Sunday, October 22, 2017

Cert Grant Series: And Now From Kansas . . .

Last Monday, the Supreme Court granted cert in a case arising from a 2011 marijuana trafficking prosecution in Kansas City, Kansas, tried before Judge Vratil. Brothers Los Rovell Dahda and Roosevelt Dahda asked the Court to consider this question:
Whether Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. 2510-2520, requires suppression of evidence obtained pursuant to a wiretap order that is facially insufficient because the order exceeds the judge’s territorial jurisdiction. 
The wiretap orders in Dahda authorized the interception of communication outside of Kansas, beyond the issuing magistrate's jurisdiction. Trial counsel unsuccessfully moved to suppress the wiretap evidence.

On appeal, the Tenth Circuit disagreed with the district court and found that the T-3 order was facially insufficient as it authorized interception of communication outside of the court's jurisdiction. But the Circuit still refused to grant relief. Instead, the Tenth Circuit read into the statute another condition: a facially insufficient order must implicate "core concerns" of Title 3--privacy and uniformity--to justify suppressing the evidence.

The  circuits are divided on this extra-statutory condition. The statute says nothing about core concerns or exceptions to the statutory suppression remedy. The Tenth Circuit decision is here.

The cert petition, filed by counsel of record at Williams & Connolly LLP in D.C., is here. Oral argument has not yet been scheduled.

Thursday, October 19, 2017

Let's talk about forensic science: week 6

After a short hiatus, it is again time to talk about forensic science. But this time less on the science and more on some practical motion/trial strategy. For those of us who have had examples of suggestive identification (a recent local example exists), only to have a judge tell us it is an issue for the jury, the process is frustrating. Luckily forensic science can help! For years courts have simply relied on the good judgment of juries to determine if someone is telling the truth or not. But  the problem of misidentification is that the witness believes they are telling the truth, but has made a mistake. So what do we do?

The forensic science exits to support a remedy from judges. A summary of the science is provided in State v. Henderson, a New Jersey Supreme Court opinion that went to great lengths (appointing a special master and all) to flush out the science in this area. Also a byproduct of DNA exonerations is that we now can isolate causes of wrongful convictions. And misidentification is the clear leading cause of wrongful convictions. Justice Sotomayor has a strong dissent in Perry v. New Hampshire that should give us some comfort that courts may soon turn in the right direction.

But what are the remedies that are available? Again, Henderson is instructive. We should still start with suppression and focus on the problem with relying on juries - the body of science that shows people are not as good as identifying people as they believe they are - who are left to determine someone is telling the truth when that person doesn't understand their flawed thinking. But we should also be looking for experts in the field to testify. Those experts can guide the court on suppression as well as testifying at trial if needed. And jury instructions are essential. Such instructions should probably be given at the time the identification is introduced AND in the final jury instructions packet. While the cases we read seem to close the door on getting a remedy for a suggestive procedure, it is time that courts catch up with the science.

Sunday, October 15, 2017

Tenth Circuit to hold special session in Topeka on October 26

We have a new feature on our website. As Tenth Circuit oral argument sessions approach, we will post a summary of the issues pending in each criminal case to be argued. You can access this summary from the main page of our website, just below our more detailed document summarizing all issues currently pending before the Circuit in criminal and postconviction appeals (see image below).

Up next is a special argument session in Topeka, Kansas on October 26, 2017, at the Robinson Moot Courtroom at Washburn Law School. Start time is 9:00 a.m. It will be a great opportunity to see the Court in action (and with an all-female panel) via Judges Briscoe, McHugh, and Moritz.

Thursday, October 12, 2017

Cert petition gets to the intersection of the 2nd and 4th Amendments.

There is a clear move in this country towards an expansion of 2nd Amendment rights. But at the same time 4th Amendment protections seem to be going the other direction. What happens when these two trends intersect?

That question is at the heart of a cert petition before the Supreme Court. In United States v. Robinson the court may decide to consider:

Whether, or under what circumstances, in a state that permits residents to legally carry firearms while in public, an officer's belief that a person is armed allows the officers to infer for purposes of a Terry v. Ohio search that the person is “presently dangerous.”
Below, the 4th Circuit determined that all that was required was for the officer "reasonably suspect that the person was armed." But, as the Petitioner points out, Terry seems to require more - either reasonable suspicion that the person committed or is about to commit a crime, or evidence that the person is armed and presents a present danger.

Because Kansas is such a state with expanded gun rights, we should be raising this issue and keeping an eye on this interesting petition.

Wednesday, October 11, 2017

Racial profiling leads to suppression

Lamar, Missouri, a small town in Southwest Missouri (pop. 4,532, per the 2010 census), is known as the birthplace of President Harry S. Truman. Scholars credit Truman with being the first president after Lincoln to address racial inequality in America. He desegregated the military after a civil rights commission he established published a report titled "To Secure These Rights" ("We need to guarantee the same rights to every person regardless of who he is, where he lives, or what his racial, religious or national origins are.").

Related imageOn or around March 20, 2016, there was a robbery in Lamar. A local sheriff's deputy knew that the police department was "looking for a black or Hispanic male in his early twenties" in connection with the crime. Weeks later, on April 9, 2016, the deputy saw a man walking down the street and suspected that he might be the robber, "because there are not a lot of younger black or Hispanic males in Lamar."*

The deputy stopped the man, discovered that he had two active warrants out of Oklahoma, arrested him, and searched his belongings, finding drug paraphernalia and a gun. The man was charged in federal court with transporting a firearm, and moved to suppress the evidence. Earlier this summer, a magistrate held a hearing and recommended suppression. Last week, the district court adopted the magistrate's recommendation. The case is United States v. Hernandez, No. 16-05031-01-CR-SW-MDH,2017 WL 4391713 (W.D. Mo. July 25, 2017), adopted in full at 2017 WL 4401635 (W.D. Mo. Oct. 2, 2017), and it's a good one to keep in your suppression toolkit.

After emphasizing that "[r]ace alone is not sufficient to create reasonable suspicion," the court held that the discovery of the warrants did not purge the stop of its illegality even under the attenuation doctrine as applied in Strieff. The third prong of the attenuation doctrine asks about the flagrancy of law enforcement's misconduct. The officers in Strieff were merely negligent. But here the deputy's conduct "in stopping and seizing Defendant, with nothing more suspicious than the color of Defendant's skin, amounts to racial profiling."

