Friday, September 10, 2021

We're moving!

The Kansas Federal Public Defender Blog is moving! From now on you can find us (and all of our previous blog posts) here at our new site, ks-blog.fd.org

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Sunday, August 29, 2021

Tire chalking: not a valid administrative search

In Taylor v. City of Saginaw 922 F.3d 328 (6th Cir. 2019) (Taylor I), the Sixth Circuit held that chalking tires to enforce parking laws is a search for Fourth Amendment purposes. This holding was a "logical extension of the [Supreme] Court's holding in Jones that a physical trespass to a constitutionally protected area with the intent to obtain information is a search under the Fourth Amendment." Taylor v. City of Saginaw, ___ F.4th ___, 2021 WL 3745345 (6th Cir. 2021) (Taylor II).

Taylor I also held that chalking without a warrant could not be justified by either the automobile exception or the community-caretaking exception.

Last week, in Taylor II, the Sixth Circuit found no reason to depart from Taylor I, and held further that suspicionless chalking cannot be justified as an administrative search.

But alas, in the end, the plaintiff in this 1983 lawsuit loses her case on qualified immunity grounds because, at the time of the chalking she challenged, "every reasonable parking officer would not understand from Jones that suspicionless chalking of car tires violates the Fourth Amendment."

Monday, August 23, 2021

The discriminatory roots of the illegal-reentry statute

Gustavo Carrillo-Lopez was charged with illegally reentering the United States after being deported, in violation of 8 U.S.C. § 1326. Last week, a Nevada district court dismissed his case, ruling that § 1326 is unconstitutional because its passage was motivated, in part, by racial prejudice and it therefore violates the Fifth's Amendment guarantee of equal protection of the law.

The court applied the equal protection standard set forth in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977). That prong of equal protection law is meant to ferret out facially neutral laws that are nonetheless enacted with a discriminatory purpose and which disparately impact a specific minority group. Notably, the court rejected the argument that either the criminal context or the federal government’s immigration authority justified a more deferential standard.

The defense called on academic experts to present a detailed and troubling history of the illegal-reentry law. One history professor testified about the 1929 Congress's reliance on eugenics and detailed openly racist remarks directed at Mexican immigrants during the debates on the law. The history of the 1929 law was so racist that the government conceded its racial intent. 

Even though § 1326 was revised and reenacted in 1952, the district court found that the original racist intent, paired with circumstantial evidence surrounding the reenactment, showed that  discriminatory intent was also a motivating factor in the reenactment. The court discussed a number of factors surrounding the 1952 revision, including the lack of discussion about making the provision more punitive, explicit use of slurs by supporters of the legislation, Congress failing to revise the law despite a veto statement describing its racist elements, congressional knowledge of the law’s disparate impact, and passage of another racist law criminalizing Mexican immigrant laborers by the same congress.

The Nevada court recognized that other district courts have considered and rejected similar challenges to § 1326. An appeal seems likely, and either way more litigation in other courts is certain to follow. 

Monday, August 16, 2021

"The police don't look for people like us!"

The quote in the heading of this post is from Judge Calabresi's "sad but respectful" dissent this week in the Second Circuit case United States v. Weaver. His point? That a lack of empathy by those on the bench with people who bear the burden of searches & seizures has led to a "disastrous" Fourth Amendment jurisprudence: 

We are not the ones who are stopped and made to spread eagle. The price for what we believe to be greater public safety will be borne disproportionately by “them,” whoever “they” may be. As a result, we are only willing to say, “stop,” in those situations in which the challenged police practices are ones that might make us the subjects of police actions.

   * * * 

The failure to appreciate a burden because it falls only on others is so universally human that it can only be controlled structurally. . . . Unlike the framers, we have established structural norms that, as to the issues in the case before us and in many other similar areas, make it infinitely easier to let the burdens that accompany possibly desirable actions fall only on “them.” The result is injustice.

In Weaver, the Second Circuit, sitting en banc, reversed a panel decision that an officer's pat-down of Mr. Weaver was unreasonable. Two judges concurred ("reluctantly"), and three dissented (separately, though they each joined the others' dissents).

Read Judge Lohier's concurrence for a deep dive into the problems with the "high crime area" concept (and what evidence falls short of establishing a relevant "high crime area"), as well as for his explanation why "Whren should be reconsidered."

Read Judge Pooler's dissent for a discussion of Whren's "tragic ramifications." 

Read Judge Calabresi's dissent to learn "how . . . we got to such a state in the law," and for the wise observation that an officer's subjective race-based motivation, even if not relevant to the ultimate Fourth Amendment question (per Whren), may nonetheless be relevant to whether or not the officer is a reliable witness with respect to the historical facts of a stop.

Read Judge Chin's dissent for an explanation how, "even taking the law as it exists," the police violated Mr. Weaver's rights.

And then get to work.

