Monday, July 12, 2021

Wives can think for themselves? Who knew!

A drug dealer sends his supplier to pick up a box of cash from the dealer's wife. Can we assume without more that the dealer was his wife's "manager or supervisor," U.S.S.G. § 3B1.1(b), or that he "used . . . affection" to involve her in his drug crimes, U.S.S.G. § 2D1.1(b)(16)(A)?

Of course not. This is the twenty-first century. C'mon people.

See United States v. Sampel2021 WL 2793548 (2d Cir. July 6, 2021) ("Evidence that Sampel told a person to pick up money from his wife does not establish that Sampel “exercised [any] degree of control” over her . . . or that he in any way directed her involvement in the drug business. Likewise, this evidence does not support the conclusion that Sampel used affection to involve his wife in the crimes at issue. Simply put, more is needed.") (reversing and remanding for resentencing).

See also State v. Donkers, 867 N.E.2d 903, 939 (Ohio App. 2007) ("In today's society, regardless of what individual couples believe and practice, the law does not recognize the husband as the 'one public voice' or as the automatic head of household with supreme authority over his nonresponsible feme covert."); United States v. De Quilfeldt, 5 F. 276, 278 (C.C.W.D. Tenn. 1881) ("It is almost an absurdity in this day to pretend that husbands can or do coerce their wives into the commission of crimes . . . ; but to hold it to be presumed as a fact, in all cases where the husband is present, is the relic of a belief in the ignorance and pusillanimity of women which is not, and perhaps never was, well founded, and does them no credit."); but see Gray v. State, 527 P.2d 338 (Okla. Crim. App. 1674 1974) (noting "general rule that a wife committing a crime is presumed to have acted under her husband's coercion" if the husband is physically present at the time of the crime).

Tuesday, July 6, 2021

The Fourth Amendment: "a bastion of liberty in a digitizing world"

Accessing stored data from Baltimore's experimental panopticon-like aerial surveillance program is a search for Fourth Amendment purposes, and can't be done without a warrant. So said the en banc Fourth Circuit in Leaders of a Beautiful Struggle v. Baltimore Police Department.

Read Leaders of a Beautiful Struggle for a full description of Baltimore's now-abandoned "citywide prolonged surveillance campaign," which captured massive amounts of data in the form of aerial images that could be magnified to a point where people and cars were visible (only as blurred dots and blobs, but trackable nonetheless). Adding to the Big Brother factor, this data could be integrated with other data (license plate readers, gunshot detectors, etc.) to identify those dots and blogs and glean insight into the whole of an individual's movements.

Read Leaders of a Beautiful Struggle as well for the majority's discussion of the disparate impact of large-scale surveillance on vulnerable communities:

Baltimore is a thoroughly surveilled city. See generally J. Cavanaugh Simpson & Ron Cassie, Under Watch, Balt. Mag., Mar. 2021, at 96 (discussing cell site simulators, helicopters, security cameras, police access to residential cameras, police body cameras, and facial recognition software). “[Mass surveillance] touches everyone, but its hand is heaviest in communities already disadvantaged by their poverty, race, religion, ethnicity, and immigration status.” Barton Gellman & Sam Adler-Bell, Century Found., The Disparate Impact of Surveillance 2 (2017). While technology “allow[s] government watchers to remain unobtrusive,” the impact of surveillance “[is] conspicuous in the lives of those least empowered to object.” Id. Because those communities are over-surveilled, they tend to be over-policed, resulting in inflated arrest rates and increased exposure to incidents of police violence.

That is not to express our opposition to innovation in policing or the use of technology to advance public safety. It is only to emphasize that the role of the warrant requirement remains unchanged as new search capabilities arise. . . . The Fourth Amendment must remain a bastion of liberty in a digitizing world.

Finally, read the concurring and dissenting opinions in Leaders of a Beautiful Struggle for a fascinating debate about who gets to speak for "the community";  how Baltimore is both overpoliced and underpoliced; and whether more policing is the answer to violence.

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On an unrelated note: If you subscribe to this blog, you may have missed a few posts recently as we've transitioned to a new email notice provider. Be sure to scroll down and read our posts about defining reasonable doubt and waiving restitution interest. If you haven't subscribed, or if you think you are still missing our email notices, please consider submitting your email address in the Follow by Email box at the top of the right-hand column on this page. Thank you!