And so go forth, and be not afraid to call racial profiling what it is.

*According to the 2010 census, 86 Hispanics or Latinos and 31 African Americans live in Lamar.

Sunday, October 8, 2017

Cert Grant Series: Football and Rental Car Searches

Football and beer and . . . . standing. The police suspect that some football fans may drink, and sobriety checkpoints tend to pop up close to stadiums (or stadia, for those of you care) around game time. Cars get searched, without warrants, without probable cause, or even without reasonable suspicion. Then it becomes really important who made it to the Super Bowl that year, as the cert petition in Byrd v. United States explains. 

The Byrd petition couched the circuit split in these terms--football attendees have different Fourth Amendment protections based on which teams made the Super Bowl that year. In some circuits, such as the Third where Byrd originates, a rental-car driver stopped at one of those checkpoints cannot challenge the search unless she is an authorized driver on the rental car agreement, even if  1) she is licensed, 2) has the renter's permission to drive, and 3) the renter is present in the car.  In other circuits, like the Ninth, where Arizona hosted Super Bowl 49,  it is a different story. 

This circuit split caught the Supreme Court's interest, and it wants to answer this question:
Does a driver have a reasonable expectation of privacy in a rental car when he has the renter’s permission to drive the car but is not listed as an authorized driver on the rental agreement?
Image result for rental car search by policeWe see this most often in interstate drug-interdiction 'traffic' stops. And we care about this question because the Tenth Circuit is on the wrong side of the split: "[A]n unlisted driver does not have a reasonable expectation of privacy in a rental car because he does not have the rental company’s permission to operate the car." United States v. Obregon, 748 F.2d 1371, 1374–75 (10th Cir. 1984). 

Oral argument is not yet scheduled.

Cert brought to you by the Federal Public Defender in MDPa.

-- Melody

Tuesday, October 3, 2017

Clean Slate Clearinghouse

Want to help a client expunge a record in Utah, Virginia, or Guam, but don't know where to start? The Council of State Governments (with help from a number of other organizations and agencies) has just launched the Clean Slate Clearinghouse to help support juvenile and adult criminal-record clearance around the country. The Clearinghouse's stated goals are:

•Providing people with criminal records and non-legal service providers with accurate, up-to-date information on record clearance and mitigation as well as contact information for legal service providers in all U.S. states and territories;

•Supporting legal service providers currently engaged in record clearance work and giving new legal service providers the tools and resources they need to develop record clearance programs; and
•Giving policymakers the information they need to compare their state’s record clearance policies to those of other states and to learn about best practices.

Check it out, and spread the word.

Image result for clean slate

Wednesday, September 27, 2017

Does Stingray (cell-site simulator) use = a search?

A cell-site simulator poses as a cellphone tower and tricks a targeted cellphone into connecting with it instead of with a tower. Law enforcement officers might use a cell-site simulator to locate and track suspects associated with a particular cellphone. This is different from asking the phone company to disclose either real-time or historical cellphone data; this is direct government surveillance.

And that is why the D.C. Court of Appeals held last week that the use of a cell-site simulator to locate or track a suspect is a search for Fourth Amendment purposes, and ordinarily requires a warrant. The majority, concurring, and dissenting opinions of Jones v. United States are all well worth reading for a thorough examination of this issue, how it differs from other cellphone issues (such as the one before SCOTUS this term), and what other courts have held with respect to this and related issues.

Sunday, September 17, 2017

Cert Grant Series: Another Void-for-Vagueness Question

First up on the October 2, 2017, oral argument docket is Sessions v. Dimaya. SCOTUS granted the government's cert request on this issue:
Whether 18 U.S.C. 16(b), as incorporated into the Immigration and Nationality Act’s provisions governing an alien’s removal from the United States, is unconstitutionally vague.
That is a short question with deep ramifications. Dimaya is an immigration case, but the statute at issue, 18 USC § 16, is the general definition of  "crime of violence" for the federal criminal code. Subsection (b) includes this definition: any felony that, by its nature, "involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” 

For comparison,  remember Johnson v. United States, a 2015 SCOTUS case that held a similar definitional phrase unconstitutionally vague: a felony that "otherwise involves conduct that presents a serious potential risk of physical injury to another.” Johnson's invalidation of this residual clause of the Armed Career Criminal Act triggered an earthquake in retroactive litigation. Of course, that was reduced to tremors with Beckles, which refused to find the (essentially) same phrase vague in context of the sentencing guidelines. A favorable decision in Dimaya may cause the ground to shift again, or at least clarify the Court's vagueness doctrine.  

Dimaya might sound familiar. Last term, this same case was styled Lynch v. Dimaya (oh, how much changed with that name). It was first argued January 17, 2017, but then SCOTUS set it for reargument on October 2, presumably because the Court had deadlocked at 4-4. It appears that Justice Gorsuch will be the tiebreaker. 
-- Melody

Thursday, September 14, 2017

Cert Grant Series: Warrants and Cell Phone Records

Merely turning on a cell phone creates a record. That record, which can be vast as we all keep our cell phones turned on all the time, is stored by our cell phone providers. Do you have a privacy interest in those records? Or can the police just obtain your records to track your movements without your consent, without your knowledge, and without a warrant?

Those issues present SCOTUS with another opportunity to update Fourth Amendment law to fit with present-day technology. Carpenter v. United States asks if a warrant is required to obtain historical cell phone records that revealed the location and movement of a cell phone. This is framed as a doctrinal challenge to whether third parties--such as cell phone companies--may voluntarily share digital information information with law enforcement.

The facts, in brief, are that law enforcement obtained several months worth of historical cell phone records from Mr. Carpenter's cell phone service provider (the third party) without a warrant. This information tracked Mr. Carpenter's cell phone and placed him (or, at least, his cell phone) in the vicinity of a string of robberies. This data was created by merely carrying, not using, an active cell phone. The government did not have a warrant but relied on statutory authority derived from the Stored Communications Act of 1986. The government argues that the defendant has no ownership interest in records provided by the third party cellphone service provider, and there is no Fourth Amendment protection because the records do not reveal the content of his calls.

Carpenter argues that the volume and precision of the data calls for a different analysis than, say, bank records. A cell phone user has little knowledge or control over the information produced as a result of having a cell phone. The Electronic Frontier Foundation has filed an amicus brief that provides data on the breadth and depth of information provided by cell phones, cell cites, and cell towers.

