Monday, June 27, 2016

"[Y]ou are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged."

So if you haven't read Strieff  by now, you should. If you are putting it off because you don't like bad news, at least read Justice Sotomayor's dissent for some great language like the title of this post.

Briefly Strieff  is a seizure case where an officer detained Mr. Strieff on foot after leaving what the police thought was a drug house. However, all parties conceded that the seizure was illegal. After detaining Mr. Strieff and getting his ID, the officer found out Mr. Strieff had a warrant for a traffic violation. A search of Strieff pursuant to arrest uncovered drugs and paraphernalia.

We all know Strieff is bad for defenders of the Fourth Amendment. Here are some attempts at optimism to try to find a way to at least limit the holding. The Court provides a number of factors to support the stop, which hopefully can be used to distinguish Strieff  from your case.

1. Distinguish the Court’s factors to support the search.

A. Temporal Proximity - The first is “temporal proximity.” As the Court states “such a short time interval counsels in favor of suppression.” (Slip Op. at 6). Based on that language, in a future scenario like Strieff - where the discovery of the basis to arrest is close in time and thus less likely to break the causal chain – such a factor supports suppression.

B. Intervening circumstances – The Court uses this factor to argue that because the warrant was “entirely unconnected with the stop” that it is an intervening circumstance. (Slip Op. at 7). The Court also states the warrant “predated” the investigation. Id. The Court (sort of) analogizes the situation to the independent source doctrine where the discovery of evidence is “sufficiently attenuated to dissipate the taint.” Id. Citing Segura v. United States, 468 U.S. 796, 815 (1984). The Court describes the execution of the warrant as a “ministerial act” that “was entirely unconnected with the stop.” Strieff at 7. If there is ANYTHING other than a warrant to support a search it seems like that doesn’t meet the standards for an intervening circumstance. Discovery of evidence? No – not ministerial, didn’t predate and is connected to the stop. Development of some probable cause from talking with the person? Nope. Not ministerial, didn’t predate and connected to the stop.

C. Purpose and flagrancy of the official misconductStrieff  concedes that the stop was illegal. However, Strieff says the officer was “at most negligent.” And the Court warns officers that this officer “should have asked Strieff whether he would speak with him, instead of demanding that Strieff do so.” Id. at 8. I would think we might try to limit Strieff on this basis. If the officer was only negligent NOW all officers know what they should do – the Supreme Court literally told them what to do. It should be harder to claim negligence when you are told what to do in future situations. We should spend time pointing to the obvious illegality that began the stop/seizure and maybe even point to other case law that makes such legality something beyond “negligent.” The Court also points to the “fact” that the officer’s “conduct thereafter was lawful.” Id. If we can find another example of illegality along the way that would help. Maybe work in some of the good delay case law or argue that any future search without probable cause is tainted – even with consent.

2. Tracking “systemic or recurrent police misconduct.” The Court spends a fair amount of time characterizing this stop as an “isolated instance of negligence” and finding it “especially significant that there is no evidence” of “flagrantly unlawful police misconduct.” Id. The Court even states that “[w]ere evidence of a dragnet search presented here, the application of the []factors would be different. The Court has now made this an issue in suppression. Request discovery. Be expansive in those requests. Keep track of certain jurisdictions or officers. Get flack in discovery? Sorry Judge/AUSA - the Supreme Court said so.

Sunday, June 19, 2016

Justices Ginsburg and Thomas cordially invite you . . .

. . . to bring SCOTUS a double-jeopardy case. More specifically, they think it's time that the Court revisit the dual-sovereignty doctrine. This is the doctrine under which both state and federal authorities are allowed to prosecute someone for the same act without offending the double-jeopardy clause.

In Puerto Rico v. Sanchez Valle, the Supreme Court held that this doctrine does not allow Puerto Rico to prosecute someone for the same crime that has been charged in federal court, because Puerto Rico is not a separate sovereign for double-jeopardy purposes. Justices Ginsburg and Thomas concurred, suggesting that they might go further and find even dual prosecutions by separate sovereigns to violate the double-jeopardy clause:

The double jeopardy proscription is intended to shield individuals from the harassment of multiple prosecutions for the same misconduct . . . . Current "separate sovereigns" doctrine hardly serves that objective. States and Nation are "kindred systems," yet "parts of ONE WHOLE." The Federalist No. 82 . . . . Within that whole is it not "an affront to human dignity," . . . "inconsistent with the spirit of [our] Bill of Rights," . . . to try or punish a person twice for the same offense? Several jurists and commentators have suggested that the question should be answered with a resounding yes: Ordinarily, a final judgment in a criminal case, just as a final judgment in a civil case, should preclude renewal of the fray anyplace in the Nation . . . . The matter warrants attention in a future case in which a defendant faces successive prosecutions by parts of the whole USA.

