Tuesday, June 26, 2018

Digital is different. Where do we go from here?

Supreme Court Chief Justice Roberts doesn't like the idea of the government having easy access to five years' worth of his personal location data ("this newfound tracking capacity runs against everyone"---not just suspected criminals!). So we learned last week in Carpenter v. United States, which held that the government violated the Fourth Amendment when it accessed 127 days of Mr. Carpenter's cell site location information (CSLI) without a warrant.

This was a search because it invaded Mr. Carpenter's reasonable expectation of privacy in "the whole of his physical movements." Mr. Carpenter's expectation was reasonable despite the third-party doctrine (that is, despite the fact that he knowingly shared his location information with the phone company). The doctrine takes a pretty hard hit in this opinion, though it remains the law at least in some limited arenas for now.

The bottom line:

"Before compelling a wireless carrier to turn over a subscriber's CSLI, the government's obligation is a familiar one---get a warrant."

That's all good news, but how far does it go? It's not easy to tell from the opinion. The majority emphasizes the "deeply revealing nature" of historical CSLI and explicitly says that its decision "is a narrow one." But there's plenty of food for thought in both the majority's opinion and Justice Gorsuch's dissent (Justice Gorsuch would scrap the Katz reasonable-expectation-of-privacy analysis, and suggests that our property interest in our digital information is sufficient to give it Fourth Amendment protection).

Want to dive deeper? Here are links to some worthy early analyses:

Orin Kerr

Concurring Opinions

Harvard Law Review Blog

Sunday, June 24, 2018

A blind eye to easily discoverable facts does not a lawful arrest make

The Birmingham police were after a suspect. While wearing a partial face mask and presenting a note identifying himself as a bomb specialist carrying explosives, this suspect robbed a Walgreens pharmacy. And, according to the police’s theory, that same suspect carried out the exact same scenario at a Rite Aid pharmacy the next day.

The officers had little to go on. Two eye witnesses had identified an individual in a lineup, but police rejected that identification when they determined the individual was incarcerated at the time of the robberies.But after Crime Stoppers aired a surveillance video of the Rite-Aid incident, police received two tips—one anonymous and one from an informant—that an individual named Cozzi resembled the half-masked subject in the video. The informant also told police where Cozzi lived and that Cozzi had a Lortab addiction.
Police obtained a search warrant and searched Cozzi’s home. “[O]fficers found no mask, no note, and no clothing that matched the perpetrator’s.” They did find a bag containing 32 loose pills. But during that search of Cozzi’s home, a roommate pointed out to officers that the photograph of the suspect taken at the crime scene was obviously not Cozzi because the suspect had “numerous tattoos up and down his arm”—Cozzi had only one on his hand. Undeterred, police arrested Cozzi, took him to the station, questioned him, and released him the next day, “unable to find something that could substantiate for his arrest.”

Despite the tipsters’ detailed suspicions about Cozzi’s potential guilt, and despite the arguably corroborating pills found in Cozzi’s house, the Eleventh Circuit found that the officers lacked probable cause to arrest Cozzi given the “easily verifiable exculpatory information” regarding Cozzi’s tattoos (or lack thereof) available to them at the time. In fact, according to the Eleventh Circuit, there wasn’t even “arguable probable cause” that would entitle the officer to qualified immunity under the facts presented.

The probable-cause-to-arrest assessment must, the Eleventh Circuit emphasized, be assessed under the totality of the circumstances. An “officer may not turn a blind eye to evidence suggesting that a suspect is innocent” by choosing “to ignore information that has been offered to him” or by electing “not to obtain easily discoverable facts.” That arrest without probable cause, let alone arguable probable cause, violated Cozzi’s “clearly established Fourth Amendment right to be free from unlawful arrest.”

Sunday, June 17, 2018

Palpably pretextual assertions can't cut it

As the First Circuit reminds us this last week, a valid exception to the warrant requirement better apply before law enforcement goes traipsing through someone’s home without a warrant; palpably pretextual assertions later lodged as an exception cannot withstand scrutiny, especially when it comes to warrantless searches of the home, the “first among equals” under the Fourth Amendment. Florida v. Jardines, __U.S.__, 133 S.Ct. 1409, 1414 (2013) (“At the Amendment’s very core stands the right of a man to retreat into his own home and there be free from unreasonable government intrusion.”) (cleaned up). 
 
In United States v. Diaz-Jimenez, law enforcement carried out a warrantless search of a suspect’s home more than eight hours after the completion of an armed bank robbery. The search also took place after the two suspects had already been arrested. The district court denied Mr. Diaz’s motion to suppress evidence seized from the warrantless intrusion, and he was convicted by a jury after a joint trial. 

