Sunday, November 19, 2017

Cert Grant Series: Partying with the Justices

District of Columbia v. Wesby presents two Fourth Amendment issues arising from a fun and possibly wild party at an apparently vacant house. Police arrived (who invited them?) finding, among other entertainment, “scantily clad women with money tucked into garter belts” and "used contraceptives strewn about." Some attendees indicated the host, "Peaches", was not present. Police eventually identified the lawful property owner (Peaches' landlord, as luck would have it) who disowned the partygoers.

All attendees, including Mr. Wesby, were arrested for trespassing. They then sued the police for wrongful arrest (no probable cause) and lack of qualified immunity.

The questions presented are:

Do officers have probable cause to arrest for unlawful entry under D.C. law despite a claim of good-faith entry? and 

Was the law sufficiently clearly established to justify the denial of immunity to the officers?

Image result for image Justice Kagan
Going to a different kind of party. 
So far, the lower courts have been partiers, ruling in Mr. Wesby's favor on both questions. And it appears that SCOTUS wants to be invited to the party, too. At oral argument, Justice Sotomayor jumped right in, noting that when she is invited to a party, "I don't ask to look at their lease." And it appears that Justice Kagan may feel protective of "reasonable partygoers," noting, "there are these parties that, once long ago, I used to be invited to -- -- where you didn't -- don't know the host, but you know Joe is having a party." And then, "And can I say that long, long ago, marijuana was maybe present at those parties? And, you know, so -- and, you know, it just is not obvious that the reasonable partygoer is supposed to walk into this apartment and say: Got to get out of here. And -- and it seems a little bit hard that they're subject to arrest."

Justice Sotomayor closed by asking Petitioner's counsel, "Twenty one people en masse arrested for trespassing for going to a party. Does that feel right?"

Party on, Mr. Wesby? We will see.

Thanks to Oyez for the transcript.

Decision below at 765 F.3d 13 (8th Cir. 2016).
Cert. granted Jan. 19, 2017

Tuesday, November 14, 2017

Tenth Circuit in session this week

The Tenth Circuit is hearing arguments this week in a host of criminal cases. For details, follow the November 2017 Argument Calendar link on our website.

In addition to, you guessed it, quite a few predicate-offense issues, the Court is hearing arguments on other sentencing issues, trial issues, and quite a few interesting Fourth Amendment issues as well. Check out our Issues Pending link if you want to follow any or all of the issues currently pending in the Circuit; use the case numbers to find the briefs on PACER and learn what others are arguing in cases like yours. And let us know if you find this resource useful.
Image result for tenth circuit oral argument

Tuesday, November 7, 2017

Brady: Not just a jury trial right

Looking for persuasive authority that the district court can grant your Brady motion for information related to a motion to suppress or dismiss? Check out footnote 10, buried deeply within United States v. Wells, a Tenth Circuit case decided last month.

Mr. Wells and his codefendant were convicted of misdemeanor trespassing for operating ATVs on federal land closed by the Bureau of Land Management for that purpose during a land-use protest. On appeal, they argued (among other things) that the district court should have granted them a new trial based on their Brady claim that the government failed to disclose a right-of-way map that they could have used to negate the legality of BLM's closure order.

The Tenth Circuit rejected this argument, holding that the evidence was not material to the claimed defense. On the way to that holding, the Court declined to adopt the government's position "that evidence relevant to a ruling made by a judge—as opposed to a factual finding made by a jury—cannot, as a categorical matter, constitute Brady material":

"Under the circumstances of this case, we are not persuaded by the government's argument, though we need not definitively opine on the matter. . . . [T]he government . . . offers no legal authority to support its underlying premise—viz., that a Brady claim cannot be based on a piece of evidence that could only affect a question to be decided by the court rather than the jury—and we have not unearthed any. For example, can it truly be said that such evidence can never, as a categorical matter, engender 'a reasonable probability that the result of the proceeding would have been different'? Reese, 745 F.3d at 1083. It is enough for us to note that, in light of the government's scant presentation here, we may assume that Defendants-Appellants could make a Brady argument based on the suppression of evidence pertinent to an R.S. 2477 defense in a criminal prosecution."

