Wednesday, November 28, 2018

"Law enforcement officers are not average citizens"

In Hein v. North Carolina, 135 S.Ct. 530 (2014), the Supreme Court held that a police seizure based on an objectively reasonable mistake of law does not violate the Fourth Amendment.

This month, the Kansas Court of Appeals reminded us that not every mistake of law is objectively reasonable. An officer may not, for instance, reasonably claim confusion about the plain, unambiguous language of a statute or ordinance---even if that same law might confuse an average citizen. 

In State v. Lees, ___ P.3d ___, 2018 WL6005199 (Kan. App. Nov. 16, 2018), a police officer stopped Mr. Lees for a brake-light violation. But Mr. Lees did not commit a brake-light violation. While his left brake light was out, he had working middle and right brake lights. And that is all that Kansas law unambiguously requires. The Court had little sympathy for the officer's claim of confusion:

"[T]he Kansas statutes are clear that only two functioning brake lights are required. Reading K.S.A. 8-1708(a) and K.S.A. 8-1721(a) together, no reasonable officer would think that the law required brake lights to be spaced laterally as far as practicable and mounted at the same height, as Sperry wrongly believed; neither statute suggests such a requirement in any way. Granted it may be reasonable for the average citizen to believe the law likely requires left and right brake lights, but law enforcement officers are not average citizens. They must reasonably study the laws they are duty bound to enforce. See Heien, 135 S.Ct. at 539-40."

Monday, November 26, 2018


Yesterday, the federal courts awarded the 2018 Director’s Awards. The awards “recognize outstanding leadership, innovation, and efficiency.” The Outstanding Leadership award went to Betsy Shumaker, the Clerk of Court for the Tenth Circuit. As practitioners in the Tenth Circuit, we can confirm that the award was well deserved. Betsy and her staff do a top-notch job managing the Circuit, and we very much appreciate it. Here’s the full blurb from the Administrative Office:

Elisabeth A. “Betsy” Shumaker, Clerk of Court for the Tenth Circuit, has led national initiatives in such diverse areas as finances and budgets, information technology, staffing formulas, and data governance.
Shumaker chairs the Appellate Clerks Advisory Group, and has served on the Budget and Finance Advisory Council, the Space and Facilities Advisory Council, the Appellate Court and Circuit Offices Work Measurement Steering Group, and the NextGen Project Steering Group and Advisory Board, which provides guidance on an update of the Judiciary’s Case Management/Electronic Case Files system.
“Betsy’s involvement in such a wide variety of important councils, committees and initiatives . . . speaks volumes of her stature as a national leader,” wrote Tenth Circuit Chief Judge Timothy M. Tymkovich in Shumaker’s nominating letter. “Betsy exemplifies the very best qualities of leadership in the federal Judiciary.”
Tymkovich credited Shumaker with leading an almost total conversion from paper to electronic dockets, resulting in greater access to litigants, lawyers and the public.

Congratulations, Betsy!

Posted by Dan Hansmeier on behalf of the Kansas FPD.

Sunday, November 18, 2018

The Fourth Amendment still applies to those on community supervision

Somewhere north of 4,500,000 adults are on some form of community supervision throughout the United States. The Supreme Court has held that such individuals have a diminished expectation of privacy under the Fourth Amendment by virtue of their status. 

A diminished expectation of privacy does not, however, provide POs or LEOs with free rein to do whatever they please. Rather, their conduct is still constrained by reasonableness under the Fourth Amendment, as the Sixth Circuit reminded us this past week.

In Brennan v. Dawson, the probationer's expectation of privacy under the Fourth Amendment was diminished in that he was subject to random breath tests as a condition of his probation. But no condition of his supervision diminished his reasonable expectation of privacy in his home. As such, the probationer “was as secure in his home as a non-probationer.”

Hence, the Sixth Circuit's finding that probationer’s Fourth Amendment rights were violated when the sheriff deputy arrived unannounced at probationer’s home (or his castle, as the Tenth Circuit reminded us just last week) to conduct a breath test, and, assured someone was inside, roamed the curtilage of the probationer’s home for over 90 minutes until the probationer finally emerged.

