Wednesday, April 17, 2019

Knock-and-talks: Not always a free ticket for law enforcement

Knock-and-talks are fine, right? And that's because answering the door in response to knocking is a consensual act, right? This is true, but only to a point. And that point was well made by E.D. Mich. Judge Goldsmith this month in United States v. Mills, et al., No. 16-cr-20460, ___ F.Supp. 3d ___, 2019 WL 1510958 (E.D. Mich. April 5, 2019).

Ten to fifteen officers, including SWAT team officers in full gear, with long guns and shields, executed a search warrant at an apartment that shared a back wall with an apartment where one Mr. Jackson was "couch surfing." They broke a large sliding glass door to get in, at the same time loudly announcing that they were police officers.

During the search, two officers approached Mr. Jackson's apartment. They used a "law enforcement knock" on the door (Mr. Jackson described their knock as "banging loudly"), and announced themselves with a "tone of presence." Mr. Jackson had already heard the breaking glass and had looked out his window and seen a lot of officers, guns, and dogs. He did not answer his door.

Ten minutes later, the officers tried again. Mr. Jackson did not answer.

But as the officers were walking away, Mr. Jackson and a companion came out of the apartment. The officers stopped and frisked them, finding drugs, which led to a search warrant for the apartment (and the discovery of more drugs).*

Under the totality of circumstances, this "knock and talk" was not consensual, ruled Judge Goldsmith, in a detailed opinion that is a reminder to us all not to throw in the towel simply because an encounter at first blush looks like it will pass the knock-and-talk test. The test does not exclude a seizure finding simply because officers knocked on the door. The test is whether the officers made a show of authority and whether the person moving to suppress evidence submitted to that authority. It asks whether a reasonable person would feel free to leave, or decline the officers' request, or otherwise terminate the encounter. And thus all of our usual seizure factors (number of officers, tone of voice, surrounding circumstances) are relevant---even if the encounter is described by law enforcement as a simple knock-and-talk.

And so go forth, read Mills, and move to suppress the fruit of that knock-and-talk.

* Mr. Jackson's "couch surfing" status was sufficient to give him a legitimate expectation of privacy in the apartment, allowing him to challenge the later execution of the search warrant in addition to the seizure of his person. But that's a separate issue.

Tuesday, April 9, 2019

Cooperating? Make it count.

In United States v. Doe, 865 F.3d 1295 (10th Cir. 2017), the Tenth Circuit held that the government's refusal to file a substantial-assistance motion under 18 USC 3553(e)---where such a motion was contemplated in a plea agreement---may be subject to either a constitutional challenge or a contractual challenge (or both). Earlier this month, the Tenth Circuit clarified Doe, in United States v. E.F.

First, remember that if your sentencing goal is below both the guidelines range and the statutory mandatory minimum, you will need both USSG 5K1.1 and 18 U.S.C. 3553(e) motions from the government. The principles of Doe apply to both types of motions, and apply as well if the government files one type of motion but refuses to file the other (the Tenth Circuit only assumes this latter point for purposes of E.F.'s appeal, but suggests that such application "makes sense").

Second, a Doe contractual challenge proceeds in three steps: (1) the defendant must allege bad faith; (2) the government must rebut that allegation with facially plausible reasons; and then (3) the defendant must come forward with evidence to question the government's proffered reasons. As to step (2), it is facially plausible for the government to withhold a substantial-assistance departure motion if the client withholds information about ongoing criminal activity. "[F]ull cooperation surely requires disclosing valuable information, particularly about ongoing criminal activity." This is an important point to emphasize with any client who is interested in cooperating.

Third, if you are going to complain about the government not filing a motion, be prepared to meet Doe step (3). Defendant E.F. failed to satisfy this step, and therefore lost his challenge both in the district court and on appeal.

Sunday, April 7, 2019

Redefining adolesence

We have previously blogged about the important advancements in science over the last two decades that continue to further our understanding of the adolescent brain and its development into our mid-20s. These advancements necessarily inform the arguments we raise when representing youthful offenders at every stage of a criminal prosecution, regardless of the charges.  

In granting a successive federal habeas petition last month, the District of Connecticut's Chief Federal Judge Janet C. Hill has added another important precedent to the mix. (Luis Noel Cruz v. United States, 11-cv-00787-JCH; United States v. Cruz, 94-cr-00112-JCH-16, Docket Entry 2118 (Amended Judgement).)