Wednesday, August 11, 2021

Certificates of innocence for federal exonerees

Have you ever wondered whether and how a person wrongfully convicted of a federal crime can be compensated for that ordeal? Federal law states that the United States Court of Federal Claims "shall have jurisdiction to render judgment upon any claim for damages by any person unjustly convicted of an offense against the United States and imprisoned." 28 U.S.C. § 1495. So far so good. But ay, there's a rub: a person seeking such damages must first obtain a certificate of innocence that satisfies 28 U.S.C. § 2513. The person must affirmatively establish innocence; a court determination that the evidence was insufficient to sustain the verdict isn't enough.

Federal courts have interpreted this requirement so strictly that, of 118 federal exonerees listed in the National Registry of Exonerations, only two have received compensation under the federal statute. Jeffrey S. Gutman, Are Federal Exonerees Paid?: Lessons for the Drafting and Interpretation of Wrongful Conviction Compensation Statutes, 69 Clev. St. L. Rev. 219 (2021).

The D.C. Circuit may have just opened the door for one more person to join that select pair. In United States v. Gaskins, the D.C. Circuit reversed a district court's denial of a certificate of innocence and remanded the case for further proceedings.

Read Gaskins if you need to advise a client whose conviction was vacated on insufficiency grounds about the procedure for seeking damages. And read Professor Gutman's article if you want to understand why those damages may be elusive.

Monday, August 2, 2021

Community caretaking: not an open-ended license for impoundment

The police may not impound a car "simply as an excuse to look inside for evidence of a crime." But how do we know when an impoundment is pretextual? The Tenth Circuit offered a roadmap for this inquiry last month in United States v. Woodard, holding that a pretextual impoundment violated the Fourth Amendment.

As the Court explained in Woodard, if a car is parked on private property, impoundment will only pass Fourth Amendment muster if:

(1) the car is blocking traffic, 
(2) the car is posing an imminent threat to public safety, or 
(3) the impoundment is justified by a standardized policy and a reasonable, non-pretextual rationale of community caretaking.

Mr. Woodard's car was about to be stranded in a QuikTrip parking lot upon his arrest on an outstanding misdemeanor warrant. The police impounded the car absent any proper justification. The Tenth Circuit concluded that the impoundment both fell outside the local impoundment policy and was pretextual. On this latter point, the Court considered several factors, and found that every one pointed to pretext:

First, the car was on private property.

Second, the officers did not consult the property owner.

Third, Mr. Woodard asked if he could call someone to pick up the car, and the police refused.

Fourth, the car was not itself evidence of a crime.

Fifth, Mr. Woodard did not consent to impoundment.

Finally, the Court considered the acts and statements of the police that were captured on their body cameras. These included comments from one officer that he thought Mr. Woodard was "fighting a huge drug case" and from another officer that he was going to search the car and “friggin’ light [Mr. Woodard] up with whatever we can.”

Are you challenging an impoundment? Watch those body-cam videos and be sure to read Woodard.

Monday, July 12, 2021

Wives can think for themselves? Who knew!

A drug dealer sends his supplier to pick up a box of cash from the dealer's wife. Can we assume without more that the dealer was his wife's "manager or supervisor," U.S.S.G. § 3B1.1(b), or that he "used . . . affection" to involve her in his drug crimes, U.S.S.G. § 2D1.1(b)(16)(A)?

Of course not. This is the twenty-first century. C'mon people.

See United States v. Sampel2021 WL 2793548 (2d Cir. July 6, 2021) ("Evidence that Sampel told a person to pick up money from his wife does not establish that Sampel “exercised [any] degree of control” over her . . . or that he in any way directed her involvement in the drug business. Likewise, this evidence does not support the conclusion that Sampel used affection to involve his wife in the crimes at issue. Simply put, more is needed.") (reversing and remanding for resentencing).

See also State v. Donkers, 867 N.E.2d 903, 939 (Ohio App. 2007) ("In today's society, regardless of what individual couples believe and practice, the law does not recognize the husband as the 'one public voice' or as the automatic head of household with supreme authority over his nonresponsible feme covert."); United States v. De Quilfeldt, 5 F. 276, 278 (C.C.W.D. Tenn. 1881) ("It is almost an absurdity in this day to pretend that husbands can or do coerce their wives into the commission of crimes . . . ; but to hold it to be presumed as a fact, in all cases where the husband is present, is the relic of a belief in the ignorance and pusillanimity of women which is not, and perhaps never was, well founded, and does them no credit."); but see Gray v. State, 527 P.2d 338 (Okla. Crim. App. 1674 1974) (noting "general rule that a wife committing a crime is presumed to have acted under her husband's coercion" if the husband is physically present at the time of the crime).

Tuesday, July 6, 2021

The Fourth Amendment: "a bastion of liberty in a digitizing world"

Accessing stored data from Baltimore's experimental panopticon-like aerial surveillance program is a search for Fourth Amendment purposes, and can't be done without a warrant. So said the en banc Fourth Circuit in Leaders of a Beautiful Struggle v. Baltimore Police Department.

