Tuesday, January 31, 2006

Peer Pressure? Guidelines Presumptively Reasonable in the Sixth Circuit

Today the Sixth Circuit succumbed to peer pressure and held that the guidelines are presumptively reasonable. In today's opinion, United States v. Leonard Williams, -- F.3d --, No. 05-5416 (6th Cir. January 31, 2006), (opinion available here), Judge Cook writing for the panel stated:

Although several of our sister circuits have concluded that any sentence within the applicable Guidelines range garners a presumption of reasonableness, this court has yet to articulate what weight should be accorded the Guidelines relative to the other sentencing factors listed in § 3553(a). See United States v. Webb, 403 F.3d 373, 385 n.9 (6th Cir. 2005) (declining "to indicate what weight the district courts must give to the appropriate Guidelines range, or any other § 3553(a) factor"); see also id. at 385 (Kennedy, J., dissenting). We now join several sister circuits in crediting sentences properly calculated under the Guidelines with a rebuttable presumption of reasonableness. Such a presumption comports with the Supreme Court’s remedial decision in Booker. See United States v. Booker, 125 S. Ct. 738, 757 (2005) (holding that the modified Federal Sentencing Act "requires a sentencing court to consider Guidelines ranges, but . . . permits the court to tailor the sentence in light of other statutory concerns as well" (citation omitted)).

Judge Cook went on to illustrate that this presumption shifts the burden to the defendant to prove that the guideline sentence is unreasonable. The last line of the opinion sums it up:

In the absence of a showing that the district court imposed an “unreasonable” sentence, we affirm.
What is notable about the adoption of the rebuttable presumption standard in this case is the total lack of any real legal reasoning and a passing reference to Booker as support for shifting the burden to the defendant to show that a guideline sentence is unreasonable. One might argue that to shift the burden to the defendant to show that a guideline sentence is unreasonable is nothing more than another way of approving of a mandatory guideline regime, which, Booker clearly prohibits.


February 1, 2006, 11:55 a.m. CST

One of my esteemed colleagues, Sumter Camp, added some comments to my post and I thought they were important enough to place in the post itself so that everyone could benefit. Sumter wrote:

This opinion is contrary to a number of other Sixth Circuit
cases defining either the standard of review or the procedure the Court will use to review for reasonableness. See, e.g. Webb, 403 F.3d 373, 385 fn 9 (6th Cir. 7/19/05), which states, "we also decline to hold that a sentence within a proper Guidelines range is per-se reasonable. Such a per-se test is not only inconsistent with the meaning of 'reasonableness’, (cite omitted), but is also inconsistent with the Supreme Court’s decision in Booker, as such a standard ‘would effectively re-institute mandatory adherence to the Guidelines.’"; See, also, the description of appellate review in United States v. McBride, __ F.3d __, 2006 WL 89159 (6th Cir. 1/17/06), e.g., "A district court’s failure to explicitly consider the section 3553(a) factors without other evidence in the record demonstrating that they were thoroughly considered by the district court would result in a procedurally unreasonable sentencing determination requiring us to vacate and remand for resentencing." Slip Op. 4, fn. 3. The court in Williams goes out of its way to reach an issue that should have been precluded by the Circuit's rule prohibiting one panel from over-ruling another panel's decision. Hopefully, Williams will ask for rehearing and/or rehearing en banc given that the Circuit's law was clear before this opinion, but has now been muddied.

Thanks Sumter!

Note: Mr. Williams is represented by Dianne Smothers, AFPD, Western District of Tennessee, who has assured me that rehearing and/or reahearing en banc will be sought.

Monday, January 30, 2006

The Drug Exception to the Fourth Amendment


Justice is incidental to law and order.
- J. Edgar Hoover
As we are all aware, over the years there have developed a number of exceptions to the mandates of the Fourth Amendment which have been described by the courts. There is one exception, however, that is at work in the cases, but which has not yet been specifically identified by the courts. I call it the Drug Exception to the Fourth Amendment. It is a Get-Out-of-Your-Constitutional-Obligations-Free card for law enforcement and prosecutors. The Sixth Circuit’s opinions of the last year show the extent to which the drug exception to the Fourth Amendment has become not only entrenched, but also so accepted as to be without comment.

Terry - The Start Down The Path

In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court for the first time approved an intrusion on individual liberty on a standard lower than the Constitutional "probably cause" standard.
[It may be worth noting that Justice Douglas dissented in Terry stating, "To give the police greater power than a magistrate is to take a long step down the totalitarian path." If he only knew.]

The standard was explained as, "[w]hen an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others", 392 U.S. at 24, and, "there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime." 392 U.S. at 26.
The holding was stated as follows: "We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him." 392 U.S. at 30.
Several principles emerge here that seek to limit this rush down the totalitarian path: 1) the investigating officer must observe "unusual conduct" that leads him to believe (a) that criminal activity may be afoot, and (b) that the persons under suspicion may be "armed and presently dangerous," 2) he must identify himself as a police officer and make "reasonable inquiries," 3) only if these steps fail to dispel his reasonable fear may he search, and 4) the search is limited to (a) the outer clothing for (b) weapons which might be used to assault him.