This presents a different issue than either United States v. Jones, 132 S.Ct. 945 (2012) (tracking the movements of a defendant based on information provided by a GPS device attached to his car is a search under the Fourth Amendment and will generally require a warrant) or Riley v. California, 134 S.Ct. 2473 (2014) (officers must generally obtain a warrant before searching the content of a lawfully seized cell phone). Here the Court may find law enforcement's activities less intrusive than Jones or Riley; a lessened expectation of privacy would allow a third party to release the records without a warrant.

On the other hand, Professor Orin Kerr argues that the third-party argument is in the "wrong doctrinal box." Instead, he compares this to the eyewitness rule: "If the Supreme Court sticks with the eyewitness rule, Carpenter v. United States is an easy case. Cellphone companies are eyewitnesses." Either way, the Court needs to confront the Fourth Amendment question in contemporary terms.

Note: Following Riley, the Tenth Circuit requires a warrant before law enforcement may search cell phone content.

Thanks to Scotusblog for the links.

-- Melody

Sunday, September 10, 2017

Stash House Sting Cases – Relaxing the Standard on Discovery

Several decades ago, law enforcement agents perceived a rise in robberies at “stash houses” so they began to conduct “reverse sting” operations. The idea being that persons at a “stash houses” were particularly vulnerable to being robbed because they traded in cash and would be unwilling to involve law enforcement due to the illegal nature of activity at these houses. A “stash house” may sound like an official or menacing term, but it is simply law enforcement nomenclature for a place where items (drugs, cash, etc.) of the drug trade are kept.

Courts have long been suspicious of these types of sting operations. As the Tenth Circuit noted in Quinn v. Young, 780 F.3d 998, 1008 (10th Cir. 2015), “sting operations present unique questions relating to suspect culpability, particularly regarding the question of intent.” The Ninth Circuit boldly acknowledged the “troubling aspects” of a reverse sting designed “to find and arrest crews engaging in violent robberies of drug stash houses,” including “[t]he risk inherent in targeting ... a generalized population.” UnitedStates v. Black, 733 F.3d 294, 298 (9th Cir. 2013) ("The Black cases arise from a profoundly disturbing use of government power that directly imperils some of our most fundamental constitutional values.").

Empirical data showed that the “generalized population” most commonly targeted in these operations were racial minorities. But the rub for defense lawyers has been discovering any information about “selective prosecution” or “selective enforcement” by the government. That has been true because of two Supreme Court cases in particular that placed the hurdle higher than any particular defendant has been able to clear. In United States v. Armstrong, 517 U.S. 456 (1996) and United States v.Bass, 536 U.S. 862 (2002) (per curiam), the Supreme Court held that to obtain discovery, a defendant had the burden to present “some evidence” of discriminatory effect and discriminatory intent of the government action, and the defendant’s showing must be credible and cannot generally be satisfied with nationwide statistics.

Two weeks ago, the Third Circuit in United States v. Washington, No. 16-2795(Aug. 28, 2017) took on this standard, noting that “Armstrong/Bass has proven to be a demanding gatekeeper,” and that “the lived experience, … has resembled less a challenge and more a rout, as practical and logistical hurdles abound – especially proving a negative.” If you represent a defendant charged as a result of a stash house sting, Washington is worth your time to read.

Relying upon the logic of a Seventh Circuit opinion in United States v. Davis, 793 F.3d 712 (7th Cir. 2015), the Third Circuit noted in Washington the difference between law enforcement and prosecution. In other words, the decision a prosecutor may make about who to charge is different than the decision of law enforcement on who to target. In the latter instance, “there are likely to be no records of similarly situated individuals who were not arrested or investigated – would transform the functional impossibility of Armstrong/Bass into a complete impossibility.” The Third Circuit determined that motions for discovery seeking information on putative claims of unconstitutional selective enforcement are not governed by the strict application of the Armstrong/Bass framework. Rather, a defendant who raises a claim of selective law enforcement may rely upon a proffer that shows some evidence of discriminatory effect, including reliable statistical evidence, and need not show some evidence at the initial stage of discriminatory intent.

Washington thus relaxed the legal standard for defendants seeking discovery from law enforcement agencies. It is, of course, not binding law in this Circuit. And Tenth Circuit precedent may not be helpful to these claims. In 2006, the Tenth Circuit in United States v. Alcaraz-Arellano, 441 F.3d 1252 (10th Cir. 2006) found that to establish a discriminatory effect in a selective prosecution race case the claimant must show that similarly-situated individuals of a different race were not prosecuted,” and that “the elements are essentially the same for a selective enforcement claim.” But as the Third and Seventh Circuits have recently shown, the lived experiences of these stash house sting operations has been to foreclose any possibility that defendants can acquire the basic information in discovery to even raise the claim. In light of these cases, and Washington in particular, defense lawyers now have new authority to rely upon to aggressively seek discovery of discriminatory practices in stash house sting operations. 

-- Rich Federico

Wednesday, September 6, 2017

We know what you did last summer . . .

. . . and we sure are grateful. THANK YOU to our summer interns David (Stanford), Doretta (UMKC), Miranda (KU), Rachel (CUNY) and Will (Washburn)!

It was wonderful to have fresh ideas and energy in the office (not to mention on the Chaos Muppets kickball team!). We appreciate your persistence in chasing down authority and drafting (and redrafting) legal arguments and blogposts. Most of all, we love your curiosity about our work and concern for our clients.

A big THANK YOU as well to everyone in the community who contributed to the intern program: CJA counsel, judges, justices, and everyone else who took time to speak with the interns and open your office, courtroom, chambers, prison, or laboratory. We could not have provided such a well-rounded internship without you.

As for David, Doretta, Miranda, Rachel, and Will: We miss you already, and we can't wait to see what you do next!