Luis Noel Cruz was 15 years old when he became entangled with the Latin Kings. Five months after his 18th birthday, Luis carried out orders from above—murdering a perceived snitch (and a New Haven detective’s son) at point-blank range and chasing after and holding down another target as a fellow gang member shot him four times. At age 19, Luis was sentenced to four concurrent life-without-parole sentences.   

On March 15, however, Chief Judge Hill reduced Luis’s federal sentence to 35 years, offering Luis the chance the live his final years as a free man. In doing so, the Court relied upon the important line of Supreme Court precedent and its progeny handed down since Roper’s 2005 issuance (discussed here), as well as the critical, defense-offered testimony of Laurence Steinberg—a Temple University professor and renowned expert on adolescent brain development.

Steinberg’s research informed the Supreme Court in its own decisions regarding adolescent brains and criminal justice. Steinberg’s testimony in Luis’s case is a noteworthy resource for a cogent explanation of the parts of the brain particularly significant during adolescence—the cognitive control and the limbic systems—and their impact on youth decision-making. (See Docket Entry 111, Transcript of 9/26/17 hearing.) Steinberg further attests to why a bright-line-at-18 can no longer stand given that advancements in research since 2005 demonstrate adolescence in terms of brain development spans into the mid-20s.

At a hearing held this February on his federal habeas petition, Luis testified that he was no longer “that stupid, close-minded kid who hurt so many with his actions.” His attorney peppered the briefing and verified at the hearing the “alchemistical transformation” that Luis has made over the past two decades behind bars.

As J.D. Salinger captured it, “The mark of the immature man is that he wants to die nobly for a cause, while the mark of the mature man is that he wants to live humbly for one.” (The Catcher in the Rye.) 

When it comes to a young offender, remember to paint the full picture. The fact that youth matters cannot be overstated. 

Sunday, March 31, 2019

More Rule 29: "some degree of intellectual rigor is required"

Two unicorns in as many weeks. This one from the First Circuit (with retired Justice Souter sitting by designation on the panel). In United States v. Pothier, the First Circuit reversed the defendant's child-pornography conviction on grounds of insufficient evidence.

As the Court describes the case: "While executing a search warrant, police found in the living room a laptop computer that was not password-protected. Pothier admitted that he owned the laptop, which contained a handful of documents and innocuous chat histories in his name. It also contained child pornography . . . . That was more or less enough for the police and the United States Attorney."

But it wasn't enough for the First Circuit. The Court walks through the evidence in detail, telling us where it falls short (others had access to the computer but weren't investigated) and what the government should have done but didn't (for instance, determine whether the defendant was at home when the pornography was downloaded). The Court emphasizes that, despite the "great deference" given to jury verdicts, when reviewing evidence for sufficiency, "some degree of intellectual rigor is required; a reviewing court should not give credence to 'evidentiary interpretations and illations that are unreasonable, insupportable, or overly speculative.'"

The Court notes that the defendant's decision not to testify or present evidence at trial "likely struck the jury as suspicious"---a point that "might explain the jury's verdict," but "cannot justify the verdict in the face of an insufficiently supported government case."
Finally, the Court rejects the government's handwringing over a ruling in the defendant's favor:

"If Pothier is factually innocent, then he has suffered a great wrong and the guilty person remains free. Conversely, if Pothier is factually guilty, he goes free only because the prosecution failed to gather and present readily accessible evidence. In either event, it is uncharacteristic prosecutorial torpor---not undue judicial rigor---that prevented justice from being done."


Tuesday, March 26, 2019

How to win a Rule 29 motion for judgment of acquittal

First, get good facts.

Second, remind the judge that "[w]hen faced with a close criminal case, the judge’s experience with parallel issues in civil cases may  prove helpful in deciding the boundaries of permissible inferences when the government must prove its case beyond a reasonable doubt—which is so much more stringent than the civil standard of proof."  
Image result for cocaine cartoon image
That's what the Seventh Circuit recommended judges deciding close Rule 29 motions think about last week in United States v. Garcia. There the Circuit reversed the defendant's drug conviction on grounds of insufficient evidence. As the Court explained, the government presented no direct evidence or admissions by Garcia that he had distributed cocaine. Instead, the government relied on agent expert testimony purporting to interpret cryptic telephone conversations between Garcia and a known drug dealer ("girl" = cocaine; "work" = cocaine; "tix" = money; and the like).

This was not enough. Read Garcia in preparing your Rule 29 motion. It contains a great discussion of the "quantum and quality" of evidence required to prove guilt beyond a reasonable doubt, and a nice compilation of other cases in the Seventh and Second Circuits holding that evidence was insufficient to sustain a conviction.

