Monday, August 22, 2011

Warrantless Entry Violates Fourth Amendment, Will Later Consent Avoid Suppression?

US v. Hill: Police obtained a warrant for Hill's arrest on drug charges. They went to his last known address, a townhouse he shared with his girlfriend and their son. However, from prior experience the officers knew that Hill only spent about half of his time there and one officer speculated there was only a 20% chance he would be there (a previous visit to the home on a 911 hang-up led Hill's girlfriend to tell the officers he knew he had an arrest warrant out against him). Officers knocked on the door, but no one answered. They could hear what sounded like the TV playing inside. One officer called Hill's wife, who was at work. She said the only person who would be there was her sister. She did not give the officers' permission to enter.

Nonetheless, one of them turned the knob, opened the door, and saw Hill (and a friend) sitting on the couch. Officers did a protective search of the home, finding some marijuana. One officer went to obtain a search warrant. Before he returned, however, Hill's girlfriend arrived home. She may or may not have consented to a search of the home at that time. Regardless, a search was done by the time the warrant arrived. Officers found a gun and more drugs in the home, leading to Hill being charged with drug and firearm offenses. Hill moved to suppress the evidence, but the motion was denied. He entered a conditional guilty plea and was sentenced to 120 months in prison.

On appeal, the Fourth Circuit reversed the denial of the motion to suppress. First, the court held that the officers did not have sufficient evidence to suggest that Hill was actually in the home to execute the arrest warrant. Hill conceded he resided there (he had to in order to assert a Fourth Amendment protection), but the court held there was not sufficient evidence from which the officers could conclude he was actually there. Second, the court concluded that there were no exigent circumstances present that would justify entry into the home without a warrant. Third, the court held that Hill's girlfriend did consent to a search once she arrived at the home. However, the court did not decide whether the consent dissipated the taint of the initial illegal entry, an issue the district court did not reach. It remanded to the district court for further proceedings on that issue.

Judge Agee dissented, arguing that the majority did not give sufficient deference to the district court's finding of facts. When viewed with the proper deference, there was no basis for overturning the district court's ruling.

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

Court Reverses on North Carolina Priors

US v. Simmons: Simmons was convicted on a federal drug charge and faced an enhanced sentence for a prior drug conviction "punishable by imprisonment for more than one year." The prior at issue was a North Carolina conviction for possession with intent to distribute marijuana. A "Class I" felony, it carried a potential sentence of more than one year in prison only if (a) certain aggravating factors were present and (b) Simmons had a "prior record level" of at least 5. Neither condition was met in Simmons's case. Nevertheless, the district court found that Simmons's prior qualified him for an enhanced sentence, applying an old Fourth Circuit case which held that the applicable potential maximum sentence in such cases was based on an offender with the worst possible criminal history. A panel of the Fourth Circuit affirmed that sentence, both before and after a remand from the Supreme Court.

On a rehearing en banc, the court changed course, 8-5, and vacated Simmons's sentence. The court, via Judge Motz, concluded that the Supreme Court expressly rejected the "hypothetical defendant" approach for analyzing North Carolina convictions. Because a defendant's maximum potential sentence on an offense in North Carolina is tied directly to his criminal history, the correct analysis is to determine what the maximum sentence possible a defendant with the same criminal history could have received (the actual sentence received is, of course, irrelevant). That brings the Fourth Circuit into line with the other two circuits that have looked at the North Carolina system.

Judge Agee led the dissenters, arguing that the language of the enhancement statute talks about an "offense" that is "punishable" by a certain potential sentence and does not allow for any consideration of a particular defendant's criminal history.

Congrats the Defender office in Western North Carolina, which headed up the amicus forces on this win!

Tuesday, August 16, 2011

Nervousness During Refusal to Consent to Patdown Doesn't Generate Reasonable Suspicion

US v. Massenburg: Officers in Richmond responded to an anonymous report of shots fired in a "high-crime" neighborhood. They encountered a group of four men, including Massenburg, about four blocks away. The men were generally helpful (one reported hearing shots), provided identification, and consented to patdowns. However, Massenburg refused to consent to a patdown. He was, according to one of the officers, "real reluctant to give consent." Because Massenburg distanced himself somewhat from the other three men and would not make eye contact with an officer repeatedly asking for consent to perform a patdown, an officer patted him down anyway. The patdown uncovered a gun and some marijuana, leading to Massenburg being charged with drug possession and possession of a firearm by a drug user. He moved to suppress the gun and marijuana, but the district court denied the motion. Massenburg entered a conditional guilty plea and appealed that decision.