Monday, September 4, 2017

Fun with Numbers

The new USSC Federal Sentencing Statistics Sourcebook is out with sentencing stats from 2016. The data wonks in the Kansas FPD are happily playing with the new numbers. Here are some highlights:

  • About 35% of cases nationally were disposed of without a plea agreement (Table 1). In the Tenth Circuit, the number rises to about 67% and falls in the District of Kansas to less than 20% (roughly adjusted for trials). 
  • Racially and ethnically, the number of minority defendants sentenced is still alarmingly disparate, with 20.4% black, 53.3% Hispanic, and 22.3% white (Table 4).  The numbers are even worse in drug cases (Table 34).
  • Trial rates: only 2.7% of cases went to trial nationally; even less in the Circuit at 1.1%. Kansas scored higher with 4.1% (Table10). 
  •  Government sponsored below-range sentences: 28.2% (Table N); non-government sponsored below-range sentences: 20.8% (Table N). So almost half of sentences imposed nationally are below the guideline range, one way or another.  
  •  50%: that’s the median percent decrease from the guideline minimum for 5K1.1 departures. 
  • Meth is still the dominant drug at 33.5%; powder cocaine follows at 19.7%, marijuana at 17.9%, and heroin gaining at 14.3%. Crack cocaine has fallen to 8% (Figure K), but is still punished more harshly than any other drug except meth (Figure J). 
  •  Nationally, the government appealed only 21 sentences. That’s right, 21 (Table 56A).  Nationally. When considered with the appellate waivers ceded by defendants, this means the government has considerable power in shaping sentencing law.
  •  Yet the reversal rate of the Tenth Circuit on sentencing issues is 14.3% (Table 56), compared to 3.9% in 2011. That’s quite a jump.
These statistics are helpful in many ways. Say, for example, you are asking for a BGV variance from 108 months in a firearms case. With USSC data, you can explain that the median sentence for a firearms case nationally is 51 months and the mean is 75 months (Table 13). The numbers are further granulated to specific criminal history categories (Table 14). This may inform the court where your requested sentence falls in relation to sentences imposed by other courts. By comparing the same statistics from other years, you can also track the trend of sentencing for a particular offense (see Figure L).


-- Melody

Thursday, August 31, 2017

Supervised release enhancement declared unconstitutional

Hidden at the end of the statute that empowers district courts to impose a sentence of supervised release after a sentence of imprisonment is an enhancement that can did allow imposition of a life sentence for certain violations of supervised release. That statute, 18 U.S.C. § 3583(k) requires required a district court to impose "not less than five" years imprisonment when the defendant was on supervised release for certain offenses against minors when the government proves the defendant committed one of a number of sex offenses while under that supervision. The maximum sentence you might ask? Life.

Such a danger of a life sentence exists no more. In United States v Haymond, the Tenth Circuit found that portion of the statute unconstitutional. As summarized by the majority:
We conclude that 18 U.S.C. § 3583(k) violates the Fifth and Sixth Amendments because (1) it strips the sentencing judge of discretion to impose punishment within the statutorily prescribed range, and (2) it imposes heightened punishment on sex offenders expressly based, not on their original crimes of conviction, but on new conduct for which they have not been convicted by a jury beyond a reasonable doubt and for which they may be separately charged, convicted, and punished.
There is also an interesting discussion of sufficiency of evidence as related to evidence of thumbnails in a child pornography case. Although the Court did not reverse on this ground (remember the standard of proof in supervised release revocations is preponderance of the evidence) the discussion is worth your time.

Wednesday, August 30, 2017

Cert Grant Series: What appeal issues are waived with a guilty plea?

As the First Monday in October approaches, we will review some of the cases pending before the Supreme Court. Thus far, the criminal case docket is rather light.

Class v. United States considers whether “a guilty plea inherently waives a defendant's right to challenge the constitutionality of his statute of conviction”. This issue arises from a deep circuit split on whether a constitutional challenge to the statute of conviction survives a plea, or is waived as part of the factual concession.

Which side does our circuit take? The Tenth has held that all non-jurisdictional claims are waived by an unconditional guilty plea, with a "narrow exception" for only "two constitutional claims — due process claims for vindictive prosecution and double jeopardy claims that are evident from the face of the indictment." United States v. DeVaughn, 694 F.3d1141, 1152-53 (10th Cir. 2012) (acknowledging Blackledge v. Perry, 417 U.S. 21 (1974) and Menna v. New York, 423 U.S. 61 (1975)). Thus, Class could expand or change Tenth Circuit law on this issue. 

Of course, a plea agreement with an appellate waiver will probably dash any such challenge, at least in the Tenth Circuit, which has the most restrictive approach to appellate waiver relief among the circuits.

This is set for argument October 4. NACDL and The Innocence Project have filed amici briefs.

-- Melody

Thursday, August 24, 2017

Let's talk about forensic science: week 5

After taking a short break from blogging about forensic science we are back with a story that puts a prior concept we discussed directly into play. Week one of the forensic science blogging introduced the concepts of foundational validity and validity as applied. The news this week gave us a chance to discuss this topic in relation to a new science: rapid DNA testing.

Rapid DNA testing is what it sounds like. A DNA sample can be taken from a suspect and quickly run through a microwave sized machine. That test result can then be compared to CODIS - the combined DNA profile database run by the FBI. Supporters of expanding the testing point to giving law enforcement a tool to quickly determine if a suspect can be linked to prior unsolved crimes.

And this week, those supporters won the day. The Rapid DNA Act was signed into law. But there are concerns about the new law. First, there are a number of privacy concerns related to criminal defendants and those going through the immigration process. Second, this law would change the criteria for what DNA samples are permitted to be uploaded to the CODIS system. This change is summarized as:
The new law updates the DNA Identification Act of 1994 to authorize criminal justice agencies to upload profiles generated using rapid DNA analysis instruments to the Federal Bureau of Investigation's Combined DNA Index System (CODIS). Previously, access to CODIS was restricted to DNA records generated at an accredited crime lab.
But the problem with this change is the second criteria for admission discussed - validity as applied. Because DNA samples were previously submitted only through accredited crime labs, the risk related to contamination and error was reduced. The law requires the FBI to set standards for the administration of the program so today, we don't know the standards for submission. Depending on what the standards are, we could have a risk of officers doing the testing likely in a police department and without the supervision and regulations that a lab would have. Keep an eye out for what standards are set for these cases. And if you get a CODIS case use the discovery process to determine if rapid DNA testing was used and what safeguards were in place when the testing was done. If careful safeguards are not put in the place the credibility of the entire CODIS system is at risk.

