No reasonable suspicion to detain travelers for dog sniff

Here's another good Fourth Amendment case for your suppression arsenal: United States v. Lopez, decided by the Tenth Circuit on Monday. In Lopez, the Court reversed the defendants' methamphetamine-conspiracy convictions, holding that the district court should have granted their motion to suppress.

A Kansas Highway Patrol Trooper stopped the defendants for speeding, gave them a warning, questioned them about their travel plans, and then asked them for consent to search the car. They refused. The trooper detained them anyway, waiting on a drug dog.

This detention was illegal, despite the trooper's claim that the defendants were nervous, said suspicious things, and had suspicious travel plans, and that the driver had only a temporary paper license (giving the trooper probable cause to arrest her for driving without a license). Some lessons from Lopez:

Nervousness: "[W]e have consistently assigned this factor limited significance because its measure is so subjective and innocent people can vary widely in how they respond to an encounter with police . . . . Only extreme nervousness can substantially contribute to reasonable suspicion."

Travel plans: "[W]e have generally been reluctant to give weight in the reasonable-suspicion analysis to unusual travel purposes, at least absent lies, inconsistencies, or the like."

Driver's license: The driver had a printed license receipt from the California DMV rather than an actual license. But the dispatcher confirmed for the trooper that the driver had a valid license. Once he had this information, the trooper should have known that the driver could not have been arrested for driving without a license. Kansas law prohibits convictions of that crime if the arrested person later produces a valid license. "An officer does not have probable cause to arrest a person for a crime when he knows she could not be convicted. See Brown v. Fisher, 251 F. App’x 527, 534 (10th Cir. 2007) (expressing doubt that officer could arrest driver for violation of this very statute when officer knew that driver was licensed); see also 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.’)."

Immigration – Expansion of Expedited Removal – Know Your Rights

From Rich Federico – Staff Attorney (R&W) with the FPD, District of Kansas

A few weeks ago, President Trump signed several Executive Orders that shifted policy on the enforcement of immigration law within the United States. More recently, the Secretary of Homeland Security (DHS) issued memoranda to implement the President’s policies. Much has been already been written and debated concerning the legality and morality of these new policies, and this post will not engage in further debate. Rather, the purpose of this post is to highlight and discuss one potential change from a DHS Memo that will have a significant impact the ability of persons detained to receive due process.

First, it is important to distinguish between removal proceedings, which are civil matters, and criminal prosecutions for immigration offenses (such as illegal entry into the United States). If a person is charged with an immigration criminal offense, the Sixth Amendment guarantees them to right to counsel.  If that person is financially unable to hire a lawyer, one will be appointed by the court to represent them at the government’s expense. However, courts have held the Sixth Amendment does not confer the same right to counsel upon those detained pending removal proceedings who are not charged with a criminal offense.  In some cases, persons subject to removal may have a right to retain counsel under the Due Process of the Fifth Amendment. An analysis of aliens’ right to counsel in removal proceedings is detailed in a Report of the Congressional Research Service. 

Under the Immigration and Nationality Act, Congress established a comprehensive statutory regime to remove aliens through civil proceedings.  INA Section 235(b)(1)(A)(iii)(I) provided the Attorney General (later shifted to Secretary of DHS) to apply an expedited removal procedure to aliens who were not admitted to the United States and cannot affirmatively show, to the satisfaction of an immigration officer, that the alien has been physically present in the United States for the two-year period immediately prior to the date of the determination of inadmissibility.  Expedited Removal did not apply to certain persons, such as: unaccompanied children, asylum seekers (who get a “credible fear” interview), and those with claims of citizenship or legal status.  Additionally, for over a decade, expedited removal has been limited to persons encountered within 100 air miles of the border and 14 days of entry, and those who arrived by sea or other than a port of entry.

The Secretary of DHS issued a memo stating his intention to exercise his sole discretion, provided by statute, to change the rules regarding expedited removal to expand the traditional 100-mile rule. The Secretary explains his view the need to expand expedited removal due to the “surge of illegal immigration at the southern border” and a backlog of cases before immigration judges. Coming soon to the Federal Register will be a new “Notice Designating Aliens Subject to Expedited Removal.” It is expected that the new Notice will push the expedited removal far beyond the border region, to capture the entirety of the country. Furthermore, the 14-day guideline will be expanded to two years. In other words, those persons arrested and detained on immigration matters in Kansas may be subject to expedited removal if they cannot show that they have been in Kansas for the last two years. 

