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).

Thursday, May 27, 2021

A Criminal Injustice

 This article by Michael Harriot at The Root: A Criminal Injustice: How a City Ignored the Rape, Murder and Terrorism of Black Women for Four Decades is a compelling read:

This is a story about a law enforcement officer in Kansas City, Kan., who elected officials, private citizens, lawmakers and fellow police officers who have [been] publicly accused of corruption, sexual assault and even murder. But this is not a story about a man. This is not a story about a police officer. This is not a story about Kansas City, a rapist, a serial killer, policing or America. This is a story about us.

The players are all-too-familiar to the Kansas defense bar, as are the stories of prosecutorial  corruption and police violence: AUSA Terra Morehead, former WyCo DA Jerome Gorman, former KCK police Chief Terry Zeigler,  and former KCK Detective Roger Golubski. Again we find that investigative journalists are doing the hard work that has been buried or abandoned by the Department of Justice or the Kansas Disciplinary Administrator. Much of this article echoes the tremendous work done by the Kansas City Star.

Harriot expounds on the facts that we already know to explain the deep racism where "white America ignored the way law enforcement officers treated Black people." For example, he retells the facts about police and prosecutors coercing false testimony from witnesses in order to convict Lamont McIntyre:

"Golubski, two detectives and Terra Morehead showed up at my door,” Niko [Quinn] told The Root. “I wasn’t home. But they told my aunt and my cousin who was living with me at the time to tell me that I need to get in touch with her. And if I did not contact her ‘sooner than later,’ she was gonna take my kids from me, and I’ll never see my kids again...That was the first threat she made. 

Harriot's survey is not limited to that one case. As one person noted, "We don't know how many Lamont McIntyre's are behind bars." Instead, "The Root has interviewed dozens of witnesses, reviewed dozens of court cases and pored over thousands of pages, uncovering one of the widest-ranging examples of state-sponsored terror against Black women this country has ever seen.He lists at least a dozen Black women who have died in Wyandotte County, and "each of these unsolved murders are connected in some way to the king of the Kansas City Police Department’s detective unit, Roger Golubski." 

The trauma to these families and to this community is impossible to fully describe or quantify. But they are Black families and a Black community, and that explains, in part, why there has been no reckoning. As of today, no law enforcement or prosecutor has been held to account for their abusive conduct or forced to explain what happened to these murdered Black women. Harriot continues:

That the most powerful white people simply chose not to care about rape, corruption and dead bodies popping up everywhere is a disconcerting thought for most people. For me, their naive astonishment is the most astonishing part. It is stunning how many people can’t believe a thing like this can happen, even knowing that things like this have always happened. According to one report, police sexually assault at least 100 women every year. The most likely reason Golubski was never arrested is also the most unsettling:

           Because his victims were Black women. 

It is clear that we cannot entrust restorative justice to prosecutors, including those who promise conviction integrity review. Federal prosecutors protect their own, including their own law enforcement. The question now is whether those in power like Governor Laura Kelly, Representative Sharice Davids, and the Kansas Supreme Court--the court that literally gives license to these prosecutors--will finally demand some answers. But they been silent so far.

-- Melody


Tuesday, May 25, 2021

She blinded me with junk science

The rules of evidence don't apply at sentencing. FRE 1101(d)(3). But that doesn't mean that anything goes. At the very least, sentencing evidence must be reliable, whether it comes from police officers, codefendants, girlfriends, drug addicts, or confidential informants. See, e.g., United States v. Padilla, 793 Fed. Appx 749 (10th Cir. 2019) (police report); United States v. Dahda, 852 F.3d 1282 (10th Cir. 2017) (codefendants)United States v. Fennell, 65 F.3d 812 (10th Cir. 1995) (girlfriend); United States v. Richards, 27 F.3d 465 (10th Cir. 1994) (drug addict); United States v. Ortiz, 993 F.2d 204 (10th Cir. 1993) (confidential informant); accord USSG 6A1.3(a) ("In resolving any dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.") (emphasis added).

To that end, why not argue that scientific, technical, and specialized evidence should be subject to something like a Daubert inquiry before your sentencing court relies on it? Think risk-assessment tools, mental-health evaluations (especially those done in jail/prison settings), traditional forensic evidence, cash-equivalency assessments, drug-quantity approximations---you get the picture. After all, reliability is the touchstone of Daubert. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 589 (1993) ("[t]he trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable").

For more on this front, check out Maneka Sinha, Junk Science at Sentencing, 89 Geo. Wash. L. Rev. 52 (2021).

