Thursday, November 15, 2018

"A man’s house is his castle, whether it is under siege by police officers prying into his possessions stored within or whether they exclude him from its sanctuary."

Police officers seized Mr. Shrum's home after his wife died from an overdose. They didn't let Mr. Shrum back into his home to check on his dogs, get medication that his wife may have overdosed on, or even to urinate for eleven hours before even applying for a warrant. And the seizure was done without a reasonable basis (no evidence of foul play).

But officers gained "consent" from Mr. Shrum who wanted to make sure his dogs were cared for and that the investigators had what they needed to determine the cause of death. And while purportedly only doing those two things, an investigator took dozens of photos of the house and saw ammunition in the home in plain view.

Was this consent proper? No, says the Tenth Circuit. The consent was obtained only as a result of the illegality of the initial improper seizure. 

This case is full of good language, including a lot of strong language about the overriding privacy interests in a person's home. And the court, in a footnote, also took a shot at the government's strategy in the case:

Sunday, November 11, 2018

From farms to cities to The cloud--"the internet of things"

We take time to pay tribute to our active and former service members this Veterans Day for their honor, courage, commitment, and sacrifice over the past century to defend the ideals of democracy and freedom on which America was founded more than 240 years ago.

It’s veracious to say that during those 240 years we, as a nation, have evolved dramatically in how we live—from farms, to cities, and now on the internet. But the speed at which we have evolved in the age of the internet cannot be understated, as FarhadManjoos’s piece, A Future Where Everything Becomes a Computer is as Creepy as You Feared, makes readily clear. It was only 40 years ago that Gates and Allen “founded Microsoft with a vision for putting a personal computer on every desk.” And the industry’s goal today, Manjoos recognizes, is not “a computer on every desk nor a connection between every person, but something grander: a computer inside everything, connecting everyone. Cars, door locks, contact lenses, clothes, toasters, refrigerators, industrial robots, fish tanks, sex toys, light bulbs, toothbrushes, motorcycle helmets.” 

Importantly, the ideals of democracy and freedom for which our service members have valiantly and selflessly defended, do not end in this digital age, which the Supreme Court has repeatedly reminded us. (See e.g., Riley v. California (2014), and United States v. Carpenter (2018) for a couple recent examples.)

photography of clouds and forest treesBut “the internet of things”—or technological advancements leading to more and more “smart” toys—necessarily means that more information that exposes extraordinarily sensitive details about us (far more so than a search of our home even could) will end up in that proverbial “cloud.” And while “cloud storage” sounds metaphysical, we know that such storage is quite physical: it resides on identifiable, physical computers in brick-and-mortar datacenters, which users’ own electronic devices access remotely when used by their respective devices and accounts. 

To be certain, though, the speed at which the tech giants can hurl these smart toys into our atmosphere cannot countermand our civil rights and liberties. It is our duty to be vigilant, to spot these issues of potential infringement on our constitutional rights and civil liberties early, and to raise them.

In that vein, for those not yet familiar with Electronic Frontier Foundation (EFF), you should be. It is one of the leading nonprofit organizations defending civil liberties in the digital world, providing indispensable leadership on cutting-edge issues of free expression, privacy, and human rights. In 2017 the organization filed 59 amicus briefs on issues surrounding civil liberties and technology (among many other things, including bringing a groundbreaking lawsuit challenging invasive border searches of electronic devices), as discussed in EFF’s recently released annual report, found here.

Wednesday, November 7, 2018

Restoration of Voting Rights

On election night, we learned that voters in Florida agreed to reinstate the voting rights of 1.5 million persons with prior felony convictions. With Florida’s passage of Proposition 4, most Floridians with prior felony convictions will have their voting rights restored after they have finished the terms of their sentence (including any probation or parole). This could affect 10 % of Florida’s adult population (and 23 % of adult African Americans in Florida).

