Wednesday, February 24, 2016

Concealed Firearm Possession In WV Not Enough Basis for Frisk

US v. Robinson: Police in Ranson, West Virginia, received an anonymous tip that a black man who was the passenger in a car had just been seen in a convenience store parking lot with a gun. He loaded the gun, put it in his pocket, and the car drove away. The area around the convenience store was generally considered a "high crime area." Officers responded and stopped the car because neither the driver or passenger (Robinson) were wearing seat belts. One officer asked Robinson to step out of the car ,while another asked if he had any weapons. Robinson didn't answer, but gave a "weird look." The officer frisked Robinson and found a gun. Robinson was charged with being a felon in possession of a firearm. He moved to suppress the gun, but the district court denied the motion. Robinson entered a conditional guilty plea and was sentenced to 37 months in prison.

On appeal, the Fourth Circuit reversed, 2-1. Everyone agreed that the initial stop was proper and there was no argument over whether the anonymous tip was reliable. Instead, the issue came down to "whether the subsequent frisk was lawful - that is, whether the officers had reasonable suspicion that Robinson was 'armed and dangerous.'" The court concluded that there was not. Of particular importance was the fact that, in West Virginia, it is not illegal to carry a concealed firearm, the fact that the tip reported someone concealing a weapon was not, in and of itself, sufficient to show that person was dangerous. "In a different time or jurisdiction," the court wrote, "it might well have." The court recognized that allowing police to frisk anyone they thought might be armed in states that allowed concealed carry would create a serious risk of invasion of privacy and give police unfettered discretion, "implicating concerns about abuse of police discretion that are central to the Fourth Amendment." Nor did the court find that the other factors present during the stop - the high crime area and Robinson's lack of an answer to the question of whether he was armed - created reasonable suspicion.

Judge Niemeyer dissented, arguing that the court's "remarkable holding establishes a new approach that will make traffic stops substantially more dangerous to police officers" and was based "on several basic flaws of law and logic."

Congrats to the Defender office in the Northern District of WV on the win!

Wednesday, February 17, 2016

No Appeal Waive Escape Hatch After Departure

US v. McLaughlin: McLaughlin pleaded guilty to bank fraud. Her plea agreement included the following provision (sing along if you know the words!), in which she agreed:

In addition, at the plea hearing the district court asked if McLaughlin understood "you reserve only the right to appeal from an upward departure from the advisory guideline range established at sentencing and that you otherwise waive all rights to appeal whatever sentence is imposed?" McLaughlin said she understood. At sentencing, the district court applied a four-level enhancement for role in the offense, producing a Guideline range of 15 to 21 months. The district court then departed due to the under representation of McLaughlin's criminal history and imposed a sentence of 27 months.

The Fourth Circuit dismissed McLaughlin's appeal, in which she challenged the four-level enhancement, but not the upward departure. McLaughlin argued that she retained her right to appeal any part of the sentence because the sentence was "in excess of the applicable advisory Guideline range that is established at sentencing." The court disagreed, however, holding that the broader clause of the waiver - covering "whatever sentence is imposed on any ground, including any issues [relating] to the establishment of the advisory Guideline range" - controlled. If not, the exception clause on which McLaughlin relied would swallow the broader provision. Relying on contractual interpretation tools, the court "decline[d] McLaughlin's invitation to reduce much of her waiver to mere surplusage." The court also found that there was no ambiguity in the waiver (which would then be construed against the Government) simply because McLaughlin and the Government read the provision in different ways.