Thursday, May 21, 2015

Limiting the "Private Search Doctrine" for Computers

Yesterday, the Sixth Circuit reigned in the "private search doctrine" as applied to computer searches. United States v. Lichtenberger, No. 14-3540. According to Orin Kerr at The Volokh Conspiracy, the opinion creates a circuit split and "may be the next computer search issue to make it to the Supreme Court."

Under the private search doctrine, if a private party conducts a search, without the participation or encouragement of law enforcement, then the private party may show police what was found during the private search. See United States v. Jacobsen, 466 U.S. 109 (1984). Police may not, however, exceed the scope of the private party's initial search without first obtaining a warrant. In fact, an officer must have a "virtual certainty" that the officer's inspection will not reveal more than the private party's search.

In this case, the defendant's girlfriend searched his personal computer and found child pornography. She then contacted police and showed an officer some of the images on the computer. Critically, the girlfriend testified at a suppression hearing that she was not sure whether she showed the officer the same images she saw during her initial search.

As Kerr explains, before Lichtenberger, the Fifth Circuit held that, when a private party views even a single file on a computer disk, the police may inspect all content on the disk without a warrant. The Seventh Circuit followed the same course.

Relying on Riley v. California, however, the Sixth Circuit noted that courts must balance the government's interest in a search against the defendant's privacy interest, and that "the nature of the electronic device greatly increases the potential privacy interests at stake, adding weight to one side of the scale while the other remains the same." This change, the court decided, "manifests in Jacobsen's 'virtual certainty' requirement." The court then held that the officer lacked the necessary certainty here since neither he nor the girlfriend could confirm if he viewed the same files from the initial search. The court thus upheld the suppression of evidence from the search.

The opinion maintains that the Sixth Circuit's approach is consistent with that of the Fifth and Seventh Circuits. Kerr argues that this isn't the case because, although the courts applied the same test, they used "different units" to measure the scope of the search: the whole device, versus a file- or data-based approach. There is a current petition for certiorari from an Eleventh Circuit decision raising this issue.

Wednesday, May 06, 2015

The Right to Parent and Restrictions on Associating with Minors

In United States v. Widmer, No. 13-6283, the Sixth Circuit considered special conditions of supervised release that prevent a defendant from associating with minors without first receiving written permission from his or her probation officer. Mr. Widmer was convicted of possessing child pornography and given a special condition that required him to seek his probation officer's written permission if he wanted to associate with anyone under eighteen. Because Mr. Widmer is the parent of a minor daughter, he challenged the restrict - in part - by arguing it was a constitutional deprivation of his fundamental right to parent and associate with his family. He also argued that the condition did not advance a rehabilitation or safety interest and was either not merited by the record or not supported by a sufficient explanation from the judge.

The Widmer Court noted the right to family life is protected by the Fourteenth Amendment but is not absolute. Rather, special conditions of supervised release that implicate parental rights require explicit consideration by the sentencing court, as they are more intrusive to the individual. The sentencing judge below explicitly addressed the association restriction and its application to Widmer's minor daughter. In reviewing the district court's reasoning, the Widmer court held, "Although Widmer asserts that the association restriction is not narrowly tailored because it affects his association with his own child, it is clear that the restriction is tailored for the precise purpose of protecting Widmer's daughter."

Although Widmer asserted his crime of possessing child pornography was passive, the Sixth Circuit stated that Widmer's disregard for the welfare of the children depicted suggested otherwise. In sum, the Widmer court found that the district court was in its discretion to impose the special condition. The decision also provided a standard procedural reasonableness analysis of the district court's explanation at sentencing.

Wednesday, April 29, 2015

Cell Phone Search Warrants

The Sixth Circuit agreed this week to publish United States v. Bass, No. 14-1387, originally issued as an unpublished decision. In the decision, the court affirms the denial of a motion to suppress a cell phone search. The government urged publication on the basis that “case law applying the contours of Fourth Amendment search and seizure law to cell phones in this circuit is scant.”

The government charged Bass with masterminding an identity-theft ring using credit-card account takeovers. Before Bass’s arrest, law enforcement uncovered “that phone numbers linked to Bass had been used in several account takeovers.” Police then seized Bass’s phone when they arrested him at his mother’s residence. Before gaining entry to the home, police observed him typing on the phone, and when Bass eventually opened the door, he “was arrested with his burgundy Kyocera Torino cell phone still in hand."