If DHS does what is expected, this is a major sea change in the enforcement of immigration law and policy. For those not subject to expedited removal but instead go through the regular removal process, the INA confers due process rights, such as: the privilege of being represented by counsel, at their own expense; a reasonable opportunity to examine the evidence; to present their own evidence; and to cross-examine government witnesses. The proceeding occurs before an Article I immigration judge, and a record of the proceeding is kept.  There also may be a right to appeal a removal order to the Board of Immigration Appeals.

Not so for expedited removal. Under expedited removal proceedings, there is no right to a hearing before a judge. The immigration officer acts as the judge to gather facts and make a determination regarding removal. The immigration officer must create a record of the facts and statements made by the alien, using a sworn statement form. The alien shall be given the opportunity to respond to the charges in a sworn statement. The immigration officer and supervisor then sign the order of removal, if they determine grounds for expedited removal have been met. No lawyer, no judge, no appeal.

As noted, there is no Sixth Amendment right to counsel in removal proceedings.  However, there is a Fifth Amendment right, which allows for counsel to appear before an immigration judge under removal proceedings. The Tenth Circuit has not weighed in whether the privilege of retained counsel representation applies to expedited removal proceedings. However, if counsel has been retained, all efforts should be made to contact counsel. 

There are also some additional practical tips that have been passed around regarding what persons can do to plan ahead, if they believe they are at risk of being detained, such as:

1.    Have a plan for children.  If they are citizens, get them passports.  Make sure their documents are in order (e.g. birth certificates) and have copies.  Make arrangements for school pick-up alternatives.  Consider a power-of-attorney and alternative care-givers.

2.    Gather documentation showing more than 2 years of physical presence within the United States (bills, medical records, school records, receipts, leases, etc.).  Keep it with you; make a copy for a spouse or relative.

3.    Memorize phone numbers – family members, neighbors, lawyers.

4.    Most important – Know Your Rights!  Do not sign anything that you don’t understand.  Don’t allow police or ICE agents into your home without a warrant – don’t consent to entry.  Ask for a lawyer.  Ask to call your family.  Exercise the right to remain silent and don’t answer questions.  Request bond.  Ask for a copy of all documents related to your case.  

5.   If an agent tells you that they have found that you are removable or going to be removed and barred from reentering, tell them that you want to contest that finding. Tell them that you do not consent to this removal and do not sign any document related to the removal.

The ACLU’s Know Your Rights Card can be found here.
Also read the New York Times, Trumps Immigration Policies Explained.

Note: Lawyers at the Federal Public Defender are not immigration attorneys and only represent persons charged with criminal immigration offenses, once appointed by the court.  The following is not meant to be, and should not be relied upon, as legal advice regarding immigration matters.  If you are in need of legal advice regarding any immigration matter, we highly recommend you seek counsel from an attorney with subject matter expertise on immigration law.

Thanks to Rich and to Immigration Attorney Angie Williams. 

Can the government force your thumbprint to unlock your phone?

No, at least for one Federal District Court Judge in the Northern District of Illinois. In this case the government sought a warrant to search a particular place for various computer based technologies and also, as is relevant here, to force “any individual who is present at the subject premises at the time of the search to provide his fingerprints and/or thumbprints onto the Touch ID sensor of any Apple iPhone, iPad, or other Apple brand device in order to gain access to the contents of any such device.”

The Judge rejected that portion of the warrant. Interestingly, one basis the Judge rejected the warrant is on 5th Amendment grounds:

The connection between the fingerprint and Apple’s biometric security system, shows a connection with the suspected contraband. By using a finger to unlock a phone’s contents, a suspect is producing the contents on the phone. With a touch of a finger, a suspect is testifying that he or she has accessed the phone before, at a minimum, to set up the fingerprint password capabilities, and that he or she currently has some level of control over or relatively significant connection to the phone and its contents.

 Professor Orin Kerr at George Washington Law School blogged on this case as well. He agreed with the outcome, but for a different reason. For Prof. Kerr, a

warrant has to state where the police can search and what they can seize there. But what else happens when the warrant is executed is a matter of case-by-case reasonableness, and magistrates shouldn’t try to insert themselves into that by imposing blanket reasonableness determination ex ante when they have no idea what the facts will turn out to be.

With changes in technology and courts finally tackling privacy issues in relation to the new landscape, hopefully decisions like this one (limiting the governments ability to search) become a little more common.

