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.


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.

Wednesday, January 27, 2021

Sentencing Commission’s recidivism work “should come with a warning label”

What the Sentencing Commission was supposed to do: promote “sound sentencing practices”

The Sentencing Reform Act of 1984 envisioned a Commission overseeing a “research and development program” for implementing “sound sentencing practices,” with the USSC systematically collecting and disseminating research concerning sentencing practices and their effectiveness, including “information concerning sentences actually imposed, and the relationship of such sentences to the factors set forth in section 3553(a).” 28 U.S.C. § 995(a)(12), (15), (16). Section 3553(a) references several factors, but the four primary sentencing purposes stand out: retribution, deterrence, incapacitation, rehabilitation. So the USSC website’s search tool should be a portal to mountains of data and analysis on these four primary sentencing purposes, all gathered and curated by the Commission since the late 1980s. It’s not.

What the Sentencing Commission does instead: promote a “preference for imprisonment”

For years, the Sentencing Commission has focused its considerable resources on collecting data and reporting on post-sentencing, post-release “recidivism.” This focus has recently been subjected to a withering critique in The U.S. Sentencing Commission’s Recidivism Studies: Myopic, Misleading, and Doubling Down on Imprisonment, to be published in the next edition of the Federal Sentencing Reporter. The author, Professor Nora V. Demleitner, shows that the Commission’s recidivism studies subtly promote imprisonment in several ways, including by: 

framing recidivism data negatively, i.e., describing the data in terms of failure rates rather than desistance rates;

defining “recidivism” over-broadly, including not only convictions for serious crimes, but also mere arrests that didn’t result in conviction, as well as technical violations of supervision (even the Administrative Office of the U.S. Courts’ annual recidivism study doesn’t do that); and

failing to consider the criminogenic effects of imprisonment or the rehabilitative value of prison and reentry programming, and the influence of post-sentence supervision.

The article contrasts the USSC’s approach with the more balanced approach of  Germany, where “recidivism” is defined more narrowly, and desistance rates are emphasized over failure rates.

Do your judges rely on recidivism rates when sentencing? If so, read this article, and prepare your defenses to the wrongheaded notion that “the past predicts the future.”

Thanks to Tom Bartee and Melody Brannon for this post.

Sunday, January 24, 2021

Happy New Year!

It's been a long dark winter so far . . . . But we've decided it's time to poke our heads out of hibernation and see what criminal-law reforms may be in store under the new administration.

President Biden has pledged to "take bold action to advance a comprehensive equity agenda to deliver criminal justice reform." To that end, this Tuesday, January 26, is "equity" day on the White House agenda. What does that mean? 

We won't know until Tuesday, but plenty of folks have given the administration plenty of suggestions for reform. We'll keep you posted, especially as to developments directly affecting our clients.

In other fun news, last week the Fifth Circuit told CoreCivic that yes, even CoreCivic is bound by the Trafficking Victims Protection Act not to subject the people in its custody to forced labor. But wait!--CoreCivic complained--if we are human traffickers, then so are all those parents who make their kids do chores. The Fifth Circuit was neither amused nor persuaded. The case now goes back to the district court for further proceedings on the plaintiff's claim that CoreCivic's work programs are not voluntary.