Monday, June 13, 2016

Eighth Circuit says no expectation of privacy in magnetic stripe on credit cards

Think you have an expectation of privacy in everything in your wallet? Think again. The Eighth Circuit recently held in United States v. Briere De L'Isle that the information (226 characters to be exact says the dissent) held on the magnetic stripe on the back of your record card gets pretty much no Fourth Amendment protections.

Characterizing the information on the magnetic stripe as "a type of external electronic storage device, [that] is designed simply to record the same information that is embossed on the front of the card," the court affirmed a district court denial of suppression. Drawing an analogy to shining an ultraviolet light on currency the Eighth Circuit had no problem finding it wasn't an intrusion under the Fourth Amendment, that there was no reasonable expectation of privacy in the information and that society is not prepared to give an expectation of privacy to " information in plain view that any member of the public may see."
There is an interesting dissent that asks to remand for additional findings but also characterizes the entire incident quite differently - comparing the stripe more to a hard drive or CD "albeit one whose storage capacity is limited." If other searches of digital storage devices are protected, asks the dissent, why an exception here? The dissent also reminds the majority of recent changes in technology, as newer cards "contain chips that have a storage capacity much greater than that of the old magnetic stripes."

Certainly an issue to keep in find for future suppression motions and a good reminder that as technology changes, it is often our duty to keep up to date and (often) update the court.

Sunday, June 5, 2016

The Fourth Amendment: Not just for wealthy white homeowners

The rule of Florida v. Jardines---that officers conduct a "search" for Fourth Amendment purposes when they use a trained drug-sniffing dog on the front porch of a home---extends to the shared hallway of an apartment complex.

So said the Seventh Circuit in United States v. Whitaker, reversing a district court's denial of the defendant's motion to suppress the fruit of a warrantless dog-sniff.

Two points of interest in Whitaker:

First, the Court emphasized that limiting Jardines to stand-alone houses would be unfair to people who can't or don't live in such houses: "[A] strict apartment versus single-family house distinction is troubling because it would apportion Fourth Amendment protections on grounds that correlate with income, race, and ethnicity."

Second, this warrantless search could not have been in good faith: "[N]o appellate decision specifically authorizes the use of a super-sensitive instrument, a drug-detecting dog, by the police outside an apartment door to investigate the inside of the apartment without a warrant. Therefore, the officer could not reasonably rely on binding appellate precedent, and the good-faith exception does not apply."

Wednesday, June 1, 2016

Objecting to plethysmograph testing

A sentencing judge has ordered your client to submit to penile plethysmograph (PPG) testing as a condition of supervised release. You don’t think the condition is justified. What do you do?

You immediately appeal that order to the Tenth Circuit, right? Wrong! At least if your client has been sentenced to ten years or more in prison. In that case, the ability of the court to determine the effectiveness of the treatment, and the availability and necessity of the treatment ten years down the road are far too uncertain. Any challenge to the condition is, consequently, not yet ripe. So says the Tenth Circuit in United States v. Bennett.

Okay then, what do you do?

We suggest:
Always object and make a full record in the district court, including a facial challenge to the testing itself, not just as applied to your client.

In a case of a sentence of less than ten years, consider going ahead with a direct appeal. Acknowledge and distinguish Bennett. The appeal may be rejected, but until the Tenth Circuit states that the Bennett rule applies regardless of the length of the sentence, it might be risky to forgo a direct appeal.

If you have made a facial challenge to PPG testing, go ahead with a direct appeal as to that challenge. The Bennett Court suggests that facial challenges to PPG testing will be ripe for immediate appellate review.

If your client is sentenced to ten years or more: Again, object and make a full record in the district court. State on the record that you understand based on Bennett that you cannot immediately appeal this condition as applied to your client. Ask the court to advise your client that he has a right to request counsel to challenge the condition if it is in fact ordered when he is released. Quote Bennett: “Bennett can challenge the condition when he is released from his ten-year sentence if testing is still considered an appropriate treatment option at that time.” How will this work, as a practical matter? That remains to be seen, but at least you will have laid the necessary groundwork to preserve the issue and your client’s right to counsel on release.

One note specific to the District of Kansas: It is not the USPO's current practice to permit PPG during supervision of sex offenders. Check the PSR carefully to make sure that language is not included. There is still a provision for a visual reaction test, though; this testing is personally invasive and warrants the same objections as to the PPG. 