Sunday, August 20, 2017

Fourth Amendment Win at the Tenth

Last Thursday, the Tenth Circuit handed down United States v. Nelson, reversing a district court order that denied a motion to suprress. The KCK U.S. Marshal entered a home to arrest Mr. Nelson on a supervised relase warrant. After they had placed Mr. Nelson in custody, they did a sweep of the house, and found "two firearms underneath a pile of clothes on a bed."

Mr. Nelson challenged the search as a violation of Maryland v. Buie, a 1990 Supreme Court opinion which held that,
[T]he Fourth Amendment would permit the protective sweep undertaken here if the searching officer possessed a reasonable belief based on `specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warranted the officer in believing that the area swept harbored an individual posing a danger to the officer or others(internal marks omitted).
Following Buie, here Judge Mortiz wrote, "We vacate the denial based on our conclusion that the searching officer had no basis to reasonably believe that an unknown, dangerous person was hiding in the residence. Nevertheless, we remand for the district court to determine, in the first instance, whether the owner of the residence consented to the search."

This case is quite fact-dependent, but notable for a few reasons. First, the Court held that the government waived a several arguments because they had not been raised below.  Second, the Court rejected the government's curious good faith argument for the obvious reason that  "the Supreme Court has limited [the good-faith] exception to circumstances where someone other than a police officer has made the mistaken determination that resulted in the Fourth Amendment violation.

And third, the Court also took time to address the KCK U.S. Marshal's policy and practice of a "blanket safety rule," conducting a sweep  every time that they enter a residence to make an arrest:
We note that if, as Nelson suggests, the United States Marshals Service for the District of Kansas maintains a practice that systemically ignores the framework set forth in Buie, such a practice would be troubling. As we explained in another case concerning law-enforcement officials in the Kansas City area, “The Fourth Amendment does not sanction automatic searches of an arrestee's home, nor does the fact-intensive question of reasonable suspicion accommodate a policy of automatic protective sweeps.” Hauk, 412 F.3d at 1186. 
Congrats to Dan Hansmeier.

-- Melody

Tuesday, August 15, 2017

Psych experts & sex offenses

Earlier this month, the D.C. Circuit reminded us how important it is in sex cases to present expert mental-health testimony in support of any mental-state (lack of intent) defense.

In United States v. Laureys, the D.C. Circuit granted habeas relief to the defendant after finding that his lawyer was ineffective for failing to present expert testimony in support of his client's fantasy defense to enticement and travel charges.

Emphasizing the "pivotal role" that psychiatry has come to play in criminal proceedings, the Court held that trial counsel unreasonably failed to secure an expert for his client's defense (relying instead on his client's own "lurid" testimony about his "deviant sex fantasies").

The Court described the expert's potential testimony in some detail; this part of the opinion is crucial reading for anyone contemplating a fantasy defense to enticement or similar charges.

Sunday, August 13, 2017

Kansas drug convictions are not career-offender/ACCA predicates

Kansas convictions for selling drugs or possessing drugs with the intent to sell no longer qualify as "controlled substance" offenses under the career-offender guideline, the felon-in-possession guideline, or the ACCA. Kansas convictions for possessing with intent to sell may also not count under the illegal-reentry guideline.

Kansas law has defined a drug "sale" to include an "offer to sell" since the 1970s. This definition of sale appeared in caselaw and the PIK instructions for a long time, and is now part of the statutory definitions applicable to drug crimes. K.S.A. 21-5701(d); K.S.A. 21-5705. (Kansas has replaced the word "sell" with the word "distribute," but we will use the word "sell" here.)

This definition of sale applies whether the defendant is charged with "sale," "offer for sale," or "possession with intent to sell." In other words, three types of drug-trafficking (or "distribution") crimes might be charged in Kansas:

1. A drug sale (defined elsewhere to include an offer to sell);

2. An offer for sale (yes, redundant of #1, but there you have it); or

3. Possessing a drug with intent to sell (defined elsewhere to include an offer to sell). This third crime might include, for instance, fraudulent offers to sell; i.e., possession, intent to offer for sale, but no intent to carry out the sale.*

Last week, in United States v. Madkins, the Tenth Circuit held that none of these crimes may serve as career-offender predicates: "[A] conviction for possession with intent to sell a controlled substance—where sale is defined to include an offer—is broader than the conduct criminalized in § 4B1.2(a) and the authoritative commentary."

What to do after Madkins: 

1. Invoke Madkins to challenge the use of any Kansas drug-sale or possession-with-intent-to-sell convictions as career-offender predicates and any other predicate that cross-references § 4B1.2.

2. Invoke Madkins to challenge the use of these convictions as ACCA predicates (remember, those predicates must also have carried a max prison term of 10 or more years).

3. Invoke Madkins to challenge the use of any Kansas possession-with-intent-to-sell conviction to enhance an unlawful-reentry sentence under § 2L1.2. But note that this guideline is trickier. The commentary defines "drug trafficking offense" in this context to include an "offer to sell" or possession with intent to distribute. Does it cover possession with intent to offer for sale? We don't know, but it's definitely a live issue after Madkins.

*As the Tenth Circuit explained: "It is not difficult to imagine a scenario where a person possesses drugs and offers to sell them without ever intending to complete the transaction. For example, the would-be seller might extend an offer to sell marijuana to a would-be buyer. But the seller never intends to hand over the marijuana—instead, he plans to rob the would-be buyer and abscond with the money. In that situation, the offer would be fraudulent, because the offeror never intended to sell."

Friday, August 11, 2017

We can't stop blogging about this case......

A week a half back we blogged about a pretty crazy case where the Johnson County Sheriff got dressed up in full tactical gear to raid.....a family who was growing some tomatoes in their basement. Uh. Whoops. Sorry?

We would be remiss if we didn't mention another little gem buried in this 100 page opinion. The search warrant (besides the husband/father buying some gardening supplies for their tomatoes) was based on some green leafy vegetation (tea) "field testing" positive for marijuana. To say the Tenth Circuit was not impressed with the "field test" used in this case would be an understatement:

The field tests used by the JCSO, which are expressly identified by the manufacturer as a preliminary tool requiring laboratory confirmation, do not meet this standard of reliability. One study found a 70% false positive rate using this field test, with positive results obtained from substances including vanilla, peppermint, ginger, eucalyptus, cinnamon leaf, basil, thyme, lemon grass, lavender, organic oregano, organic spearmint, organic clove, patchouli, ginseng, a strip of newspaper, and even air. As demonstrated by this litigation, caffeine may now be added to that list. A 70% false positive rate obviously flunks the reliability test.
Yikes! Keep this language in mind for future cases. We all have cases where a field test is important in a warrant or to support further investigation. Remember this little gem when that issue rears its head in the future.