Read Leaders of a Beautiful Struggle for a full description of Baltimore's now-abandoned "citywide prolonged surveillance campaign," which captured massive amounts of data in the form of aerial images that could be magnified to a point where people and cars were visible (only as blurred dots and blobs, but trackable nonetheless). Adding to the Big Brother factor, this data could be integrated with other data (license plate readers, gunshot detectors, etc.) to identify those dots and blogs and glean insight into the whole of an individual's movements.

Read Leaders of a Beautiful Struggle as well for the majority's discussion of the disparate impact of large-scale surveillance on vulnerable communities:

Baltimore is a thoroughly surveilled city. See generally J. Cavanaugh Simpson & Ron Cassie, Under Watch, Balt. Mag., Mar. 2021, at 96 (discussing cell site simulators, helicopters, security cameras, police access to residential cameras, police body cameras, and facial recognition software). “[Mass surveillance] touches everyone, but its hand is heaviest in communities already disadvantaged by their poverty, race, religion, ethnicity, and immigration status.” Barton Gellman & Sam Adler-Bell, Century Found., The Disparate Impact of Surveillance 2 (2017). While technology “allow[s] government watchers to remain unobtrusive,” the impact of surveillance “[is] conspicuous in the lives of those least empowered to object.” Id. Because those communities are over-surveilled, they tend to be over-policed, resulting in inflated arrest rates and increased exposure to incidents of police violence.

That is not to express our opposition to innovation in policing or the use of technology to advance public safety. It is only to emphasize that the role of the warrant requirement remains unchanged as new search capabilities arise. . . . The Fourth Amendment must remain a bastion of liberty in a digitizing world.

Finally, read the concurring and dissenting opinions in Leaders of a Beautiful Struggle for a fascinating debate about who gets to speak for "the community";  how Baltimore is both overpoliced and underpoliced; and whether more policing is the answer to violence.

**********

On an unrelated note: If you subscribe to this blog, you may have missed a few posts recently as we've transitioned to a new email notice provider. Be sure to scroll down and read our posts about defining reasonable doubt and waiving restitution interest. If you haven't subscribed, or if you think you are still missing our email notices, please consider submitting your email address in the Follow by Email box at the top of the right-hand column on this page. Thank you!

Monday, July 5, 2021

Fallacious comforts and reasonable doubt

Before you get up in the morning, do you ask yourself whether doing so is worth the risk? More specifically, do you question whether it is safe beyond a reasonable doubt to get out of bed? When you eat a meal, do you first assure yourself, beyond a reasonable doubt, that the food on your plate will not make you sick? Do you evaluate the risks of driving every time you get behind the wheel of your car?

Surely not. And that is because our decisions to engage in everyday tasks "rest on the fallacious comfort that because these activities did not result in chaos yesterday, they will not today." This fallacy is necessary to navigate the world. But it is not a fallacy we want jurors to indulge when they decide whether a person has committed a crime.

And that is why last month the Ninth Circuit reversed two drug-importation convictions in United States v. Velazquez. During closing arguments in Velazquez, the prosecutor assured the jurors that reasonable doubt is "something you use every single day in your life," offering as examples getting up, eating a meal, and driving a car, even though it's possible that you might get sick or have an accident. But, as the Ninth Circuit explained, "[s]uch decisions involve a kind of casual judgment that is so ordinary and so mundane that it hardly matches our demand for 'near certitude' of guilt before attaching criminal culpability."

The prosecutor's argument was inappropriate, misleading, and reduced the government's burden of proof. "The process of adjudicating guilt is a major and meticulous undertaking. People do not, 'every single day,' bear the solemn task of examining evidence and determining an accused's guilt. The comparison—to reflexive, quotidian decisions like 'getting up,' 'having a meal,' and 'travel[ing] to ... court'—is flagrant and seriously distorts the standard." 

Going to trial any time soon? Listen carefully to how the government talks about reasonable doubt. Object. Ask for a curative instruction. The reasonable-doubt standard is indispensable. Don't let the government dilute it.

Wednesday, June 23, 2021

The More You Know: Waiving Restitution Interest

Unfortunately, some people make regular payments on their restitution judgment while serving their federal prison sentence, only to get released and find that they still owe tens of thousands of dollars more than was originally imposed. The reason? Interest.

When a judge imposes restitution of more than $2,500, interest is automatically imposed by statute18 U.S.C. § 3612(f). Interest is calculated according to a formula set in the statute. 

But! The court can waive interest. "If the court determines that the defendant does not have the ability to pay interest" the court can "waive the requirement for interest" (or limit the interest). 18 U.S.C. § 3612(f)(3).

There likely is already a box on the judgment form for the court to check to waive the interest on restitution (or a fine). 

Judges may often waive interest on their own when they impose restitution. But keep an ear open. If the judge imposes restitution on your indigent client and doesn’t say anything about waiving interest, ask that it be waived at the sentencing hearing. The court need only say that the interest is waived and check the box on the judgment. Easy. And it might save your client thousands of dollars later on. 

