Being a migrant is not a crime

“The Constitution protects citizens and non-citizens.” That means, as the Second Circuit was required to remind us in Zuniga-Perez v. Sessions, that the contours of the Fourth and Fifth Amendments do not bend on the basis of one’s race or citizenship. 

Zuniga-Perez took place in upstate New York. Law enforcement went to a home late at night in search of a fugitive, as well as “known Hispanic migrants.” Law enforcement surrounded the home, shone flashlights through windows, and demanded the residents open the door and windows. A resident finally lets the authorities in because “they gave him no choice.” And once inside, law enforcement questioned the residents for the whereabouts of this alleged fugitive. Come to find, he’s not there. But also come to find, two residents are citizens of Mexico residing in the United States. Those two are arrested, and removal proceedings commence.  

But, as the Supreme Court has held, “it is not a crime for a removable alien to remain present in the United States.” And, as the Zuniga-Perez court notes, being a “Hispanic migrant is not a crime.” Where law enforcement exceed the scope of a warrant (or alleged warrant in this case), or where that warrant fails to state with particularity the place to be searched and items to seized, it violates the Fourth Amendment. A protective sweep that last longer than necessary also violates the Fourth Amendment. When a person is subjected to random or gratuitous questioning related to his immigration status, it violates the Fourth Amendment. And, Miranda applies to citizens and non-citizens alike.

To permit such unconstitutional conduct by law enforcement against non-citizens would be, as the Second Circuit reiterated, to “condone ethnic harassment” and to rubber-stamp an immigration policy that “teeters on the verge of ‘the ugly abyss of racism.’” Hence the reversal in Zuniga-Perez where a reasonable fact-finder could conclude that an “egregious constitutional violation” had occurred—that is, that authorities had targeted petitioners "merely because they appeared to be Hispanic migrants." 

How to preserve a confrontation objection

In a cautionary tale from the Tenth Circuit this week, the Court held that a defendant forfeited any confrontation-clause challenge to limits on his cross-examination of a government witness because he failed to preserve the issue properly for appeal.

How should such a challenge be preserved? The Tenth Circuit offers clear advice:

First, make a proper proffer by describing the evidence with specificity and what it tends to show.

Second, make a proper objection by identifying the grounds for admitting the evidence. If there are multiple grounds (statutory and constitutional, say), identify them all. Invoking an evidentiary rule won't work to preserve a constitutional claim (or vice versa).

Third, explicitly link the two (the evidence with the grounds for admission).

Sounds simple, right?

Trial penalties and the Sixth Amendment

To penalize an individual because he chooses to exercise his fundamental right to trial by his peers violates the Sixth Amendment.

Hence the remand for resentencing by the Ninth Circuit in United States v. Hernandez, this month where the record reflected that the district court penalized the defendant “by increasing his sentence based on his decision to go to trial.” Writing for the majority, Judge McKeown quipped that a district court merely reciting a boilerplate statement regarding its consideration of Section 3553(a) factors, while “chastising” the defendant for going to trial, cannot “cure the infirmities” in the sentence imposed.   

Importantly, the Hernandez court recognized, too, that “a judge cannot rely upon the fact that a defendant refuses to plead guilty and insists on his right to trial as the basis for denying an acceptance of responsibility adjustment.” It’s a good reminder that a defendant may neither be penalized for exercising his fundamental right to a jury trial nor automatically precluded from receiving an acceptance-of-responsibility reduction after going to trial.

In remanding for resentencing in Hernandez, Judge McKeown aptly noted that “[e]nhancing a sentence solely because a defendant chooses to go to trial risks chilling future criminal defendants from exercising their constitutional rights. And imposing a penalty for asserting a constitutional right heightens the risk that future defendants will plead guilty not to accept responsibility but to escape the sentencing court’s wrath.”

We must continue to jealously safeguard these axiomatic principles upon which our liberty is founded. NACDL’s recent report, The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It (worthy of a full read) reiterates what we well know: we are functioning within a system in which over 97% of defendants—including those innocent of the crimes charged—choose to plead guilty to avoid the risk of an astronomically increased sentence if convicted after trial. As a result, society is being deprived (at an ever-increasing and alarming pace) of necessary and vital checks on the excesses of prosecutorial power and the criminal justice system as a whole. “When the risk of exercising this crucial human right are too great for all but 3% of federal criminal defendants, the system is in need of repair.”

