'd fallen asleep while his companion ran into Julian's to see if they could get a table, or if they should just get take out. 
* The friend returned to the vehicle at that point.
* Officers sent the friend back into Julian's and told the defendant to "sit tight."
* The officers collected the defendant's ID and ran a warrant check.
* The defendant allegedly began making gestures around his pocket, as though he had contraband.  An officer asked the defendant to step out of the car.  The defendant then disclosed that he had a gun.  The defendant was cuffed, an officer reported an outstanding warrant, and the entire incident lasted about four minutes.

Conclusions and reasoning:
* The defendant was subject to a Terry stop when the police car parked behind the vehicle in which he sat.
* COA cited United States v. See, 574 F.3d 309 (6th Cir. 2009), and United States v. Gross, 662 F.3d 393 (6th Cir. 2011).  Even though the stop here occurred before these cases were decided, this case was pending on direct review after those decisions. 
* At the time the police cruiser parked behind the defendant, the police had reasonable suspicion to stop the defendant: it was a high-crime area, Julian's pats its patrons down, and the defendant was reclined in the car. 
* The high-crime area and pat-downs are contextual factors entitled to little weight, but they are still relevant.  The COA recognized that the crime in the area was violent crime, as opposed to the trespassing the police suspected the defendant was engaged in, but officers testified that trespassing and guns "are inter-related."  The pat-downs at Julian's meant ppl with guns were more likely to wait outside.   
* The COA gave reclining in a car at 1:15 a.m. more weight.  Officers believed the defendant was trespassing. 
* The COA rejected the defendant's "novel argument that suspicion of a mere trespassing violation is not sufficient to support a Terry stop under a 'reasonableness' inquiry because such offenses do not pose a danger to the public." 
* The warrant check and initial questioning were permissible under Terry.  While the permissibility of the warrant check was undecided prior to this case, the COA concluded that the check was permissible.  Other circuits had so held. 
* The warrant check would have produced the outstanding warrant regardless, so the officers could have arrested the defendant, and would have discovered the gun. 
* The stop, the COA noted, lasted only four minutes.  It was reasonable to tell the defendant to "sit tight." 
* COA recognized the potential for Terry-stop abuse, but decided that police must be able to investigate actual crimes, even if the crime is just trespassing. 
 

 
 

On What Night Would You Host a Bachelor Party? And Does the Choice of Night Give Rise to Reasonable Suspicion?

An interesting question I'm sure we've all pondered: on what night should one host a bachelor party?

United States v. Rodriguez, No. 10-1874 (6th Cir. June 12, 2012) (unpublished). 

Judges McKeague, White, and Barrett (S.D. Ohio).

Per curiam.

Cocaine and heroin case.  Defendant appealed denial of motion to suppress.  COA affirmed.

Michigan State Trooper stopped D on I-94.  The trooper had been sitting in a marked police car and had been watching eastbound traffic.  Trooper saw the D lean back in his seat "in an apparent attempt to hide behind the door post" when the D passed the trooper.  Trooper began following the D.  Stopped D for following a semi-truck too closely.

After stop, no ticket issued.  Trooper told D that D was free to go, but then asked if he could ask the D something.  About four minutes of questions.  D ultimately consented to a search of the van and officers found kilos of heroin and cocaine. 

B/c there was a traffic violation, the stop was legal.  D did not provide testimony to contradict a finding that he was driving too closely behind the truck.

D not unlawfully detained after end of traffic stop b/c a reasonable person would have believed they were free to go after being told they were "good to go."  Police may ask questions after a traffic stop has ended.  No factors to indicate there was a further seizure here.   

The D had been in the back of the police car, so more analysis was required.  But still not a seizure, the COA found, b/c trooper had let D in the car to get out of the cold (D had been standing outside). 

And, COA continued, even if there was a seizure, there was reasonable suspicion to support it.  And here's where the bachelor party comes in. 