Despite repeated misconduct that may leave you thinking otherwise, the Fourth Amendment still applies to the millions of those in our communities who are on supervision. 

Thursday, November 15, 2018

"A man’s house is his castle, whether it is under siege by police officers prying into his possessions stored within or whether they exclude him from its sanctuary."

Police officers seized Mr. Shrum's home after his wife died from an overdose. They didn't let Mr. Shrum back into his home to check on his dogs, get medication that his wife may have overdosed on, or even to urinate for eleven hours before even applying for a warrant. And the seizure was done without a reasonable basis (no evidence of foul play).

But officers gained "consent" from Mr. Shrum who wanted to make sure his dogs were cared for and that the investigators had what they needed to determine the cause of death. And while purportedly only doing those two things, an investigator took dozens of photos of the house and saw ammunition in the home in plain view.

Was this consent proper? No, says the Tenth Circuit. The consent was obtained only as a result of the illegality of the initial improper seizure. 

This case is full of good language, including a lot of strong language about the overriding privacy interests in a person's home. And the court, in a footnote, also took a shot at the government's strategy in the case:

Sunday, November 11, 2018

From farms to cities to The cloud--"the internet of things"

We take time to pay tribute to our active and former service members this Veterans Day for their honor, courage, commitment, and sacrifice over the past century to defend the ideals of democracy and freedom on which America was founded more than 240 years ago.

It’s veracious to say that during those 240 years we, as a nation, have evolved dramatically in how we live—from farms, to cities, and now on the internet. But the speed at which we have evolved in the age of the internet cannot be understated, as FarhadManjoos’s piece, A Future Where Everything Becomes a Computer is as Creepy as You Feared, makes readily clear. It was only 40 years ago that Gates and Allen “founded Microsoft with a vision for putting a personal computer on every desk.” And the industry’s goal today, Manjoos recognizes, is not “a computer on every desk nor a connection between every person, but something grander: a computer inside everything, connecting everyone. Cars, door locks, contact lenses, clothes, toasters, refrigerators, industrial robots, fish tanks, sex toys, light bulbs, toothbrushes, motorcycle helmets.” 

Importantly, the ideals of democracy and freedom for which our service members have valiantly and selflessly defended, do not end in this digital age, which the Supreme Court has repeatedly reminded us. (See e.g., Riley v. California (2014), and United States v. Carpenter (2018) for a couple recent examples.)

photography of clouds and forest treesBut “the internet of things”—or technological advancements leading to more and more “smart” toys—necessarily means that more information that exposes extraordinarily sensitive details about us (far more so than a search of our home even could) will end up in that proverbial “cloud.” And while “cloud storage” sounds metaphysical, we know that such storage is quite physical: it resides on identifiable, physical computers in brick-and-mortar datacenters, which users’ own electronic devices access remotely when used by their respective devices and accounts. 

To be certain, though, the speed at which the tech giants can hurl these smart toys into our atmosphere cannot countermand our civil rights and liberties. It is our duty to be vigilant, to spot these issues of potential infringement on our constitutional rights and civil liberties early, and to raise them.

In that vein, for those not yet familiar with Electronic Frontier Foundation (EFF), you should be. It is one of the leading nonprofit organizations defending civil liberties in the digital world, providing indispensable leadership on cutting-edge issues of free expression, privacy, and human rights. In 2017 the organization filed 59 amicus briefs on issues surrounding civil liberties and technology (among many other things, including bringing a groundbreaking lawsuit challenging invasive border searches of electronic devices), as discussed in EFF’s recently released annual report, found here.

Wednesday, November 7, 2018

Restoration of Voting Rights

On election night, we learned that voters in Florida agreed to reinstate the voting rights of 1.5 million persons with prior felony convictions. With Florida’s passage of Proposition 4, most Floridians with prior felony convictions will have their voting rights restored after they have finished the terms of their sentence (including any probation or parole). This could affect 10 % of Florida’s adult population (and 23 % of adult African Americans in Florida).