The Drug Exception to Weapons Searches
Although, as we have seen, the holding in Terry requires that the investigating officer must observe "unusual conduct" that leads him to believe that the person is armed and presently dangerous, recent drug cases have done away with this requirement, instead creating a presumption that any person in a drug investigation is armed and dangerous.
In United States v. Jacob, 377 F.3d 573 (6th Cir. 2004), as part of an ongoing drug investigation, drug interdiction agents at gunpoint pulled over a Toyota Camry with three individuals in it. All three were searched (producing "a small amount of marijuana and $1,000" on one of them), handcuffed and put into the back of a patrol car. Although the defendants complained about being unconstitutionally searched and handcuffed, the Court held, "officers who stop a person who is ‘reasonably suspected of carrying drugs’ are ‘entitled to rely on their experience and training in concluding that weapons are frequently used in drug transactions’ and to take reasonable measures to protect themselves." Id. at 579. (citing U.S. v. Heath, 259 F.3d 522 (6th Cir. 2001). No guns were found.

Despite the fact that Terry requires, before a pat-down search can be conducted, that the officer observe unusual conduct and has a reasonable belief that the person with whom he is dealing is presently armed and dangerous, the Sixth Circuit has now relieved prosecuting authorities of the necessity of proving the facts that might support the officer’s reasonable beliefs by creating a presumption of dangerousness for all drug cases. Rather than have to prove that the officer complied with the mandates of the Supreme Court in Terry, the prosecution now simply waves the "drug case" talisman and the Fourth Amendment and its protections evaporate.
Such was the case in United States v. Foster, 376 F.3d 577 (6th Cir. 2004), where police stopped a man and then said that he smelled of PCP. The officers handcuffed the defendant before searching him, but, after finding neither guns nor contraband, they continued to keep him handcuffed. The officer testified "previous dealings with people under the influence of PCP led him to feel that Foster posed a potential threat of violence, thereby warranting a pat-down for any concealed weapons." 376 F.3d at 586 n. 7. The Court of Appeals accepts this blanket statement finding that the officer "had reason to think that Foster could be dangerous, based on his experience in dealing with people under the influence of PCP." Id. at 587. So now the standard is not whether this defendant could be armed or dangerous, but whether he is in a group of people that may be dangerous. The Terry standard of individualized suspicion based on specific facts has disappeared in the face of the drug case talisman.

In United States v. Montgomery, 377 F.3d 582 (6th Cir. 2004), the defendants were pulled over by a Highway Patrol trooper at 8:00 at night for speeding. She observed a "one-inch long" stem on the driver’s floorboard. Deciding it was marijuana, the trooper advised the occupants that she was going to search the car for drugs. All were removed from the car, searched and put in the back of a patrol car. Although the troopers found marijuana seeds and a small scale with green leafy and white powder residues on it, no firearms were found. In upholding the search and justifying the troopers actions, the Court holds, "Based on the nervousness of all of the occupants, the marijuana stem in plain view, Simpson’s and Richardson’s attempts to conceal the marijuana stem and an unknown object, respectively, it was reasonable for the troopers to believe that defendant may have been armed and dangerous so as to justify patting him down for weapons after he exited the vehicle." 377 F.3d at 586. Aside from the fact that the case involves drugs (barely), the Court provides no explanation of how nervousness and a marijuana stem equate to being "armed and dangerous", but there doesn’t have to be if the standard is simply that it is a drug case.

Search Warrants

A similar presumption has been created for dealing with search warrants issued in drug cases [are there any other kinds?]. Generally speaking, to be valid, a search warrant must issue upon probable cause supported by oath or affirmation, and may not rest upon mere affirmance of suspicion or belief without disclosure of supporting facts or circumstances. Nathanson v. United States, 290 U.S. 41, 46-47, 54 S.Ct. 11, 13 (1933). Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others. Illinois v. Gates, 462 U.S. 213, 239, 103 S.Ct. 2317, 2333, 76 L.Ed.2d 527 (1983). "The critical element in a reasonable search is not that the owner of the property is suspected of crime but that there is reasonable cause to believe that the specific ‘things’ to be searched for and seized are located on the property to which entry is sought." Zurcher v. Stanford Daily, 436 U.S. 547, 556, 98 S.Ct. 1970, 1976, 56 L.Ed.2d 525 (1978).

In United States v. Newton, 389 F.3d 631 (6th Cir. 2004), however, after arresting the defendant in a marijuana case, the drug agents discovered that he owned four different addresses. (Only one location had been used during the course of the investigation.) Application was made to a magistrate for warrants to search all four residences. "Included in the affidavit was information from a previously reliable informant stating a belief that Newton was engaged in drug dealing. However, the informant provided no facts in regard to drug dealing, but generally stated a series of beliefs." 389 F.3d at 634. In upholding the challenge to the sufficiency of the search warrants the Court of Appeals held, "‘[I]n the case of drug dealers, evidence is likely to be found where the dealers live.’" Id. at 635. Not only have we relieved police officers of having to prove that someone they wanted to search was "armed and dangerous" because it is a drug case, now we have relieved police officers of the constitutional requirement that they show probable cause (generally viewed as a fairly low burden) to believe that there are illegal items one the premises the officer wishes to search. Instead, if it is a drug case, we will grant the officer a presumption that contraband is present and not require any proof from him or her.