Factors COA found established reasonable suspicion:

* D had leaned back in his seat when he passed the patrol car in an apparent attempt to hide his face behind the door post;

* D slowed down when he passed the patrol car; 

* That stretch of I-94 (between Chicago and Detroit) is considered a "pipeline corridor" for drugs; 

* The van smelled strongly of air fresheners (commonly used to mask drug odors);

* The van was not registered to D; 

* D had stated that he was going to his cousin’s bachelor party, but he said he did not know the date of the wedding;

* D said the party was on a Thursday, "an unusual night for a bachelor party."

COA found that these factors, viewed in their totality, were sufficient to establish reasonable suspicion.

Judge White dissented.

She found that the D had been detained without reasonable suspicion after the traffic stop was completed.  A reasonable person would not have felt free to leave.  No reasonable suspicion to justify seizure.  All the factors the majority cited were weak.  "There is nothing inherently suspicious about a bachelor party being held on a Thursday." 

Consent to search was tainted.  Evidence should have been suppressed. 

SCOTUS to Consider Standing to Challenge Wiretapping

The S Ct granted cert in Clapper v. Amnesty International, No. 11-1025 (May 21, 2012). 

Question presented includes a little background:

Section 702 of the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. 1881a (Supp. II 2008) (Section 1881a) allows the Attorney General and the Director of National Intelligence to authorize jointly the targeting of "non-United States" persons "reasonably believed" to be outside the United States.  This targeting would be to acquire "foreign intelligence information," and would normally be with the Foreign Intelligence Surveillance Court's prior approval. 

The respondents in this case are "United States persons who may not be targeted for surveillance under Section 1881a."  They filed their action on the day Section 1881a was enacted, and have sought a declaration that Section 1881a is unconstitutional, and an injunction permanently enjoining any foreign-intelligence surveillance under Section 1881a.

The crux of the issue is whether the respondents lack Article III standing to seek prospective relief because they have proffered no evidence that the United States would imminently acquire any of their international communications using Section 1881a-authorized surveillance.  And they have not shown that an injunction prohibiting Section 1881a-authorized surveillance would likely redress the claimed injuries.

Second Circuit decision at: 638 F.3d 118.

If you like standing issues (and you know we get them once in a while!) and/or wiretapping and dragnet-surveillance issues, keep your eyes on this one!  Fourth Amendment issues undergird the whole thing. 

More Tech News: Searching Cell Phones

United States v. Flores-Lopez, No. 10-3803 (7th Cir. Feb. 29, 2012) (for publication).

Judges Bauer, Posner, and Rovner.

Seventh Circuit affirms district court's finding that cell-phone call history was admissible despite the fact that this history was obtained b/c the police searched the phone, without a warrant, to obtain the phone's number. 

This opinion is worth a read, especially on the heels of Jones and the GPS issue (see Jan. 25 post).

(I barely remember when phones looked like this one!)

A quick summary:

* Opening a diary found on a suspect whom the police have arrested, to verify the suspect's name and address and to discover whether the diary contains information relevant to the crime for which the suspect has been arrested, is permissible.  The cell-phone search is similar and "even less intrusive, since a cell phone’s phone number can be found without searching the phone’s contents."  

* This search did not touch on the use of an iCam to view the home of the owner of the seized cell phone.

* Other conspirators were involved in the drug distribution and they conceivably could have learned of the arrests (they could have been monitoring the drug deal from afar) and they could have wiped the cell phone remotely before the government could obtain and execute a warrant and conduct a search pursuant to the warrant to find the cell phone’s number.

* It is conceivable that the defendant might have had time to warn co-conspirators before the cell phone was taken from him, allowing time to wipe the phone.  While "conceivably” does not mean “probably,” the set off against the modest benefit to police of being able to obtain the cell phone’s phone number immediately comes at "only a modest cost in invasion of privacy."

