Thursday, July 19, 2018

The Fourth Amendment: Have we mentioned it's not dead yet?

"Border search" six years after border crossing? Um, no.  

The year is 2012. Border agents seize a traveler's cellphone and analyze it without a warrant---which is okay under the border-search exception. They don't search the cellphone's contents. They do, however, hang on to the phone (and to the traveler, for that matter).

Fast forward to 2018. The traveler is about to stand trial for sex trafficking and other crimes. A week before jury selection, the government reveals that it has, just this month, searched the cellphone's contents. Without a warrant. And, according to Southern District of Texas Chief Judge Lee Rosenthal, without any applicable warrant exceptions:
The government’s second, warrantless search of Gandy’s phone did not occur at a border or at the time of the crossing. It happened six years after Gandy returned to the United States . . . . Gandy and his phone have both been in custody since 2012, within the United States. Searching Gandy’s phone had no connection to the government’s interest in preventing illegal entry or contraband smuggling at an international border. Extending the border-search exception to the government’s warrantless search would both undervalue the core Fourth Amendment protection afforded cell phones under Riley and untether the border-search exception from the justifications underlying it.
United States v. Gandy, No 12-cr-00503, 2018 WL 3455534 (S.D. Tex. July 17, 2018) (rejecting as well government's independent-source, inevitable-discovery, attenuation, and good-faith arguments).

Motion to suppress granted.  

No current or corroborated nexus? No probable cause.

An affidavit that relies on speculation, stale information, old criminal history, and uncorroborated informant tips does not supply probable cause for a search warrant. So said the Sixth Circuit last month in United States v. Christian, 893 F.3d 846 (6th Cir. 2018). And the Court declined to apply Leon's good-faith exception: "By suppressing the evidence in this case, we will incentivize the police to take such corroborative action in the future."

Motion to suppress should have been granted.

"It doesn't hurt to ask" is not reasonable suspicion.

Officer stops car for illegal left turn; completes traffic stop; continues to question driver even when driver indicates he wishes to leave; ultimately gets driver's exasperated "consent" to search ("I mean, shit, I don't care"). But officer can't seem to articulate why he wanted to search. He had a "suspicion," a "feeling," "I guess you would call it something"---what the heck, "it doesn't hurt to ask." This was (duh) not reasonable suspicion. In the words of Northern District of Alabama Judge Madeline Hughes Haikala, "[t]he ‘it doesn't hurt to ask’ standard is not even ‘unparticularized suspicion.’ At best, Officer Long had a hunch." United States v. Wilson, No. 17-cr-00428, 2018 WL 3428635 (N.D. Ala. July 16, 2018) (also explaining why driver's consent not consensual, why passenger was also illegally detained, and why evidence found during passenger pat-down was fruit of illegal detention).

Motion to suppress granted.

Tuesday, July 10, 2018

Supervised release: rehabilitation, or trap?

A must read from E.D.N.Y. District Court Judge Weinstein last week, in United States v. Trotter. Here is the introduction to Judge Weinstein's 42-page decision terminating Mr. Trotter's supervision not despite, but because of his marijuana addiction:

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This case raises serious issues about sentencing generally, and supervised release for marijuana users specifically: Are we imposing longer terms than are needed for effective supervised release? Should we stop punishing supervisees for a marijuana addiction or habit?

After revisiting and reconsidering these issues, I conclude: (1) I, like other trial judges, have in many cases imposed longer periods of supervised release than needed, and I, like other trial judges, have failed to terminate supervised release early in many cases where continuing supervision presents such a burden as to reduce the probability of rehabilitation; and (2) I, like other trial judges, have provided unnecessary conditions of supervised release and unjustifiably punished supervisees for their marijuana addiction, even though marijuana is widely used in the community and is an almost unbreakable addiction or habit for some. As a result of these errors in our sentencing practice, money and the time of our probation officers are wasted, and supervisees are unnecessarily burdened.

In summary, in this and my future cases I will: (1) impose shorter terms of supervised release as needed; (2) give greater consideration to the appropriateness of conditions; (3) provide for earlier termination where indicated; and (4) avoid violations of supervised release and punishment by incarceration merely for habitual marijuana use.


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Lots of important stuff in this opinion. I'll just note three basic points here that are good starting places:
 
1. "Supervised release is required by statute in less than half of all federal cases, but imposed as a part of nearly every sentence." We need to reverse this trend.
 
2. "A district court may terminate supervised release before the expiration of a mandatory minimum period." Don't be shy about asking for early termination.
 
3. Conditions of supervised release may be modified at any time. 18 U.S.C. 3583(e)(2). Your client may have completely different needs upon release than at sentencing. Don't be shy about moving to modify conditions that were imposed months or years ago.


Sunday, July 8, 2018

No probable cause from an officer-induced traffic violation

The District Court of the Eastern District of Michigan reminds us this last week that an officer cannot himself create the alleged traffic violation to justify a traffic stop.  

In United States v. Belakhdhar, 2018 WL 3239625, 2018 U.S. Dist. LEXIS 110514 (E.D. Mich. July 3, 2018), the defendant challenged a traffic stop as pretextual for a criminal investigation where law enforcement allegedly stopped him for driving 2 mph below the speed limit. 

The court agreed with Mr. Belakhdhar that the officer lacked probable cause to conduct the traffic stop because, for one, the officer himself caused Mr. Belakhdhar to slow down when he pulled out behind and then drove next to Mr. Belakhdhar, eerily "peering into his vehicle." (Not to mention driving 2 mph below the speed limit did not actually violate any law.)

