Monday, December 21, 2015

Officer Lie About Having Search Warrant Required Suppression

US v. Rush: Rush was a guest at the apartment of Wills, who suspected he was selling drugs. She called police and asked them to remove him from her apartment. She met them at her place of employment, signed a consent to search her apartment, and provided officers with the key. Officers went to the apartment, bust in yelling "police!," and rousted Rush out of bed, putting him in handcuffs. When he asked what was going on, one of the officers lied and said they had a warrant to search the apartment. That they did, finding crack cocaine (at Rush's direction). Rush was cooperative, providing information about his supplier. The officers left without arresting Rush, or otherwise ejecting him from the apartment (he later went to the station, talked to the police some more, and was again released). He was eventually charged with possession with the intent to distribute crack and moved to suppress the evidence recovered in the apartment.

The district court found that the lie about the warrant kept Rush from exercising his right to refuse the consent search under Randolph, but declined to suppress the evidence because the lie was motivated by the officer's desire to protect Wills (by not informing Rush that she called the police on him). Rush entered a conditional plea, was sentenced to 12 months and a day in prison, and left on bond pending appeal.

On appeal, the Fourth Circuit reversed, concluding that the evidence from the apartment should have been suppressed. The court concluded that the good-faith exception to the exclusionary rule did not apply because Rush's case "bears no resemblance to the previous applications of the good-faith exception" because "the search was unconstitutional due to the intentional decision" of the officer to lie about having a search warrant. There was "no doubt that a reasonable officer would know that deliberately lying about the existence of a warrant would violate Defendant's Fourth Amendment rights." The officer's decision to lie was "deliberate, contrary to long-standing precedent and objectively unreasonable." The court also rejected the Government's argument that the alleged reason for the lie (protecting Wills) was relevant, given that the analysis was objective, not subjective (and doubted whether it was true, anyway).

Congrats to the Defender office in SDWV on the win!

Acquiescence After Abandonment Avoids Fourth Amendment Problems

US v. Stover: Stover was sitting in a parking lot in a SUV, along with a passenger, when police arrived, Police decided to investigate because the SUV had out of state plates, was in a high crime area, and had not moved in some time. When an officer approached the SUV, Stover got out, opened the rear driver's side door, then walked to the front of the SUV and tossed a gun away. At all times, the officer was ordering Stover to get back in the car, but Stover never said anything. He only got back in the car once the gun had been tossed away. The gun was recovered and Stover was charged with being a felon in possession of a firearm. He moved to suppress the gun, arguing that the police didn't have reasonable suspicion to justify a stop. The Government agreed, but argued that Stover wasn't "seized" until the gun had been tossed away (and thus abandoned) because he hadn't acquiesced to any of the officer's commands up to that point. The district court agreed and denied the motion.

On appeal, the Fourth Circuit affirmed, 2-1 noting that the question was not whether Stover was seized, but when he was seized. The court held, contrary to the Government's position, that Stover was seized when the officers pulled up and began giving him orders, for at that point he would not have felt that he was free to leave. However, the court agreed with the Government that Stover's conduct after that point showed that the district court did not clearly err in concluding that he did not acquiesce until after the gun had been tossed away. The court distinguished prior case where someone acquiesced before the discovery of contraband and noted that things might be different if Stover had dropped the gun while he remained seated in the car, as per the officer's orders.

Judge Gregory dissented, arguing that while the majority used the right analysis, it did not consider all the relevant facts and reached the wrong conclusion.

Tuesday, December 15, 2015

Sentencing Reduction for Defendant With Mandatory Minimum and Substantial Assistance

US v. Williams: Williams (a completely different one from above - even though they both came out of the same district and same judge!) pleaded guilty to distribution of crack cocaine in 2008, a plea which, thanks to an 851 information, carried a mandatory minimum sentence of 20 years. Williams's Guideline range, however, was only 130 to 162 months. Williams received a substantial assistance departure and was sentenced to 180 months. Williams moved for a reduced sentence under 18 USC 3582 when recent amendments to the Guidelines reduced his range to 77 to 96 months. Although the Government joined in the motion, the district court denied the reduction, concluding that Williams's sentence was based on a statutory mandatory minimum, not a Guideline range, and that mandatory minimum (and subsequent departure) had not been changed.

On appeal, the Fourth Circuit reversed the district court's decision, 2-1. The court held that a recent amendment to USSG 1B1.10 that addressed situations such as these - where a statutory substantial assistance motion allowed the district court to impose a sentence below a mandatory minimum - overrode prior Fourth Circuit case law and made Williams eligible for a reduction. Specifically, in these cases the statutory mandatory minimum does not become the Guideline range as it otherwise would. Because Williams's Guideline range (regardless of any statutory requirement) goes down, he is eligible for a reduction. The court remanded to the district court to determine whether a reduction was appropriate and, if so, the extent of such a reduction.