* Armed with the phone number, the officers could obtain the call history at their leisure.  And if the number was lawfully obtained, subpoenaing the call history from the phone company would also be lawful.  A history thus obtained could properly be used in evidence against a defendant.

* It is "imperative" that officers have the authority to search or retrieve immediately, incident to a valid arrest, information from pagers in order to prevent destruction of evidence.  Same holds here.

* The court could "certainly imagine justifications for a more extensive search."  But the court leaves these questions for another day, as police here only obtained the phone’s number.

Really Exciting News from the 11th Cir. re Encrypted Files

In Re: Grand Jury Subpoena Duces Tecum Dated March 25, 2011: United States v. Doe, Nos. 11-12268 & 11-15421 (11th Cir. Feb. 23, 2012) (published).

Panel of Judges Tjoflat, Martin, and Hill.

CP case. 

Appeal of a civil contempt order.  D got subpoena to appear before grand jury and produce unencrypted contents of hard drives.  D told US Attorney that he would invoke his Fifth Amendment privilege against self-incrimination and refuse to comply with the subpoena.  US Attorney asked the district court for an order granting D immunity and requiring him to respond to the subpoena. 

The immunity would extend only to D's production of the unencrypted contents---not the gov's derivative use of the contents.  The district court issued the order.  D appeared before the grand jury and refused to decrypt the hard drives.  D invoked his Fifth Amendment rights (D was w/o counsel at these times).  D also claimed he could not decrypt the material.  The district court adjudged the D in contempt and incarcerated him. 

Authorities had gotten the hard drives after investigating CP allegations and tracing them back to the D and a hotel room in California.  Law enforcement got a warrant and seized all digital media and a number of encryption devices/codes to access the media.  Forensic examiners, however, were unable to view some of the material, which led to the proceedings at issue. 

D feared that his decryption of the materials would show he, and not another person, had placed the materials on the digital media and encrypted the materials. 

Conclusions:
* D's decryption and production of the hard drives' contents would trigger Fifth Amendment protection b/c it would be testimonial; such protection would extend to the gov's use of the materials. 
* Material that is a link in the chain that leads to incriminating evidence is enough to invoke the Fifth Amendment. 
* The files themselves are not testimonial.  But the actual contents of the drives were not the issue.  The issue was the act of production when that production explicitly or implicitly conveyed a statement of fact. 
* "Foregone conclusion" doctrine: the existence and location of papers are foregone conclusions, so the possessor of the documents adds little by conceding that he/she has the papers.  Not testimony then---just surrender---so no constitutional rights involved.  This doctrine does not apply when the gov does not know of the existence of documents beyond suspicion. 
* Test: "whether the government compels the individual to use 'the contents of his own mind' to explicitly or implicitly communicate some statement of fact." 
* An act of production is not testimonial if 1) the gov merely compels some physical act (no use of the mind), or 2) if the "foregone conclusion" doctrine applies b/c the gov "can show with 'reasonable particularity' that, at the time it sought to compel the act of production, it already knew of the materials." 
* Ct held that the act of decryption and production of the contents of the hard drives would implicate the Fifth Amendment.  The act would be testimonial---not merely physical and the factual communications associated with the decryption/production were not foregone conclusions. 
* Decryption requires use of the mind: tantamount to testimony that D knew of the materials, possessed/accessed them, and could decrypt them. 
* No "foregone conclusion" here b/c gov could not show it knew whether any files actually existed or the location of such files.  Gov could not even show it knew D could access the encrypted portions of the drives. 
* Encryption alone does not mean a person is trying to hide something. 
* Immunity granted here insufficient.  "Use and derivative-use immunity establishes the critical threshold to overcome an individual's invocation of the Fifth Amendment privilege against self-incrimination."  Gov did not give such immunity here.  So D could not be compelled to decrypt the drives. 
* D "properly invoked the Fifth Amendment privilege."  His refusal to decrypt the hard drives w/o sufficient immunity was justified.  District ct erred in adjudging him in civil contempt.  Dist ct's judgment reversed. 

