Sunday, August 19, 2018

No officers, you may not ignore plainly exculpatory evidence when making a seizure

One angry teenager accuses his parents of bizarre acts of child abuse.

But five younger siblings deny abuse and say they love their parents; a doctor who examines the children finds them healthy with no signs of abuse; and a month earlier an investigator had "unsubstantiated" the teenager's claim of abuse.

Can officials seize the children anyway?

Of course not. This was "a child abuse situation that cried out for investigation and confirmation." But "[a]n officer contemplating an arrest is not free to disregard plainly exculpatory evidence, even if substantial inculpatory evidence (standing by itself) suggests that probable cause exists." And "[l]ike probable cause, suspicion to seize children must exist at the moment of the seizure, and an official is not free to disregard plainly exculpatory evidence when it undermines substantial inculpatory evidence that reasonable suspicion exists."

So says the Eighth Circuit, in an opinion affirming the district court's denial of one official's motion to dismiss the parents' 1983 action on qualified-immunity grounds.

Sunday, August 12, 2018

20 seconds of questioning unlawfully extends traffic stop

When does unrelated questioning “measurably extend” a traffic stop such that it becomes unlawful under United States v. Rodriguez

In United States v. Lujan, 2018 WL 3742452, 2018 U.S. Dist. LEXIS 132229, the District Court for the Eastern District of Tennessee found that 20 seconds of unrelated questioning is enough. An officer had stopped defendant's vehicle because the officer was unable to read the vehicle’s tag. As the officer approached the vehicle, he saw that the tag was legal. (Note: the Lujan court recognized at this point that under Tenth Circuit precedent the officer “would have been permitted to merely explain the reason for the stop but then let Defendant ‘continue on [his] way without requiring [him] to produce [his] license and registration.’”). The traffic stop quickly turned into a 20 second “roadside interrogation”: “why are you nervous?”, “where do you work?”, are the van’s passengers “legal”? 
The Lujan court acknowledged that those 20 seconds of investigative questioning unrelated to the stop’s purpose were “brief.” But “Rodriguez is not focused on vaguely assessing time, measuring it against arbitrary notions of what constitutes promptness.” Rather, “Rodriguez requires that courts look at the officer’s actions and determine whether he inevitably prolonged the stop beyond its original mission.” Hence the Court’s conclusive holding that those 20 seconds of unrelated, investigative questioning measurably (and therefore unlawfully) extended the traffic stop. 

Motion to suppress granted. 

Thursday, August 9, 2018

No nexus? No good faith.

A 17-year-old drug conviction on the part of the homeowner.

A 4-month-old anonymous tip about the home.

A recent stop of unclear duration in the driveway by a suspected drug dealer.

These were the core allegations in an affidavit for a search warrant of Curtis Tucker's home. The district court agreed that these allegations did not provide a minimally sufficient nexus between suspected drug dealing and the home, and further agreed that the agents who executed the search warrant lacked good faith. The district court suppressed the fruit of both this search and the execution of a second search warrant that was based in large part on the fruits of the first one.

The government appealed, and the Sixth Circuit affirmed, finding the problems with the first affidavit "so glaringly obvious that the Leon exception does not apply"---either to the first or the second search.

Sunday, August 5, 2018

Legal protections do not hang on the whims of government officials

In United States v. Ochoa-Oregal last week, the Ninth Circuit reversed the defendant’s unlawful-reentry conviction because his prior removal orders (the latter being an expedited removal order contingent upon the first) were deemed “fundamentally unfair” and as such, could not serve as the requisite predicate removal order for the offense. 
In 2008, at the time he was first ordered removed based on a California battery conviction, Mr. Ochoa-Oregal was a legal permanent resident (LPR). The removal order was entered in absentia, however, which deprived Mr. Ochoa-Oregal of opportunity to exhaust or seek judicial review. What’s more, 2008 Circuit precedent established that a California battery conviction was not a categorical crime of violence. Hence, the 2008 removal order was erroneous and could not serve as a predicate for an unlawful-reentry conviction.
Neither could the latter expedited removal order in 2011 serve as a predicate for the unlawful reentry conviction. The Ninth Circuit determined that expedited removal order was “infect[ed]” and thereby invalidated by the erroneous 2008 removal order; Mr. Ochoa-Oregal had been removed in 2011 for presenting invalid entry documents, but if Mr. Ochoa-Oregel was a lawful permanent resident, then his entry documents were not invalid.
Notably, the Ninth Circuit rejected the government’s argument that Mr. Ochoa-Oregal could not demonstrate prejudice despite the erroneous removal order because he was an aggravated felon who could have been removed anyway, and he would have been denied discretionary relief. The Court held that “even if the government might have been able to remove him on other grounds through a formal removal proceeding, his removal on illegitimate grounds is enough to show prejudice.” In so finding, the Ninth Circuit cogently concluded that the “important legal protections of lawful permanent resident status do not hang on the whims of government officials, they stand on much more secure footing of lawful due process.”