The officers obtained a warrant before searching the phone. The affidavit stated that police suspected Bass of crimes in which “cell phones were frequently used by conspirators to text or call each other during the times that the fraudulent activity was taking place,” and that Bass had used the phone at his arrest, “possibly attempting to alert other conspirators of [his] arrest.” The search warrant “authorized the search for any records of communication, indicia or use, ownership, or possession, including electronic calendars, address books, e-mails, and chat logs.” During the search, an officer turned on the phone and obtained its number, which matched with one used during account takeovers.

Bass argued that the search affidavit (1) lacked probable cause, (2) failed to show that his particular phone contained evidence, and (3) was overbroad.

The Sixth Circuit concluded that the affidavit showed a fair probability that the cell phone contained co-conspirator contacts and had sufficient detail to tie this phone to Bass’s offense, particularly since it identified the phone as obtained at his arrest. As for the overbreadth argument, the court decided that, even though the officers could not have known where within the phone, or in what format, the evidence would be, the scope of the warrant was reasonable given that criminals using modern electronic devices often seek to conceal evidence of their criminal activity. For support, the court primarily relied on United States v. Richard, 659 F.3d 527(6th Cir. 2011), which addressed computer searches.

The court also denied Bass a new trial based on the recantation of a witness’s testimony and rejected his challenge to his statutory maximum prison sentence of 264 months.

Tuesday, April 21, 2015

Duplicity and Unanimity Instructions

United States v. Eaton, decided on April 20, 2015, is an appeal from the conviction of former Barren County (KY) Sheriff Christopher Eaton.  The case stems from the arrest and beating of Billy Stinnett in 2010.  Eaton and three sheriff's deputies were charged with excessive force; Eaton was also charged with witness tampering and obstruction of justice.  Eaton was convicted only of two counts of witness tampering.

The most interesting issue raised on appeal regards whether the trial court erred in failing to give a unanimity instructions as to one of the witness tampering counts.  Eaton argues that the proof at trial left the jury with the ability to find that Eaton had committed witness tampering in one of two ways (lying about excessive force or lying about whether Stinnett had a weapon).  Eaton's trial counsel didn't request such an instruction, so on appeal, Eaton was stuck with plain error review.

The court's decision suggests that even had the error been preserved, Eaton would have lost the review.  The panel reiterated the distinction between jurors being unanimous as to elements and jurors being unanimous as to facts.  Citing Richardson v. United States, the court holds that Eaton's case implicates only the "brute facts" underlying the statutory elements; thus, a unanimity instruction was not required.

Saturday, April 18, 2015

Determining Competency

A recent pair of Sixth Circuit cases elucidate the procedure for determining competency—particularly  when a defendant seeks to represent himself. In such circumstance, there are two questions: (1) whether the defendant is competent to stand trial and (2) whether the defendant is competent to represent himself. Under Indiana v. Edwards, 554 U.S. 164 (2008), a district court may appoint trial counsel to a defendant incompetent to conduct a trial even if the defendant is competent to stand trial. A defendant may not represent himself in regard to the first question, but apparently may represent himself in regard to the second.

In United States v.Martin, the Sixth Circuit reversed a conviction because “there [was] nothing in the record to suggest that counsel represented [the defendant] at the [competence] hearing or participated in any way in the determination of [the defendant’s] competency.” The Court held that when “a criminal defendant’s competency to stand trial has been challenged, the validity of the defendant’s waiver of counsel is suspended until the issue of his or her competency is resolved.” The participation of standby counsel may be “sufficient only when standby counsel conducts an adequate investigation of the defendant’s competency and subjects the evidence . . . to meaningful adversarial testing.” (As an aside, the Court applied de novo review to the denial of counsel claim).


In United States v.Stafford, the Sixth Circuit upheld a determination that the defendant was both competent to stand trial and to represent himself. During the hearing to determine competency to stand trial, counsel represented Stafford. But at a subsequent hearing to further inquire into Stafford’s competency to represent himself, the district court noted that standby counsel was “not required to speak” (though it should be noted that standby counsel did speak and opined that Stafford was competent to represent himself). The appellate court emphasized the extensive record built by the district court in reaching its determination and the district court’s superior position to make determinations regarding competency.