Hernandez and NACDL’s Report may be used to combat post-trial sentencing practices that undermine the Sixth Amendment's right-to-trial guarantee--that is, challenge on Sixth Amendment grounds unwarranted sentences, sentencing disparities, and denial of acceptance-of-responsibility reductions for those increasingly rare clients who do choose to exercise the fundamental right to a trial by their peers. 

The Fourth Amendment: Have we mentioned it's not dead yet?

"Border search" six years after border crossing? Um, no.  

The year is 2012. Border agents seize a traveler's cellphone and analyze it without a warrant---which is okay under the border-search exception. They don't search the cellphone's contents. They do, however, hang on to the phone (and to the traveler, for that matter).

Fast forward to 2018. The traveler is about to stand trial for sex trafficking and other crimes. A week before jury selection, the government reveals that it has, just this month, searched the cellphone's contents. Without a warrant. And, according to Southern District of Texas Chief Judge Lee Rosenthal, without any applicable warrant exceptions:

The government’s second, warrantless search of Gandy’s phone did not occur at a border or at the time of the crossing. It happened six years after Gandy returned to the United States . . . . Gandy and his phone have both been in custody since 2012, within the United States. Searching Gandy’s phone had no connection to the government’s interest in preventing illegal entry or contraband smuggling at an international border. Extending the border-search exception to the government’s warrantless search would both undervalue the core Fourth Amendment protection afforded cell phones under Riley and untether the border-search exception from the justifications underlying it.

United States v. Gandy, No 12-cr-00503, 2018 WL 3455534 (S.D. Tex. July 17, 2018) (rejecting as well government's independent-source, inevitable-discovery, attenuation, and good-faith arguments).

Motion to suppress granted.  

No current or corroborated nexus? No probable cause.

An affidavit that relies on speculation, stale information, old criminal history, and uncorroborated informant tips does not supply probable cause for a search warrant. So said the Sixth Circuit last month in United States v. Christian, 893 F.3d 846 (6th Cir. 2018). And the Court declined to apply Leon's good-faith exception: "By suppressing the evidence in this case, we will incentivize the police to take such corroborative action in the future."

Motion to suppress should have been granted.

"It doesn't hurt to ask" is not reasonable suspicion.

Officer stops car for illegal left turn; completes traffic stop; continues to question driver even when driver indicates he wishes to leave; ultimately gets driver's exasperated "consent" to search ("I mean, shit, I don't care"). But officer can't seem to articulate why he wanted to search. He had a "suspicion," a "feeling," "I guess you would call it something"---what the heck, "it doesn't hurt to ask." This was (duh) not reasonable suspicion. In the words of Northern District of Alabama Judge Madeline Hughes Haikala, "[t]he ‘it doesn't hurt to ask’ standard is not even ‘unparticularized suspicion.’ At best, Officer Long had a hunch." United States v. Wilson, No. 17-cr-00428, 2018 WL 3428635 (N.D. Ala. July 16, 2018) (also explaining why driver's consent not consensual, why passenger was also illegally detained, and why evidence found during passenger pat-down was fruit of illegal detention).

Motion to suppress granted.

Supervised release: rehabilitation, or trap?

A must read from E.D.N.Y. District Court Judge Weinstein last week, in United States v. Trotter. Here is the introduction to Judge Weinstein's 42-page decision terminating Mr. Trotter's supervision not despite, but because of his marijuana addiction:

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This case raises serious issues about sentencing generally, and supervised release for marijuana users specifically: Are we imposing longer terms than are needed for effective supervised release? Should we stop punishing supervisees for a marijuana addiction or habit?

