Tuesday, April 7, 2020

Reasonable suspicion after Glover

On Monday, the Supreme Court held in Kansas v. Glover that a Kansas police officer did not violate the Fourth Amendment when he initiated an investigative traffic stop after running a vehicle’s license plate and learning that the registered owner had a revoked driver’s license. Absent any other information, the officer reasonably suspected that the driver was the vehicle's owner (and driving despite his license's revocation).
The Glover majority reminded us that while a reasonable suspicion must be more than just a hunch, it "falls considerably short of 51% accuracy."

But reasonable suspicion nonetheless continues to have bite, as Glover illustrates with respect to three points:

Officers still can't ignore evidence that dissipates reasonable suspicion.

Glover proceeded on a bare stipulation, and the majority emphasized the narrow scope of its holding, noting that under the totality-of-circumstances approach, "the presence of additional facts might dispel reasonable suspicion." 

The Tenth Circuit has repeatedly made this point about both reasonable suspicion and probable cause. See, e.g., Stanley v. Finnegan, 899 F.3d 623, 628 (10th Cir. 2018) (“an official is not free to disregard plainly exculpatory evidence when it undermines substantial inculpatory evidence that reasonable suspicion exists”); United States v. Valenzuela, 365 F.3d 892, 897 (10th Cir. 2004) (“Thus, in determining whether probable cause to arrest existed, we look not only to the facts supporting probable cause, but also to those that militate against it.”); United States v. Edwards, 632 F.3d 633, 640 (10th Cir. 2001) (“If the police learn information that destroys their probable cause to arrest a defendant, the arrest may become illegal.”)

Officers still have to corroborate unreliable claims before those claims may support a reasonable suspicion 

In Glover, nobody questioned the reliability of the evidence said to support reasonable suspicion (just its force). And so Glover does not undo cases requiring additional corroboration in the face of, say, an anonymous 911 call or other untrustworthy accusations. See, e.g., Stanley v. Finnegan, 899 F.3d 623, (10th Cir. 2018) (teenage son's bizarre claims of child abuse "cried out for investigation and confirmation").

Officers still can't be racist.

The majority rejected the dissent's concern that its decision would pave the way for findings of reasonable suspicion based on nothing more than a demographic profile: “To alleviate any doubt, we reiterate that the Fourth Amendment requires, and Deputy Mehrer had, an individualized suspicion that a particular citizen was engaged in a particular crime. Such a particularized suspicion would be lacking in the dissent’s hypothetical scenario, which, in any event, is already prohibited by our precedents. See United States v. Brignoni-Ponce, 422 U.S. 873, 876, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975) (holding that it violated the Fourth Amendment to stop and ‘question [a vehicle’s] occupants [about their immigration status] when the only ground for suspicion [was] that the occupants appear[ed] to be of Mexican ancestry’).”

Wednesday, April 1, 2020

D.Kan CJA Panel Applications Due May 4

Apply now!

It's that time again: the deadline for submitting applications for the District of Kansas CJA panel is Monday, May 4, 2020. Applications for attorneys who are not currently on the panel and reapplications for those nearing the end of their three-year term are available here. All attorneys whose terms are expiring (and thus need to reapply) have been notified by email. Panel appointments are form July 1, 2020 to June 30, 2022.

Sunday, March 29, 2020

The CARES Act & federal criminal defendants

What’s in the CARES Act for people facing federal criminal charges?

Section 15002 of the Act includes emergency provisions that will allow our clients to waive their physical appearance and consent to appear by video teleconferencing or telephone conferencing for the following proceedings:
  • initial appearance
  • arraignment
  • detention hearing
  • preliminary hearing
  • waiver of indictment
  • Rule 40 appearance
  • misdemeanor plea and sentencing
  • probation/supervised release revocation proceedings (including pretrial release)
  • some juvenile proceedings
  • felony plea (“if the judge in a particular case finds for specific reasons that the plea or sentencing in that case cannot be further delayed without serious harm to the interests of justice”)
  • felony sentencing (ditto the above findings requirement)
  • juvenile plea, sentencing, or disposition (ditto the above findings requirement)

Is this effective immediately?

No, it will only come into effect upon (1) certain findings by the Judicial Conference of the United States, followed by (2) certain findings by your local district court. Check your local district court's website over the next few days.

Does my client have a say in this?

