Tuesday, October 30, 2018

Hunch after disproved hunch is not reasonable suspicion

Based on a tip from a "disappearing informant," officers hunched that a man they were surveilling was carrying paper bags of drugs into his garage. They stopped the man and frisked him. Nothing. They searched his van. Nothing. They searched his garage (including the paper bags). Nothing.

Despite their first hunch having been disproved, on a second hunch, the officers continued to question the man, eventually securing his "consent" to search his house, where they found drugs and a gun.

This evidence should have been suppressed, said the Seventh Circuit in United States v. Lopez, a well-analyzed opinion. A few highlights:

---"Requiring police to corroborate tips from identified but unproven informants is an important protection of individual liberty." The opinion includes a terrific, extended discussion of this requirement. While reasonable suspicion is a low bar, that bar has not slipped so low as to allow unreliable tips like this one to trigger the humiliating, involuntary seizures and sometimes violent encounters that we justify under the bland and familiar phrase 'Terry stops.'"

---"Instead of doing the police work required to substantiate the tip, the officers pounced as soon as they saw Lopez leave his garage." This stop violated the Fourth Amendment.

---"The authority to frisk is not automatic in a drug investigation." This frisk was illegal.

---"[N]o reasonable person in Lopez's shoes would conclude that one officer's words [you're free to go] meant more than eight officers' actions [functionally blocking his exit by their physical presence and by retaining his van, car keys, and cell phone]."

All in all, the Fourth Amendment violations here---a bad initial stop that was unreasonably continued---undermined the validity of Mr. Lopez's consent to search his house.

Sunday, October 28, 2018

Second Chair applications due December 1

We are currently accepting applications for our fifth term of the Second Chair Program, which will be a year-long program taking place in Kansas City, commencing in January 2019.

The Second Chair Program is a FPD training and mentoring program for attorneys who want to practice in federal court or apply for the CJA panel, but may lack the requisite experience. The program includes intensive monthly orientations and workshops that, over the course of the year, will cover all phases of a federal criminal case, including in-depth coverage of the sentencing guidelines. Having been a Second-Chair participant myself, I can attest that the program provides invaluable experience for anyone interested in practicing federal criminal defense and inimitable insight into practicing in the District of Kansas.  

Attendance at the monthly sessions is mandatory for continued participation in the program and for consideration for panel appointment. Additionally, each participant will be assigned to a more experienced mentor attorney to shadow on selected cases. Participants should plan to commit about 8-10 hours per month. Materials and compensation ($70 per hour) are provided courtesy of the Bench-Bar Committee. Participants may also be requested to assist current FPD clients, pro bono, with representation on basic legal matters related to their criminal case. 
Only a limited number of full participants are accepted. Other attorneys can audit the training sessions, lectures, and workshops, with prior approval from the FPD.If you would like to apply, please send a letter of interest, resume, and three references to Laura Shaneyfelt, CJA Resource Counsel, at laura_shaneyfelt@fd.org by December 1, 2018

And if you know an attorney who may be interested in or could benefit from the program, please pass along the information.