Thursday, December 05, 2019

Inevitable Discovery Saves Warrantless Search of Bag

US v. Seay: Seay was in a hotel room with Bracey, when they were asked to leave by police in response to complaints from hotel staff. As they were leaving, Seay was carrying a clear plastic bag. After searching the room, finding ammunition and drug paraphernalia, Seay and Bracey were questioned. Particularly, Bracey, who cops were planning to arrest on drug charges, said that they clear bag was “ours.” It was searched, without a warrant, uncovering a firearm. Seay was eventually charged with being a felon in possession of that firearm. His motion to suppress was denied because the district court concluded the officers would have inevitably discovered the gun.

The Fourth Circuit affirmed. It pointed to testimony of the officers involved that the clear plastic bag would have been inventory searched in one of two ways – either as Bracey’s property when she was booked after being arrested or if she wanted to give it to Seay before she was taken away. Both were consistent with department policy. The court rejected Seay’s argument that because the officers had some discretion in how to conduct an inventory search in the second instance (if Seay had taken it) that did not make the decision to search so discretionary as to not be a valid inventory search.

Downward Variance Vacated for Want of Explanation

US v. Provance: Provance pleaded guilty to assault causing bodily injury on a person under the age of 16 (this happened on a military base). The victim was his newborn son for whom Provance was the primary caretaker once his wife returned to work. Provance admitted to causing the injuries to his son, but could not remember inflicting them (nor could his wife, although she admitted she had “noticed” him “being rough with their son”). At sentencing, Provance sought a downward variance to probation, from an advisory Guideline range of 33 to 41 months, on the grounds that he had no criminal history, was employed, and was taking various classes and counseling programs to help with the issues raised by parenthood. The Government argued for a Guideline sentence. The district court, after making several references to why “the mother” was not before it and questioning how long it was before she returned to work, gave Provance probation. Aside from stating the sentence (including various conditions of probation), all the district court said was “[y]ou can appeal that if you want.”

The Government did appeal and the Fourth Circuit vacated Provance’s sentence. In doing so, it articulated a rigid protocol for examining sentences. The Government argued only that the sentence was substantively unreasonable – it was too short – not that the district court had procedurally erred when applying it (Provance, obviously, argued it was both procedurally and substantively reasonable). The court held that it was required, before reviewing any sentence for substantive reasonableness, to review it for procedural reasonableness. In this case, the sentence was procedurally unreasonable (and it was “inexplicable” that the Government didn’t argue such) because the district court “failed to provide any sentencing rationale at all,” which prevented review for substantive reasonableness.

Voyeurism Conviction Requires SORNA Registration

US v. Helton: In 2012 Helton pleaded guilty in South Carolina to voyeurism, which required him to register as a sex offender in that state. He later moved to Virginia and West Virginia, successfully updating his registration along the way. However, he eventually moved back to Virginia without updating his registration information in West Virginia. As a result, he was charged with violating SORNA. He unsuccessfully moved to dismiss the indictment, arguing that his voyeurism conviction, since it required no physical contact with another person, did not meet the SORNA definition of “sex offense.”

A divided Fourth Circuit affirmed his conviction. At issue was whether the SORNA definition of sex offense, which requires either a “sexual act” or “sexual contact with another” included South Carolina’s offense of voyeurism, which requires viewing another person in a place they would have a reasonable expectation of privacy “for the purpose of arousing or gratifying sexual desire of any person.” Applying the categorical approach, the court concluded that it did. Noting that the term “sexual act” (everyone agreed the offense didn’t involve sexual contact) is not defined in SORNA, the court turned to the plain meaning of the term, rather than import a specific definition from another federal sex offense definition. The plain meaning, which was consistent with the Attorney General’s SORNA regulations, did not require physical contact, so long as there was an “act” completed with the proper state of mind. Since voyeurism required the act and a sexually-related mens rea, it fit that meaning.

Judge Floyd dissented. Although he agreed with the majority as to the proper means of analysis, he argued that when turning to the plain meaning “the read ‘sexual’ as supplying the motivation for the act, as opposed to modifying the nature of the act itself.” As a result, he argued, the definition is overly broad and turns not on the nature of the act but of the state of mind.