Here in Kansas, a felony conviction will lead to a temporary loss of the right to vote. But Kansas law automatically restores voting rights to persons with felony convictions once they have completed the terms of the sentence (including any supervision). Under K.S.A. 21-6613, a person with a felony conviction gets the restoration of their right to vote, to hold public office, and to serve on a jury once they complete the terms of their sentence.

So it is across the state line in Missouri. Under Mo. Ann. Stat. §§ 115.133(2) & 561.026(1), a person convicted of a felony is generally unable to vote until they are finished with any term of incarceration or probation or parole. But after the terms of the sentence are completed, the right to vote is restored.
This is something to keep in mind when advising clients about the collateral consequences of any felony conviction in federal court. You should advise clients that they will lose their right to vote (and to hold public office and to serve on a jury) with their conviction. But this loss of civil liberties is usually temporary. Once the client finishes the terms of their sentence they will again be eligible to vote if they live in Kansas or Missouri (or in many other states).

Tuesday, November 6, 2018

"Clearly, a person could not have been hiding in the toilet tank."

The Supreme Court has cautioned that protective sweeps must be "narrowly confined to a cursory visual inspection of those places in which a person might be hiding." Maryland v. Buie, 494 U.S. 325, 327 (1990).

Consequently---unless the police are looking for a very tiny person or at a very large toilet tank---leaning over and looking into an open toilet tank exceeds the scope of a protective sweep. So said the district court in United States v. Brown2018 WL 5603541 (S.D. Fla. Oct. 30, 2018):

"The evidence indicates that when Detective Perdomo entered the bathroom he went to the bathtub and pulled back the curtain. Upon seeing the lid to the toilet tank in the bathtub, Detective Perdomo looked into the open toilet tank and saw a gun at the bottom of the toilet tank. Detective Perdomo could not have seen the gun at the bottom of the toilet tank without leaning over and looking into the tank. This action, however, exceeded the scope of a protective sweep. Clearly, a person could not have been hiding in the toilet tank. Thus, after checking behind the shower curtain to ensure that no one was hiding in the bathroom, the protective sweep in the bathroom should have been done. Consequently, Detective Perdomo’s look into the toilet tank was an improper search."

(Unfortunately for the defendant in this case, a subsequent search warrant for the house constituted an independent source for discovery of the gun. Motion to suppress denied.)

Sunday, November 4, 2018

Good read--America's Other Family-Separation Crisis

Sarah Stillman’s article in the November 5, 2018 issue of the New Yorker is a must read for anyone representing a parent—especially a mother living in poverty. Stillman’s expose focuses on Tulsa, Oklahoma (and the commendable efforts of She Still Rises—a holistic defense effort led by the founders of the Bronx Defenders), but its painful revelations on the interlacing in the criminal justice system of poverty, parenthood, and generations of racial discrimination reverberate to every corner of our nation.

The permanent and devastating collateral ramifications that a criminal conviction and corresponding sentence will have on our clients' children are well documented. So, too, are the reasons why a low-income parent may have a slew of prior convictions, as Stillman's article highlights.

Importantly, the Tenth Circuit has repeatedly acknowledged that sentencing courts are mandated under § 3553(a) to consider family circumstances as part of a defendant's "history and characteristics" when fashioning the appropriate sentence. See, e.g., United States v. Vargas-Ortega, 736 Fed. Appx. 761 (10th Cir. 2018) (unpublished) (reversing and remanding for resentencing where the district court erred in stating it could not vary downward based on family circumstances). It is therefore our duty when it comes to sentencing to fully investigate and to persuasively present our clients' stories to the court. And for our clients who are parents, part of that presentation must necessarily include discussion on the unquantifiable, lasting effects that a criminal sentence will have on our clients' children and the family structure.
For another good discussion on the "invisible victims of mass incarceration," as well as the use of family impact statements at sentencing, see Amy B. Cyphert Prisoners of Fate: The Challenges of Creating Change for Children of Incarcerated Parents, 77 Md. L. Rev. 385, 426 (2018). 

