Fourth Amendment Frolic

For your Friday reading pleasure, a few recent Fourth Amendment wins:

Before officers knew they were patting down a felon, they had no reason to reach into his pocket to retrieve what they thought was ammunition. Items that are neither weapons nor contraband---and ammunition is not contraband unless possessed by a felon---cannot be retrieved during a Terry search. This according to the Eleventh Circuit in United States v. Johnson.

Eleven minutes into a traffic stop, an officer had all the information he needed to issue citations and send the driver and passenger on their way. Instead he dragged his feet, waiting for a drug dog to arrive and only then handing out the citations. After the dog failed to alert, the officer extracted consent to search from the driver. Did the officer unreasonably extend the stop? He did, said the Seventh Circuit in United States v. Rodriguez-Escalera, affirming the district court's suppression order.

Probable cause that a person is a drug trafficker is not enough for a search warrant to search that person's home. So said the District Court for the Southern District of Indiana in United States v. Zamudio, rejecting the government's argument that "drugs are likely to be found where drug dealers live," and refusing to excuse the search on good-faith grounds.

Federal conspiracy to commit murder in aid of racketeering held not categorically a crime of violence

Under the Guidelines, we know that the base offense level for a felon-in-possession conviction increases where the defendant has at least one prior felony conviction of a crime of violence. And we also know from the Guideline’s commentary that a crime of violence (as set forth in §4B1.2(a)) includes the offenses of aiding and abetting, conspiring, and attempting to commit such offenses. 

The Fourth Circuit reminded us this past week in United States v. McCollum, that when evaluating a client’s prior conviction for an undefined, enumerated inchoate offense, two sets of elements are at issue for determining whether the conviction falls under §4B1.2(a)’s umbrella: the elements of the inchoate crime, as well as the elements of the underlying offense. 

In McCollum, the defendant argued that the court erred by enhancing his base offense level for a § 922(g) conviction upon a finding that his prior conviction for federal conspiracy to commit murder in aid of racketeering constituted a crime of violence. Specifically, the defendant argued that by applying the categorical approach to his prior federal conviction as the Supreme Court has instructed courts to do, the sentencing court was required to look at the “generic, contemporary meaning” of the inchoate offense, as well as the underlying offense, to ensure that the elements of his crime of conviction are no broader than those of the generic federal statute. And while conceding that the underlying offense would qualify as a crime of violence, he argued that the inchoate crime did not.

The Fourth Circuit agreed. Citing authority from the Ninth and Tenth Circuits, the McCollum court recognized that the generic federal conspiracy statute required an overt act as an element of the offense. But because conspiracy to commit murder in aid of racketeering (§ 1959(a)(5)) does not require an overt act, it criminalizes a broader range of conduct than that covered by generic conspiracy. The Fourth Circuit thus vacated the defendant’s sentence and remanded for resentencing, concluding that a prior federal conviction for conspiracy to commit murder in aid of racketeering does not qualify categorically as a crime of violence to support an enhanced sentence.  

Brady's mandate still needs enforcing half a century later

It is well-settled under Brady v. Maryland that a defendant may obtain a new trial where he establishes that evidence suppressed by the government (including all those acting on the government’s behalf) was favorable and material to either his guilt or punishment.

The Seventh Circuit’s decision this week in United States v. Ballard, succinctly enforced Brady’s mandate.

In Ballard, the defendant had been convicted of bank fraud after a jury credited a bank loan officer’s testimony and rejected the defendant’s “good faith” defense that the loan officer and his superiors not only knew, but also authorized and pressured him to carry out the unlawful acts. Later, the defense moved for a new trial when it learned of a recording from a prior, distinct government investigation (involving the same prosecutor and investigator) in which the loan officer admits to wrongdoing.

The Seventh Circuit affirmed the district court’s grant of a new trial based on findings that the suppressed recording was both favorable and material to the defendant’s case. The Ballard court agreed that the recording provided “ample fodder for impeaching [the loan officer’s] credibility” as it was probative of his character for truthfulness. And, because he was never prosecuted, the jury could have inferred that the loan officer was biased in favor of the prosecution. Had the government "played by the rules" and allowed the defense to cross-examine the loan officer about his credibility, and had the jury found him incredible, the Seventh Circuit concluded “it is not a stretch to see the verdict could have been different.”

Make no mistake, Brady still (over a half century later) does not tolerate a conviction where withheld evidence that was favorable to the defendant undermines confidence in the jury’s verdict. And as Ballard demonstrates, confidence in a verdict may be undermined by the suppression of one recording relevant to the credibility of just one of 13 witnesses who testifies at trial. 