These cases demonstrate the avenues and necessity for zealous advocacy even when a  
defendant seeks to proceed pro se.

The cases cited above are United States v. Martin, 11-6544 (6th Cir. April 15, 2015), and United States v. Stafford, 13-4188 (6th Cir. April 10, 2015).   

Tuesday, April 07, 2015

Too white to strike? Reverse-Batson rears its head

Today's unpublished Strong opinion shows the Sixth Circuit wrestling with the always-problematic reverse-Batson claim, made especially problematic here in light of some, shall we say, unusual comments made by the district judge during voir dire.

In a case with two African-American defendants, defense counsel exercised peremptory strikes against three white members of the jury pool. After the government raised a reverse-Batson challenge, the court determined that the defense had presented racially-neutral reasons for two of the strikes, but found that the last one was "poorly supported" and "pretextual." Defense counsel offered several explanations for striking the juror, including that he appeared to have worked for another potential juror and that he had stared at one of the defendants during voir dire. The court believed that both of those explanations were factually unsupported. But the court did not stop there. Instead, it unfortunately implied that the third juror was somehow just too white to strike:

"[T]he reason it appears to have been [pretextual] is that [the juror], who of all of our jurors, is actually remarkably white. He's just plain pale. He makes [defense counsel] and me look like we're rosy complected. That probably sounds bad, but he's just very pale, so, unfortunately, I don't know that that had anything to do with it."

Indeed, it did sound bad. Although the Sixth Circuit ultimately upheld the reverse-Batson determination, the panel "strongly disapprove[d] of the statements regarding relative skin tones that the district court made, and believe[d] that it could have addressed the government's Batson claim in any number of different (and more appropriate) ways."

Monday, March 23, 2015

If the government doesn't like a ruling by the district court, they need to appeal

After his supervised release was revoked, Mr. Burch filed a notice of appeal. He was a few weeks past the 14-day deadline for filing, so he also filed request for an extension of time.* The district court granted the request. The government did not appeal this ruling, or file a cross appeal. Instead, it challenged the order via a motion to dismiss the appeal as untimely, arguing the district court abused its discretion in granting the extension.

There is actually a circuit split on this issue. The Third Circuit rejects the motion to dismiss approach and holds a party must "appeal from the order granting the extension of time to appeal." The Tenth Circuit had a rather convoluted theory that a cross-appeal is only for instances where an appellee wants "more than it obtained by the lower-court judgment" and since the appellee was not seeking alteration of the judgment, they need not file a cross-appeal.

In United States v. Burch, 14-6232, the Sixth Circuit agreed with the Third Circuit and provided some clearer guidance: "litigants dissatisfied with a district court's judgment or order normally must file an appeal challenging the decision." "[A] party dissatisfied with a district court's order is well-served to file [an appeal], whether labeled an appeal or cross-appeal, within the relevant timelines." There is nothing about a time-extension order that suggests any different rule should apply to them.

The Sixth went on to describe instances where a motion to dismiss would be appropriate: where the court lacked jurisdiction; to enforce a valid appeal waiver in a plea agreement; or when a criminal defendant filed an untimely appeal without district court authorization.**

The government's motion to dismiss the appeal was denied. It appears Mr. Burch has until his release on April 28, 2015, to appeal his revocation and/or sentence, as he received jail time with no supervision to follow.



* Practice tip #1: if you must file your notice of appeal late, for whatever reason, file the notice AND a request for an extension of time. If you only file the notice, the Sixth Circuit will docket the case and then tell you in a rather public way that you need to move the district court to allow you to file out of time. Since you will have to do it anyway, go ahead and do it in the first place.

** Practice tip #2: When a defendant files a pro se notice of appeal, the Sixth Circuit will docket the case and notify trial counsel. DO NOT IGNORE THEIR MESSAGE. Even court-appointed counsel are considered appeal counsel unless and until they are relieved. Respond to the message. Put your appearance in. If the defendant has filed out of time, the Sixth will issue a Rule to Show Cause, basically asking trial counsel to figure out what's going on, get the district court's permission to file late, and get in touch with the client. When in doubt, do not do nothing.