Two CP Decisions. . . .

United States v. Ferguson, No. 10-3070 (6th Cir. Feb. 27, 2012) (published).

Panel of Judges Kennedy, Gibbons, and Kethledge.

CP case.  D appealed the special conditions of his supervised release.  Also appealed denial of suppression motion, and claimed ineffective assistance of counsel (counsel's failure to preserve suppression issue for appeal). 

D had been residing in a residence that was in disrepair (he did not have a property interest in it and only stayed there part-time).  Police told of possible CP (contacted by another police department).  Police went to the residence and arrested the D for trespassing.  Searched home (to ensure no other trespassers present).  Seized D's property; said home scheduled for demolition and evidence could be destroyed.  Detective got a warrant and examined the electronic media.  Found CP. 

The district court denied D's motion to suppress: D did not own the home, had no lawful possession of it, had been convicted of failing to keep it sanitary, and had been ordered to stay away from it.  Home was scheduled for demolition. 

D pleaded guilty.  Appellate waiver in plea agreement.  Agreement detailed several conditions the government would seek for supervised release.   

District court imposed a sentence of 30 months and 10 years of supervised release.  Among the conditions of supervised release were: 1) ban on contact with minors; 2) ban on contact with people with sexual interests in minors; 3) no jobs/residence/recreation and such involving minors; 4) ban on loitering within 100' of a school/playground frequented by minors; and 5) no on-line access w/o probation's approval. 

Ineffective-assistance-of-counsel claim, based on failing to preserve right to appeal suppression issue, should wait for a 2255.  Record not developed on direct appeal.  Unconditional plea means no review of the denial of the motion to suppress here.  As to the conditions of supervised release, the D waived his right to appeal them.  Even a lack of notice of one of the conditions did not jump the waiver hurdle.  A general reservation of the right to appeal a punishment in excess of the statutory max does not preserve the right to challenge SR conditions. 

*****

Next there is United States v. Robinson, No. 09-1959 (6th Cir. Feb. 27, 2012) (published).

Panel of Judges Cole, Rogers, and Sargus (S.D. Ohio). 

CP case.  GLs of 78 to 97 months.  District court gave the D one day in custody and 5 years of SR.  Sentence vacated as substantively unreasonable. 

Psych report indicated that the D was a low risk for recidivism (and other positive factors).  D was cooperative, lacked criminal history, went to counseling, and had a painful back condition. 

The government appealed the one-day sentence.  The court of appeals looked at Gall and cited a portion about ensuring that justifications for a variance are sufficient to support the degree of the variance.  The appellate court found that courts struggle with CP cases and cited a Sentencing Commission statistic that variances occur in 60% of the cases. 

The sentence was procedurally reasonable, but failed substantively.  Sentence based excessively on the issue of recidivism (low risk for hands-on offenses); this case was about CP---not child molestation.  D's employment history, age, and debilitating back condition were "discouraged" factors under the GLs.  Even post-Booker, a sentencing court "should take into account 'the 'discouraged' status of these factors.'"  The other 3553(a) factors received too little attention from the district court.

The court of appeals cited Bistline, that CP case we included in a post on January 14, 2012.  The COA recognized that the CP GLs are controversial "and are currently under review by the Sentencing Commission."  Court acknowledged that "In the computer age, we have some doubt that the number of pictures alone captures the gravity of the crime of possession of child pornography."  But this D collected his images over an extended period of time and paid to do so. 

The court of appeals distinguished United States v. Stall, 581 F.3d 276 (6th Cir. 2009), and United States v. Prisel, 316 F. App`x 377 (6th Cir. 2008), both of which involved one-day sentences and involved plain-error review. 

"[E]xtraordinary circumstances may justify extraordinary variances or departures."  This finding seems to follow up on some of the problematic issues in Bistline. 

Huge GPS Win! Must Have Warrant to Track with GPS!