Here in Kansas, a felony conviction will lead to a temporary loss of the right to vote. But Kansas law automatically restores voting rights to persons with felony convictions once they have completed the terms of the sentence (including any supervision). Under K.S.A. 21-6613, a person with a felony conviction gets the restoration of their right to vote, to hold public office, and to serve on a jury once they complete the terms of their sentence.

So it is across the state line in Missouri. Under Mo. Ann. Stat. §§ 115.133(2) & 561.026(1), a person convicted of a felony is generally unable to vote until they are finished with any term of incarceration or probation or parole. But after the terms of the sentence are completed, the right to vote is restored.
This is something to keep in mind when advising clients about the collateral consequences of any felony conviction in federal court. You should advise clients that they will lose their right to vote (and to hold public office and to serve on a jury) with their conviction. But this loss of civil liberties is usually temporary. Once the client finishes the terms of their sentence they will again be eligible to vote if they live in Kansas or Missouri (or in many other states).

Tuesday, November 6, 2018

"Clearly, a person could not have been hiding in the toilet tank."

The Supreme Court has cautioned that protective sweeps must be "narrowly confined to a cursory visual inspection of those places in which a person might be hiding." Maryland v. Buie, 494 U.S. 325, 327 (1990).

Consequently---unless the police are looking for a very tiny person or at a very large toilet tank---leaning over and looking into an open toilet tank exceeds the scope of a protective sweep. So said the district court in United States v. Brown2018 WL 5603541 (S.D. Fla. Oct. 30, 2018):

"The evidence indicates that when Detective Perdomo entered the bathroom he went to the bathtub and pulled back the curtain. Upon seeing the lid to the toilet tank in the bathtub, Detective Perdomo looked into the open toilet tank and saw a gun at the bottom of the toilet tank. Detective Perdomo could not have seen the gun at the bottom of the toilet tank without leaning over and looking into the tank. This action, however, exceeded the scope of a protective sweep. Clearly, a person could not have been hiding in the toilet tank. Thus, after checking behind the shower curtain to ensure that no one was hiding in the bathroom, the protective sweep in the bathroom should have been done. Consequently, Detective Perdomo’s look into the toilet tank was an improper search."

(Unfortunately for the defendant in this case, a subsequent search warrant for the house constituted an independent source for discovery of the gun. Motion to suppress denied.)

Sunday, November 4, 2018

Good read--America's Other Family-Separation Crisis

Sarah Stillman’s article in the November 5, 2018 issue of the New Yorker is a must read for anyone representing a parent—especially a mother living in poverty. Stillman’s expose focuses on Tulsa, Oklahoma (and the commendable efforts of She Still Rises—a holistic defense effort led by the founders of the Bronx Defenders), but its painful revelations on the interlacing in the criminal justice system of poverty, parenthood, and generations of racial discrimination reverberate to every corner of our nation.

The permanent and devastating collateral ramifications that a criminal conviction and corresponding sentence will have on our clients' children are well documented. So, too, are the reasons why a low-income parent may have a slew of prior convictions, as Stillman's article highlights.

Importantly, the Tenth Circuit has repeatedly acknowledged that sentencing courts are mandated under § 3553(a) to consider family circumstances as part of a defendant's "history and characteristics" when fashioning the appropriate sentence. See, e.g., United States v. Vargas-Ortega, 736 Fed. Appx. 761 (10th Cir. 2018) (unpublished) (reversing and remanding for resentencing where the district court erred in stating it could not vary downward based on family circumstances). It is therefore our duty when it comes to sentencing to fully investigate and to persuasively present our clients' stories to the court. And for our clients who are parents, part of that presentation must necessarily include discussion on the unquantifiable, lasting effects that a criminal sentence will have on our clients' children and the family structure.
For another good discussion on the "invisible victims of mass incarceration," as well as the use of family impact statements at sentencing, see Amy B. Cyphert Prisoners of Fate: The Challenges of Creating Change for Children of Incarcerated Parents, 77 Md. L. Rev. 385, 426 (2018). 

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