Sunday, August 6, 2017

They risked their lives . . .

. . . to help the government, but then the government refused to help them.

The Tenth Circuit has officially endorsed two approaches when the government refuses to move for a substantial-assistance departure despite your client's best (and risky) efforts. In United States v. John Doe, the Court clarified that your client may have both constitutional and contractual remedies.

First, as the Supreme Court held in Wade v. United States, "federal district courts have authority to review a prosecutor’s refusal to file a substantial-assistance motion and to grant a remedy if . . . the refusal was based on an unconstitutional motive" or "not rationally related to any legitimate government end."

And second, because parties to a contract have a duty to deal in good faith, the district court may review the government's decision not to file the motion for good faith. This review should take a 3-step Batson-like form:

"[A] defendant must first allege that the government acted in bad faith. The government may then rebut that allegation by providing its reasons for refusing to file the motion. Assuming those reasons are at least facially plausible, we hold that a defendant is only entitled to good-faith review if he or she produces evidence giving reason to question the justification the government advanced."

Tuesday, August 1, 2017

Glove-box invasion violates Fourth Amendment

Image result for glove compartment with gun
In United States v. Painter, an unpublished decision released last week, the Ninth Circuit held that law-enforcement officers conducted an unreasonable search when they looked in a driver's glove box after he ran a red light and crashed his car. The officers claimed to be looking for the car registration. But this information was "readily available" elsewhere: by running the license plate or the publicly viewable VIN through the police computers. And even if the VIN had been obscured and the licence plate destroyed in the crash, there was no exigency to excuse the officers from getting a warrant. A solid Fourth Amendment win for the defendant and a reminder that the police may not rely on a need for evidence that they can readily find in a less intrusive manner.

Sunday, July 30, 2017

Law-abiding tea drinkers and gardeners beware . . .

So begins Judge Lucero's opinion in Harte v. Johnson County Board Comm'rs, a 100-page civil-rights plurality decision from the Tenth Circuit last week.

The Harte family (mom,* dad,* and two children) became "suspects" on a list of potential marijuana growers because dad and his two kids once visited a hydroponic garden store. Seven months after the garden-store visit, Johnson County officers claimed that two trash pulls from the Harte home yielded wet green vegetation** that allegedly field-tested positive for marijuana. The officers elected not to confirm these results with laboratory tests. In a hurry to meet their deadline for a drug-prosecution publicity stunt,*** they got a search warrant and executed a seven-man, two-plus-hours SWAT-style raid on the Harte family home.

Read about the raid for yourselves on pages 8-9 of Judge Lucero's opinion. It was intense. And the big find? Nothing but tomato plants.

The Hartes sued, asserting Fourth Amendment violations. The district court granted the defendants summary judgment on all claims, and the Hartes appealed. The Tenth Circuit sent the case back for further proceedings.

Some highlights:

Judge Lucero found the SWAT style raid to be excessive force and thus an unreasonable execution of the search warrant at pages 14-19/Lucero. Judge Phillips agreed. Page 50/Phillips. (They disagreed about whether the law on this issue is clearly established.)

Judge Phillips found insufficient allegations for the Hartes to proceed with their Franks claim that the Johnson County Officers lied about the field tests in their search-warrant affidavit. Judges Lucero and Moritz disagreed, finding that the Hartes had made the required "substantial showing" to proceed on at least part of their Franks claim. Pages 11-13/Lucero; Pages 3-8/Moritz.

Judge Phillips found that the search warrant was supported by probable cause, but that "what the deputies learned early on in the search dissipated any probable cause to continue searching." Page 34/Phillips. Judge Lucero agreed (though he would not have found probable cause in the first place). Page 14/Lucero. (Again, they disagreed about whether the law of dissipated probable cause is clearly established.) Dissipated probable cause is a theme we've seen before in the Tenth Circuit, here and here. Take heed. This is an issue not to be overlooked in suppression litigation.


*Oops, ex-CIA employees with the highest security-level clearance and no criminal records. And Mrs. Harte an attorney. Which Johnson County never bothered to find out before raiding their home.

**Double oops. Actually Teavana tea leaves.

***Judge Lucero: "This is too rich for fiction."

Thursday, July 27, 2017

Let's talk about forensic science: week 4

We will take a break this week from scaring you with science by....scaring you with science. The last thirty years have shown that DNA evidence can be used to convict (or exonerate) someone. It is now 2017. A new technology uses a DNA sample to pull "physical appearance and other information from DNA samples." The process is referred to as DNA phenotyping. Phenotyping attempts to predict likely hair color, eye color, skin, etc. That information is used to create a profile of a suspect (as in the photo below).

Then, if the police get a tip they follow around the suspected person until they can get a DNA sample (from a fork, spit, trash, etc.) and then run that DNA sample. And the odds that the sample will have a significance is high because we already know the person has the same eye color, hair color, etc. There are already examples of using this technology in Louisiana and California. For a discussion of some of the concerns related to phenotyping the ACLU has a section dedicated to the topic.

Tuesday, July 25, 2017

What to expect when you're expecting a prison term

Do you have clients who are headed to prison?
Don't let them go unprepared.

Next Thursday, August 3, 2017, from 3 p.m. to 5 p.m. at the Kansas City, Kansas, courthouse, US Probation will be holding its quarterly orientation program for people facing federal prison time. Family and counsel are encouraged to attend. Participants may join by videoconference from Wichita and Topeka.

Among other things, attendees will learn (or be reminded of):

  • What personal business to take care of before going to prison (utility bills, child support, student loans, pending charges & detainers);
  • How to self surrender;
  • What to take (and what not to take) to prison;
  • What programs are available in prison (educational, vocational, religious, mental health, medical);
  • What to expect with respect to visitation, phone calls, email, etc.; and
  • How federal prisons help prepare clients for release.

At one program, a young professional couple who met in a halfway house after each had spent many years in prison spoke about their experiences in an effort to allay the fears of incoming clients and their families. Their stories were encouraging, and their light-at-the-end-of-the-tunnel message was punctuated by the fact that they were celebrating the recent purchase of their first home.