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.

Sunday, April 25, 2021

Challenging guilt by (gang) association

How does your state or city define and track criminal street gangs, gang members, and gang associations? What role do those labels play in Terry stops, at trial, or at sentencing? A new lawsuit against the Wichita Police Department's gang list sheds light on how easy it is to land on the list and how hard it is to get off of it---and how unreliable such a listing is for any law-enforcement or truth-finding purpose.

The ACLU, Kansas Appleseed, and others have sued the City of Wichita, challenging the constitutionality of K.S.A. 21-6313 (state law defining "criminal street gangs") as well as Wichita's practices and policies under the law. The complaint alleges, among other things, that the Wichita Police Department's "practices and policies surrounding its Gang List disproportionately target and harm individuals and communities of color and violate the First, Fourth, and Fourteenth Amendments to the United States Constitution."

The next time an officer claims to have stopped your client because he is a "known gang member," demand the evidence to back up that claim, and demand the evidence underlying that evidence. You may find a whole lot of nothing and a decent challenge to reasonable suspicion (or relevance at trial, or a sentencing enhancement).

Sunday, April 18, 2021

Kansas CJA Panel applications now being accepted

The Criminal Justice Act Panel is a group of qualified attorneys selected by a committee of judges and experienced attorneys to represent individuals in criminal cases who are financially unable to retain counsel. The appointments are made on a rotating basis; the goal is for each attorney on the general panel to receive about six felony appointments each year. The current attorney hourly rate is $155.

Kansas CJA Panel applications are now being accepted until May 3, 2021. The new three-year term begins on July 1, 2021. Qualifications for panel members can be found in the district’s CJA Plan at section IX(C)(3) which can be found here. And panel applications can be found here.

If you have any questions about the application process or the CJA program in general, please contact Laura Shaneyfelt, CJA Resource Counsel, at laura_shaneyfelt@fd.org or 316-761-3652.

Friday, April 16, 2021

The Death of Daunte Wright

 

Much has already been written about 20-year-old Daunte Wright, a Black man killed by a veteran police officer during a traffic stop for purportedly expired tags. And now we have the same debates, the same police excuses, the same empty calls for more police training, the curfews designed to justify more arrests, and police concern about looting.

As public defense lawyers, the next time the government dares to argue that your young client of color should have felt free to walk away from police, that it was a consensual encounter, that their consent to search was voluntary, remember Daunte Wright on the phone with his mother. Remember Caron Nazario, the Black Army officer pepper-sprayed, threatened, struck, and handcuffed by Virginia police. Remember 13-year-old Adam Toledo who was killed by police with his empty hands in the air. Remember that for them, the choice of walking away or refusing to consent is isn't about a constitutional right. It is about whether they will die for doing so. 


Monday, April 12, 2021

A rare (and disturbing) peek into jury deliberations and race

Have you previously tried--and failed--to convince a judge to discuss racial and other biases (conscious or unconscious) during jury selection? Perhaps your judge is simply an optimist. Next time, point your judge to Harden v. Hillman for a peek behind the jury-deliberations curtain. Mr. Harden sued Officer Hillman for violating his constitutional rights. Both Mr. Harden and Officer Hillman are Black. A jury returned a verdict in favor of the officer.

A few months later, the only Black person on the jury came forward via affidavit to report that her service was so painful, humiliating, and embarrassing that she never wanted to serve again. She detailed other jurors' assumptions that Mr. Harden was a crack addict who had sued the officer just to get some money, and their denigration of Mr. Harden's Black lawyer and law team as "the Cosby show." She explained that the jurors had spoken freely in front of her, thinking she was Latina (because of her complexion and her name). She believed that Mr. Harden did not get a fair trial because of the jurors' blatant racial stereotyping.

Despite this evidence, the district court denied Mr. Harden's motion for a hearing to investigate juror bias in connection with his motion for a new trial. The Sixth Circuit reversed. Setting aside the procedural questions at issue in Harden, the case is a useful lesson for judges who don't think jurors need an anti-bias nudge. Is it actually effective to put the dangers of biases on the table during voir dire? I don't know, but surely it couldn't hurt. And it may emboldened some jurors to push back when biases bubble up during deliberations, and refocus the discussion on the evidence.

Thursday, April 8, 2021

Kansas FPD now accepting applications for Second Chair Program

Applications for the 2021 Kansas Federal Public Defender's Second Chair program are now being accepted, through May 31, 2021.

Second Chair is a year-long training and mentoring program for attorneys who want to apply for the CJA panel but lack the requisite federal experience. The program is led by the FPD and will take place in Kansas City beginning July 2021.

The program includes an intensive monthly orientation that covers all phases of a federal criminal case and the federal Sentencing Guidelines. Attendance at these sessions is mandatory for continued participation in the program. Sessions will be held remotely if necessary.