Why Police Lie Under Oath

From Michelle Alexander, an article in the New York Times Sunday Edition:

Speaking of Michelle Alexander, she is featured in  Ava DuVernay's documentary 13th, which every public defense lawyer must watch and then proselytize.




And her book The New Jim Crow is also mandatory reading.

Correction: Goings On, CLE Dates

The correct dates for the March Immigration CLE are March 9 in Wichita and March 10 in Kansas City.

Goings On

First, check out the new Kansas Federal Public Defender website at ks.df.org, which replaces both the old FPD and the Kansas CJA websites.

Second, we will offer a CLE on the intersection of criminal defense and immigration on March 9 in Wichita and March 10 in Kansas City. More details here. [Corrected dates].







Third, The Pitch published a feature story about CJA panel attorney Cheryl Pilate's efforts to free Lamont McIntyre (who was wrongly convicted of murder and sentenced to life in prison when he was just 17 years old) and how the KCK police department tolerated and even protected the lead detective's persistent and pervasive misconduct.



And for all of the opera lovers reading this, the Kansas City Lyric Opera will present Dead Man Walking, based on Sister Helen Prejean's book about her work on death row. Opening night is March 4, details here.

 That's all for now.--Melody

--Melody

Race + criminal history + common name ≠ probable cause

April Smith was arrested, held in police custody for 80 days, and lost her job because an officer looking for a drug-dealing skinny black female named "April Smith" randomly selected her from three "April Smiths" with criminal records in a police database.

She sued for false arrest.

The district court dismissed her suit, finding that the arresting officers had probable cause to believe that she was the "April Smith" they sought. The Fourth Circuit reversed, emphasizing the arresting officer's failure to make any effort to connect the April Smith he chose from the database with the "April Smith" who sold drugs to an informant:

"His only information about Smith was that she had previously been convicted for selling drugs years past, that she was a black woman, and that she was 'near' the site of the drug sale because her home address was eleven miles away."

"If this amount of evidence were sufficient for probable cause, then officers would have probable cause to obtain arrest warrants for any local residents who fit the generic description of the day--be it 'black woman,' 'black man,' or otherwise--so long as they had a criminal history and an unfortunately common name. Such scant evidence barely meets the threshold of 'mere suspicion,' let alone the threshold of probable cause."

The Fourth Year of Second Chair

We are wrapping up our third year-long term of the Second Chair Program, and preparing for the fourth class. The Second Chair Program is a FPD training and mentoring program for attorneys who want to practice in federal court or apply for the CJA panel, but may lack the requisite experience. 

As we become more experienced in presenting and organizing the program, we realized that we need to make some adjustments. First, the program will be 18 months rather than 12--there is just too much to cover and our guest speakers have been incredibly generous with their time and knowledge. Second, we can only offer the program in one city at a time; two venues are simply more than our staff and resources can cover. So this coming year, it will be in Wichita.  

Otherwise, the fourth class will operate much the same as the previous three. The program includes an intensive monthly orientation that covers all phases of a federal criminal case and sentencing guideline workshops. Attendance at these sessions is mandatory for continued participation in the program and for consideration for panel appointment. 

Each participant will be assigned to a more experienced mentor attorney to shadow on selected cases. Participants should plan to commit about 8-10 hours per month. Materials and compensation ($70 per hour) are provided courtesy of the Bench-Bar Committee. Participants may also be requested to assist current FPD clients, pro bono, with representation on basic legal matters related to their criminal case.

Only a limited number of full participants are accepted. Other attorneys can audit the training sessions, lectures, and workshops, with prior approval from the FPD.

The 2017-18 program will take place in Wichita and will begin July 1, 2017. If you would like to apply, please send a letter of interest, resume, and the three references to Laura Shaneyfelt, CJA Resource Counsel, at laura_shaneyfelt@fd.org. Deadline is May 15, 2017. 

Police: "Will you stop walking?" Tenth Circuit: That's a seizure.

You are walking home on a cool October evening. The days are getting shorter, and so it is already dark by 7:45 p.m. The street is unlit, and you are wearing black clothes and carrying two backpacks. As you pass a construction site near a housing project, a police cruiser carrying two cops pulls up alongside you. Nobody else is around.

Can we talk to you?

Yeah, what's up?

Where are you coming from? What are you doing?

I'm coming from my grandmother's house. I'm just trying to get home.