-- Paige Nichols and Melody Brannon

Wednesday, May 25, 2016

"Civil death" by collateral consequences justifies probation

Have you ever wondered just how many collateral "penalties, disabilities, or disadvantages" our fine nation imposes on convicted felons? Nearly 50,000, according to Senior United States District Judge Frederic Block of the Eastern District of New York.

The depth and breadth of these life-disrupting consequences---known as "civil death" through much of our history---compelled Judge Block to impose probation in a drug case with an advisory guideline sentence of 33-41 months:

"The collateral consequences Ms. Nesbeth will suffer, and is likely to suffer---principally her likely inability to pursue a teaching career and her goal of becoming a principal . . . has compelled me to conclude that she has been sufficiently punished, and that jail is not necessary to render a punishment that is sufficient but not greater than necessary to meet the ends of sentencing."

Judge Block went two steps further. First, he declared that defense counsel and the prosecutor have a duty to timely inform the court of significant collateral consequences facing a particular defendant after conviction.

Second, he ordered that "[t]he Probation Department should include a collateral-consequences section in all future presentence reports."

The Tenth Circuit, by the way, has held that collateral consequences are not a proper consideration at sentencing (at least when considering them appears to benefit only wealthy white-collar defendants), though so far only in one unpublished (i.e., non-binding)

Thanks to Jim Pratt for bringing Judge Block's opinion to our attention.

Monday, May 23, 2016

"Two peremptory strikes on the basis of race are two more than the Constitution allows." ---Chief Justice Roberts, in Foster v. Chatman

Eddie Hood grew up in the Jim Crow South. In his hometown, Black residents had to enter the local cafĂ© by the back door, and were relegated to the balcony in the theater. His younger brother was one of the Black students whose entrance to the University of Alabama was blocked by Governor George Wallace in 1963. And so Mr. Hood was not surprised decades later when he was stricken from a jury pool in a capital case in Georgia. As he told his wife when he got home: "More than likely, they're not going to want too many of 'us' on the jury."

Timothy Tyrone Foster was an intellectually limited 18-year-old in 1986 when he was charged with capital murder after confessing to killing a retired schoolteacher in Georgia. Timothy was Black; the schoolteacher was white. During jury selection, the trial judge allowed the prosecutor to strike all four Black prospective jurors, including Eddie Hood, over defense counsel's Batson objections. The resulting all-white jury convicted Timothy, and sentenced him to death after the prosecutor urged the jurors to send a message "to deter other people out there in the projects."

Nearly 20 years and many court proceedings later, Mr. Foster's postconviction team finally gained access to the prosecution's jury-selection notes through a state open-records request. These notes showed that (1) the prosecution had highlighted all Black jurors on its list of prospective jurors; (2) the prosecution had circled the race on Black jurors' questionnaires (see above image of Mr. Hood's questionnaire); (3) the prosecution had identified several Black jurors in its notes as "B#1," "B#2," and "B#3"; and (4) the prosecution had ranked the Black jurors against each other just in case "it comes down to having to pick one of the black jurors."

Despite this evidence that the strikes were racially motivated, Mr. Foster's Batson claims were rejected by the Georgia courts. The Supreme Court granted certiorari, and REVERSED, 7-1 (Justice Thomas dissented).

Writing for the majority, Chief Justice Roberts held that the record left the Court with a "firm conviction" that the prosecutor's strikes were "motivated in substantial part by discriminatory intent." The Court flyspecked the State's claimed race-neutral explanations, finding them to have "no grounding in fact," to be "false," "an intricate story," "difficult to credit," "implausible," "fantastic," and "not true."

Chastising the State for acting "downright indignant" in response to the Batson claim, the Court concluded that "[t]he focus on race in the prosecution’s file plainly demonstrates a concerted effort to keep black prospective jurors off the jury."

Lessons learned from Foster:

In considering Batson error, "all of the circumstances that bear upon the issue of racial animosity must be consulted." Thus, even though the provenance of some of the prosecution's notes was uncertain, the Court rejected the State's invitation "to blind ourselves to their existence."

A prosecutor's race-neutral explanations might be undermined when:
  1. White jurors with similar traits are not stricken.
  2. A response said to be strike-worthy is not uncommon among jurors.
  3. The question that elicited a response said to be strike-worthy was badly worded.
  4. The prosecutor's reasons for the strike shift over time.
  5. The transcript of voir dire belies the prosecutor's claims about how jurors responded to certain questions.
  6. The prosecutor's claimed reasons are simply unreasonable or improbable.
  7. The prosecution file contains smoking guns of discriminatory intent.