But the First Circuit vacated Mr. Diaz’s conviction finding that the district court erred in not suppressing the evidence. Neither Buie’s protective-sweep exception nor voluntary consent—“the only even arguably relevant exceptions to the warrant requirement”—could salvage the evidence. The government did not present any evidence to support a reasonable inference that at the time of the intrusion, law enforcement believed there was someone armed in the home—let alone anyone at all—to pose an ongoing threat. And the government’s second bite of the apple as to an exception authorizing the warrantless search, too, was without merit; any consent to search obtained from Mr. Diaz as he stood handcuffed outside his home surrounded by a SWAT team that had already conducted a sweep and discovered incriminating evidence could not be deemed voluntary. (As the Second Circuit noted, “[t]he prosecution did not even attempt to make such a showing.”) 

The court’s error, the First Circuit concluded, “was certainly not harmless beyond a reasonable doubt” given that the evidence was “central” to the government’s case.

Tuesday, June 12, 2018

Guns guns guns

The Tenth Circuit wants us to know a couple of things about gun charges and gun sentencing enhancements.

First, the bitter. In United States v. Melgar-Cabrera, the Tenth Circuit overruled circuit precedent to hold that 18 U.S.C § 924(j) (providing enhanced penalties for section 924(c) deaths) is a discrete, stand-alone crime. It is not just a sentencing enhancement. A person may be convicted and sentenced under section 924(j) even absent a conviction under section 924(c).

And now for the sweet. In United States v. Francis, the Tenth Circuit held that the government must prove two things before a district court may impose the 4-level firearms-trafficking enhancement at USSG § 2K2.1(b)(5). That section applies if (among other conditions) the defendant transferred (or intended to transfer) two or more firearms to another person and knew or had reason to know that the other person's possession would be unlawful because that person had a prior conviction for a crime of violence, a controlled substance offense, or a misdemeanor crime of domestic violence. Got that? Okay. Here's what the government must prove:

(1) that the transferee actually had such a prior conviction at the time of the transfer (i.e., was not just an undercover agent pretending to have such a prior conviction); and

(2) that the defendant knew or had reason to know that the transferee fell into the guideline's narrow category of unlawful possessors (i.e., not just that the defendant knew or had reason to know that the transferee had some garden-variety felony): "The proper focus is on what the defendant knew about the specific transferee, not whether by the law of averages any given customer might qualify as an unlawful possessor as defined by § 2K2.1 cmt. n.13(A)(ii)(I), (B)."

Sunday, June 3, 2018

Circuit split: USSG § 4B1.2's "commentary offenses"

We have over the past several years blogged about advocates’ need to be weary of enumerated “commentary offenses” that are inconsistent with the guidelines themselves. (See, e.g., here and here.) And last week, in United States v. Winstead, the D.C. Circuit created a new and notable circuit split on the issue.

The Winstead court acknowledged that in Stinson v. United States, 506 U.S. 36 (1993) the U.S. Supreme Court held that the commentary to the guidelines should be treated as an agency’s interpretation of its own legislative rule. (Citing Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)). “Thus, under this Seminole Rock deference, commentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.”  
   
Irrespective of sister-circuit precedent holding otherwise, the D.C. Circuit found that “there is no question” that the commentary to § 4B1.2 is inconsistent with the guideline in that the commentary adds inchoate crimes that are not included in the guideline itself. (In this case specifically, the crime of attempted distribution). In so doing, the the U.S. Sentencing Commission has exceeded its authority under Stinson

Section 4B1.2(b) presents a very detailed “definition” of controlled substance offense that clearly excludes inchoate offenses . . . . [T]he Commission showed within § 4B1.2 itself that it knows how to include attempted offenses when it intends to do so. See USSG § 4b1.2(a)(1) (defining a “crime of violence” as an offense that “has an element the use, attempted use, or threatened use of physical force . . . .”) . . . . [S]urely Seminole Rock deference does not extend so far as to allow the Commission to invoke its general interpretive authority via commentary . . . to impose such a massive impact on a defendant with no grounding in the guidelines themselves.

The D.C. Circuit’s conclusion: Counsel’s failure to raise this sentencing issue before the district court, which categorized the defendant as a career criminal under § 4B1.1(a), constituted ineffective assistance of counsel under Strickland as a matter of law. “If the Commission wishes to expand the definition of ‘controlled substance offenses’ to include attempts, it may seek to amend the language of the guidelines by submitting the change for congressional review.”