United States v. Jones, No. 10-1259 (Jan. 23, 2012).  Justice Scalia wrote the opinion.  Chief Justice Roberts joined him, as did Justices Kennedy, Thomas, and Sotomayor.  Justice Sotomayor also filed a concurring opinion.  Justice Alito filed a separate opinion concurring in the judgment, and was joined by Justices Ginsburg, Breyer, and Kagan.

The Supreme Court has concluded that tracking a vehicle by attaching a GPS device to it is a search. 

I know we've been seeing more and more of these cases in the district, especially in the Northern Division.

Authorities actually got a warrant to track the vehicle, but they installed the device after expiration of the warrant and outside of the authorized jurisdiction.  Over the course of four weeks, the tracker relayed more than 2,000 pages of data. 

Ultimately, gov charged defendant with cocaine offenses.  Defense filed motion to suppress based on use of the GPS.  Dist ct suppressed data obtained while the car was parked in the defendant's garage.  Ct admitted rest of data b/c from public thoroughfares.  A jury convicted the defendant and he received a sentence of life imprisonment. 

The Court of Appeals for the District of Columbia Circuit reversed, finding that warrantless use of the GPS violated the Fourth Amendment. 

Supreme Court held "that the Government's installation of a GPS devise on a target's vehicle, and its use of that devise to monitor the vehicle's movements, constitutes a 'search.'"  The government here "physically occupied private property for the purpose of obtaining information." 

The Court goes back to eighteenth- and nineteenth-century cases to discuss the original understanding of the Fourth Amendment.  Fourth Amendment jurisprudence was tied to common-law trespass, at least until the later part of the last century.  More recent cases have deviated from the exclusively property-based approach.  Court cited Katz v. United States, 389 U.S. 347 (1967). 

The Court concluded that "Fourth Amendment rights do not rise or fall with the Katz formulation" (the reasonable-expectation-of-privacy formulation).  Rather, the Court must assure preservation of the degree of privacy that existed when the Fourth Amendment was adopted.  For most of the country's history, the Fourth Amendment was understood to be concerned with government trespass upon the enumerated areas: persons, houses, papers, effects. 

The Court discussed the "beeper cases," the cases that had posed problems in the GPS context b/c they had rejected Fourth Amendment challenges to using a beeper to track items: Knotts and Karo.  The Court distinguished Knotts and Karo b/c the beeper was placed in the container with the consent of the owner at the time and prior to the container coming into the defendant's possession.  Here, the defendant possessed the vehicle at the time the authorities installed the GPS. 

Justice Sotomayor concurred:
* Found a search occurred.
* The reasonable-expectation-of-privacy test "augmented, but did not displace or diminish, the common-law trespassory test." 
* Found that "the trespassory test applied in the majority's opinion reflects an irreducible constitutional minimum: When the Government physically invades personal property to gather information, a search occurs.  The reaffirmation of that principle suffices to decide this case." 
 * Considered the issue of tracking that does not require trespass (e.g., factory-installed GPS devices tracked by the government).
* Cited Chief Judge Kozinski's (Ninth Cir.) opinion in Pineda-Moreno and acknowledged that "Awareness that the Government may be watching chills associational and expressive freedoms."  The justice would take these factors into account when considering the existence of a reasonable societal expectation of privacy in one's movements. 

Justice Alito also filed a separate concurrence:
* Believes the majority opinion "strains the language of the Fourth Amendment," is not supported by case law, and "is highly artificial." 
* Would use the reasonable-expectation-of-privacy test. 
* Finds that the majority disregards the potential impact of the GPS and potential use of the information, and attaches too much importance to the placement of the unit on the car.  Explores some of the issues with property rights. 
* Concedes there are problems with the reasonable-expectation-of-privacy test. 
* Finds that short-term monitoring on public streets might be OK, but long-term monitoring would not be. 
* Legislation, rather than case law, may be the best means for addressing the issues. 

