Sunday, June 17, 2018

Palpably pretextual assertions can't cut it

As the Second Circuit reminds us this last week, a valid exception to the warrant requirement better apply before law enforcement goes traipsing through someone’s home without a warrant; palpably pretextual assertions later lodged as an exception cannot withstand scrutiny, especially when it comes to warrantless searches of the home, the “first among equals” under the Fourth Amendment. Florida v. Jardines, __U.S.__, 133 S.Ct. 1409, 1414 (2013) (“At the Amendment’s very core stands the right of a man to retreat into his own home and there be free from unreasonable government intrusion.”) (cleaned up). 
 
In United States v. Diaz-Jimenez, law enforcement carried out a warrantless search of a suspect’s home more than eight hours after the completion of an armed bank robbery. The search also took place after the two suspects had already been arrested. The district court denied Mr. Diaz’s motion to suppress evidence seized from the warrantless intrusion, and he was convicted by a jury after a joint trial. 

But the Second Circuit vacated Mr. Diaz’s conviction finding that the district erred in not suppressing the evidence. Neither Buie’s protective-sweep exception nor voluntary consent—“the only even arguably relevant exceptions to the warrant requirement”—could salvage the evidence. The government did not present any evidence to support a reasonable inference that at the time of the intrusion, law enforcement believed there was someone armed in the home—let alone anyone at all—to pose an ongoing threat. And the government’s second bite of the apple as to an exception authorizing the warrantless search, too, was without merit; any consent to search obtained from Mr. Diaz as he stood handcuffed outside his home surrounded by a SWAT team that had already conducted a sweep and discovered incriminating evidence could not be deemed voluntary. (As the Second Circuit noted, “[t]he prosecution did not even attempt to make such a showing.”) 

The court’s error, the Second Circuit concluded, “was certainly not harmless beyond a reasonable doubt” given that the evidence was “central” to the government’s case.

Tuesday, June 12, 2018

Guns guns guns

The Tenth Circuit wants us to know a couple of things about gun charges and gun sentencing enhancements.

First, the bitter. In United States v. Melgar-Cabrera, the Tenth Circuit overruled circuit precedent to hold that 18 U.S.C § 924(j) (providing enhanced penalties for section 924(c) deaths) is a discrete, stand-alone crime. It is not just a sentencing enhancement. A person may be convicted and sentenced under section 924(j) even absent a conviction under section 924(c).

And now for the sweet. In United States v. Francis, the Tenth Circuit held that the government must prove two things before a district court may impose the 4-level firearms-trafficking enhancement at USSG § 2K2.1(b)(5). That section applies if (among other conditions) the defendant transferred (or intended to transfer) two or more firearms to another person and knew or had reason to know that the other person's possession would be unlawful because that person had a prior conviction for a crime of violence, a controlled substance offense, or a misdemeanor crime of domestic violence. Got that? Okay. Here's what the government must prove:

(1) that the transferee actually had such a prior conviction at the time of the transfer (i.e., was not just an undercover agent pretending to have such a prior conviction); and

(2) that the defendant knew or had reason to know that the transferee fell into the guideline's narrow category of unlawful possessors (i.e., not just that the defendant knew or had reason to know that the transferee had some garden-variety felony): "The proper focus is on what the defendant knew about the specific transferee, not whether by the law of averages any given customer might qualify as an unlawful possessor as defined by § 2K2.1 cmt. n.13(A)(ii)(I), (B)."

Sunday, June 3, 2018

Circuit split: USSG § 4B1.2's "commentary offenses"

We have over the past several years blogged about advocates’ need to be weary of enumerated “commentary offenses” that are inconsistent with the guidelines themselves. (See, e.g., here and here.) And last week, in United States v. Winstead, the D.C. Circuit created a new and notable circuit split on the issue.

The Winstead court acknowledged that in Stinson v. United States, 506 U.S. 36 (1993) the U.S. Supreme Court held that the commentary to the guidelines should be treated as an agency’s interpretation of its own legislative rule. (Citing Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)). “Thus, under this Seminole Rock deference, commentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.”  
   
Irrespective of sister-circuit precedent holding otherwise, the D.C. Circuit found that “there is no question” that the commentary to § 4B1.2 is inconsistent with the guideline in that the commentary adds inchoate crimes that are not included in the guideline itself. (In this case specifically, the crime of attempted distribution). In so doing, the the U.S. Sentencing Commission has exceeded its authority under Stinson

Section 4B1.2(b) presents a very detailed “definition” of controlled substance offense that clearly excludes inchoate offenses . . . . [T]he Commission showed within § 4B1.2 itself that it knows how to include attempted offenses when it intends to do so. See USSG § 4b1.2(a)(1) (defining a “crime of violence” as an offense that “has an element the use, attempted use, or threatened use of physical force . . . .”) . . . . [S]urely Seminole Rock deference does not extend so far as to allow the Commission to invoke its general interpretive authority via commentary . . . to impose such a massive impact on a defendant with no grounding in the guidelines themselves.