Sunday, March 24, 2019

New information can dissipate probable cause

The Tenth Circuit reminds us this last week that probable cause that once supported the issuance of a search warrant may dissipate not only during the execution of that warrant—as we’ve previously blogged about here—but also before its execution, based upon the discovery of new information. 
Such was the case in United States v. Dalton, in which the probable cause that initially supported the issuance of a warrant for the defendant’s home (in search of firearms and firearm paraphernalia) had dissipated before the officers ever executed the warrant.

Image result for evaporateThe new information that vitiated the probable cause? The officers’ discovery that another individual--not the defendant--had been driving the defendant’s car when it evaded police and was later found harboring an AK-47. As a result of the new, intervening information, “at the time the officers executed the warrant, they had neither probable cause to believe that [the defendant] possessed the gun in his vehicle nor that he was illegally harboring firearms inside [the] house at that time." That search therefore violated the Fourth Amendment. 

Dalton provides a cogent reminder for us that probable cause must exist not only when a warrant is issued, but also at the time the warrant is executed, and at all times during its execution.

Tuesday, March 19, 2019

The "least reliable type of hearsay"

Once again, a circuit court has reversed a defendant's supervised-release revocation because the district court improperly relied on hearsay to find a violation.

In United States v. Sutton, the Eighth Circuit held that the district court should not have admitted and relied on videos and transcripts of three witnesses' oral, unsworn statements in response to police interrogations---the "least reliable type of hearsay"---to find that the defendant had committed an assault while on supervised release. The government failed to prove either that confrontation of the witnesses was undesirable or impracticable (its efforts to subpoena the witnesses were insufficient), or that the statements were reliable.

Indeed, the statements were collectively unreliable, as they demonstrated "intoxication, potential culpability in the crime, lapses in memory, repeated falsehoods, and motive to implicate the defendant." The district court should not have admitted the statements.

Fortunately for Mr. Sutton, his counsel objected to admission of the statements as hearsay, violations of his constitutional rights, and Rule 32.1 violations, thus preserving the issue for appellate review.

We've blogged about Tenth Circuit cases on the admission of hearsay at revocation proceedings before here and here. Take note. And OBJECT.

Thursday, March 14, 2019

Tuesday, March 5, 2019

My purse is not my person

Police can search a person incident to arrest. But can they search the person's purse? No, at least not on the theory that the purse is an extension of the person. So said the Tenth Circuit this week in United States v. Knapp, declining to follow courts construing "person" to include containers held by the person at the time of arrest.

Here are the rules to know, as stated by the Tenth Circuit in Knapp:

"[S]earches incident to arrest are governed by a container’s location relative to the arrestee and the degree to which it can be accessed by or separated from the arrestee."

Whether a search of a container incident to arrest is justified depends on "the arrestee’s ability to access weapons or destroy evidence at the time of the search, rather than the time of the arrest" (emphasis added).

"[T]he degree to which arresting officers have separated an article from an arrestee at the time of the search is an important consideration."

In Knapp, officers searched the defendant's purse despite the fact that her hands were cuffed behind her back, three officers were present, her purse was closed and three to four feet behind her, and officers had kept exclusive possession of the purse since cuffing the defendant. This was not a proper search incident to arrest.

Tuesday, February 26, 2019

How to object to 404(b) evidence (and its fallout)

Sometimes civil cases involve issues familiar to criminal-law practitioners.

In Crew Tile Distribution, Inc., the plaintiff, Crew Tile, filed a breach-of-contract claim against Porcelanosa. Porcelanosa countersued, claiming that the contract allegedly breached was forged. The trial court denied Crew Tile’s motions in limine to exclude 404(b) evidence of an earlier and also allegedly forged contract between the same parties.

This was error, but harmless, the Tenth Circuit held, in a decision that offers several lessons to criminal-defense lawyers:

The trial court erred in admitting the evidence. Porcelanosa never identified any proper purpose for admitting the evidence---it just parroted the exceptions listed in Rule 404(b). The proper purposes cited by the district court in admitting the evidence were “divorced from Porcelanosa’s theory of its case,” which was essentially that Crew Tile’s operator was a serial forger. In other words, Porcelanosa wanted to use the evidence for propensity purposes.

But alas! This error was harmless, because the trial court properly limited Porcelonosa’s use of the evidence “to prove the parties’ prior business relationship.”

But wait! Porcelanosa exceeded those limits by arguing to the jury that the evidence proved Crew Tile’s operator was “a forger.”