Chief Judge Traxler dissented, arguing that Williams's sentence was "based on a statutory mandatory minimum" that has not been lowered by Congress and that the Sentencing Commission has no power to alter.

Congrats to the Defender office in the Middle District of NC on the win!

Collection of Innocent Factors Doesn't Add Up to Reasonable Suspicion During Traffic Stop

US v. Williams: Williams was in a car that was pulled over on the Interstate in North Carolina, just behind a car drive by his brother (which was also pulled over). Williams was given a written warning for speeding, but was then asked by the officer if there was anything illegal in the car. Williams said no and denied consent to search the car. The officer then told Williams to "hold on" while another officer conducted a dog sniff of the car, The dog alerted and drugs were found in the car. Less than three minutes passed between Williams getting the warning and the dog's alert. Williams moved to suppress the evidence discovered as a result of the search. The district court denied the motion after holding two hearings on the matter, concluding that the officers had reasonable suspicion based on four factors, that: (1) Williams was in a rental car; (2) he was on a "known drug corridor" after midnight; (3) his travel plans were inconsistent with the date by which the rental car needed to be returned; and (4) he was unable to provide a permanent home address, having given a PO Box (which differed from the address on his New York drivers license) and stated that he lived sometimes with his girlfriend in New Jersey.

On appeal, the Fourth Circuit reversed the district court's denial of the motion to suppress. The court found that the factors relied upon by the district court did not create reasonable suspicion that criminal activity was afoot. For example, none of the officers "explained any connection between use of a rental car and criminal activity." Similarly, while the Interstate may be a known route for drug traffickers, "the number of persons using the interstate highways as drug corridors pales in comparison to the number of innocent travelers on the road." That the rental agreement seemed inconsistent with travel plans was also irrelevant because rental agreements could be easily extended or modified and "no reasonable, articulable suspicion of criminality arises from the mere fact that Williams's travel plans were likely to exceed the initial duration of the rental agreement." Finally, as to the addresses, none of the officers "explained how using a post office box address, or living in New York or New Jersey, raised some suspicion of criminal activity." Even taken together, the four factors "fail to eliminate a substantial portion of innocent travelers" and did not provide reasonable suspicion to extend the stop.

Congrats to the Defender office in the Middle District of NC on the win!

Court Tears Apart Factual Support for Heroin Convictions

US v. Blue: Baltimore cops were surveilling a potential drug operation that eventually brought them to Blue, who met briefly with the target of their surveillance and gave him a "brownish-tannish item." Blue walked away, while the target was arrested and found in possession of almost 50 grams of heroin. A month later investigators surveilled Blue himself, following him to an apartment complex which he entered, then exited five minutes later "holding a sandwich-sized, cloudy white container in his hand." Investigators followed Blue to another brief meeting then arrested him. Following his arrest, Blue admitted that the brief meeting had been to discuss a drug deal. Blue was found in possession of a key to an apartment in the complex where he had been followed earlier in the day, a search of which uncovered 108 grams of heroin. There was no indication that Blue lived in the apartment or had any connection to the people who did. Blue was charged and convicted at trial of conspiracy to possess with intent to distribute more than 100 grams of heroin (Count 1 - based on the first incident) and possession with intent to distribute more than 100 grams of heroin (Count 3 - based on the second incident).

On appeal, the Fourth Circuit reversed both of Blue's convictions because there was insufficient evidence to support them. On Count 3, the court held that the fact that Blue possessed the key to the apartment where he (presumably - nobody saw which apartment he entered) stayed for five minutes was "insufficient evidence to establish his constructive possession of the heroin found" in the apartment. It rejected the Government inference that Blue used the apartment as a stash house as "an unreasonable one given the complete lack of evidence establishing any connection to any of the occupants." Nor was the "sandwich-sized plastic container" of any probative value, as it was never linked to heroin. The court also rejected the Government's reliance on an Eighth Circuit holding that someone in possession of a key to a dwelling has constructive possession of its contents. Count 1 suffered the same fate, as the only way the Government could reach the 100-gram threshold was to bring in the heroin seized from the apartment which, the court had already ruled, wasn't sufficiently tied to Blue.

Congrats to the Defender office in Maryland on the win!