Supreme Court to examine SORNA's application to pre-SORNA offenders---under the nondelegation doctrine

Do you have a client charged with a SORNA offense? Did that client's registration-triggering conviction predate SORNA? If so, you might be tempted to argue that ex post facto principles prohibit any conviction under SORNA. And we hope that you win that argument. But there may be a better argument---one that the Supreme Court will be considering next term: Whether Congress violated the nondelegation doctrine when it left it to the attorney general to decide whether to apply SORNA retroactively.

This is the question that the Supreme Court has decided to answer in Gundy v. United States:

Whether the federal Sex Offender Registration and Notification Act’s delegation of authority to the attorney general to issue regulations under 42 U.S.C. § 16913 violates the nondelegation doctrine.

With the cert grant in Gundy, it's important to preserve this issue. But don't assume it's a dead-bang winner. The last time the High Court relied on the nondelegation doctrine to strike a federal law was in 1935.

Carrying a gun near (somebody's) drugs not enough for sentencing enhancement

If we know anything by now, it's that guns + drugs = a higher sentence, right?

Not always. Case in point: United States v. Ferrell.

Defendant Ferrell pleaded guilty to being a felon in possession of a firearm. State parole officers had been looking to serve a warrant on Mr. Ferrell when they saw him go into a garage while carrying a gun, near an area of the garage where drugs were later found. On not much more than this evidence, the district court gave Mr. Ferrell a four-level sentencing enhancement under USSG § 2K2.1(b)(6)(B) (possessing a firearm in connection with another felony offense, in this case drug possession).

In a very fact-intensive opinion, the Tenth Circuit reversed. The Court held that carrying a gun in proximity to drugs absent sufficient evidence that the defendant possessed the drugs was not enough to support the enhancement.

Know what elements are necessary for every enhancement. Challenge those elements. You just might win.

Your mission: challenge the ping!

The Tenth Circuit would like to decide whether a "ping"---a service provider's court-ordered identification of a cellphone's real-time location---is a "search" for Fourth Amendment purposes. 

But first, the issue must be properly raised and briefed. Do you have the right case, and are you up for the task? If so, take a look at the Tenth Circuit's decision this week in United States v. Banks, rejecting a pinging challenge on other grounds, but noting that "whether pinging a phone to determine its current location is a search under the Fourth Amendment—remains an open question in this circuit," and discussing the considerations and cases that might come into play in answering that question.

Entire First Circuit calls on High Court to re-examine the sentence 'proportionality principle'

The Eighth Amendment applies to noncapital sentences, too. And yet, if a sentencing court is stripped of making any individualized findings and is left only with an arithmetical assessment that “seemingly could have been more severe only if it had required death,” where then is the Eighth Amendment’s proportionality safeguard?

The First Circuit posed this heady question just last week, explicitly urging the U.S. Supreme Court to revisit its outdated precedent on the Eight Amendment’s applicability to lengthy, adult prison sentences.

In United States v. Rivera-Ruperto, 130 years of the defendant’s sentence was imposed for six stacked § 924(c) convictions stemming from an FBI sting operation targeting Puerto Rican police officers. Rivera-Ruperto participated as an armed security guard in a number of “deals” involving fake cocaine. FBI agents posed as the buyers and the sellers. As a consequence of his involvement in this one sting operation, Rivera-Ruperto received a mandatory sentence of five years for his first § 924(c) conviction followed by consecutive twenty-five-year prison sentences on the subsequent five § 924(c) convictions.

The First Circuit denied Rivera-Ruperto’s request for rehearing en banc to challenge the constitutionality of his sentence, but in doing so, the entire Circuit joined in Judge Barron’s momentous concurrence calling on the U.S. Supreme Court to reassess its three-decade old, three-judge concurrence in Harmelin v. Michigan, 501 U.S. 957 (1991), which controls the outcome of this case. Under Justice Kennedy’s concurring opinion in Harmelin, the Eighth Amendment “forbids only extreme sentences that are ‘grossly disproportionate’ to the crime.” But as Judge Barron cogently opined, sentencing courts “have no choice but to approve mandatory ‘forever’ sentences under § 924(c) so long as they can hypothesize a rational reason for the legislature to have thought that the underlying criminal conduct was as serious as the large quantity drug possession at issue in Harmelin.” (Note: see United States v. Angelos, 433 F.3d 738, 750-51 (2006), for Tenth Circuit precedent applying Harmelin in this fashion.)

Judge Barron’s concurrence provides thorough insight on why Congress did not carefully consider the resulting impact of 924(c) convictions and stacking in general. The concurrence also provides two lines of more recent Supreme Court precedent (under Alleyne and Miller/Graham) as reinforcement for why the Court must reassess Harmelin in the modern era. As Judge Barron concluded, “a consequence as grave as the one that Harmelin requires in a case like this should have the imprimatur of more than only a nearly three-decade old, three-Justice concurrence.” 

This isn’t the only kind of fact pattern and noncapital sentence that the Eighth Amendment’s proportionality principle should reach, but it’s certainly one of them according to the entire First Circuit.