The government's argument in the alternative--that law enforcement had reasonable suspicion of criminal activity justifying the stop--fell just as flat. Mere propinquinity (or in this case, "tandem driving"), "with a vehicle suspected of drug activity, alone, is an insufficient basis for reasonable suspicion." The fact that Mr. Belakhdhar's car had a temporary Illinois plate didn't change the equation since, as the court noted, "vehicles with temporary Illinois plates travel on I-94 every day." 

Accordingly, motion to suppress granted.

Wednesday, July 4, 2018

Happy Fourth of July

 
"True patriotism hates injustice in its own land more than anywhere else."
 
---Clarence Darrow
 
An American flag flies in the wind atop a flagpole


Sunday, July 1, 2018

Cert grant: dual sovereignty

Under the doctrine of “dual sovereignty,” the Supreme Court has long held that a successive prosecution of an individual for the same act will not trigger the Fifth Amendment’s protections against double jeopardy if it is brought by a “separate sovereign”—that is, an entity that derives its power to prosecute from a wholly independent source.
Free stock photo of guide, united states of america, travel, usa 
Because the states’ authority to prosecute originally derived not from the federal government but rather from the “inherent sovereignty” belonging to them before their admission to the Union, the High Court has deemed states separate sovereigns from the federal government (and from one another) under this doctrine, which is seemingly alive and well. See, e.g., United States v. Morales.

But is it?  

Last Thursday the Supreme Court granted certiorari in Gamble v. United States to squarely address whether the Court should overrule the “separate sovereigns” exception to the Fifth Amendment’s safeguard against double jeopardy. The murmurs have already begun to reverberate that the Court is poised to overrule the exception. Indeed, the groundwork has been laid for the Court to do just that. Most recently, in Puerto Rico v. Sanchez Valle, Justice Ginsburg wrote a concurrence, in which Justice Thomas joined, to express concern that the separate-sovereigns exception “hardly serves” the double jeopardy’s proscription “to shield individuals from the harassment of multiple prosecutions for the same misconduct.”

Perhaps soon, at least when it comes to state and federal courts, the Fifth Amendment will again mean what the Framers intended--that no person shall be “twice put in jeopardy of life or limb” for “the same offence.”

Tuesday, June 26, 2018

Digital is different. Where do we go from here?

Supreme Court Chief Justice Roberts doesn't like the idea of the government having easy access to five years' worth of his personal location data ("this newfound tracking capacity runs against everyone"---not just suspected criminals!). So we learned last week in Carpenter v. United States, which held that the government violated the Fourth Amendment when it accessed 127 days of Mr. Carpenter's cell site location information (CSLI) without a warrant.

This was a search because it invaded Mr. Carpenter's reasonable expectation of privacy in "the whole of his physical movements." Mr. Carpenter's expectation was reasonable despite the third-party doctrine (that is, despite the fact that he knowingly shared his location information with the phone company). The doctrine takes a pretty hard hit in this opinion, though it remains the law at least in some limited arenas for now.

The bottom line:

"Before compelling a wireless carrier to turn over a subscriber's CSLI, the government's obligation is a familiar one---get a warrant."

That's all good news, but how far does it go? It's not easy to tell from the opinion. The majority emphasizes the "deeply revealing nature" of historical CSLI and explicitly says that its decision "is a narrow one." But there's plenty of food for thought in both the majority's opinion and Justice Gorsuch's dissent (Justice Gorsuch would scrap the Katz reasonable-expectation-of-privacy analysis, and suggests that our property interest in our digital information is sufficient to give it Fourth Amendment protection).

Want to dive deeper? Here are links to some worthy early analyses:

Orin Kerr

Concurring Opinions

Harvard Law Review Blog

Sunday, June 24, 2018

A blind eye to easily discoverable facts does not a lawful arrest make

The Birmingham police were after a suspect. While wearing a partial face mask and presenting a note identifying himself as a bomb specialist carrying explosives, this suspect robbed a Walgreens pharmacy. And, according to the police’s theory, that same suspect carried out the exact same scenario at a Rite Aid pharmacy the next day.

The officers had little to go on. Two eye witnesses had identified an individual in a lineup, but police rejected that identification when they determined the individual was incarcerated at the time of the robberies.But after Crime Stoppers aired a surveillance video of the Rite-Aid incident, police received two tips—one anonymous and one from an informant—that an individual named Cozzi resembled the half-masked subject in the video. The informant also told police where Cozzi lived and that Cozzi had a Lortab addiction.
Police obtained a search warrant and searched Cozzi’s home. “[O]fficers found no mask, no note, and no clothing that matched the perpetrator’s.” They did find a bag containing 32 loose pills. But during that search of Cozzi’s home, a roommate pointed out to officers that the photograph of the suspect taken at the crime scene was obviously not Cozzi because the suspect had “numerous tattoos up and down his arm”—Cozzi had only one on his hand. Undeterred, police arrested Cozzi, took him to the station, questioned him, and released him the next day, “unable to find something that could substantiate for his arrest.”

Despite the tipsters’ detailed suspicions about Cozzi’s potential guilt, and despite the arguably corroborating pills found in Cozzi’s house, the Eleventh Circuit found that the officers lacked probable cause to arrest Cozzi given the “easily verifiable exculpatory information” regarding Cozzi’s tattoos (or lack thereof) available to them at the time. In fact, according to the Eleventh Circuit, there wasn’t even “arguable probable cause” that would entitle the officer to qualified immunity under the facts presented.

The probable-cause-to-arrest assessment must, the Eleventh Circuit emphasized, be assessed under the totality of the circumstances. An “officer may not turn a blind eye to evidence suggesting that a suspect is innocent” by choosing “to ignore information that has been offered to him” or by electing “not to obtain easily discoverable facts.” That arrest without probable cause, let alone arguable probable cause, violated Cozzi’s “clearly established Fourth Amendment right to be free from unlawful arrest.”