Monday, July 5, 2021

Fallacious comforts and reasonable doubt

Before you get up in the morning, do you ask yourself whether doing so is worth the risk? More specifically, do you question whether it is safe beyond a reasonable doubt to get out of bed? When you eat a meal, do you first assure yourself, beyond a reasonable doubt, that the food on your plate will not make you sick? Do you evaluate the risks of driving every time you get behind the wheel of your car?

Surely not. And that is because our decisions to engage in everyday tasks "rest on the fallacious comfort that because these activities did not result in chaos yesterday, they will not today." This fallacy is necessary to navigate the world. But it is not a fallacy we want jurors to indulge when they decide whether a person has committed a crime.

And that is why last month the Ninth Circuit reversed two drug-importation convictions in United States v. Velazquez. During closing arguments in Velazquez, the prosecutor assured the jurors that reasonable doubt is "something you use every single day in your life," offering as examples getting up, eating a meal, and driving a car, even though it's possible that you might get sick or have an accident. But, as the Ninth Circuit explained, "[s]uch decisions involve a kind of casual judgment that is so ordinary and so mundane that it hardly matches our demand for 'near certitude' of guilt before attaching criminal culpability."

The prosecutor's argument was inappropriate, misleading, and reduced the government's burden of proof. "The process of adjudicating guilt is a major and meticulous undertaking. People do not, 'every single day,' bear the solemn task of examining evidence and determining an accused's guilt. The comparison—to reflexive, quotidian decisions like 'getting up,' 'having a meal,' and 'travel[ing] to ... court'—is flagrant and seriously distorts the standard." 

Going to trial any time soon? Listen carefully to how the government talks about reasonable doubt. Object. Ask for a curative instruction. The reasonable-doubt standard is indispensable. Don't let the government dilute it.

Wednesday, June 23, 2021

The More You Know: Waiving Restitution Interest

Unfortunately, some people make regular payments on their restitution judgment while serving their federal prison sentence, only to get released and find that they still owe tens of thousands of dollars more than was originally imposed. The reason? Interest.

When a judge imposes restitution of more than $2,500, interest is automatically imposed by statute18 U.S.C. § 3612(f). Interest is calculated according to a formula set in the statute. 

But! The court can waive interest. "If the court determines that the defendant does not have the ability to pay interest" the court can "waive the requirement for interest" (or limit the interest). 18 U.S.C. § 3612(f)(3).

There likely is already a box on the judgment form for the court to check to waive the interest on restitution (or a fine). 

Judges may often waive interest on their own when they impose restitution. But keep an ear open. If the judge imposes restitution on your indigent client and doesn’t say anything about waiving interest, ask that it be waived at the sentencing hearing. The court need only say that the interest is waived and check the box on the judgment. Easy. And it might save your client thousands of dollars later on. 

Monday, June 14, 2021

"[I]t is easy for a geofence warrant . . . to cross the threshold into unconstitutionality"

A geofence (or "geo-fence") is a virtual perimeter around an actual area. A geofence warrant is a court order authorizing the government to collect digital location-history data from private companies (such as Google) for a particular geographic area over a particular time frame. This data will (presumably) identify (nearly) every person who carried a cellphone (whether walking or driving or cartwheeling) through or past the area during the designated time frame.

Geofence warrants raise a host of Fourth Amendment questions. Do they authorize "searches" in the Fourth Amendment sense? What kind of probable-cause showing is required to support them? What about particularity? Are all geofence warrants unconstitutional general warrants? Or can they be sufficiently narrowed to satisfy Fourth Amendment requirements?

Few courts have grappled with these questions to date. A Westlaw search of all state and federal databases for "geofence warrant" yields only five results: one state trial court order and four federal district court orders. The most recent of these is an order from a D. Kan. Magistrate Judge denying (without prejudice) the government's application for a geofence warrant targeting the area around a building where a federal crime allegedly occurred. In the Matter of the Search of Information that Is Stored at the Premises Controlled by Google, LLC, 21-mj-5064-ADM, 2021 WL 2401925 (D. Kan. June 4, 2021).

In the order, the magistrate judge notes that "it is easy for a geofence warrant, if cast too broadly, to cross the threshold into unconstitutionality because of a lack of probable cause and particularity, and overbreadth concerns under Fourth Amendment jurisprudence." The magistrate judge then explains how the affidavit submitted in support of this warrant failed on both the probable-cause and particularity fronts.