Each participant will also be assigned to an experienced mentor attorney to shadow on selected federal criminal cases.

Participants should plan to commit about 8-10 hours per month. Materials and compensation ($70 per hour) are provided courtesy of the District of Kansas Bench-Bar Committee.

If you would like to apply, please send a letter of interest, resume, and the names of three references to Dana Burton at dana_burton@fd.org.


Thursday, April 1, 2021

Who We Are: A Chronicle of Racism in America

 
Jeff Robinson has "dedicated his career to chronicling racism." As a former public defender and a trial lawyer, he knows how the criminal legal system has failed and he has seen the crushing injustice our clients of color endure. 

Jeff is also a captivating storyteller and teacher. Every time I hear Jeff speak, I learn something completely new or I see something from an entirely different perspective. He is as much a historian as a lawyer. And now one of his presentations is the basis of a feature-length documentary, "Who We Are: A Chronicle of Racism in America." This film just  premiered at SXSW last month.  



Today, Jeff is the Director of the Who We Are Project. His goal is to correct the narrative about the history of white supremacy and anti-Black racism in America. The Who We Are podcast offers six episodes discussing the history of racism in our country, including voter suppression, mass prosecution, inequities in medical care, and discriminatory housing practices. As  Jeff says, we "can't change our future if we don't understand our past." Listen here

-- Melody

 

Sunday, March 28, 2021

"We arrest you, madam."

"The application of physical force to the body of a person with intent to restrain is a seizure, even if the force does not succeed in subduing the person." The slightest touch might suffice. "[T]he appropriate inquiry is whether the challenged conduct objectively manifests an intent to restrain."

So said the United States Supreme Court last week in Torres v. Madrid.

Read Torres for a summary of the two ways in which a seizure may occur: [1] With contact, regardless of submission; or [2] without contact, so long as there is (a) an assertion of authority and (b) submission to that authority.

*Not the same Countess of Rutland
(*Not actually the same
Countess of Rutland
)
Read Torres also for the historical context of the Court's holding, which includes this description of a genteel arrest in the Countess of Rutland's Case:

In that case, serjeants-at-mace tracked down Isabel Holcroft, Countess of Rutland, to execute a writ for a judgment of debt. They “shewed her their mace, and touching her body with it, said to her, we arrest you, madam.”

These days, seizures look a bit different, as the Torres majority notes: "There is nothing subtle about a bullet, but the Fourth Amendment preserves personal security with respect to methods of apprehension old and new."

Wednesday, March 24, 2021

The parsimony principle is real

Is prison time appropriate for every supervised-release violation---or for every crime, for that matter? Of course not. One of criminal law's core principles is that "punishment should be proportionate to the offender's wronging and blameworthiness." Robinson, Paul H., Criminal Law’s Core Principles (February 10, 2021) (forthcoming). But courts rarely articulate or explicitly enforce this principle. For a reminder of the key role it plays in federal sentencing, read this Seventh Circuit decision and remember to invoke the parsimony principle at your next sentencing hearing:
Sentences must always conform to the “broad command” of the parsimony principle, which requires that sentences be “‘sufficient, but not greater than necessary to comply with’ the four identified purposes of sentencing: just punishment, deterrence, protection of the public, and rehabilitation.” Dean v. United States, 137 S. Ct. 1170, 1175 (2017), quoting 18 U.S.C. § 3553(a). This principle is especially important in a case like this where the alleged violations were not criminal, the defendant asserted a lack of intent, and there was evidence of reasonable efforts and good faith, putting in question which of the purposes of sentencing apply.

The Supreme Court has observed that prison is not necessarily appropriate for every violation of a condition of release, such as where, as the defendant asserts here, the defendant made bona fide efforts to comply and does not obviously pose a threat to society. Bearden v. Georgia, 461 U.S. 660, 668–70 (1983). “The congressional policy in providing for a term of supervised release after incarceration is to improve the odds of a successful transition from the prison to liberty.” Johnson v. United States, 529 U.S. 694, 708–09 (2000). Sending a defendant back to prison for a violation that occurs despite reasonable and good faith efforts to comply may well undermine that transition. 

Sunday, March 14, 2021

Trying to exercise Fourth Amendment rights "is difficult and dangerous work"

Race is relevant to whether a person consented to a search (or to waive Miranda rights, or to “confess”). See United States v. Mendenhall, 446 U.S. 544, 558 (1980) (it was not irrelevant to the question of consent that “the respondent, a female and a Negro, may have felt unusually threatened by the officers, who were white males”). See also Beau C. Tremitiere, The Fallacy of A Colorblind Consent Search Doctrine, 112 NW. U. L. REV. 527 (2017). That's because the question of consent when it comes to searches and confessions is subjective: whether this person's consent was voluntary.

But race is not relevant to whether a person consented to a police encounter. United States v. Easley, 911 F.3d 1074, 1080-82 (10th Cir. 2018). That's because the initial seizure question is objective: whether a reasonable person would feel free to leave.

