Tuesday, April 02, 2013

Officer Lie to Obtain Search Warrant Voids Guilty Plea

US v. Fisher: Fisher was arrested and charged with possession with intent to distribute crack and being a felon in possession of a firearm after a search of his home, pursuant to a warrant, uncovered drugs and a gun.  Fisher pleaded guilty to the felon in possession count and was sentenced to 10 years in prison.  The warrant to search Fisher's home had been procured by a DEA agent named Mark Lunsford who, in the affidavit supporting the warrant application, told of a tip from a confidential informant who had provided reliable information in the past.  A year after Fisher pleaded guilty, Lunsford himself was charged with crime related to his duties as a DEA agent.  As relevant to Fisher's case, he admitted that the CI identified in the warrant affidavit "had no connection to the case" and that someone else was the "real informant."

After Lunsford entered a guilty plea based on his misconduct, Fisher filed a pro se motion to vacate his guilty plea.  The district court eventually (after appointing counsel for Fisher) denied the motion, concluding that although Fisher almost certainly would have filed a motion to suppress had he known of Lunsford's false affidavit and that motion might have been successful, he nonetheless admitted his illegal possession of the firearm. Thus, not allowing him to withdraw his guilty plea would not work a "miscarriage of justice."  The district court also noted that neither Fisher's counsel nor the Government knew of Lunsford's duplicity and could not be faulted for allowing him to enter the plea.

On appeal the Fourth Circuit reversed, 2-1.  The court recognized that to set aside a guilty plea because it is involuntary a defendant must show (1) some egregiously impermissible conduct and (2) that the misconduct influenced the decision to plead guilty.  The court found that Fisher met the first requirement because "government misrepresentation constitutes impermissible conduct."  It recognized that this case involved "highly uncommon circumstances in which gross police misconduct goes to the heart of the prosecution's case."  Furthermore, Fisher did not seek to withdraw his plea merely because of buyer's remorse - he  calculated his options and calculated incorrectly - but because of a misapprehension about the strength of the Government's case brought about by police misconduct.  The court held that it was immaterial that Fisher did not claim to be actually innocent of the charge to which he pleaded guilty.  The court also concluded that Fisher likely would not have pleaded guilty had he known about Lunsford's fraudulent affidavit.  As a result, the totality of the circumstances required the vacation of Fisher's plea because it was involuntary and made in violation of his due process rights.

Judge Agee dissented, arguing that the court's application of the "affirmative misrepresentation" standard had no basis in prior precedent and that, ultimately, Fisher is stuck with his guilty plea.

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