 Shallow Focus Photography of Human Eyes

Thursday, November 1, 2018

These things are going to be happening to our clients now. (The new phone book is finally here! update).

A few months ago we informed you that the Sentencing Commission had adopted some changes to the 2018 guidelines. We were (of course) ahead of the game. Although the Commission had agreed on the amendments, they were not to go into effect until (checks watch) TODAY!

That is right, today the 2018 Sentencing Guidelines are now in effect. And since they are likely to impact some of your clients, lets discuss some of the key changes:

1) There are a number of fentanyl related changes, including a four level enhancement for misrepresenting another drug or mixture that contains fentanyl. See § 2D1.1(b)(13).

2) A number of grounds for departure in synthetic  cases have been added, with an acknowledgment of the potential differences in potency among different synthetic drugs.

3) "Marijuana equivalency" is gone. Now called Drug Conversation Table.§ 2D1.1(c)(1).

4) Acceptance of responsibility commentary attempts to clarify that an objection, even if a losing one is not necessarily frivolous in order to lose acceptance of responsibility.  § 3E1.1.

5) Judges should consider a sentence other than imprisonment for offenders in Zone A and B with certain characteristics.  § 5C1.1

There are other things in there including some changes to 2L and some tribal court conviction related stuff. The linked publication from the sentencing commission summarizing the changes is only 39 pages.

This is worth getting excited about!

Tuesday, October 30, 2018

Hunch after disproved hunch is not reasonable suspicion

Based on a tip from a "disappearing informant," officers hunched that a man they were surveilling was carrying paper bags of drugs into his garage. They stopped the man and frisked him. Nothing. They searched his van. Nothing. They searched his garage (including the paper bags). Nothing.

Despite their first hunch having been disproved, on a second hunch, the officers continued to question the man, eventually securing his "consent" to search his house, where they found drugs and a gun.

This evidence should have been suppressed, said the Seventh Circuit in United States v. Lopez, a well-analyzed opinion. A few highlights:

---"Requiring police to corroborate tips from identified but unproven informants is an important protection of individual liberty." The opinion includes a terrific, extended discussion of this requirement. While reasonable suspicion is a low bar, that bar has not slipped so low as to allow unreliable tips like this one to trigger the humiliating, involuntary seizures and sometimes violent encounters that we justify under the bland and familiar phrase 'Terry stops.'"

---"Instead of doing the police work required to substantiate the tip, the officers pounced as soon as they saw Lopez leave his garage." This stop violated the Fourth Amendment.

---"The authority to frisk is not automatic in a drug investigation." This frisk was illegal.

---"[N]o reasonable person in Lopez's shoes would conclude that one officer's words [you're free to go] meant more than eight officers' actions [functionally blocking his exit by their physical presence and by retaining his van, car keys, and cell phone]."

All in all, the Fourth Amendment violations here---a bad initial stop that was unreasonably continued---undermined the validity of Mr. Lopez's consent to search his house.

Sunday, October 28, 2018

Second Chair applications due December 1

We are currently accepting applications for our fifth term of the Second Chair Program, which will be a year-long program taking place in Kansas City, commencing in January 2019.

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. The program includes intensive monthly orientations and workshops that, over the course of the year, will cover all phases of a federal criminal case, including in-depth coverage of the sentencing guidelines. Having been a Second-Chair participant myself, I can attest that the program provides invaluable experience for anyone interested in practicing federal criminal defense and inimitable insight into practicing in the District of Kansas.  

Attendance at the monthly sessions is mandatory for continued participation in the program and for consideration for panel appointment. Additionally, 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.If you would like to apply, please send a letter of interest, resume, and three references to Laura Shaneyfelt, CJA Resource Counsel, at by December 1, 2018

And if you know an attorney who may be interested in or could benefit from the program, please pass along the information.