After revisiting and reconsidering these issues, I conclude: (1) I, like other trial judges, have in many cases imposed longer periods of supervised release than needed, and I, like other trial judges, have failed to terminate supervised release early in many cases where continuing supervision presents such a burden as to reduce the probability of rehabilitation; and (2) I, like other trial judges, have provided unnecessary conditions of supervised release and unjustifiably punished supervisees for their marijuana addiction, even though marijuana is widely used in the community and is an almost unbreakable addiction or habit for some. As a result of these errors in our sentencing practice, money and the time of our probation officers are wasted, and supervisees are unnecessarily burdened.

In summary, in this and my future cases I will: (1) impose shorter terms of supervised release as needed; (2) give greater consideration to the appropriateness of conditions; (3) provide for earlier termination where indicated; and (4) avoid violations of supervised release and punishment by incarceration merely for habitual marijuana use.

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Lots of important stuff in this opinion. I'll just note three basic points here that are good starting places:

 

1. "Supervised release is required by statute in less than half of all federal cases, but imposed as a part of nearly every sentence." We need to reverse this trend.

 

2. "A district court may terminate supervised release before the expiration of a mandatory minimum period." Don't be shy about asking for early termination.

 

3. Conditions of supervised release may be modified at any time. 18 U.S.C. 3583(e)(2). Your client may have completely different needs upon release than at sentencing. Don't be shy about moving to modify conditions that were imposed months or years ago.



No probable cause from an officer-induced traffic violation

The District Court of the Eastern District of Michigan reminds us this last week that an officer cannot himself create the alleged traffic violation to justify a traffic stop.  

In United States v. Belakhdhar, 2018 WL 3239625, 2018 U.S. Dist. LEXIS 110514 (E.D. Mich. July 3, 2018), the defendant challenged a traffic stop as pretextual for a criminal investigation where law enforcement allegedly stopped him for driving 2 mph below the speed limit. 

The court agreed with Mr. Belakhdhar that the officer lacked probable cause to conduct the traffic stop because, for one, the officer himself caused Mr. Belakhdhar to slow down when he pulled out behind and then drove next to Mr. Belakhdhar, eerily "peering into his vehicle." (Not to mention driving 2 mph below the speed limit did not actually violate any law.)

The government's argument in the alternative--that law enforcement had reasonable suspicion of criminal activity justifying the stop--fell just as flat. Mere propinquinity (or in this case, "tandem driving"), "with a vehicle suspected of drug activity, alone, is an insufficient basis for reasonable suspicion." The fact that Mr. Belakhdhar's car had a temporary Illinois plate didn't change the equation since, as the court noted, "vehicles with temporary Illinois plates travel on I-94 every day." 

Accordingly, motion to suppress granted.

Happy Fourth of July

 

"True patriotism hates injustice in its own land more than anywhere else."

 

---Clarence Darrow

 



Cert grant: dual sovereignty

Under the doctrine of “dual sovereignty,” the Supreme Court has long held that a successive prosecution of an individual for the same act will not trigger the Fifth Amendment’s protections against double jeopardy if it is brought by a “separate sovereign”—that is, an entity that derives its power to prosecute from a wholly independent source.

 

Because the states’ authority to prosecute originally derived not from the federal government but rather from the “inherent sovereignty” belonging to them before their admission to the Union, the High Court has deemed states separate sovereigns from the federal government (and from one another) under this doctrine, which is seemingly alive and well. See, e.g., United States v. Morales.

But is it?  

Last Thursday the Supreme Court granted certiorari in Gamble v. United States to squarely address whether the Court should overrule the “separate sovereigns” exception to the Fifth Amendment’s safeguard against double jeopardy. The murmurs have already begun to reverberate that the Court is poised to overrule the exception. Indeed, the groundwork has been laid for the Court to do just that. Most recently, in Puerto Rico v. Sanchez Valle, Justice Ginsburg wrote a concurrence, in which Justice Thomas joined, to express concern that the separate-sovereigns exception “hardly serves” the double jeopardy’s proscription “to shield individuals from the harassment of multiple prosecutions for the same misconduct.”

Perhaps soon, at least when it comes to state and federal courts, the Fifth Amendment will again mean what the Framers intended--that no person shall be “twice put in jeopardy of life or limb” for “the same offence.”