Tuesday, March 19, 2019

The "least reliable type of hearsay"

Once again, a circuit court has reversed a defendant's supervised-release revocation because the district court improperly relied on hearsay to find a violation.

In United States v. Sutton, the Eighth Circuit held that the district court should not have admitted and relied on videos and transcripts of three witnesses' oral, unsworn statements in response to police interrogations---the "least reliable type of hearsay"---to find that the defendant had committed an assault while on supervised release. The government failed to prove either that confrontation of the witnesses was undesirable or impracticable (its efforts to subpoena the witnesses were insufficient), or that the statements were reliable.

Indeed, the statements were collectively unreliable, as they demonstrated "intoxication, potential culpability in the crime, lapses in memory, repeated falsehoods, and motive to implicate the defendant." The district court should not have admitted the statements.

Fortunately for Mr. Sutton, his counsel objected to admission of the statements as hearsay, violations of his constitutional rights, and Rule 32.1 violations, thus preserving the issue for appellate review.

We've blogged about Tenth Circuit cases on the admission of hearsay at revocation proceedings before here and here. Take note. And OBJECT.

Thursday, March 14, 2019

Tuesday, March 5, 2019

My purse is not my person

Police can search a person incident to arrest. But can they search the person's purse? No, at least not on the theory that the purse is an extension of the person. So said the Tenth Circuit this week in United States v. Knapp, declining to follow courts construing "person" to include containers held by the person at the time of arrest.

Here are the rules to know, as stated by the Tenth Circuit in Knapp:

"[S]earches incident to arrest are governed by a container’s location relative to the arrestee and the degree to which it can be accessed by or separated from the arrestee."

Whether a search of a container incident to arrest is justified depends on "the arrestee’s ability to access weapons or destroy evidence at the time of the search, rather than the time of the arrest" (emphasis added).

"[T]he degree to which arresting officers have separated an article from an arrestee at the time of the search is an important consideration."

In Knapp, officers searched the defendant's purse despite the fact that her hands were cuffed behind her back, three officers were present, her purse was closed and three to four feet behind her, and officers had kept exclusive possession of the purse since cuffing the defendant. This was not a proper search incident to arrest.

Tuesday, February 26, 2019

How to object to 404(b) evidence (and its fallout)

Sometimes civil cases involve issues familiar to criminal-law practitioners.

In Crew Tile Distribution, Inc., the plaintiff, Crew Tile, filed a breach-of-contract claim against Porcelanosa. Porcelanosa countersued, claiming that the contract allegedly breached was forged. The trial court denied Crew Tile’s motions in limine to exclude 404(b) evidence of an earlier and also allegedly forged contract between the same parties.

This was error, but harmless, the Tenth Circuit held, in a decision that offers several lessons to criminal-defense lawyers:

The trial court erred in admitting the evidence. Porcelanosa never identified any proper purpose for admitting the evidence---it just parroted the exceptions listed in Rule 404(b). The proper purposes cited by the district court in admitting the evidence were “divorced from Porcelanosa’s theory of its case,” which was essentially that Crew Tile’s operator was a serial forger. In other words, Porcelanosa wanted to use the evidence for propensity purposes.

But alas! This error was harmless, because the trial court properly limited Porcelonosa’s use of the evidence “to prove the parties’ prior business relationship.”

But wait! Porcelanosa exceeded those limits by arguing to the jury that the evidence proved Crew Tile’s operator was “a forger.”

But alas! Crew Tile did not object to this argument, instead meeting it head on in its own arguments and evidence. “Having failed to make a timely objection to the evidence at the time that it was presented and having personally developed [the challenged evidence] . . . [Crew Tile] waived any right that [it] might have otherwise had to challenge this evidence on appeal.”

And thus: Object if the basis offered for 404(b) evidence is inconsistent with its true purpose; object if the court does not properly limit the evidence; and object if the government improperly uses the evidence.

We’ve said it before and we’ll say it again: Object, object, object!

Thanks to Tom Bartee for this post.

Sunday, February 24, 2019

Can tapping a tire be a search? The Fifth Circuit says yes.

In United States v. Richmond, No. 17-40299, 2019 WL 491779 (5th Cir. Feb. 8, 2019), the Fifth Circuit recently held that the “relatively minor” act of tapping a tire qualifies as a search under the trespass-based approach detailed in United States v. Jones, 565 U.S. 400 (2012), when it is done in order to learn whether the tire contains contraband.
While patrolling on a highway in Texas, a state trooper observed that the tires on the truck Ms. Richmond was driving were “shaking,” “wobbly,” and “unbalanced.” The trooper initiated a traffic stop after watching the vehicle cross over the fog line onto the shoulder of the highway. While walking to the rear of the truck, he noticed that the bolts on the passenger-side rear tire “had been stripped as [if] they had been taken off numerous times.” At this point, the trooper “pushed on the tire with his hand,” which elicited a “solid thumping noise” and raised his suspicions that the tire may contain drugs. A later examination of the tires at a dealership revealed that they contained methamphetamine.

