Thursday, June 16, 2016

Third-party doctrine and historical cell-site location information

US v. Graham:  Upon rehearing en banc, the Fourth Circuit revised its earlier position in this case, finding instead that no Fourth Amendment violation occurs when the government obtains historical cell-site location information (CSLI) from a cell phone provider.  Under the Supreme Court’s third-party doctrine, an individual maintains no Fourth Amendment protection over information voluntarily turned over to a third party.  This holding falls in line with all of the sister circuits’ holdings on this issue.

Pertinently, the government conducted no tracking or surveillance here; rather, it obtained the CSLI from the cell phone provider pursuant to a search warrant.  The Fourth Circuit refers to a myriad of federal cases that permit the government to acquire similar third-party records, even when individuals do not “actively choose to share” the information contained in those third-party records.

The Supreme Court, according to the Fourth Circuit, has delineated clearly between contents of communications and the non-content information that enables communications providers to transmit the content, and CSLI “undeniably” belongs in the non-content category of information.

Moreover, the Fourth Circuit notes that Congress could grant individuals greater privacy protection over CSLI, as the legislative branch is “better positioned to respond to changes in technology than are the courts.”

Monday, June 13, 2016

Confidential informant's reliability omitted from search warrant affidavit

US v. Lull:  In this appeal of a felon in possession conviction, the Fourth Circuit considered the denial of a motion to suppress evidence obtained as the result of a search of the defendant’s residence, pursuant to a search warrant.  The application for the warrant, however, omitted material information about the reliability of the confidential informant, including the informant’s arrest on the same day that officers applied for the warrant.  That same day, the police had terminated the informant for lying to them and stealing some buy money used in a controlled buy with the defendant.

Before entering a plea, Lull moved to suppress evidence from his residence pursuant to the search warrant, arguing that the police obtained the warrant in violation of Franks v. Delaware.  From that case comes a two-prong test, both prongs must be proven by a preponderance of the evidence.  One, the defendant must show that an affiant included in the warrant application a false statement, knowing or intentionally or with reckless disregard for the truth; and two, that even without the false statement, the affidavit’s remaining content is insufficient to establish probable cause to search.  The Fourth Circuit has held that the two-prong Franks test applies also when an agent omits relevant facts from an affidavit.

The Fourth Circuit found here that the material about the confidential informant’s lack of reliability and his termination by the police was material, that the informant’s theft of buy money was not “separate” from the controlled buy as the government argued.  Further, the Court found that the investigating affiant omitted the information “at least recklessly,” and not through mere negligence or innocent mistake.  The Fourth Circuit held that the defendant should have won his Franks hearing, and vacated the defendant’s conviction and sentence, remanding for further proceedings.

Security check tips reasonable suspicion analysis against defendant

US v. Foster:  In this appeal from a felon in possession conviction, the Fourth Circuit considered the denial of the defendant’s motion to suppress evidence revealed by a stop-and-frisk in downtown Wheeling, WV.  With facts similar to those of the Massenberg case from 2011, including an unreliable tip, high-crime area, the only person found in an area where a shot was reportedly fired, the individual’s failure to make eye contact, the Fourth Circuit undertook a similar reasonable suspicion analysis.  Where this case diverged from Massenberg, however, arose from a security check the defendant made, and it sufficiently changed the Court’s analysis to find the totality of the circumstances supported the conviction.  The Fourth Circuit affirmed.

Here, when officers approached Foster and asked if he had any weapons, Foster put his right hand in his right front pants pocket, a “security check” referred to as the instinctive movement that suspects purportedly use to ensure their concealed weapon is secure.  Foster complied when police told him to keep his hands out of his pockets; subsequently the officers frisked Foster, patted his right front pocket area that Foster had security checked, and discovered a firearm.  The Fourth Circuit found that the security check “tied all the factors into a coherent whole that justified an investigatory stop.”  It gave the police cause to suspect that Foster had been the source of the reported gunshot here, sufficient to justify a Terry stop and frisk.

Error in jury instructions for bath salts case

US v. McFadden:  On remand from the Supreme Court (opinion here) which had concluded that the jury instructions given at the trial in this case improperly omitted elements relating to the defendant’s state of mind, the Fourth Circuit considered whether the errors in the jury instructions were harmless.  The Fourth Circuit held here that the erroneous jury instructions were harmless error with respect to some of the convictions, but not harmless with respect to certain other counts; the Fourth Circuit affirmed in part, vacated in part, and remanded to the district court for further proceedings.