What is your grandmother's address?

I don't know her address.

Maybe you're cold. Maybe you're tired. Maybe it's been a long day. Maybe you just don't like being pestered by the police as you're minding your own business trying to get home. Maybe, having been inundated with stories of police shootings in recent years, you feel intimidated being alone on a dark street with two police officers following you. You keep walking, and the cruiser keeps cruising alongside.

Will you stop so we can talk to you?

. . .

This was a seizure, said the Tenth Circuit this week in United States v. Hernandez, affirming the district court's suppression order:

"Considering the totality of the circumstances here, that there were [1] two [2] uniformed police officers [3] driving closely alongside Mr. Hernandez [4] in the dark with [5] no one else around, and that Mr. Hernandez [6] did not stop walking until one officer asked him to stop even though he was answering the officers’ questions, the district court did not err in concluding there was a show of authority by Officers Morghem and Walton sufficient to constitute a seizure under the Fourth Amendment."

And the officers had no reasonable suspicion to support the seizure. The Tenth Circuit agreed with the district court's meticulous rebuttal of all of the government's arguments on this point:

But high-crime area! "The location of the stop in a high-crime area is ‘not sufficient by itself to support a reasonable suspicion’ that the individual himself is engaged in criminal activity."

But he wasn't using the sidewalk! "Mr. Hernandez might well have decided to take a shorter route to his destination, or to see the progress of the neighborhood’s latest highrise development . . . [t]he government did not explain why suspicious persons are less likely to choose the sidewalk."

But his clothing was black! And he had backpacks! If "black clothing were sufficient to confer reasonable suspicion, it could subject the ambling public (or, at least its Hispanic members) ‘to virtually random seizures, inquisitions to obtain information which could then be used to suggest reasonable suspicion, and arbitrary exercises of police power.'"

But he didn't know his own granny's address! "Ordinary experience tells us that a grandchild who knows the familiar way to his grandmother's house may well not know her exact street address."

Email Privacy Act

Pop quiz: How old is the Electronic Communications Privacy Act?

Answer: More than a quarter of a century. It passed in 1986, before the World Wide Web, before modern email, before iPhones, before cloud storage, Dropbox, and Facebook.

Do you think it's about time for an update? So does the House of Representatives, which this week passed the Email Privacy Act by a unanimous voice vote. The Act, in the words of the Electronic Frontier Foundation, "would codify the Sixth Circuit’s ruling in U.S. v. Warshak, which held that the Fourth Amendment demands that the government first obtain a warrant based on probable cause before accessing emails stored with cloud service providers."

Will the Senate sign on? It's too early to tell. But we'll keep you posted. In the meantime, you might want to stick with your 1986 communication devices.

 

Concealed Carry and the Fourth Amendment

With many states relaxing their gun laws, the issue is what impact, if any, will more people legally carrying guns have in regard to the Fourth Amendment. Or, as the Fourth Circuit stated in United States v. Robinson:

the question is whether the risk of danger to a law enforcement officer created by the forced stop of a person who is armed is eliminated by the fact that state law authorizes persons to obtain a permit to carry a concealed firearm.

Mr. Robinson argued that if police could frisk a person simply because they may have a gun, in "any state where carrying a firearm is a perfectly legal activity, every citizen could be dangerous, and subject to a Terry frisk and pat down." He conceded that the police had reasonable suspicion to believe he was armed, but argued that the police lacked a basis to believe he was also dangerous.

The Fourth Circuit rejected Mr. Robinson's argument, holding that "an officer who makes a lawful traffic stop and who has a reasonable suspicion that one of the automobile’s occupants is armed may frisk that individual for the officer’s protection and the safety of everyone on the scene."

There is a dissent in this case and it is an interesting read. The dissent reminds us that at the time of Terry it was clear that having a gun could be assumed to be dangerous and thus justify a safety pat-down. Things have changed, today "citizens are legally entitled to arm themselves in public, and there is no reason to think that a person carrying or concealing a weapon during a traffic stop – conduct fully sanctioned by state law – is anything but a law-abiding citizen who poses no threat to the authorities." Thus how could a state sanctioned activity - concealed carry of a gun - also be automatically dangerous?

The dissent follows Ubiles, a Third Circuit case, Northrup, a Sixth Circuit case, and Williams, a Seventh Circuit case setting up an interesting circuit split. The Tenth doesn't seem to have weighed in on this topic so you may have a chance to chart an interesting path.