Good-Fath Exception and Form Affidavits

United States v. Moore, No. 11-5663 (6th Cir. Nov. 22, 2011) (published).

Panel of Judges Moore, Rogers, and Hood (E.D. Ky.).  Judge Moore filed a separate concurrence.

Felon-in-possession case.  Defendant moved to suppress the evidence.  Dist ct denied the motion.  Defendant appealed. 

Government acknowledged at oral argument that the search-warrant affidavit was "imperfect":
* Not detailed,
* CI not named (nor was the CI named to the magistrate),
* No cocaine quantity specified,
* Detective had more information, but did not include it in the affidavit.

Yet the appellate court found that "the warrant contains enough information to support the magistrate's finding of probable cause." 

The warrant/affidavit:
* Included statements from a CI,
* Included information regarding the CI's reliability and basis of knowledge,
* Used recent info (not stale),
* Established a nexus b/t the alleged criminal activity and the place to be searched.

Essentially, officers received info from a CI that an individual was selling cocaine from an apartment.  The warrant was mostly boilerplate.  (The affidavit was essentially a form affidavit widely used in the county.)

"Although a more detailed affidavit would have better served the purposes of the warrant requirement, the warrant in this case was valid." 

The affidavit stated that the CI had given information in the past that had led to two drug seizures, and the CI had seen personally the drugs and been at the residence in question.  This information satisfied the requirement that a CI's allegations "be bolstered by additional information in an affidavit." 

The appellate court does admonish that its "holding does not mean that the magistrate was required to issue the warrant, particularly since the affidavit was minimal in the ways conceded by government counsel."  The warrant requirement, the court continues, "puts primary responsibility on the magistrate to determine probable cause, and if the affiants repeatedly provide the minimum of information, magistrates would be acting within their discretion to demand more."

The appellate court goes on to say that, regardless of any defects in the warrant, the good-faith exception would save the warrant.  "Similar warrants have been upheld in numerous cases." 

Judge Moore's concurrence is interesting.  She would uphold the search only b/c of the good-faith exception.  She admonishes that "the majority's opinion does not constitute an open invitation to continue blind reliance on warrants of this nature."  Recognition of the problems with the warrant here, by the court and by the government, "provides notice that continued reliance on similar warrants, based on form affidavits with little to no particularized detail, may in the future result in inadmissible evidence without the backstop of the good-faith exception." 

Judge Moore continues, "the form affidavit's repeated use---with minimal to no unique detail and no further explanation under oath to the issuing magistrate---has persisted to the point of constitutional concern."  On the subject of unnamed CIs, Judge Moore explains that "when the identity of the informant has not been disclosed in the affidavit or to the magistrate, other indicia of reliability beyond the affiant's personal knowledge or past reliability---such as corroboration or a substantially detailed description of the alleged conduct---have also generally been required." 

Judge Moore points out that the officer did take steps to corroborate the CI's information.  (At the motion hearing in the district court, the detective revealed that he had previously set up two undercover buys b/t the CI and the target of the investigation at the apartment identified in the warrant application, and the detective had conducted surveillance on the apartment to confirm the defendant's identity.)  This additional investigation and its exclusion from the affidavit may suggest a practice of blind reliance on form affidavits in the county.  The concurrence concludes, "The practice of skirting this constitutional requirement in Shelby County is unacceptable and unsustainable.  Should officers wish to continue relying in good faith on issued warrants, they must conform their conduct to the Fourth Amendment's requirements." 

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!

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. . . .

Stop! Or I'll tase you! (+FSA)

I just wanted to blog this case b/c the police are quoted as saying: "Stop! Police! Or I'll tase you!" There's just charm to such cries! (Plus, I was a big Tom Swift fan growing up, and I read somewhere that TASER is a random acronym. The guy who came up with the taser didn't know what to call it, so he decided on Tom A. Swift's Electric Rifle, or TASER. You really needed to know that. . . .)