The Supreme Court clarified the government’s burden of proof to support a conviction for distribution of controlled substance analogues, and instructed that the government must satisfy one of two methods of proof concerning the defendant’s state of mind.  The proof in dispute in this appeal is whether the defendant knew either the legal status of the substance, or the chemical structure and physiological effects of that substance.

At trial, the jury found that McFadden distributed substances that qualified as controlled substance analogues, and that he intended the substances for human consumption.  What the jury was not asked to consider, however, was whether McFadden had knowledge of the legal classification of the substances as controlled substance analogues or anything about the chemical structures and physiological effects of bath salts.

Here, if the jury found that the evidence establishing McFadden’s knowledge on either the legal status or the relevant characteristics of bath salts was overwhelming, it would render an error in the jury instructions harmless.  The Fourth Circuit held that the evidence was sufficient to permit, but not so overwhelming to compel, the jury to find that McFadden knew that bath salts were regulated as controlled substances.  The omission, then, by the district court of the knowledge element from the jury instructions on some of the counts was not harmless.  In contrast, some later telephone conversations demonstrated overwhelmingly that McFadden knew the chemical identities and physiological effects of the bath salts, so the omission of the knowledge element from those counts was harmless.

ACCA enhancement wrongly applied

US v. Gardner:  A confidential informant’s tip to police lead to a traffic stop of Ezekiel Gardner’s vehicle.  A subsequent search of the vehicle yielded a firearm of which the informant had advised police.  At his sentencing for being a felon in possession, the district court determined that Gardner was an armed career criminal, based upon three prior convictions for felony common law robbery in North Carolina.  In this appeal, Gardner challenged the denial of a pre-trial suppression motion, the denial of his motion for a new trial, and the district court’s determination that he was an armed career criminal.  The Fourth Circuit vacated his sentence and remanded on the third issue, finding that the district court erred in sentencing Gardner as an armed career criminal.

North Carolina common law robbery can only qualify as a “violent felony” if it matches the definition of a violent felony under the force clause of ACCA.  The Fourth Circuit found that the NC common law robbery may be committed by the alternate means of violence or fear that do not constitute different elements of distinct crimes, making the crime an indivisible offense (modified categorical approach is thus improper).  Under categorical approach, to match with the force clause of ACCA, it must necessarily have as an element the “use, attempted use, or threatened use of physical force against the person of another,” which means force capable of causing physical pain or injury to another person, not slight offensive touching.  Under NC common law, even de minimus contact can constitute the “violence” necessary for a conviction for common law robbery.  The Fourth Circuit concluded that the minimum contact necessary for a NC common law robbery does not necessarily include the force requirement by the force clause of ACCA, so it does not categorically qualify as a “violent felony” under the ACCA.

Interstate domestic violence conviction creates basis for registration requirement under SORNA

US v. Faulls:  In this appeal, the Fourth Circuit considered whether conviction for the crime of interstate domestic violence required the defendant to register as a sex offender under SORNA.  Appellant Thomas Faulls received several charges stemming from the several attacks he made on his soon-to-be-ex-wife, including kidnapping, interstate domestic violence, and possessing a firearm in furtherance of a crime of violence.  Faulls appealed the district court’s requirement that he register as a sex offender under SORNA.

Faulls argued that the district court erred plainly in requiring him to register as a sex offender, because interstate domestic violence is not one of the enumerated crimes that qualifies as a sex offense under SORNA.  The Fourth Circuit, however, found that the SORNA also provides other definitions for sex offense, including an offense with an element “involving a sexual act or sexual contact with another.” The government argued that Faulls’ interstate domestic violence conviction satisfied this definition, and the Fourth Circuit agreed, finding further that the offense of interstate domestic violence contained a penalty enhancement for offenders whose qualifying violence conduct constitutes sexual abuse, including aggravated sexual abuse, which the jury found Faulls committed here.

The jury’s finding of aggravation created a statutory question of whether that finding was an “element” of Faulls’ “offense” which implicated the categorical and modified categorical approaches for a determination of what constitutes a sex offense under SORNA.  Ultimately, the Fourth Circuit determined that the offense of interstate domestic violence can create a registration requirement, depending upon which underlying crime of violence the district court relies.