But alas! Crew Tile did not object to this argument, instead meeting it head on in its own arguments and evidence. “Having failed to make a timely objection to the evidence at the time that it was presented and having personally developed [the challenged evidence] . . . [Crew Tile] waived any right that [it] might have otherwise had to challenge this evidence on appeal.”

And thus: Object if the basis offered for 404(b) evidence is inconsistent with its true purpose; object if the court does not properly limit the evidence; and object if the government improperly uses the evidence.

We’ve said it before and we’ll say it again: Object, object, object!

Thanks to Tom Bartee for this post.

Sunday, February 24, 2019

Can tapping a tire be a search? The Fifth Circuit says yes.

In United States v. Richmond, No. 17-40299, 2019 WL 491779 (5th Cir. Feb. 8, 2019), the Fifth Circuit recently held that the “relatively minor” act of tapping a tire qualifies as a search under the trespass-based approach detailed in United States v. Jones, 565 U.S. 400 (2012), when it is done in order to learn whether the tire contains contraband.
While patrolling on a highway in Texas, a state trooper observed that the tires on the truck Ms. Richmond was driving were “shaking,” “wobbly,” and “unbalanced.” The trooper initiated a traffic stop after watching the vehicle cross over the fog line onto the shoulder of the highway. While walking to the rear of the truck, he noticed that the bolts on the passenger-side rear tire “had been stripped as [if] they had been taken off numerous times.” At this point, the trooper “pushed on the tire with his hand,” which elicited a “solid thumping noise” and raised his suspicions that the tire may contain drugs. A later examination of the tires at a dealership revealed that they contained methamphetamine.

On appeal, Richmond argued that the trooper’s initial touching of the tire was a search, and that the search was not supported by probable cause. The court held that under a trespass analysis, “[the trooper’s] tapping of the tire was a search regardless of how insignificant it might seem.” The Fifth Circuit explained that under the trespass-based approach detailed in Jones, “a trespass ‘must be conjoined’ with ‘an attempt to find something or obtain information,’” i.e., investigatory intent, in order to constitute a search. This two-pronged approach “prevents a mere physical touching, such as when an officer leans on the door of a car while questioning its driver,” or other “incidental conduct,” from becoming a search.

In Ms. Richmond’s case, the court determined that the trooper’s conduct satisfied both prongs of the test outlined in Jones. The court reasoned that tapping the tire was a trespass similar to “attaching a GPS to the exterior of a vehicle,” as in Jones, because of the physical contact made with the vehicle in both instances. Because the trooper initiated the contact with the tire in order to “confirm his suspicion that it contained more than just air,” the tap became a search within the meaning of the Fourth Amendment. The court further explained that it was unlikely that the information that the trooper had when he made contact with the tire constituted probable cause to conduct the search.
Ultimately, however, the court determined that the trooper did have “probable cause to believe that the tire posed a safety risk” based on his observations of the tire’s wobble and “the truck veering outside its lane.” Thus, the court held that public safety interests justified the search, and affirmed the district court’s judgment denying Richmond’s initial suppression motion. Although Richmond did not ultimately prevail in her appeal, the court’s conclusion that “the brief physical examination of the tire was subject to the Fourth Amendment under the recently revived trespass test” will benefit other defendants, and it serves as a reminder to consider other possible applications of the trespass-based approach outlined in Jones.
The decision can be found here. 

Sunday, February 17, 2019

A bathrobe alone does not clothe someone with apparent authority

Apparent authority and consent from a third party may provide law enforcement with an exception to the warrant requirement where the officers reasonably believe that the third party has joint access or control over the property for most purposes. But the Seventh Circuit reminds us this past week in United States v. Terry that apparent authority’s exception cannot apply where officers veil themselves in ignorance by failing to inquire further.

Related imageIn Terry, officers relied on the prompt verbal and written consent to search defendant’s residence obtained by a woman who answered the door at 10 a.m. in a bathrobe and looking sleepy. Prior to relying on her consent, the officers did not know who she was, what her relationship was to the defendant, why she was in the apartment, how long she had been in the apartment, or whether she lived there. "Sometimes the facts known by the police cry out for further inquiry, and when this is the case it is not reasonable for the police to proceed on the theory that ‘ignorance is bliss.’” (Quoting LaFave.) Conviction vacated.

And of course, even if the officers had gained the requisite information to demonstrate that the woman had authority over the residence, it would still be at issue whether she had authority over the containers searched therein. See, e.g., United States v. Salinas-Cano, 959 F.2d 861, 862 (10th Cir. 1992) (“[O]wnership and control of property does not automatically confer authority over containers within it.”) (citing United States v. Karo, 468 U.S. 705 (1984)).