Friday, December 18, 2009

Face to Face "Man With Gun" Tip = Reasonable Suspicion

US v. Griffin: Griffin pleaded guilty to being a felon in possession of a firearm. The gun at issue was recovered from Griffin's car following a traffic stop. Since the relevant facts are few, I'll just reprint them here from the court's opinion:
The evidence presented during the suppression hearing establishes that the Value-Lodge Motel in Charlotte, North Carolina, was well known to officers of the Charlotte-Mecklenburg Police Department as a location for violent crime and drug trafficking. On the evening of September 28,2005, someone called 911 from a second floor room of the Value-Lodge reporting a man in possession of a gun. The 911 call center relayed this information, including the caller’s room number, to Officer Crystal Lee Clifton, and she responded to the call. Upon arriving at the Value-Lodge, Officer Clifton proceeded to the second floor room from which the call was made and talked with one of the room’s occupants (the "informant") who was aware that the call had been placed. Shortly thereafter, Officer Brian Carey, who was also responding to the 911 call, arrived at the Value-Lodge.1 While Officer Clifton was talking to the informant, a white Cadillac drove past in the parking lot below, and the informant immediately pointed to the vehicle and identified the driver as the man with the gun. Officer Carey returned to his patrol car and pursued the Cadillac which was exiting the Value-Lodge parking lot. He proceeded approximately 50 feet and then entered a nearby parking lot where the Cadillac was turning around. Officer Clifton remained with the informant.

Officer Carey then initiated a traffic stop of the vehicle and its sole occupant, Antonio Griffin. When Griffin exited the vehicle, he "started looking around" and "kept turning around like he was going to take off running." J.A. 27, 43. Officer Carey conducted a Terry frisk of Griffin and, out of concern for his safety, handcuffed Griffin and placed him in the backseat of the patrol car. While Officer Carey was speaking with Griffin, Officer Clifton and another officer arrived on the scene. At this time, an individual approached the officers claiming to know Griffin, and onlookers from the motel gathered at the scene. Officer Clifton thereafter performed a search of the passenger compartment of Griffin’s car, finding a pistol on the driver’s side floorboard. Officer Clifton seized the weapon, and Officer Carey placed Griffin under arrest for carrying a concealed weapon.
Griffin unsuccessfully moved to suppress the gun, the district court concluding that there was reasonable suspicion to make the traffic stop and that the search of the car was justified.

On appeal, the Fourth Circuit affirmed, 2-1. First, the court concluded that there was reasonable suspicion to support the traffic stop. The court noted that, even if the original 911 call was anonymous, the first officer subsequently had a face to face meeting with an informant, which enhanced the credibility of the information provided. Second, the court concluded that the totality of the circumstances showed that Griffin was dangerous and there was a possibility that be might access a weapon if a protective sweep was not done.

Judge Gregory dissented, arguing that the "majority opinion brings the Fourth Amendment two steps closer to a death by a thousand cuts." He went on to argue that neither the Fourth Circuit (until now) nor the Supreme Court has adopted a per se rule that a face to face encounter with an informant is inherently reliable. In this case, "none of the indicia of reliability that normally inhere in such circumstances" were present. He would also hold that, even if the traffic stop was justified, the search of Griffin's car was not.

Court Rejects "Reverse 404(b)" Testimony; Affirms "de facto" Career Offender Sentence

US v. Myers: Myers was convicted of several drug charges after trial and sentenced to 360 months in prison. At trial, Count Five involved an alleged sale of cocaine to a confidential informant who was "working off" an earlier charge for selling cocaine. When cross examined about that charge, the CI admitted to it, but took issue with several details about his behavior in the criminal complaint. The CI's testimony was the only evidence that the transaction took place (no video, I guess). Pursuant to a Government objection, Myers was precluded from calling several police officers to impeach the CI's testimony about those details. At sentencing, Myers was subject to a mandatory minimum of 120 months, but a Guideline maximum of only 121 months. However, the district court agreed with the Government that Myers was a "de facto career offender," departed upward, and imposed a sentence of 360 months.

On appeal, Myers challenged both his conviction on Count Five as well as his sentence. The Fourth Circuit upheld both. As to the conviction, the court rejected Myers's argument that the evidence he sought to introduce about the CI was "reverse 404(b)" evidence about the CI's other crimes or acts. The court held that the evidence had already been presented to the jury during cross examination and the district court did not abuse its discretion in concluding it was of limited probative value. As to the sentence, the court concluded that it was both procedurally and substantively reasonable, holding that the district court's reliance on Myers's criminal history was "thoroughly articulated" and was not an abuse of discretion.

