Monday, October 26, 2020

Tenth Circuit Breviaries

Fourth Amendment

Remember to review the affidavits carefully in those multi-defendant conspiracy cases. That's one lesson of Bickford v. Hensley. Deputy Hensley secured arrest warrants for 44 claimed marijuana conspirators, using a boilerplate affidavit. In Mr. Bickford's case, two accusatory paragraphs did not apply ("[t]he above named defendant assisted this conspiracy . . ."; "the above named defendant conspired . . ."). Mr. Bickford was nonetheless arrested on the warrant, and the criminal charges against him were not dismissed until more than a year later.

Mr. Bickford sued. The district court (N.D. Okla.) dismissed. The district court determined that the affidavit's boilerplate paragraphs were false with respect to Mr. Bickford, thereby invalidating the warrant. But the district court found that the deputy nonetheless had probable cause to arrest Mr. Bickford without a warrant for possessing marijuana. This finding was based on the deputy's knowledge of a single Facebook exchange a year earlier between two actual conspiracy members, during which one member stated that he'd given "Chaz" (thought to be Mr. Bickford) a "small dab," and "he got so high."  

The Tenth Circuit reversed in an unpublished order & judgment. This "remotest of evidence" did not provide probable cause to arrest Mr. Bickford for possession:

First, the Facebook message between third-parties constitutes hearsay. Although the fact that hearsay evidence would be inadmissible at trial “does not make it unusable as a source of probable cause for a warrantless arrest” . . . longstanding legal principles generally consider hearsay statements to be inherently unreliable . . . . Second, the Facebook message did not mention Plaintiff by name, but merely referred to someone named “Chaz,” who Deputy Hensley thinks is Plaintiff. The lack of specific  identification of Plaintiff in an uncorroborated conversation that did not even involve Plaintiff further undermines the ability of the message to establish probable cause of any offense.

One last note about Bickford. Oklahoma law generally prohibits warrantless arrests for misdemeanors such as marijuana possession unless they are committed or attempted in the arresting officer's presence. But that state-law fact did not invalidate Mr. Bickford's arrest. State law does not define the contours of the Fourth Amendment. Whether the "in the presence" rule is part of the Fourth Amendment may remain an open question in the Supreme Court, but it was a question that did not need to be answered here in the absence of probable cause.

Competency & interlocutory appeals

A competency determination is a non-final order that may not be interlocutorily appealed. United States v. Perea.

Trial issues

The district court did not err in refusing to instruct the jury on assault resulting in serious bodily injury in this first-degree-murder trial. Neither did it err in its admission of graphic photos. United States v. Oldman (also rejecting arguments regarding ex parte communications with the jury; spousal privilege; and ineffective assistance of counsel).

Sentencing: substantive unreasonableness

This 8-time DWI defendant's 36-month sentence for assault (a DWI accident) resulting in serious bodily injury is not substantively unreasonable. United States v. Miller

Conditions of supervised release

Also in Miller, the Tenth Circuit held that a broad condition of supervision requiring "substance abuse testing" improperly left it up to the probation officer how many substance-abuse tests would be required. This condition conflicted with the language of 18 U.S.C. § 3583(d) (though it was not an unconstitutional delegation): "the district court must set the maximum number of non-treatment-program drug tests to which a defendant may be subjected," and cannot delegate this authority to the probation officer. Here, the district court also failed to make sufficient record findings to support the condition. Unfortunately for Mr. Miller, these errors were unpreserved, and in the end the claims did not satisfy plain-error review. Condition affirmed.

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