Questions? Call US Probation Officer Sara Valdez Hoffer at 913-735-2402.

Sunday, July 23, 2017

Trial Series: In which we excitedly utter words about excited utterances

We recently published a moon-shot post about science and the excited-utterance hearsay exception. While it's a bit too early to declare victory, the Tenth Circuit had this to say last week in United States v. Magnan:
We are well aware that both courts and commentators have criticized the excited utterance exception to the rule against hearsay “on the ground that excitement impairs accuracy of observation as well as eliminating conscious fabrication.” Fed. R. Evid. 803(2) advisory committee’s note. See, e.g., United States v. Boyce, 742 F.3d 792, 796 (7th Cir. 2014); 2 McCormick on Evidence § 272, at 366 (7th ed. 2013). But because Defendant does not ask us to hold the well established exception invalid on its face, we consider his argument that the district court abused its discretion in applying the exception only on the facts presented.
This sounds to us like an invitation. Use the neuroscience to challenge the excited-utterance hearsay exception, an issue of which the Tenth Circuit is “well aware,” and appears open to considering.

---From Kirk Redmond

Tuesday, July 18, 2017

Johnson applies to deportation law in Tenth Circuit . . . for now

You've heard a lot from us since Johnson about what prior convictions count as predicate offenses for purposes of the ACCA and the guidelines. One aspect that can easily be overlooked is Johnson’s impact on immigration law, specifically on the deportation of aliens. The Immigration and Naturalization Act provides that “[a]ny alien who is convicted of an aggravated felony at any time after admission” is subject to deportation. 8 U.S.C. § 1227(a)(2)(A)(iii).The term “aggravated felony” is defined in the INA as “a crime of violence (as defined in § 16 of the Title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year.” 8 U.S.C. § 1101 (a)(43)(F). The similarities between the definition used in the INA and the definition used in the ACCA of “aggravated felonies” and “violent felonies” has sparked a circuit split regarding whether a void-for-vagueness challenge is applicable to deportations based on the “aggravated felonies” definition.

The Tenth Circuit has lined up with the Sixth and Ninth Circuit in extending the application of Johnson to deportation cases. Golicov v. Lynch, 837 F.3d 1065 (10th Cir. 2016); Shuti v. Lynch, 828 F.3d 440 (6th Cir. 2016); Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015). In Golicov, the Tenth Circuit agreed with the Sixth and Ninth Circuits that “because deportation strips a non-citizen of his rights, statutes that impose this penalty are subject to vagueness challenges under the Fifth Amendment.” Since Johnson addressed a constitutional vagueness challenge to the ACCA’s definition, then logically the same would apply to the INA.

However, the Fifth Circuit and the Second Circuit have rejected this application of Johnson. Gonzalez-Longoria, 831 F.3d 670 (5th Cir. 2016) (en banc); United States v. Hill, 832 F.3d 135 (2d Cir. 2016). The Fifth Circuit pins its conclusion on the premise that the textual differences between § 16(b) and the ACCA’s residual clause are significant enough to spare § 16(b) from being unconstitutional because the ACCA’s residual clause “requires courts . . . to decide whether the ordinary case would present a serious potential risk of physical injury.” In contrast, § 16(b) focuses on whether the conduct ‘involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” In the Fifth Circuit’s view, the “[r]isk of physical force is more definite than risk of physical injury,” and “by requiring that the risk of physical force arise ‘in the course of committing’ the offense, 18 U.S.C. § 16(b) does not allow courts to consider conduct or events occurring after the crime is complete." Therefore, § 16(b) is saved by its more “definite” language.

As it stands right now, the Tenth Circuit law is still binding, and any challenge based on the void-for-vagueness doctrine will likely be successful in this circuit. However, the Fifth Circuit view may attract some traction with the new Supreme Court. Dimaya’s petition for certiorari in the Ninth Circuit case consistent with Golicov was granted on September 29, 2016. The case was argued last January, but in June the Court restored it to the calendar for reargument. Thus perhaps in the next term a definite ruling by the Supreme Court will settle this issue, but in the meantime the Tenth Circuit has certainly opened a door for counsel to pursue another avenue in protecting their clients from deportations.
---Contributed by Will Machado, Washburn Law 2019.

Sunday, July 16, 2017

Stingrays on trial

As you may recall, we blogged about a Seventh Circuit Stingray (cell-site simulator or CSS) case here last year. In United States v. Patrick, the Seventh Circuit expressed interest in but did not reach the question whether the use of a Stingray implicates the Fourth Amendment. This question has become even more interesting since the Supreme Court's cert grant in Carpenter v. United States (Question presented: "Whether the warrantless seizure and search of historical cell-phone records revealing the location and movements of a cell-phone user over the course of 127 days is permitted by the Fourth Amendment").

Now entering the fray: a suppression motion in United States v. Ellis, being litigated by a former federal prosecutor. Issues include whether the government's warrantless use of a Stingray is a "search" for Fourth Amendment purposes; whether Franks requires government agents to disclose their reliance on Stingrays in search-warrant affidavits; and whether the warrantless use of a Stingray can be excused if the officers acted in "good faith." Here is the government's opposition to the motion. The hearing is scheduled for August 2. Stay tuned.
Image result for stingray

Tuesday, July 11, 2017

Prison doesn't cure society's drug ills (well, duh)

Looking for more data to support your variance motions in drug cases? The Pew Charitable Trusts has you covered. In a study publicized last month, Pew examined "whether state drug imprisonment rates are linked to the nature and extent of state drug problems," and found "no statistically significant relationship between states’ drug offender imprisonment rates and three measures of drug problems: rates of illicit use, overdose deaths, and arrests." As Pew notes, these findings reinforce other research casting "doubt on the theory that stiffer prison terms deter drug use and related crime."

Great stuff here, with lots of citations (and links) to research in support of the argument that prison is not an effective drug-control strategy.

Sunday, July 9, 2017

Plea colloquy not enough to trigger mandatory minimum (Biglow redux)

Remember the Biglow cases? We blogged about them back in 2015. In Biglow II, the Tenth Circuit made it clear that the mandatory minimum sentences in 21 U.S.C. § 841(b) cannot be triggered on anything less than proof or an admission that X amount was involved in the scope of the criminal activity that the defendant jointly undertook, and that X amount was reasonably foreseeable to the defendant.