Thursday, November 2, 2017

Hobbs Act robbery is not a crime of violence under Career Offender Guideline

Remember when we kept blogging about robbery and crimes of violence? Well, we are back to that again. Earlier this week in United States v. O'Connor, the 10th Circuit held that a robbery conviction that can be committed through threats to property is: (1) not generic robbery, and (2) not the new guideline definition of extortion. As the Court explained:
In both instances, we conclude that because Hobbs Act robbery includes threats to property, it is broader than both generic robbery and Guidelines extortion, which are limited to threats to a person. Hobbs Act robbery is therefore not categorically a crime of violence under the enumerated offense clause. 
The case is a good reminder to always read the commentary to the Guidelines. In the August 1, 2016 changes to the Career Offender Guideline (which also removes the residual clause and moved some enumerated offenses from the commentary to the Guideline itself) the commission created a new, narrow definition of extortion. If the generic definition of extortion would have remained instead of the narrower definition, most likely Mr. O'Connor's conviction would have been affirmed (see: United States v. Castillo). 

Thursday, October 26, 2017

Use of stingray device violates 4th Amendment when used without a warrant.

This blog hasn't been short on discussing a device that mimics a cell phone tower, but also tracks a person and obtains information from their phone. We discussed prior opinions related to this stingray technology in the federal circuits, where courts were faced with the intersection of these devices and the 4th Amendment, but ruled on other grounds.

Last month, the D.C. Court of Appeals took this issue on headfirst, ruling that the use of this device without a warrant violated the 4th Amendment. The court took a strong line on privacy and cell phones, holding that ruling otherwise "would also place an individual in the difficult position either of accepting the risk that at any moment his or her cellphone could be converted into tracking device or of forgoing ―necessary use of‖ the cellphone." 



The court concluded that allowing such a search without a warrant would violate an individuals "actual, legitimate, and reasonable expectation of privacy in his or her location information and is a search."

There is a good discussion of Katz and the oft-made government argument that using a cell phone holds the information out to the public which is adverse to an expectation of privacy claim. Describing the distinction as a probabilistic one (whether the public thinks it is likely the government could access the information) v. a normative one (whether our history and tradition says the government should have access to this information).

Wednesday, October 25, 2017

Block that sex-crimes testimony!

What could go wrong during a sex-crimes trial? All kinds of things, from the admission of other, uncharged bad sex acts to therapist testimony bolstering the complainant's credibility to prosecutorial misconduct.

And now we have one more case to help us explain to the judge why these errors should not be allowed. In United States v. Preston, the Ninth Circuit reversed two convictions for aggravated sexual abuse of a child because of cumulative error. Read this case if you're preparing for a sex-crimes trial.

Sunday, October 22, 2017

Cert Grant Series: And Now From Kansas . . .

Last Monday, the Supreme Court granted cert in a case arising from a 2011 marijuana trafficking prosecution in Kansas City, Kansas, tried before Judge Vratil. Brothers Los Rovell Dahda and Roosevelt Dahda asked the Court to consider this question:
Whether Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. 2510-2520, requires suppression of evidence obtained pursuant to a wiretap order that is facially insufficient because the order exceeds the judge’s territorial jurisdiction. 
The wiretap orders in Dahda authorized the interception of communication outside of Kansas, beyond the issuing magistrate's jurisdiction. Trial counsel unsuccessfully moved to suppress the wiretap evidence.

On appeal, the Tenth Circuit disagreed with the district court and found that the T-3 order was facially insufficient as it authorized interception of communication outside of the court's jurisdiction. But the Circuit still refused to grant relief. Instead, the Tenth Circuit read into the statute another condition: a facially insufficient order must implicate "core concerns" of Title 3--privacy and uniformity--to justify suppressing the evidence.

The  circuits are divided on this extra-statutory condition. The statute says nothing about core concerns or exceptions to the statutory suppression remedy. The Tenth Circuit decision is here.

The cert petition, filed by counsel of record at Williams & Connolly LLP in D.C., is here. Oral argument has not yet been scheduled.