Separate Sources for Child Porn Images Defeat Double Jeopardy Claim

US v. Schnittker: Schnittker was charged with two counts related to child pornography, one for receipt and one for possession. The charges were based on evidence found during a search of his home, including two hard drives, one Western Digital and one Maxtor. Both counts of the indictment spoke generally of "child pornography" being possessed, but during plea negotiations the Government informed Schnittker that the possession charge would be based on images found on the Western Digital drive, while the receipt charge was based on images found on the Maxtor drive. Although the drives had some overlap in terms of images, each had images unique to it. Schnittker pleaded guilty to the possession charge. The statement of facts at the plea hearing referenced the Western Digital drive, but didn't mention the Maxtor. Schnittker then went to trial on the receipt charge, where the Government used his guilty plea on the possession charge as 404(b) evidence against him. The district court denied Schnittker's motion to dismiss that charge on double jeopardy grounds and convicted him on receipt.

On appeal, the Fourth Circuit affirmed the district court's decision denying Schnittker's double jeopardy challenge. The court assumed that the two offenses (possession and receipt) were the "same in law" and moved on to determine they were also "the same in fact." The court concluded that they were not because of the different sources of the images at issue in each charge, holding that an "objective person in Schnittker's position would have understood that he was pleading guilty to possession . . . only in regard to the child pornography on the Western Digital hard drive." Because the receipt charge involved the Maxtor drive and at least one unique image from that drive "the two offense at issue in this case were not the same in fact."

Thursday, December 03, 2015

Statutory penalties for priors controlling, not the sentence received

US v. Sellers:  James Morris Sellers challenged his qualification as an armed career criminal at sentencing for the unlawful possession of a firearm.  He had three prior South Carolina drug convictions for which he had been sentenced under South Carolina’s Youthful Offender Act.  This Act permits lower maximum penalties for certain offenders, a cap of six years of incarceration.  On appeal, Sellers argued that his priors did not qualify him as an armed career criminal because the sentences he had received were not sufficiently long enough to qualify as predicate offenses.  Here, the Fourth Circuit rejected Sellers’ argument that his sentences under the Youthful Offender Act did not qualify as ACCA predicates, reaffirming its earlier cases, Simmons and Williams.

The Fourth Circuit earlier held that whether a prior conviction qualifies as a predicate for a federal sentencing enhancement depends on the statutory penalty for the prior conviction, not the sentence the defendant may have received.  Sellers argued here on appeal that this holding was no longer good law, but the Fourth Circuit rejected that argument, holding instead that the maximum statutory penalty for the prior conviction(s) is unaffected by the state court’s exercise of its discretion to sentence a defendant to less than the maximum penalty.  Sellers, then, had properly been categorized as an armed career criminal for his three prior drug crimes, and the Fourth Circuit affirmed his sentence.

Loss calculation leads to remand

US v. Qazah:  Kamal Qazah and his uncle, Nasser Alquza, received charges for conspiracy to receive and transport stolen cigarettes, conspiracy to commit money laundering, and money laundering.  Qazah received an additional charge for receiving cigarettes purportedly stolen in interstate commerce.  After a jury convicted Qazah and Alquza of these charges, Alquza appealed the district court’s denial of his pre-trial motion to suppress evidence recovered during a search of his home; Qazah appealed the denial of his pre-trial motion to sever.  Both defendants appealed their sentences, specifically the district court’s calculation of the loss amount for which they were held responsible, by relying upon the retail as opposed to wholesale value of the purportedly stolen cigarettes.   The Fourth Circuit upheld the convictions, but vacated the defendants’ sentences for further evidence gathering on the loss calculation.

In its calculation of loss analysis, the Fourth Circuit examined the district court’s basis for its use of the retail value of the stolen cigarettes in determining the defendants’ sentences.  The district court believed that it was obliged to apply the “greatest intended loss” as between the wholesale and retail value of the cigarettes, regardless of whether the value in fact represented a loss.  The retail value of the cigarettes here was $3k per case, and the wholesale value was $2,126 per case.

The parties agreed, as did the district court, that the “intended loss” rather than “actual loss” is the relevant measure under the guidelines.  The general rule that guides the Fourth Circuit is that loss is determined by measuring the harm to the victim, one of whom was Phillip Morris.  The cigarette company’s loss would have been the amount it would have otherwise received for selling the cigarettes, which the record indicated was $2,126 per case (8,000 cases were involved).  The Fourth Circuit noted, however, that there may have been other victims here, e.g. the states that did not make money on the taxes on cigarettes lawfully sold, and sales that legitimate retailers may have made.  The identities, then, of the intended victims and their losses are questions of fact for the district court to resolve, so the Fourth Circuit vacated and remanded.