Tuesday, July 21, 2020

Suspicionless Stop In Wake of Gunshots Violates Fourth Amendment

US v. Curry: One night four Richmond police officers were patrolling a neighborhood that “had been the site of frequent gun violence,” including six shootings (two murders) in the past six months. They heard what sounded like a “half dozen gunshots coming from the direction of a street called Walcott Place.” They arrived at Walcott Place about 35 second later, where they spotted several people, including Curry, walking away from the scene. The officers approached these men, shining flashlights at them and demanding that they lift their shirts so the officers could check for weapons. All but Curry complied. When he didn’t, officers tried to pat him down anyway, resulting in a “brief struggle,” after which Curry was handcuffed. Officers “then recovered a silver revolver from the ground near Curry.” After being charged with being a felon in possession of a firearm, Curry successfully moved to suppress the firearm. The district court concluded that the officers lacked particularized reasonable suspicion to stop anyone, Curry included, and that the exigencies of the situation did not override that.

A divided panel of the Fourth Circuit reversed. The majority held that the "special needs" doctrine applied, the need in this case being “the prospect that a single, active shooter might continue to threaten the safety of the public.” Judge Floyd dissented, arguing that the special needs doctrine did not apply, nor did the exigent circumstances doctrine (he accused the majority of conflating the two). Curry sough rehearing en banc which was granted.

The full Fourth Circuit affirmed the district court's initial grant of Curry's motion to suppress. Judge Floyd wrote the majority opinion (joined by eight others). Focusing only on the exigent circumstances doctrine (the special needs doctrine had never been previously argued by the Government), the court held that while it can sometimes apply in Terry-stop cases, it can only do so were "specific and clear limiting principles" are involved, such as when officers are searching for a particular suspect "implicated in a known crime" within a limited geographic area. Because those factors were not present here and the initial stop of Curry was not appropriate under Terry, suppression was required.

Judge Wilkinson wrote a dissenting opinion, in which he argued that the majority's decision would have wide-ranging ramifications in certain communities and essentially prevent police from responding to crimes as efficiently as possible using emerging data-driven "predictive policing" techniques. Judge Richardson (who wrote the original panel majority opinion) also dissented (joined by five others), arguing that "the touchstone of the Fourth Amendment is reasonableness, and the officers' response to this evolving exigency was eminently reasonable."

Chief Judge Gregory wrote a concurring opinion in response to Judge Wilkinson's dissent, particularly arguing that the communities he is worried about being victims of under policing due to the majority's opinion have a complicated history with police and they "do not want police officers to be tough on crime, or weak on crime - they want them to be smart on crime." Judge Wynn also wrote a concurring opinion, responding to both of the dissenting opinions. Judge Diaz (joined by Judge Harris) wrote a concurring opinion to "emphasize the criteria under which exigent circumstances may justify a suspicionless stop," relying on the Supreme Court's decision in Edmond. Finally, Judge Thacker (joined by Judge Keenan) wrote a concurring opinion in which she argued that "predictive policing . . . is little more than racial profiling writ large."

 Congrats to the Defender office in EDVA on the win!

No Plain Error In Mandatory SR Revocation Due to Drug Possession

US v. Coston: Coston pleaded guilty to a drug charge in 2006 and had struggled with supervised release after serving his term of imprisonment. On his third supervised release term, after a series of personal tragedies, he returned to marijuana use and his probation officer ultimately sought to revoke him due to positive drug tests. The number of positives triggered the mandatory revocation provision of 18 USC 3583(g). The district court rejected Coston's request for treatment in lieu of revocation (the statute's one exception), revoked him, and imposed an above-the-Guideline sentence of 36 months in prison (with no additional term of supervised release).

The Fourth Circuit affirmed Coston's revocation and sentence. On appeal, for the first time, Coston argued that 3583(g) violated his right to due process in light of the Supreme Court's decision in US v. Haymond, in which it held that the provision requiring revocation and a mandatory 5-year sentence in some child pornography cases was unconstitutional. The court did not decide whether 3583(g) met the same fate, as under plain error review even if there was error that error was not plain. The court pointed to the Supreme Court's fractured decision - the judgment was 5-4 in favor of Haymond, but the majority split - and held that Justice Breyer's concurrence was the narrowest basis for the decision and thus controlling. That opinion, along with binding Fourth Circuit precedent, did not allow the court to conclude that any error was "clear" or "obvious," as required by plain error review. The court also concluded that Coston's sentence was not plainly unreasonable.

“In Connection With Another Felony Offense” Enhancement Vacated for Lack of Findings

US v. Bolden: Bolden was a guest at somebody else's home when he took a bad trip. He had "become paranoid after using drugs, placed two women in a 'bear hug,' and began shooting at shadows on the walls inside the home's rear bedroom." Police responded to reports of shots fired and Bolden was arrested. During a protective sweep, officers recovered two guns and small amounts of marijuana and crack cocaine. Bolden pleaded guilty to being a felon in possession of a firearm. 

At sentencing, he argued against a four-level enhancement for possession in connection with another felony offense. The probation officer identified the other felony as kidnapping, based on Bolden's restraint of the two women. Bolden argued that the applicable kidnapping statute was a specific intent crime and his intoxication made it impossible to form the requisite intent. The district court agreed and held that there was no kidnapping. However, it went on to conclude that Bolden had committed "a number of crimes," including felony possession of cocaine, based on the drugs found after he was in custody. The district court did not make "an express finding that Bolen's possession of a firearm was 'connect[ed]' to the possession of cocaine." Bolden was sentenced to 102 months in prison, within the district court's calculated Guideline range.

The Fourth Circuit vacated Bolden's sentence. The court held that it was "unable to review “the district court's ruling because it "made no findings connecting Bolden's possession of a firearm to his possession of cocaine and gave no indication of its reasoning." Rejecting the Government's request to review for plain error (because Bolden didn't raise a second specific objection to the possession finding), the court noted that while the Guideline commentary allows for an inference of connection when the other felony offense is drug trafficking, the same is not applicable for simple possession. Therefore, the enhancement can only apply with an express finding that the firearm facilitated the other felony offense. While the court did vacate Bolden's sentence, it also made clear that it was not holding that the "enhancement is inapplicable as a matter of law" and remanded for further proceedings.