Sunday, July 29, 2018

Being a migrant is not a crime

“The Constitution protects citizens and non-citizens.” That means, as the Second Circuit was required to remind us in Zuniga-Perez v. Sessions, that the contours of the Fourth and Fifth Amendments do not bend on the basis of one’s race or citizenship. 

Zuniga-Perez took place in upstate New York. Law enforcement went to a home late at night in search of a fugitive, as well as “known Hispanic migrants.” Law enforcement surrounded the home, shone flashlights through windows, and demanded the residents open the door and windows. A resident finally lets the authorities in because “they gave him no choice.” And once inside, law enforcement questioned the residents for the whereabouts of this alleged fugitive. Come to find, he’s not there. But also come to find, two residents are citizens of Mexico residing in the United States. Those two are arrested, and removal proceedings commence.  

But, as the Supreme Court has held, “it is not a crime for a removable alien to remain present in the United States.” And, as the Zuniga-Perez court notes, being a “Hispanic migrant is not a crime.” Where law enforcement exceed the scope of a warrant (or alleged warrant in this case), or where that warrant fails to state with particularity the place to be searched and items to seized, it violates the Fourth Amendment. A protective sweep that last longer than necessary also violates the Fourth Amendment. When a person is subjected to random or gratuitous questioning related to his immigration status, it violates the Fourth Amendment. And, Miranda applies to citizens and non-citizens alike.

To permit such unconstitutional conduct by law enforcement against non-citizens would be, as the Second Circuit reiterated, to “condone ethnic harassment” and to rubber-stamp an immigration policy that “teeters on the verge of ‘the ugly abyss of racism.’” Hence the reversal in Zuniga-Perez where a reasonable fact-finder could conclude that an “egregious constitutional violation” had occurred—that is, that authorities had targeted petitioners "merely because they appeared to be Hispanic migrants." 

Thursday, July 26, 2018

How to preserve a confrontation objection

In a cautionary tale from the Tenth Circuit this week, the Court held that a defendant forfeited any confrontation-clause challenge to limits on his cross-examination of a government witness because he failed to preserve the issue properly for appeal.

How should such a challenge be preserved? The Tenth Circuit offers clear advice:

First, make a proper proffer by describing the evidence with specificity and what it tends to show.

Second, make a proper objection by identifying the grounds for admitting the evidence. If there are multiple grounds (statutory and constitutional, say), identify them all. Invoking an evidentiary rule won't work to preserve a constitutional claim (or vice versa).

Third, explicitly link the two (the evidence with the grounds for admission).

Sounds simple, right?

Sunday, July 22, 2018

Trial penalties and the Sixth Amendment

To penalize an individual because he chooses to exercise his fundamental right to trial by his peers violates the Sixth Amendment.

Hence the remand for resentencing by the Ninth Circuit in United States v. Hernandez, this month where the record reflected that the district court penalized the defendant “by increasing his sentence based on his decision to go to trial.” Writing for the majority, Judge McKeown quipped that a district court merely reciting a boilerplate statement regarding its consideration of Section 3553(a) factors, while “chastising” the defendant for going to trial, cannot “cure the infirmities” in the sentence imposed.   

Importantly, the Hernandez court recognized, too, that “a judge cannot rely upon the fact that a defendant refuses to plead guilty and insists on his right to trial as the basis for denying an acceptance of responsibility adjustment.” It’s a good reminder that a defendant may neither be penalized for exercising his fundamental right to a jury trial nor automatically precluded from receiving an acceptance-of-responsibility reduction after going to trial.

In remanding for resentencing in Hernandez, Judge McKeown aptly noted that “[e]nhancing a sentence solely because a defendant chooses to go to trial risks chilling future criminal defendants from exercising their constitutional rights. And imposing a penalty for asserting a constitutional right heightens the risk that future defendants will plead guilty not to accept responsibility but to escape the sentencing court’s wrath.”

We must continue to jealously safeguard these axiomatic principles upon which our liberty is founded. NACDL’s recent report, The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It (worthy of a full read) reiterates what we well know: we are functioning within a system in which over 97% of defendants—including those innocent of the crimes charged—choose to plead guilty to avoid the risk of an astronomically increased sentence if convicted after trial. As a result, society is being deprived (at an ever-increasing and alarming pace) of necessary and vital checks on the excesses of prosecutorial power and the criminal justice system as a whole. “When the risk of exercising this crucial human right are too great for all but 3% of federal criminal defendants, the system is in need of repair.”

Hernandez and NACDL’s Report may be used to combat post-trial sentencing practices that undermine the Sixth Amendment's right-to-trial guarantee--that is, challenge on Sixth Amendment grounds unwarranted sentences, sentencing disparities, and denial of acceptance-of-responsibility reductions for those increasingly rare clients who do choose to exercise the fundamental right to a trial by their peers.