We wondered at the time what kind of plea colloquy would satisfy this requirement. Last month, the Tenth Circuit answered that question in United States v. Carillo.

Mr. Carillo was charged with participating in a 100-plus gram heroin conspiracy. This quantity would have subjected him to a mandatory minimum of 5 years in prison. But the only overt act attributed to him in the indictment was one 50-gram sale.
Mr. Carillo pleaded guilty as charged without a plea agreement. At his plea hearing, the prosecutor recited Mr. Carillo's involvement in the 50-gram sale, and Mr. Carillo agreed with that recitation. Nothing in the plea record established that the 100-grams-plus quantity charged in the conspiracy as a whole was either within the scope of Mr. Carillo's agreement or reasonably foreseeable to him. Nonetheless, the district sentenced Mr. Carillo to the 5-year mandatory minimum rather than within his 27-33 month guideline sentencing range.
Mr. Carillo appealed, attacking his plea in multiple ways. The Tenth Circuit rejected most of his attacks, but held that this record did not establish an adequate factual basis for Mr. Carillo's plea: "[T]o prove the factual basis for Carillo’s conspiracy plea, the record has to show that the 100-gram drug quantity was within the scope of the agreement and reasonably foreseeable to him." (Citing Alleyne). "Carillo's admission to one fifty-gram heroin on day one of the conspiracy---with no further alleged involvement---was insufficient to support his plea to conspiracy to distribute 100 grams of heroin."

So what's the remedy? Withdrawal of the plea? Or can Mr. Carillo stand convicted of a lesser included conspiracy---one that doesn't trigger that statutory minimum? The parties didn't address this issue on appeal, and so the Tenth Circuit punted it back to the district court.

Thursday, July 6, 2017

Let's talk about forensic science: week three

Forensic science is (supposed to be) science. And no science is perfect. But forensic science in courtrooms is often introduced as infallible. But there are errors in science. And there are certainly errors in forensic science. And there is where it gets complicated. Because forensic science is often used to convict people of crimes. And the standard of proof to convict someone of a crime is beyond a reasonable doubt. So how can a case built completely or largely on forensic science be proof beyond a reasonable doubt?

These are not easy questions but they are questions we need to be asking in the courtroom. If fingerprint evidence is introduced we need to tell our juries the error rate could be as low as .8% or as high as 34%. Neither should be acceptable. We should request a jury instruction that tells the jury to consider that error rate (and other factors) in determining what credibility should be given to the forensic science introduced in the case. Prosecutor has an expert who says there is no error rate? That claims the method is 100%? Silly. Point out there was literally a whole conference on this topic. They must not have attended it. Point to learned treatises that say otherwise. Ask them to produce a study that supports a 0% error rate.

This is an effective attack in a case where the forensic science is the only evidence connecting a client to a crime. Cold hit fingerprint or DNA hit? Error rate. No other evidence linking the client to the charge? Error rate. Point out that even if the error rate is low, that this is the exact type of case where an error can occur. Other cases usually have other evidence linking a defendant to a crime. A case that wholly relies on forensic science is a ripe case for error and a ripe case for a wrongful conviction.

Don't be scared that the whole case is based on forensic science. That is a sword for your client. Use it.

Tuesday, July 4, 2017

The cost of freedom: Reforming America's money bail system

Gideon v. Wainwright proclaimed the right of every criminal defendant to the assistance of counsel, regardless of ability to pay. In theory, this guarantees a more even playing field in our criminal justice system. The poor may have been granted access to public defenders, but in a country of extreme wealth and income inequality, they don’t get off that easy.

Enter the money bail system. Hundreds of thousands of people currently sit in jail around the country simply because they cannot afford to make bail while waiting for trial, many for misdemeanor offenses. Money bail schedules predetermine bail amounts without inquiring into ability to pay or any extenuating circumstances. Those who work with incarcerated individuals know all too well what happens to these people, who at this point are “presumed innocent.” On the inside, they face the oppressive conditions of American jails. On the outside, they face the loss of housing, employment, custody of children, and faith in a system that will fairly adjudicate their case. They are more likely to plead guilty, more likely to be convicted at trial, and more likely to receive longer sentences. The message is clear: poverty can make you lose your freedom.
The tide is turning on this wealth-based system of pre-trial detention. Last year, two civil rights groups, Texas Fair Defense Project and Civil Rights Corps, and Houston-based litigation shop Susman Godfrey, challenged Harris County, Texas in federal court on the constitutionality of its money bail system. Harris County, Texas is the third-most populous county in the nation and home to 50,000 misdemeanor arrestees every year. In April, Chief Judge Lee H. Rosenthal of the Southern District of Texas issued a monumental 193-page ruling enjoining the money bail system in Harris County on equal protection and due process grounds, in O’Donnell v. Harris County, No. H-16-1414 (S.D. Tex. Apr. 28, 2017). Harris County’s emergency request for a stay of the order was rejected by the Fifth Circuit and by Justice Clarence Thomas on the Supreme Court in June. Harris County has started releasing misdemeanor arrestees and investing in reforming its bail system.
This decision will still have to be reviewed in full by the Fifth Circuit and likely the Supreme Court as well, and there are practical questions on implementation. Nonetheless, Judge Rosenthal’s order already has nationwide impact and implications for public defenders. The dynamics of plea negotiations, for example, are clearly different when the client is at home rather than a holding cell.
Similar challenges have been brought closer to home. In 2016, Judge Crabtree of the District of Kansas issued an injunction against the money bail system in the City of Dodge City, Kansas. The Court ordered Dodge City to release all non-warrant arrestees on municipal ordinance violations, because the use of a secured bail as a condition of release “implicates the protections of the Equal Protection Clause when such condition is applied to the indigent person.” Martinez v. City of Dodge City, No. 15-CV-9344-DDC-TJJ (D. Kan. Apr. 26, 2016). These decisions show that while the influence of wealth on the criminal justice system is deep and pervasive, the poor and the wealthy alike may soon have an equal opportunity to fight their charges outside the confines of a jail.

For more information:
Megan Stevenson, Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes (2016), available at

Arpit Gupta, Christopher Hansman, & Ethan Frenchman, The Heavy Costs of High Bail: Evidence from Judge Randomization (2016), available at

Full Decision from Judge Lee H. Rosenthal available at

---Contributed by David Huang, Stanford Law 2019