Restitution Not Appropriate for Accessories After the Fact Without Proximate Cause

US v. Squirrel: Squirrel and Slee pleaded guilty to being accessories after the fact to murder. At sentencing, the district court ordered the two (along with another codefendant) to pay more than $5000 restitution for funeral expenses incurred by the victim's family, but indicated it would also order the defendants to pay restitution "for the use and benefit" of the victim's daughter. After a further hearing, the district court ordered the defendants to pay nearly $1.5 million in restitution for that purposes.

Squirrel and Slee appealed the second restitution award on several grounds, only two of which survived after the Fourth Circuit partially granted a Government motion to dismissed based on a waiver of appellate rights in the plea agreements. The two surviving issues where whether Squirrel and Slee could be ordered to pay restitution as accessories after the fact and whether the order of restitution was permitted under their plea agreements.

On the first issue, the court concluded that there is no per se rule prohibiting accessories after the fact from being liable for restitution, but that (as in any case) the victim's loss must be proximately caused by the specific conduct for which the defendants were convicted. In this case, there was not sufficient evidence to conclude that the victim's estate suffered any greater loss due to Squirrel and Slee's conduct (as the Government cogently put it, they did not cause "her to be 'more dead' than she already was"). On the second issue, the court concluded that the plea agreements did not provide a basis for imposing the second restitution award. Therefore, the Fourth Circuit vacated and remanded with instructions to delete the second restitution award.

Congrats to defender office in the WDNC on the win!

Tuesday, December 08, 2009

Plain View Provides for Seizure of Pistol in Car

US v. Rumley: Rumley was driving a truck that was stopped because its taillights were not working. Once the officer discovered that Rumley was driving on a suspended license, he arrested him and placed him in the back of his patrol car. The officer then went back to the truck to ask the passenger to get out. When he did so, the officer noticed a silver pistol lying on the floor in front of the passenger seat. The passenger was also secured in the back of the patrol car, after which the officer retrieved the gun. Rumley was charged with being a felon in possession of a firearm. He moved to have the gun suppressed, but the district court denied that request.

On appeal, the Fourth Circuit affirmed the district court's decision. It rejected Rumley's argument that the seizure of the gun violated the Supreme Court's recent Gant decision because he was safely secure in the patrol car before the gun was discovered and that the officer had taken the first step towards an illegal search. The court disagreed, holding that the gun came into plain view before the search began and therefore Gant was not applicable.

Broad Consent to Search Allows Seizure of Gun Stuffed Under Mattress at Crime Scene

US v. Coleman: Coleman lived with his girlfriend. One night, as he came home, he asked her to open the garage door for him. Unbeknownst to either, two men had earlier broken into the house and hid away in the garage. When Coleman's girlfriend went to open the garage door, she was attacked. In the struggle that ensued, Coleman was shot. After his girlfriend returned from next door (where she had called 911), Coleman retrieved a pistol from their bedroom and checked to make sure the attackers, who had fled, were out of the house. Coleman gave the gun to his girlfriend, telling her to "put it up" and had his brother take him to the hospital. The girlfriend stashed the gun under the mattress in their bedroom. When police arrived (after Coleman was taken to hospital), the obtained a consent to search the "anywhere in the house" from the girlfriend. Officers followed a trail of blood to the bedroom, searched under the mattress, and recovered the gun.

Coleman was charged with being a felon in possession of a firearm. He filed a motion to suppress the firearm, which the district court granted. The district court concluded that the search under the mattress exceeded the scope of the girlfriend's consent and emphasized that the gun, after investigation, turned out not to have been used by the attackers. On appeal, the Fourth Circuit unanimously reversed. Noting that there was no suggesting that the consent to search was given involuntarily, the court concluded that the search did not exceed the scope of that consent. The consent to search was exceptionally broad and had not been limited verbally by the girlfriend, who told police they could search "anywhere in the house." Furthermore, when officers found the blood trial that led to the bedroom and the discovery of the gun they could not know it was unrelated to the break in they were called to investigate.

