Seizure of Man Walking Through Housing Project not Supported by Reasonable Suspicion

US v. Peters: Peters and a friend, Garrison, were walking through a housing complex in Richmond when two police officers approached. The officers knew that Peters had been arrested for trespassing more than a decade prior, but not where or whether the arrest led to a conviction. They also had information from an informant that Peters had been selling drugs in the complex. As the officers approached, one said that Peters and Garrison were “not supposed to be out here” and, as the men continued to walk, asked if they “had any guns.” Both said no. In response to a request to lift their shirts, Garrison did so and kept walking. Peters did so only partially, then stopped when the officers repeated the request. One officer asked if the other could pat down Peters, eventually stating that if he refused Peters would be arrested for trespassing. A few minutes later, one of the officers “made a sudden forward motion – ‘lie a buck,’ as he later described it – toward Peters, ‘just to see how he would respond’” (nothing in the opinion as to whether there was a response). About a minute later, Peters finally lifted his shirt enough for the officers to see a gun, which they recovered. Peters was charged with being a felon in possession of a firearm.

Peters moved to suppress the firearm. At the suppression hearing, the officer confirmed that the only thing they were investigating at the time was suspected trespassing and that was based on the decade-old arrest. The officer testified that he did not have sufficient information about drug activity to investigate that. The district court denied the motion to suppress, concluding that the officer had reasonable suspicion “because of the information included in the police records, Peters’s refusal to raise his shirt and prove he was unarmed, and” the “observation of the outline of a firearm on Peters’s person.” Peters entered a conditional guilty plea and was sentenced to 120 months in prison.

On appeal, a divided Fourth Circuit reversed the denial of the motion to suppress. The court concluded that seizure, for Fourth Amendment purposes, occurred just a minute into the encounter when the officer threatened to arrest Peters if he didn’t consent to a pat down. The officer made “a clear show of authority when he proposed taking Peters to jail for trespass” and no reasonable person would be free to leave at that point. The court then found that seizure was not supported by reasonable suspicion. In doing so, it rejected eight factors upon which the Government relied to demonstrate reasonable suspicion, concluding that they “reimagine the basis” for reasonable suspicion and that it “is the police officer who must be able to point to specific and articulable facts – not a party’s brief.” That said, the court also reviewed the Government’s factors and still found them wanting. Among other things, the court noted that officers knew that Garrison was barred from the complex, but allowed him to walk away.

Judge Traxler dissented. While agreeing with when the seizure took place, he argued that there was reasonable suspicion to support it and that the court “ignores the district court’s findings of fact and the standard of review, makes its own factual findings, and then declares those findings insufficient” while it “improperly converts the reasonable-suspicion inquiry into a subjective rather than objective inquiry.”

Congrats to the Defender office in Eastern VA on the win!

Six-plus Years of Commitment for Determination and Restoration of Competency not Unreasonable; Forced Medication Order Affirmed

US v. Tucker: Six years ago, Tucker was charged with numerous charges related to child pornography (and a gun charge). In 2017, three months after his arrest, his counsel moved to have him declared incompetent. In September of that year a district court found Tucker to be so and committed him to the custody of the Attorney General. In the intervening years, Tucker made some progress towards restoration with medication, but also had issues consistently taking it. Eventually, a psychologist requested that not only Tucker be subjected to further treatment but to an order allowing involuntary medication. After the case bounced up and down from the district court, that court ultimately granted the motion to allow involuntary medication, but stayed the order pending review from the Fourth Circuit.

On appeal, the Fourth Circuit affirmed the forced medication order and refused to order Tucker’s release. As to the length of Tucker’s commitment, the court found that the Government retained their substantial interest in prosecuting him and, therefore, rendering him competent. While recognizing that Tucker had been detained “for a significant amount of time,” the court also noted that he was charged with multiple offenses that carried 15-year mandatory minimum sentences and thus “this is not a situation where Tucker’s pretrial detention will last considerably longer than his likely sentence.” In addition, Tucker’s charged offenses were serious and included not just possession of child pornography but twice seeking to entice a minor into production of child pornography. The court thus found no clear error in the district court’s finding that the involuntary medication order would further its interest in prosecuting Tucker. The court also found Tucker’s current confinement was “reasonable” and denied his request for immediate release.

SR Condition Requiring Truthful Answers to PO Questions Didn’t Implicate Fifth Amendment

US v. Linville: In 2013, Linville pleaded guilty to receiving child pornography. As part of his sentence he was sentenced to a term of supervised release that included a condition that he “truthfully answer questions from his probation officer.” During his supervision, Linville’s probation officer required him to take a polygraph examination, during which he admitted having a collection of adult magazines inherited from his father, but denied possessing or viewing pornography. The result “indicated possible deception,” leading Linville’s probation officer to ask him, without Miranda warnings, if he possessed adult and/or child pornography. Linville admitted to both. That led to the execution of a search warrant that uncovered more than 1300 child pornography videos.

In addition to having his supervised release revoked, Linville was newly charged with possessing child pornography. He moved to suppress his statements to his probation officer (and subsequently seized evidence) because the questioning violated his Fifth Amendment rights by presenting Linville with “the classic penalty situation” – either answer truthfully and incriminate himself or lie and violate his condition of supervised release. The district court denied the motion, Linville entered a conditional guilty plea, and was sentenced to 120 months in prison.

On appeal, the Fourth Circuit affirmed the denial of Linville’s motion to suppress. The court noted that generally a person must invoke his Fifth Amendment rights, but one exception is where the Government asserts that invoking the privilege would lead to punishment, such as the revocation of a term of supervised release. Here, however, there was no potential penalty looming. The condition at issue “does not actually require a choice between revocation and asserting the privilege” and “does not expressly state that if he exercised his Fifth Amendment right to remain silent, he risked criminal penalty.” Rather, all the condition required was that if Linville answered his probation officer, he do so truthfully. There was nothing keeping him from asserting his Fifth Amendment rights not to answer at all.

Safety Valve Relief Denied Only If Defendant Has All Three Listed Criminal History Facts

US v. Jones: Jones pleaded guilty to a methamphetamine charge that carried a 10-year mandatory minimum sentence. At sentencing, she argued that she was eligible for relief under the statutory “safety valve” provision, as amended by the First Step Act. The district court ultimately agreed and sentenced Jones to 100 months in prison.

On appeal, the Fourth Circuit affirmed Jones’ sentence, rejecting a challenge from the Government. 18 USC 3553(f)(1) excludes from safety valve relief any defendant who “does not have . . . more than 4 criminal history points . . . a prior 3-point offense . . . and a prior 2-point violent offense.” At issue was whether the “and” really means “and” in this situation, that a defendant must have all three criminal features to be excluded from safety valve relief. Looking to the plain meaning of the statute, the court agreed that “and” in this case was clearly conjunctive and so all three are required. The court rejected several arguments by the Government that all became “nothing more than an exaggerated way of saying ‘and’ means ‘or’.” It rejected a theory described by another judge as a “far-fetched and quixotic em-dash theory,” noting that if Congress really wanted to say “or” instead of “and” it easily could have done so. The court also rejected the Government’s argument that its reading of the statute produced an absurd result.

Note that I was wrong the other day when I said that the Supreme Court case on this issue, Pulsifer, would be decided by May or June. More likely it’s set for the next term starting in October, so probably won’t know a result until this time next year. Make the most of Jones in the interim!

Congrats to the Defender office in Western North Carolina on the win!