And remember: Object to any statements in the PSR that lack a reliable evidentiary source, and put the government to its burden of proving reliability at sentencing.

Thursday, May 13, 2021

The Myth of Objectivity in Fourth Amendment Jurisprudence

From Juval Scott, FPD WDVa, The Myth of Objectivity in Fourth Amendment Jurisprudence is part of the ABA Criminal Justice Section Spring 2021 edition on Racial Justice. From a  historical perspective, Scott explains how  "objectivity" is a myth and why we need a racially informed approach to the Fourth Amendment:  

People of color, especially Black and Indigenous Americans, do not have the luxury of revising history and how it defines our existence in the United States. . . . . Embedded in the fabric of this country is a horrific history, and our legal system continues to perpetuate the less-than-equal historical legacy among Black, Indigenous, and people of color (BIPOC).

This is a powerful piece of writing, and should be required reading for all defense attorneys. Because the courts have largely failed to do so, it is incumbent on the defense bar to invoke "the influence of history, community dynamics, and policing practices in assessing whether citizens feel free to terminate an encounter with law enforcement." Does anyone really believe that a young person of color would feel free to walk away from the police? That is a myth perpetuated by police and prosecutors and embraced by the courts under the guise of objectivity.   

One particular lesson is this: Whren must be overturned. Whren says that police may stop someone for a pretextual reason when they don't have sufficient cause to stop for the real reason. It was bad law when authored by Justice Scalia in 1996, and it is worse today. "Whren provided the playbook for law enforcement to prey on communities of color under the guise of necessary traffic enforcement." When the judiciary condones and encourages police to lie--which is the foundation of Whren--the system is complicit in corruption and abuse. And that judicially-granted entitlement to lie is a significant reason that the "BIPOC community has been and still is terrorized by the police." 

Likewise, when courts continue "to protect police under the guise of qualified immunity, and, at the same time, admits illegally obtained evidence by those same officers, [they are]  complicit in gutting constitutional rights for the BIPOC community." This evinces a greater interest in "police welfare and perception than the [constitutional] deprivation itself." 

It is past time for a radical change in how we understand and apply the Fourth Amendment, if it is to ever have any meaning or credibility for our clients of color. "[I]t is past time for an honest conversation about race and the Fourth Amendment.

-- Melody


     

Monday, May 3, 2021

Speedy trial & release rights during a pandemic

We want to keep our families, our clients, and our communities healthy during a pandemic. But we also want to protect our clients' rights---including their statutory and constitutional rights to a speedy trial (or at the very least release pending a delayed trial). And yet emergency order after emergency order has halted trials in district courts around the country. Something's gotta give at some point---right?   

Not yet (but maybe soon), at least according to a pair of cases decided by the Ninth Circuit last month.

Client on release; continuance authorized under Speedy Trial Act. In United States v. Olsen, the Ninth Circuit held that a district court abused its discretion when it granted Mr. Olsen's motion to dismiss based on the Speedy Trial Act. Specifically, the district court erred when it concluded that the pandemic did not justify an "ends of justice" continuance over Mr. Olsen's objection. Here's what the Circuit had to say about the ends of justice and COVID-19:

It is true “that the ends of justice exclusion . . . was intended by Congress to be rarely used, and that the provision is not a general exclusion for every delay.” . . . . But surely a global pandemic that has claimed more than half a million lives in this country, and nearly 60,000 in California alone, falls within such unique circumstances to permit a court to temporarily suspend jury trials in the interest of public health.

Client detained; release may soon be required on due-process grounds. In United States v. Torres, the Ninth Circuit affirmed a district court's denial of Mr. Torres's statutory and due-process-based motion for release. But the Circuit cautioned in Torres that "the length of Torres's pretrial detention is likely approaching the outer bounds of due process":

On balance, we conclude that Torres's twenty-one-month detention does not yet violate due process, but we caution that the length of Torres's detention is approaching the limits of what due process can tolerate. The length of Torres's pretrial detention is significant under any metric and is deeply troubling. But the lack of any prosecutorial contribution to the delay and the strength of the evidence supporting Torres's detention lead us to conclude that Torres's detention is rationally connected to a regulatory purpose—preventing danger to the community and ensuring Torres will appear as required. . . . However, all parties agree that at some point, regardless of the risks associated with Torres's release, due process will require that he be released if not tried. . . . And if Torres is not tried by his current trial date of May 25, 2021, the district court and the prosecution must consider whether further prolonging Torres's pretrial detention crosses the line from regulatory to punitive detention.