The Act states that “[v]ideo teleconferencing or telephone conferencing authorized [by the bill] may only take place with the consent of the defendant, or the juvenile, after consultation with counsel.”

How long does this thing last?

Either 30 days after the date on which the national emergency declared by the President terminates, or until the Judicial Conference says so.

In the meantime, the Act provides for the local district court to review and determine whether to extend the authorization every 90 days.

Thursday, March 26, 2020

Acquiescence to authority is not consent

In United States v. Pedicini, the Sixth Circuit recently emphasized the distinction between acquiescence to authority and consent to search. A highway patrol trooper pulled over Pedicini for driving in the bike lane. After asking Pedicini to get out of the car, the trooper asked if had any weapons and if he could pat him down. Pedicini did not verbally respond, but extended his arms and asked why he was being patted down and if he was in trouble. The trooper explained that he wanted to search for weapons, asked if Pedicini would mind a patdown, asked if he had any sharp objects, then listed several possible sharp objects. Pedicini then nodded his head and the trooper patted him down and found a gun. But, the Sixth Circuit said, it was unclear what Pedicini was nodding to. "What is clear from this exchange is Pedicini’s consistent confusion and reluctance to be searched as indicated by his repeated questions even while acquiescing to the Trooper." The court noted that non-verbal actions can constitute consent, but not if they are merely "acquiescence to a claim of lawful authority." The court found Pedicini's actions did not constitute voluntary consent, and reversed the district court's contrary findings.

Sunday, March 22, 2020

Tenth Circuit Breviaries

We're finally catching up on Tenth Circuit criminal cases decided in the last few weeks:

Fourth Amendment/Fifth Amendment due process

In United States v. Wagner, the Tenth Circuit held that information that an internet user had accessed child pornography six months ago was not too stale to support a search warrant for the residence associated with the user's IP address. The Court also rejected Mr. Wagner's particularity challenge to the warrant.

The Wagner Court also held that even if a magistrate's earlier NIT warrant for Playpen's servers was invalid (for various reasons), FBI agents executed the warrant in good faith (reaffirming Workman). And the agents' operation of the Playpen child-pornography website did not rise to the level of outrageous governmental conduct necessary to support dismissal of the indictment.

Fifth Amendment right against self-incrimination

More from Wagner: the FBI's interview of Mr. Wagner during execution of the search warrant at his house was noncustodial, and his statements to the agents were voluntary. So concluded the Tenth Circuit.

Exclusion of hearsay/motion for new trial

Trial practitioners take note: In Wagner, trial counsel (1) unsuccessfully sought to cross-examine a government witness about out-of-court statements that had previously been admitted (the district court sustained the government's hearsay objection); and then counsel (2) unsuccessfully moved for a new trial after Mr. Wagner's conviction, arguing in part that the district court's restriction of his cross-examination violated his due-process rights. This was preserved trial error. And it was argued as trial error on appeal. And yet the Tenth Circuit analyzed it as an appeal from the district court's denial of the motion for new trial--triggering a tougher appellate standard, which the Tenth Circuit held Mr. Wagner did not meet. Would he have been in better appellate shape had he not moved for a new trial?

Discuss amongst yourselves.

Sufficiency of evidence of child pornography

Finally in Wagner, the Tenth Circuit held that the evidence was sufficient to prove that Mr. Wagner knowingly received and possessed child pornography.

Sufficiency of evidence of obstruction of justice/attempt to kill witness

In United States v. Chatman, the Tenth Circuit reversed Mr. Chatman's conviction for attempting to kill a witness as well an accompanying 18 U.S.C. 924(c) conviction. Given the unique facts suggesting frustration, retaliation, or attempted "suicide-by-cop," the government failed to prove that Mr. Chatman's exchange of gunfire with a police officer was intended to prevent the officer from communicating the possible commission of a federal offense (Mr. Chatman's unlawful gun possession) to a federal officer or judge.

8 U.S.C. 1326: unlawful reentry

In United States v. Lira-Ramirez, the Tenth Circuit considered newly unearthed statutory history, but ultimately stood by its earlier decisions holding that notices to appear for removal proceedings are not jurisdictional; consequently, an unlawful reentry conviction may be predicated on an earlier removal that followed from a defective notice to appear.

Pleas and magistrate judges

Do magistrate judges have authority to accept guilty pleas and adjudicate the defendant guilty of a felony if the parties consent? Yes (and even if they didn't, that limit would not implicate jurisdiction), according to the Tenth Circuit in United States v. Finnesy.