So, Court of Appeals upholds denial of a motion to suppress in United States v. Ruff, No. 08-4428 (6th Cir. Sept. 9, 2011) (unpublished). Panel of Chief Judge Batchelder, and Judges Boggs and White.

Defendant argued that the officer's initial approach to the defendant, during which the officer identified himself as a police officer, was an arrest requiring probable cause. Defendant argued the officer lacked PC for an arrest, and even reasonable suspicion for a Terry stop. Court finds the encounter was neither an arrest nor a Terry stop. The defendant was not seized. The officers had approached some men drinking beer in a high-crime area on a stoop with no-trespassing signs around it (after they had received a tip re drugs and a gun from a reliable informant). The officers identified themselves as police officers. The defendant immediately fled.

Court goes on to say that even if there was a seizure, it was, at most, a Terry stop. The officers had received a tip (from a reliable informant) that a person matching the defendant's description had drugs and a gun. Such a tip can establish reasonable suspicion to support a stop. So there was reasonable suspicion to support a stop here.

The defendant next argued that he was arrested when the officer deployed the taser and there was no PC for an arrest then b/c the defendant threw the gun away at the same time the officer deployed the taser. The Court rejected the argument. The officer did not deploy the taser until he saw the gun, so he had PC. The tip, the flight, the disposal of the gun all gave the officer PC for an arrest.

Defendant next argued that the FSA should have applied to him. The offense occurred on November 21, 2007. The Court cites Carradine, saying the FSA is not retroactive. This case is a Carradine case: sentencing and appellate briefing occurred prior to enactment of the FSA on Aug. 3, 2010.

Objecting to a Search When Co-Residents Consent. . . .

United States v. Johnson, No. 09-6461 (6th Cir. Aug. 29, 2011) (to be published). Panel of Chief Judge Batchelder, and Judges Boggs and White.

Possessing counterfeit securities and fraudulent ID docs. 45-month sentence.

Defendant appealed dist ct's denial of motion to suppress. COA reversed.

Facts:

Police conducted "knock and talk" after they got an anonymous call that residents at target address possessed marijuana and a firearm. Extended family lived in the home, and defendant had stayed there intermittently for several months (his somewhat estranged wife lived there). Another resident opened the door to police.

Defendant came out and objected to a search. (These facts were in dispute.) Other residents consented to a search. Defendant's wife voluntarily turned over some marijuana. Police began searching the bedroom she shared with the defendant; they found a gun, counterfeit money, marijuana, digital scales, and computer equipment.

District Court's Conclusion:

The dist ct found that the defendant did object to a search before the police searched the bedroom. The dist ct, however, found that this objection was invalid b/c the defendant was not a full-time resident of the home. He had, the ct found, a possessory interest "inferior" to the interests of the residents who did consent to a search.

Appellate Court's Conclusions:

Under Georgia v. Randolph, 547 U.S. 103 (2006), a physically present resident's express refusal of consent is dispositive as to him or her, regardless of the consent of fellow occupants. The appellate court here noted that had the S. Ct. been concerned with "relative degrees of possessory interest among residential co-occupants" it could have drawn a distinction in Randolph. But the S. Ct. did not do so. Absent a recognized hierarchy (like parent and child, or like military rank in barracks housing), there is no social understanding of inferior and superior.

The defendant had a reasonable expectation of privacy in the bedroom. He was present when the police arrived. He expressly objected to a search. So the search of the bedroom was unreasonable.

Search of Car Pre-Gant---Old Law Applied

In United States v. Peoples, No. 09--2507 (6th Cir. July 20, 2011) (unpublished), a CJA panel attorney in this district had a great suppression win in the dist ct. Unfortunately, the gov appealed and the Sixth Circuit reversed. Great while it lasted, though.

Panel of Judges Gibbons, White, and Oliver (N.D. Ohio).

Sole question for the Court was "whether an officer’s objectively reasonable reliance upon binding appellate-court precedent constitutes an exception to the exclusionary rule under the Fourth Amendment." Court found that it does.