Why the difference? Search me. Better yet, read the majority and concurring opinions in the Eleventh Circuit case United States v. Knights, issued last week after the panel revisited its own previous decision on the issue.

The first time around, the Eleventh Circuit published an 11-page unanimous decision affirming the district court's denial of Mr. Knights's motion to suppress after finding that the law-enforcement "interaction" that Mr. Knights challenged was a consensual encounter. Among other things, Mr. Knights had argued that young African-American men do not feel free to walk away from multiple police officers "without risking arrest or bodily harm." Rejecting this argument, the panel concluded that, "[a]lthough the presence of multiple officers and the age and race of a suspect may be relevant factors . . . the totality of the circumstances establish that this encounter was not coercive."

Mr. Knights moved for rehearing. The panel requested further briefing addressing "whether the race of a suspect may be a relevant factor in deciding whether a seizure has occurred under the Fourth Amendment," citing Easley.

Last week, the panel vacated its first decision but reaffirmed the district court's denial of Mr. Knights's motion to suppress, this time in a 51-page published decision (majority + concurrence). This time, the panel held that race is never a relevant factor when deciding the initial seizure question (following Easley).

Judge Rosenbaum concurred in a lengthy must-read opinion. She sets out all of the ways in which the "free to leave" test "is unworkable and dangerous." She recognizes that policing is itself "difficult and dangerous," but "so is being a citizen trying to exercise his Fourth Amendment right to be free from unreasonable seizures"---an "especially tricky dilemma for Black citizens, who studies indicate historically have disproportionately suffered violence in law-enforcement encounters."

Ultimately, Judge Rosenbaum feels bound by existing law to leave race out of the "free to leave" calculus. But she invites the Supreme Court to adopt a modest bright-line, race-neutral amendment to that calculus: officers must clearly advise a person they wish to question whether the person is free to leave, before any questioning begins. If they don't, the encounter is presumptively a seizure. If they do, the encounter is presumptively consensual. Not a perfect solution, but a decent start. 

While we wait for that bright-line rule, take Judge Rosenbaum's opinion as a model for arguing that the lack of a free-to-leave advisory is, if not controlling, at least relevant to the analysis and weighs against a finding of a consensual encounter.

Sunday, March 7, 2021

Guidelines commentary and zones of ambiguity

Is your client looking at a sentence driven by a sentencing guideline commentary? Does that commentary interpret a genuinely ambiguous guideline? Does the commentary fall within the identified zone of ambiguity? What is a "zone of ambiguity" anyway?

Guideline commentary can only interpret a guideline--it can't add to it. But the test for when courts may rely on the commentary is complicated and disputed.

It's time to update our understanding of that test. Read these two recent cases from the Sixth Circuit (loss commentary) and the Third Circuit (career-offender commentary). Watch for a ruling on the cert petition in Tabb (career-offender commentary; distributed for conference of 3/19/2021).

And urge your district court to wake up from its "slumber of reflexive deference" to the sentencing guidelines commentary.

Tuesday, March 2, 2021

Discovery: DNA source code v. Sixth Amendment

 TrueAllele is probabilistic genotyping  (DNA) software that prosecutors sometimes rely on when traditional DNA testing is inconclusive. Probabilistic DNA testing can run different variations or hypothesis on small or complex DNA mixtures. Cybergenetics, which owns TrueAllele, says “it removes human intervention, error, and bias” to get information “many crime labs can’t.” But how this works—that is, the proprietary source code*−is a protected trade secret.

 When trade secrets clash with the Sixth Amendment, the Sixth Amendment wins. At least it did last week in EDPa in United States v. Ellis. There, the government wants to rely on TrueAllele results as evidence that the defendant’s DNA was on a gun. The government refuses to provide the source code and other data, citing Cybergenetics’ trade-secret claim. The defense sought a subpoena duces tecum, which the government opposed. After ten months of litigation, the federal district court ruled in the defense’s favor, albeit with a protective order. The defense should now be able to determine the basis of the results and, if necessary, challenge the government’s evidence under Daubert.

The ACLU and Electronic Frontier Foundation filed an amicus brief in support of the defense subpoena. From the EFF: “DNA analysis programs are not uniquely immune to errors and bugs, and criminal defendants cannot be forced to take anyone’s word when it comes to the evidence used to imprison them.” Miscoding in STRmix, a TrueAllele competitor, revealed misleading results. On this point, a New Jersey Superior Court opinion issued Feb. 3, 2021, State v. Corey Pickett, observed,

The defense expert's access to the [TrueAllele’s] proprietary information is directly relevant to that question and would allow that expert to independently test whether the evidentiary software operates as intended. Without that opportunity, defendant is relegated to blindly accepting the company's assertions as to its reliability.  

 Takeaway: challenge science that relies on proprietary software, such as DNA or facial recognition or location-monitoring. And Tom Bartee's reminder:  discovery under a protective order is commonplace in trade secret litigation, so courts should reject the claim that trade secret = not discoverable, period.  