On appeal, the Fourth Circuit reversed the district court's denial of the motion to suppress. Noting that it recently (in Foster) chided the Government for attempting to spin "mundane acts into a web of deception" in order to support a Terry intervention, the court wrote that such concern "is only heightened when the 'mundane acts' emerge from the refusal to consent to a voluntary search," concluding that, if Terry is to mean anything, "refusing to consent to a search cannot itself justify a nonconsensual search." After examining the testimony about the incident in some detail, the court concluded that "there is precious little to sustain the district court's holding" that there was reasonable suspicion to support a patdown. Massenburg's observed nervousness came only when the officer repeatedly sought his consent to pat him down, a situation that would make almost anyone nervous. The court also refused to impart to the officer who searched Massenburg the observation of another officer (not reported at the time) that he saw a bulge in Massenburg's jacket.

3582 Reduction Requires Reliance on Guidelines

US v. Brown: Brown pleaded guilty to maintaining a crack house in 2005. As part of a Rule 11(c)(1)(C) binding plea agreement, he agreed that the "appropriate sentence in this case is incarceration for not less than 180 months and not more than 240 months." He was sentenced to 210 months in prison. In 2009, Brown filed a motion for a reduced sentence under 3582(c)(2) and the revised crack guidelines. The district court granted the motion and reduced his sentence to 180 months. The Government appealed, arguing that the district court lacked the jurisdiction to reduce a sentence imposed as part of a binding plea agreement.

On appeal, the Fourth Circuit agreed and vacated Brown's reduced sentence. The Supreme Court recently dealt with the issue in Freeman v, United States. However, as the Fourth recognized, that decision was not a hallmark of clarity. Four justices held that reduced sentences are always available in binding plea cases, while four others concluded (in dissent) that such reductions are never available. Justice Sotomayor took a middle approach, concluding that reductions were unavailable in such cases, unless the plea agreement specifically relies upon a particular Guideline range. Concluding that Sotomayor's opinion controls, the court concludes that Brown's plea agreement does not rely on a particular Guideline range. Therefore, the district court lacked the authority to reduce his sentence.

Identity Evidence Insufficient to Sustain Robbery, Firearm Charges

US v. Bonner: Bonner was charged with a Hobbs Act robbery and use of a firearm. The charges arose from the robbery of a Subway restaurant in North Carolina by two African American men. One was wearing a NY Yankees cap. That was the only description provided by the two employees present during the robbery. Police pulled over an SUV exiting the parking lot shortly thereafter that, while it only included one occupant (who was never charged), did contain items linking the vehicle to Bonner. Police also recovered a Yankees cap from behind the store which contained DNA that matched Bonner (as well as several other people who could not be identified). Finally, a canine followed a scent from the area to a nearby gas station, from which a phone call was placed to Bonner's girlfriend several hours after the robbery.

Bonner was convicted at trial. However, the district court granted his motion for a judgment of acquittal after the conviction, having deferred ruling on Bonner's motion made after the close of the Government's case (and every subsequent opportunity). The Government appealed, arguing that the evidence was sufficient to support the convictions, when considered in the light most favorable to the Government.

The Fourth Circuit affirmed the district court's grant of the motion for acquittal. The court concluded that there was a "conspicuous absence of any contemporaneous 'identity' evidence linking the defendant to the robbery." As for the DNA match to the Yankee cap, the court noted that the cap had several different DNA samples on it and nothing proved that Bonner wore it the night of the robbery (as opposed to some other time). The court also refused to rely on an inference put forth by the Government that the dog tracking a scent from the scene to the gas station did so based on the "predominant DNA" present on the cap (Bonner's). The court noted that the Government's inference lacked any basis in the record. In addition, "not every articulable inference is proper because scientific rigor demands more than a theory of plausible deductions strung together."