In Gant, the Supreme Court held that an automobile search incident to arrest is constitutional only if the arrestee can reach the vehicle or if the officers have reason to believe the vehicle contains evidence relevant to the crime of arrest.

In Davis, the Supreme Court resolved the dispute among the circuits as to whether the exclusionary rule, as clarified in Gant, should apply in cases in which the arrest occurred before the Gant decision. Supreme Court held that the exclusionary did not apply in such circumstances: “when the police conduct a search in objectively reasonable reliance on binding appellate precedent, the exclusionary rule does not apply.”

Finding itself bound by this precedent, the Sixth Circuit concluded that the firearm that was seized incident to the defendant's arrest should not have been suppressed. While the search would no longer be permissible under Gant (the defendant was not within reaching distance of the vehicle when the officers searched the vehicle, and the officers had no reason to believe the vehicle contained evidence related to a suspended license), the search was permitted under the law as it stood when the search occurred.

The Court closed, "The officers committed no misconduct in relying upon th[e] settled precedent, and suppression of the firearm is not warranted."

Way to fight, though!

Helpful Search Opinion Gone!

Remember the helpful search opinon in United States v. Domenech, Nos. 08--1220, 08--1221 (6th Cir. Oct. 7, 2010) (published)? Court found that certain evidence found in a motel room should have been suppressed. Yesterday, the Court vacated that opinion and issued an amended opinion, upholding the district court's denial of the suppression motion. Court also denied the government's petition for rehearing as moot. It was a panel of Judges Norris, Cook, and Griffin. Judge Norris originally dissented. Judge Griffin dissents in the amended opinion. Judge Norris wrote the amended opinion (Judge Cook wrote the original opinion).

The amended opinion does not reach the standing issue because the Court assumes there is standing and finds probable cause for a search of the motel room.

Court concluded: "the totality of the circumstances known to the officers when they initiated the search of Room 22 gave them probable cause to believe that there was a 'fair probability' that 'evidence of a crime' would be found in the room."

What did the officers know when they entered Room 22?

1) One officer testified that the motel was known for "a lot of drug activity."

2) A driver of a vehicle parked in front of Room 22 had behaved "evasively" in driving earlier that evening.

3) The officers checked the license plates of that vehicle and found that the owner had an outstanding arrest warrant.

4) The registration associated with Room 22 was filled out incompletely by a person called Rogelio, who had listed an automobile other than the vehicle parked in front of Room 22.

5) An officer was familiar with the motel and knew where the toilet for Room 22 would be situated.

6) After this officer heard his colleagues make contact with the occupants of the room, he observed (through a fosted window) a figure enter the bathroom and bend over the toilet. Based upon his experience, he concluded that the person might be trying to destroy something or flush something down the toilet.

The Court concluded that "While none of these considerations, when taken individually, would be sufficient to create a 'fair probability' that evidence of a crime would be found in Room 22, they strike us as more than sufficient to establish probable cause and exigent circumstances when viewed through the 'totality of the circumstances' prism."

The Court affirmed denial of the motion to suppress.

The Court upheld the sentences of 420 months and 234 months.

Judge Griffin dissented: "I would adhere to our original decision, see United States v. Domenech, 623 F.3d 325, 331 (6th Cir. 2010). In my view, the evidence was obtained by the police from a search and seizure not supported by probable cause as is required by the Fourth Amendment."

The dissent found that the Supreme Court has held that authorities "may not enter a private residence without a warrant unless both 'probable cause plus exigent circumstances' exist." The police did not have a search warrant before entering the motel room, so both probable cause and exigent circumstances were required to lawfully conduct a search.

The dissent concluded that "because the vague and general evidence of suspicious activity would have been insufficient to support a drug or weapons crime search warrant, it is similarly inadequate to establish the probable cause necessary to justify the warrantless search at issue."