On appeal, Richmond argued that the trooper’s initial touching of the tire was a search, and that the search was not supported by probable cause. The court held that under a trespass analysis, “[the trooper’s] tapping of the tire was a search regardless of how insignificant it might seem.” The Fifth Circuit explained that under the trespass-based approach detailed in Jones, “a trespass ‘must be conjoined’ with ‘an attempt to find something or obtain information,’” i.e., investigatory intent, in order to constitute a search. This two-pronged approach “prevents a mere physical touching, such as when an officer leans on the door of a car while questioning its driver,” or other “incidental conduct,” from becoming a search.

In Ms. Richmond’s case, the court determined that the trooper’s conduct satisfied both prongs of the test outlined in Jones. The court reasoned that tapping the tire was a trespass similar to “attaching a GPS to the exterior of a vehicle,” as in Jones, because of the physical contact made with the vehicle in both instances. Because the trooper initiated the contact with the tire in order to “confirm his suspicion that it contained more than just air,” the tap became a search within the meaning of the Fourth Amendment. The court further explained that it was unlikely that the information that the trooper had when he made contact with the tire constituted probable cause to conduct the search.
Ultimately, however, the court determined that the trooper did have “probable cause to believe that the tire posed a safety risk” based on his observations of the tire’s wobble and “the truck veering outside its lane.” Thus, the court held that public safety interests justified the search, and affirmed the district court’s judgment denying Richmond’s initial suppression motion. Although Richmond did not ultimately prevail in her appeal, the court’s conclusion that “the brief physical examination of the tire was subject to the Fourth Amendment under the recently revived trespass test” will benefit other defendants, and it serves as a reminder to consider other possible applications of the trespass-based approach outlined in Jones.
The decision can be found here. 

Sunday, February 17, 2019

A bathrobe alone does not clothe someone with apparent authority

Apparent authority and consent from a third party may provide law enforcement with an exception to the warrant requirement where the officers reasonably believe that the third party has joint access or control over the property for most purposes. But the Seventh Circuit reminds us this past week in United States v. Terry that apparent authority’s exception cannot apply where officers veil themselves in ignorance by failing to inquire further.

Related imageIn Terry, officers relied on the prompt verbal and written consent to search defendant’s residence obtained by a woman who answered the door at 10 a.m. in a bathrobe and looking sleepy. Prior to relying on her consent, the officers did not know who she was, what her relationship was to the defendant, why she was in the apartment, how long she had been in the apartment, or whether she lived there. "Sometimes the facts known by the police cry out for further inquiry, and when this is the case it is not reasonable for the police to proceed on the theory that ‘ignorance is bliss.’” (Quoting LaFave.) Conviction vacated.

And of course, even if the officers had gained the requisite information to demonstrate that the woman had authority over the residence, it would still be at issue whether she had authority over the containers searched therein. See, e.g., United States v. Salinas-Cano, 959 F.2d 861, 862 (10th Cir. 1992) (“[O]wnership and control of property does not automatically confer authority over containers within it.”) (citing United States v. Karo, 468 U.S. 705 (1984)).

Tuesday, February 12, 2019

Advocating for probation

When imposing a sentence, federal judges are required to consider the need for the sentence "to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner." 18 U.S.C. § 3553(a)(2)(D).

And yet "imprisonment is not an appropriate means of promoting correction and rehabilitation." 18 U.S.C. § 3582(a). See also Tapia v. United States, 564 U.S. 319 (2011).

What's a federal judge to do?

Consider alternatives to imprisonment, that's what. And defense counsel now have a roadmap for encouraging the judge to do just that, with U. Chicago Law Professor Erica Zunkel's new article 18 U.S.C. § 3553(a)’s Undervalued Sentencing Command: Providing a Federal Criminal Defendant with Rehabilitation, Training, and Treatment in “the Most Effective Manner.”

A few lessons from the article:

First, federal law commands judges to consider the need for correctional treatment "in the most effective manner." BOP cannot provide that treatment. Again, federal law prohibits imposing a prison sentence for rehabilitation purposes. And BOP "faces numerous hurdles to providing 'the most effective' care for defendants due to overcrowding, staffing shortages, high medical costs, and budget cuts."

Second, defense counsel should present the sentencing judge with specific evidence and data contrasting correctional treatment relevant to counsel's client inside the BOP with correctional treatment available outside the BOP.

Third, defense counsel should show the sentencing judge how a non-prison sentence promotes other sentencing goals as well. For instance, even the Supreme Court has recognized that probation constitutes punishment, as it "substantially restrict[s]" a person's liberty. Gall v. United States, 552 U.S. 38, 48 (2007). And counsel can present studies to argue that a probationary sentence with correctional treatment can do a better job of deterring crime and protecting the public than can a sentence of imprisonment.