More here and here. Stay tuned for the government’s next move.

 *Source code is the string of commands or instructions that tells the computer how to execute the program.

 -- Melody

Monday, February 22, 2021

Cert grant: When are two crimes "committed on occasions different from one another" for ACCA purposes?

A person convicted of possessing a firearm after a felony conviction faces a significantly higher sentence under the ACCA if that person has at least three prior convictions for qualifying crimes "committed on occasions different from one another." 18 U.S.C. § 924(e)(1). But what does "committed on occasions different from one another" mean?

Under Tenth Circuit law, those occasions may be separated by very little space and time. See United States v. Tisdale921 F.2d 1095 (1990). Mr. Tisdale had three prior burglary convictions that all occurred on the same night, in the same mall. But they were committed "successively" (rather than simultaneously), and they involved different locations within the mall. They were therefore committed "on occasions different from one another." ACCA sentence affirmed.

Fast forward a few decades. In United States v. Wooden, 945 F.3d 498 (6th Cir. 2019), the Sixth Circuit affirmed an ACCA sentence based on a similar set of prior convictions, this time ten burglaries of ten separate units within a storage facility on the same night.

On Monday, the Supreme Court granted Mr. Wooden's pro se petition for a writ of certiorari to answer this question: "Whether offenses that were committed as part of a single criminal spree, but sequentially in time, were 'committed on occasions different from one another' for purposes of a sentencing enhancement under the Armed Career Criminal Act." 

Read the cert documents here, and be sure to preserve this issue in your own cases.

Tuesday, February 16, 2021

Supervised release: no punitive imposition; no punitive revocation

Fun fact: When Congress first created supervised release in 1984, it did not provide district courts with authority to revoke supervision and return a person to prison. Congress assumed, apparently, that the threat of being held in contempt of court would ensure compliance with court-ordered conditions. This approach lasted a whole two years.

But that's not what this post is about. This post is a reminder of two simple statutory limits when it comes to imposing or revoking supervision: neither of these judicial acts can be taken for retributive purposes.

18 U.S.C. § 3583(c) directs a court considering the imposition of supervised release to consider most of the 18 U.S.C. § 3553(a) factors, but that list excludes factor (a)(2)(A). Which factor is that? It is the need for the sentence imposed "to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense."

Likewise, 18 U.S.C. § 3583(e) directs a court considering the revocation of supervised release to consider the same list of factors, which, again, excludes factor (a)(2)(A).

What does this mean? It means that district courts are statutorily prohibited from imposing or revoking supervision for retributive purposes. And that's because the purpose of supervision is to help people, not to further punish them.

Want to know more? Check out Schuman, Jacob, Revocation and Retribution (February 15, 2021), Washington Law Review, forthcoming, available here. Learn the history and purpose of these provisions, and prepare to object to improperly based supervision and revocation orders.

 

Sunday, February 7, 2021

Kansas FPD: Investigative Data Analyst

The Kansas Federal Public Defender is looking for an investigative data analyst. 

Holistic defense is about recognizing and addressing the bigger picture beyond the specific criminal charges in an individual case. Data collection is key to this effort as it helps us organize and connect disparate pieces of the puzzle. Data analysis enables us to identify patterns, both positive and negative, in our clients’ lives, in our defense work, in the criminal legal system, and in society.

 This approach will allow us to answer questions such as:

•            What are the demographics of our clients?

•            What are the most common resources our clients need to be successful?

•            What defense strategies and tactics result in the lowest sentences for our clients?

•            What kind of sentences do our clients of color get for a particular federal charge as compared our white clients?

•            What are the release/detention rates for our clients from different demographics?

•            How do our clients assess our representation? How can we improve?                   

•            How many searches has a particular police officer conducted that have been found unconstitutional?

•            Have particular police officers been found to lack credibility with the court?

•            Has a particular expert’s testimony been limited or prohibited?

We have seen how the government and the business world have used data collection and analysis to super-charge their work. We know that harnessing these tools will make us better advocates. You can read more about the position here. Our ideal candidate has experience in data analytics, statistics, and public defense. If you have relevant skills and experience, please apply by March 15, 2021.
 
-- Zay Thompson, FPD Investigator, and Melody Brannon, Defender

Tuesday, February 2, 2021

Acting AG to federal prosecutors: "seek justice in every case"

Stuff is happening.

Last Friday, the acting US Attorney General rescinded the 2017 Sessions Memo instructing prosecutors to "charge and pursue the most serious, readily provable offense," and reinstated a 2010 Holder Memo instructing prosecutors to individually (and fully) assess each case when making decisions regarding charging, plea negotiations, and sentencing advocacy.

Last Wednesday, the acting US Attorney General rescinded the zero-tolerance policy with respect to unlawful-entry prosecutions.