The D.C. Circuit’s conclusion: Counsel’s failure to raise this sentencing issue before the district court, which categorized the defendant as a career criminal under § 4B1.1(a), constituted ineffective assistance of counsel under Strickland as a matter of law. “If the Commission wishes to expand the definition of ‘controlled substance offenses’ to include attempts, it may seek to amend the language of the guidelines by submitting the change for congressional review.”

Tuesday, May 29, 2018

Curtilage beats automobile exception

Everyone knows that rock crushes scissors, scissors cuts paper, and paper covers rock. And now we know that curtilage wipes the floor with the automobile exception. So said 8 out of 9 justices of the United States Supreme Court in Collins v. Virginia, decided this week. The Fourth Amendment does not permit a police officer "uninvited and without a warrant, to enter the curtilage of a home in order to search a vehicle parked therein." Put another way:

"The automobile exception does not afford the necessary lawful right of access to search a vehicle parked within a home or its curtilage because it does not justify an intrusion on a person’s separate and substantial Fourth Amendment interest in his home and curtilage."

Amen.

p.s. Justice Thomas wants to reconsider imposing the exclusionary rule on the states, and Justice Alito believes that, while "[t]he Fourth Amendment is neither an 'ass' nor an 'idiot,'" the majority's opinion in Collins is both.

Tuesday, May 22, 2018

Not on the rental agreement? No problem.

As you've likely heard by now, the Supreme Court held last week in Byrd v. United States that a driver of a rental car who is not listed on the rental agreement nonetheless (usually) has standing to challenge a search of the car.


Here are some bits you may not have heard:

 1. If the driver gained possession of the car by fraud, that fact may deprive him or her of standing: "[I]t may be that there is no reason that the law should distinguish between one who obtains a vehicle through subterfuge . . . and one who steals the car outright."

2. Whether or not the driver violated the rental agreement is not likely relevant to the question of standing: "[T]he Government fails to explain what bearing this breach of contract, standing alone, has on expectations of privacy in the car."

3. Standing to challenge a search might be shown either by establishing a reasonable expectation of privacy in the place or thing searched (the basis on which Byrd won), or by establishing a property interest in the place or thing searched, that is, a "right to exclude others." Check out the Thomas/Gorsuch concurrence on this point, and note that the majority folded the property concept into its expectation-of-privacy analysis. See also United States v. Ackerman, 831 F.3d 1292, 1307 (10th Cir. 2016) ("In light of the Fourth Amendment’s original meaning, Jones explained that government conduct can constitute a Fourth Amendment search either when it infringes on a reasonable expectation of privacy or when it involves a physical intrusion (a trespass) on a constitutionally protected space or thing ('persons, houses, papers, and effects') for the purpose of obtaining information.") (emphasis original).

Sunday, May 20, 2018

"Surplus" does not make an otherwise legal wiretap order insufficient


The Supreme Court decided Dahda v. United States, 2018 WL 2186173 (U.S. May 14, 2018), this past week. As you may know, this case originated from Kansas and involves the federal wiretap statute (18 USC 2510-2518). We previously blogged about the case here. In Dahda, the Supreme Court affirmed the Tenth Circuit's decision, but rejected its reasoning. The Supreme Court was not kind to the Tenth Circuit’s analysis, calling its interpretation of the statute “too narrow” and reminding the Tenth that the statute “means what it says.”

The wiretap statute includes a statutory suppression remedy (or an exclusionary rule), which applies in three instances: (1) where a communication was unlawfully intercepted; (2) where the order authorizing the intercept was "insufficient on its face"; and (3) where the intercept did not conform with the order authorizing the interception. 

Dahda involved the second provision. The Court held that an order's sufficiency is measured via 2518(4), which requires the order to include the “identity of the person, if known, whose communications are to be intercepted,” “a particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which it relates." The Dahdas objected to something else: a sentence within the order authorizing interception of phones located “outside the territorial jurisdiction of the court,” and further authorizing the interception to “take place in any other jurisdiction within the United States.”

In a bit of a brain buster, the Court held that this sentence did not make the order insufficient (even though it was “without legal effect” because the order could not legally authorize a wiretap outside Kansas). Instead, the sentence was surplus. “Were we to remove the sentence from the Orders, they would then properly authorize wiretaps within the authorizing court's territorial jurisdiction. A listening post within the court's territorial jurisdiction could lawfully intercept communications made to or from telephones located within Kansas or outside Kansas.” And here, the government did not use any evidence at trial that was obtained from a listening post outside of Kansas.

This last fact appears dispositive. Nothing from outside of Kansas was admitted, so nothing outside of Kansas should have been (but was not) suppressed. The territorial language, right or wrong, did not make the order insufficient. So the Dahdas lose (in a unanimous decision). 

As an aside, the Court does not address what would have happened if communications seized from a listening post outside of Kansas, from phones not located within Kansas, were admitted at trial; perhaps they would have to be excluded as “unlawfully intercepted.”

It's a short decision worth the read. 

--Dan Hansmeier