Government Breach of Plea Agreement is Plain Error Requiring Reversal

US v. Dawson: Dawson was charged with conspiracy to distribute crack and powder cocaine. He entered into a plea agreement in which the Government agreed to recommend that Dawson receive a two-level offense level reduction for his minor role in the conspiracy. The parties agreed that the final determination of the issue was left to the district court and that the terms of the plea agreement did not bind the court at sentencing. The PSR did not include the reduction and neither party objected to its absence. At sentencing, Dawson did not argue for a reduction, but did argue for a sentence reflecting the fact that he was not a leader or organizer of the conspiracy. The Government countered that he was "critical" to the conspiracy. The district court sentenced Dawson to 70 months in prison, the bottom of the Guideline range calculated without a minor role reduction. In doing so, it noted that Dawson was a "key player" in the conspiracy.

On appeal, Dawson sought resentencing based on the Government's breach of its promise in the plea agreement to recommend a minor role reduction. Applying plain error review (because Dawson did not object to the Government's breach at sentencing), the Fourth Circuit vacated Dawson's sentence and remanded for resentencing. The Government's concession that it breached established that there was error and that it was plain. The court went on to conclude that Dawson's substantial rights were affected because the error affected the sentence imposed by the district court, done as it was based on a Guideline range without the minor role reduction and based, at least partly, on the Government's breaching argument about Dawson's role in the conspiracy. Finally, the court decided to notice the error as the kind that affects the integrity of the judicial system, rejecting the Government's argument that the failure of Dawson and the Government to mention to agreement at sentencing operated as some sort of de facto modification to the plea agreement (which, itself, required all modifications to be in writing).

Court Affirms Drug Conspiracy Conivctions

US v. Johnson: Johnson and her codefendants, Martin and Scott, were convicted of conspiracy and other offenses related to a drug distribution scheme that operated across several states. They raised several issues on appeal, but jointly and severally, seeking the reversal of their convictions. Martin also appealed his sentence. The Fourth Circuit rejected all those argument and affirmed.

First, all three defendants argued that the district court erred by not granting a mistrial when a Government witness took the stand and refused to testify. The Government did so, they argued, knowing the witness would refuse to testify and leave the jury with the impression that she had incriminating evidence to offer against them. The court disagreed, concluding that there was no evidence of Government malfeasance nor any evidence of prejudice resulting from the episode. Second, all three defendants argued that the Government improperly vouched for the credibility of its witnesses during closing argument. The court concluded that the prosecutor's use of phrases like "I think" and "I'm convinced" are not vouching.

Johnson argued that the evidence was not sufficient to convict her, an argument the court turned away with a short paragraph of analysis.

Martin raised four issues. First, he argued that the testimony of two expert witnesses violated his Sixth Amendment confrontation right because they testified based on statements from unidentified witnesses. Crawford, the court held, prohibits the use of testimony hearsay as evidence, but not the use of opinions based on such hearsay. The experts in this case presented their own opinions of the language at issue (from phone calls) and were not mere conduits for the presentation of that language to the jury. Second, Martin argued that a 1980 conviction for armed robbery should not have been admitted for impeachment purposes. The court disagreed, finding that if error was committed (which seems likely), it was not prejudicial. Third, Martin argued that had the Supreme Court's decision in Gall been decided prior to his sentencing hearing the district court would have varied from the 360-month sentence advised by the Guidelines. The court disagreed, holding that it can review only the sentence imposed, without consideration of what the district court might have done in different circumstances. Finally, the court rejected Martin's argument to retroactively impose the amended crack guidelines to his case.

Begay Has No Impact on ACCA Listed Offenses

US v. Thompson: Thompson pleaded guilty to being a felon in possession of a firearm. At sentencing, the Government argued that his six prior North Carolina convictions for "breaking or entering" were crimes of violence and thus Thompson should be sentenced as an Armed Career Criminal. The district court disagreed, concluding that under the Supreme Court's decision in Begay "violent felonies" under the ACCA must have "an element that demonstrates the likelihood that an assailant would come in contact with another person" and that Thompson's prior convictions did not meet that test. The district court sentenced Thompson to 92 months in prison.

The Government appealed and the Fourth Circuit unanimously reversed. The court noted that in pre-Begay cases (Bowden and Thompson) it had held that North Carolina "breaking or entering" convictions were violent felonies under the ACCA. The court concluded that Begay did not upset its prior holdings because its analysis is concerned with crimes other than the ones specifically listed as being violent felonies. Thompson's convictions, which meet the generic definition of "burglary", a specifically listed offense, therefore qualify as violent felonies.