First, probable cause that a crime was committed at the location is not enough. The government must also show probable cause that evidence of the crime will be found in the location data sought. Second, particularity requirements apply to both the geographic area and the time frame. If the government seeks a full hour of data, for instance, it must explain why. In sum:

The court simply issues this opinion to provide fair notice that geofence warrant applications must sufficiently address the breadth of the proposed geofence and how it relates to the investigation. It is not enough to submit an affidavit stating that probable cause exists for a geofence warrant because, given broad cell phone usage, it is likely the criminal suspect had a cell phone. If this were the standard, a geofence warrant could issue in almost any criminal investigation where a suspect is unidentified. The Fourth Amendment requires more, particularly where the warrant implicates the privacy interests of individuals who have nothing to do with the alleged criminal activity.

Want to read more? Check out this recent Harvard Law Review Note on the subject, and this Electronic Frontier Foundation article. Ask whether a geofence warrant was used in your case; request related discovery; and consider moving to suppress the fruits of the warrant. As the EFF has warned, "[i]ndiscriminate searches like geofence warrants both put innocent people in the government’s crosshairs for no good reason and give law enforcement unlimited discretion that can be deployed arbitrarily and invidiously. But the Framers of the Constitution knew all too well about the dangers of overbroad warrants and they enacted the Fourth Amendment to outlaw them."

Tuesday, June 8, 2021

"There are dogs around the corner"

It's been a while since we've rounded up Fourth Amendment decisions. Here are a few recent ones you might find useful:

In United States v. Suggs, the Tenth Circuit held that a search warrant lacked particularity and could not be saved by the severability doctrineThe warrant authorized officers to search Mr. Suggs’s home for “[a]ny item identified as being involved in crime.” The absence of any article modifying “crime” (such as “the crime,” which might have referred back to the crime identified in the search warrant affidavit) made this a “general warrant” that licensed exactly “the sort of general rummaging outlawed by the Fourth Amendment.” 

In United States v. Celes, 2021 WL 2292784 (E.D. Cal. June 4, 2021), the E.D. Calif. District Court held that an officer lacked reasonable suspicion to detain Mr. Celes in a driveway. The detention began either when the officer took Mr. Celes's ID and held it, or, at the very latest, 30 seconds later when he told Mr. Celes not to run because "I can run faster," and "[t]here are dogs around the corner in another car, okay?" The government's reliance on high-crime area + suspicious behavior did not add up to reasonable suspicion under the evidence presented here.

In United States v. Hall, the D. Kan. District Court held that, under the totality of circumstances, officers lacked exigent circumstances to excuse their warrantless entry into Mr. Hall's home during a knock-and-talk to investigate a report of shots fired into the air from an outdoor balcony at Mr. Hall's apartment complex.

The lesson in each of these decisions is the same: Train your eagle eye on every word of the warrant, every movement in the video, and every fact in evidence countering the officers' claimed justifications for their conduct. They say that the devil is in the details (that is, a thing that looks simple is actually complicated). But we know better. The more apt saying for our purposes is that God is in the details, meaning simply that details are important, and we must be thorough in our work.

Sunday, June 6, 2021

With 44,778 collateral consequences nationwide, how do you know which ones affect your client?

Wait---how many collateral consequences? That's right, count 'em, 44,778. That's the number returned on an unlimited search for collateral consequences across all jurisdictions in the National Inventory of Collateral Consequences of Conviction.

That raw number's not very helpful when you want to advise a particular client whether a felony conviction will interfere with her work as a podiatrist, a pawn broker, or a pest-control professional. But the collateral consequences inventory can help. You can search by any combination of jurisdiction, consequence, key word, and offense type to narrow your results and answer your client's questions.

If your client is not a US citizen, you'll also want to consult the latest report on Immigration Consequences of Criminal Activity by the Congressional Research Service. There you can learn what criminal convictions trigger inadmissibility and deportation, or affect naturalization, relief from removal, or immigration benefits. Remember: we have a constitutional duty to accurately inform our clients of these consequences. See, e.g., United States v. Johal, No. 19-17244, 2021 WL 1511504 (9th Cir. Apr. 16, 2021) (IAC to overstate deportation risk, causing client to reject plea options that may have avoided deportation and proceed to trial).

Want to read more about collateral consequences and recent efforts to limit them? Check out the Collateral Consequences Resource Center; reports from the Prison Policy Initiativethis article about bipartisan momentum for clean-slate and fair-chance policies; and this essay about how collateral consequences flowing from criminal records entrench racial inequality.

Finally, once you learn how many (both temporary and lifelong) collateral consequences your client faces, consider arguing that the district court should take those consequences into account at sentencing. See, e.g., United States v. Jaime, 235 F. Supp. 3d 262 (D.D.C. 2017).