The bottom line in both memos was this: seeking justice in every case "requires considerable judgment." Policies that don't take individual circumstances into account are inconsistent with justice.

It's a good start. But it's only a start, intended as a temporary measure "while longer-term policy is formulated." Stay tuned . . .





Sunday, January 31, 2021

Fourth Amendment festivities

This week, we're celebrating these recent Fourth Amendment wins from the Tenth Circuit (with a plus-one from S.D. Ohio):

Abandonment, inventory search, impoundment, community caretaking, Miranda

United States v. Chavez is a fun-filled ride through a number of Fourth Amendment issues (and one bonus Fifth Amendment issue!).

After a brief car chase, Deputy Castaneda found Mr. Chavez's empty car parked, engine running, lights still on, at the end of a dirt road next to a trailer and an RV. The deputy called for backup. One responding officer opened the driver-side car door to put the car in park, and saw what he thought was a gun. He left the gun there and shut the door.

Mr. Chavez was found nearby. Deputy Castaneda, having been advised of the gun, asked Mr. Chavez (without Mirandizing him) whether he was a felon. Mr. Chavez said that he was. The deputy arrested Mr. Chavez and walked him past the car. Deputy Castaneda looked in the car window and also saw the gun.

Officers proceeded to inventory the car in anticipating of impounding it. After Deputy Castaneda had removed the gun, a woman appeared from the trailer and said that the car was hers, and that Mr. Chavez sometimes drove it. The officers released the car to the woman.

Law exam question: Must the gun be suppressed as unlawfully seized and retained?

Answer: Yes.

First, Mr. Chavez had a reasonable expectation of privacy in the car. He left the car on a private dirt road, just outside his own trailer. This was not abandonment for Fourth Amendment purposes.

Second, while the officers saw the gun in plain view, they did not have authority to seize the gun. Their anticipated impoundment of a car parked on private property violated local policy, and therefore the inventory search was invalid. Additionally, once the impoundment was called off, the deputy had no authority to hang onto the gun.

Third, seizing the gun (and keeping it) was not justified under the community-caretaking doctrine. It would have taken "a daring child, vandal or thief" to enter the private road, burgle the car and steal the gun, thereby putting public safety at risk.

Fourth, Mr. Chavez's admission to being a felon did not justify seizing the gun, because the admission was not Mirandized. The Supreme Court's holding in Patane (that the fruit of un-Mirandized voluntary statements need not be suppressed) does not apply here, because here the government failed to directly address voluntariness in the district court (which therefore found the admission involuntary) or to argue Patane on appeal.

Fifth, seizure and retention of the gun was not justified under either the automobile doctrine or the plain-view doctrine.

Whew!

Reasonable suspicion

In United States v. Williams (unpublished), the government conceded that the constitutionality of a "high-risk" "felony car stop" of Mr. Williams hinged on whether the officers conducting the stop had reasonable suspicion to believe that a murder suspect was in the car.

Evidence that (1) Mr. Williams had been seen at two apartments associated with the suspect a month earlier, and that (2) Mr. Williams's car had just left a 75-100-unit apartment complex where the suspect's girlfriend was believed to live did not add up to reasonable suspicion that the suspect was in Mr. Williams's car at the time of the stop.

Black male + hoodie ≠ reasonable suspicion

Here's what dispatch reported: A Black male (possibly a 14-15 y/o student) with dreads, a black hoodie, and tan pants flashed a gun in a K-12 school parking lot. On foot, headed towards the park.

Here's who six officers surrounded in a small park restroom lobby: Mr. Johnson, a 27-year-old Black man (who looked even older than 27) with visible facial hair and facial tattoos, no apparent dreads, wearing a black coat, a hoodie, a beanie cap, and light grey sweatpants.

During about a minute of conversation, Mr. Johnson truthfully denied being at the school, explained that he had just arrived at the park by bus, and said that he did not want a pat-down. An officer then directed Mr. Johnson to raise his shirt. This led to the discovery of a gun on Mr. Johnson's person, and Mr. Johnson's arrest for being a felon in possession of a firearm.

This nonconsensual Terry stop and pat-down was not supported by reasonable suspicion. So held District Court Judge Michael R. Barrett in United States v. Johnson2021 WL 253973 (S.D. Ohio Jan. 25, 2021). It seems obvious, doesn't it? And yet . . . . 

Officer chatter caught on their recorders after the arrest included comments that Mr. Johnson was at the wrong place at the wrong time, and that it was "weird" that Mr. Johnson declined to agree to a pat-down. Nonetheless, the officers blithely assured each other that they "had enough to pat him down anyway."

The district court was sufficiently bothered by the officers' nonchalance to warn them directly of the seriousness of their actions, quoting Terry itself:

[I]t is simply fantastic to urge that such a procedure performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a ‘petty indignity.’[ ] It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.

Lessons learned? (1) Always reread the foundational constitutional cases--they contain much wisdom; and (2) always, always watch the videos and listen to the tapes.