Tuesday, March 17, 2020

Day 3: FPD COVID-19 Statement

In response to increasing COVID-19 concerns, the Federal Public Defender believes that our highest obligation to our clients is to slow the spread of the pandemic. We have taken precautionary measures that we describe below. And we are appreciative to the federal district court for suspending all non-emergency hearings, including jury trials and grand jury proceedings, and allowing for some appearances by video.

Our primary concern now: the spread of COVID-19 in the jails. We need to stop the flow of people into the jails, and where possible reduce the population. This is beyond dispute: keeping people in jail presents a grave danger to public health, both for those in custody and for jail personnel, who return to the public and to their own families every day. Jails are incubators for COVID-19. Once it takes hold inside the walls, the virus will quickly travel back into the community.

The Bail Reform Act authorizes judicial officers to order temporary release for a “compelling reason.” 18 U.S.C. §3142(i). Nothing could be more compelling than this public health crisis. We expect the landscape on this front—within the pretrial holding facilities—to change rapidly. Soon we will ask the court to consider release of medically vulnerable or compromised clients or to expedite the release of those who were slated for release in the next few months.

Thank you to the United States Marshal Service for sharing information about jail COVID-19 policies. BOP advises “admission of new inmates will continue,” so the health of the detainees will directly affect the health of the BOP population. We ask the Marshal to take these steps:

§  require all facilities who contract with the USMS to daily publish (effective today, March 17, 2020) the number of people—both detainees and personnel—who have:

                        screened or tested positive for COVID-19 symptoms;
                                    tested positive for COVID-19;
                                    been isolated or quarantined within the facility; or
                                    been hospitalized outside the facility.

§  refrain from serving outstanding arrest warrants unless there is an imminent risk of violence;

§  refuse to house any person in USMS custody in a facility that has not implemented adequate precautionary measures to slow the spread of the contagion, identify those at risk of infection, and properly treat those at risk:

       this should include, at a minimum, that the facility provide free soap, alcohol-                     based hand sanitizer, disinfectant, and masks;
             it should also include effective individual isolation within the facility, and anyone              who must be quarantined should be removed to a hospital.

§  require each facility to provide or allow installation of adequate video-conferencing capability for attorney-client visitation.
Likewise, we appreciate the U.S. Attorney’s caution in going forward. Besides the measures already taken, we ask the USAO to:

§  suspend or discourage arrests for offenses that do not involve an imminent risk of violence;

§  where immediate action is necessary, proceed by summons rather than by arrest; each arrest increases exponentially the number of people subject to exposure, including law enforcement;

§  where pretrial detention is at issue, rethink the criteria for recommending detention or house arrest, and consider recommending fewer conditions to protect probation officers from unnecessary risk;

§  consider temporary release or house arrest for those currently in custody who are at high risk because of compromised immune systems, age, or other medical vulnerability; and

§  do not obtain or review any recorded detainee communication, including email, phone, and videoconferencing.

The FPD continues to closely monitor our clients’ circumstances. We have gone to full-time mandatory remote work; closed our physical offices, with one duty attorney at each courthouse; and suspended in-person jail visitation (except for emergencies). We are working on new ways to safely communicate with our clients who remain in custody.

The measures already implemented and those requested above are critical to public health. It is no longer a question of just protecting ourselves, but protecting others who are at risk, including our indigent clients in custody, courthouse staff (including janitorial services), courthouse security, jail and law enforcement personnel, attorneys, and the court.

Sunday, March 15, 2020

FPD and COVID-19

In response to COVID-19, the FPD is temporarily changing how we work. Please be assured that we are still working—as long as our clients are in jail or under prosecution, we will work. Our immediate responsibility—everyone’s immediate responsibility—is to slow the spread of the contagion, to flatten the curve. 

So for the next few weeks, we will work remotely. Our physical offices are closed. Most court hearings are delayed. Phone messages and email will be monitored, but may not be answered immediately. We will continue to communicate with our clients and tend to business, even if business is delayed. We will closely review and monitor the well being of our clients in custody, those who are most vulnerable and with the least control over their own lives. We are ready to fight for their release to protect their health.  
Our contact information is available on ks.fd.org. Please call or email as needed. And everyone, please take care of yourselves and each other.