Judge Moore concurred in this part of the Newton decision because she felt bound by precedent, but she noted that "this comes dangerously close to creating a special rule for drug-related search warrants ... and to eliding the distinction between probable cause to believe an individual guilty of a crime and probable cause to search property owned by that individual in contravention [of Supreme Court precedent]." 389 F.3d at 639-40.

Search Incident to Lawful Arrest That Hasn’t Occurred Yet

In United States v. Montgomery, the Court gets even more creative in stretching the Fourth Amendment to accommodate drug searches. After having done a Terry pat-down of the defendant, one of the troopers gets him out of the patrol car and searches him for drugs. Unable to stretch even Terry so far as to uphold this search, the Court announces that "the search-incident-to-a-lawful-arrest rule also permits an officer to conduct a full search of an arrestee’s person before he is placed under lawful custodial arrest". 377 F.3d at 586. That is, in this drug case the troopers were allowed to make a search-incident-to-arrest before the defendant was actually arrested so long as they made sure to arrest him later.

As Exception to Knowledge

Perhaps the most insidious use of the drug exception is in the creation of a presumption of knowledge that allows detention of anyone around drugs without regard to whether or not there was even a reasonable suspicion of that person’s involvement. Following the Supreme Court’s lead in Maryland v. Pringle, __ U.S. __, 124 S.Ct. 785 (2003), the Court of Appeals applied Pringle to uphold the convictions of the passengers in Montgomery (above) because the one-inch stem was in plain view on the driver’s floorboard and "the troopers had probable cause to believe that defendant was violating various state drug laws – whether singly or jointly." 377 F.3d 591. [Although it is hard to understand how the passengers could be convicted if defendant was "violating various state drug laws" singly!]

In Jacob (above), when one of the passenger/defendants argued that he couldn’t be held responsible for the driver lunging the car forward as the police were trying to stop it, the Court finds that "[t]he Supreme Court, however, has noted that ‘a car passenger ... will often be engaged in a common enterprise with the driver,’ and that it is reasonable for an officer to infer such a common enterprise." 377 F.3d at 580 n. 3. The drugs in Jacob were found in a duffel bag in the trunk of the car. Aside from his mere presence, there was no proof that the passenger was aware of the drug dealing. The drug presumption relieves the prosecution from having to make such a showing.

Likewise, in United States v. Carter, 315 F.3d 651 (6th Cir. 2004) (en banc), where the issue was whether or not the defendant had consented to the entry of his motel room by simply stepping back from the door, the Court finds that "nothing in the record indicates that he was unaware of well-known right to refuse entry." Instead of requiring the prosecution to prove that the defendant was aware of his right to refuse entry, in this drug case the Court simply presumes it. [Based on the number of reported decisions every year where defendants don’t seem to understand that they have a right to "just say no," one could question just how "well-known" such a right is.]

Carryover Effect

One of the problems with creating exceptions to the Fourth Amendment for drug cases is that, as we have seen in other contexts, exceptions rarely remain in the narrow context for which they were created. United States v. Marxen, 410 F.3d 326 (6th Cir. 2005), is a robbery case, not a drug case. Marxen’s car matched the description of a car leaving the scene of a robbery, but Marxen himself did not match the description of the robbers. Nevertheless, after following him around for a week and not observing any illegal conduct or conduct related to the robbery the police pulled his car over to search it. Marxen was handcuffed and placed in a police car, even though there was not even reasonable suspicion that he had committed any crime. In upholding this action by the police, the Court of Appeals cited to U.S. v. Foster for the proposition that using handcuffs does not exceed the bounds of a Terry stop. Foster, of course, was a drug case that relied for its holding on the drug nature of the offense.

Conclusion - Goose-stepping Down the Path

Nor are these all of the cases in this Circuit dealing with the drug exception, simply some of those from the last year. The trend has been on-going for years and shows no signs of slowing, let alone stopping. While the war on drugs has had many casualties, one of the more significant may be the Fourth Amendment. This is not to suggest that the Sixth Circuit is alone in this move away from Terry. If I had the time (and the constitutional fortitude), I’m sure that I could find similar cases in all Circuits. And let’s not forget that the Supreme Court leads, at least in this forum. [A perhaps more interesting discussion is the extent to which state supreme courts have, in the last decade or so, refused to follow where the Supreme Court has led, insisting instead on finding that their citizens have more rights under their state constitutions than under the federal constitution; a situation that reverses those days when the Warren Court led and the states followed.] While some courts have certainly rushed to follow the Court’s lead in Pringle, there would not have been such a rush if the Court had ruled with more respect for the rights of the citizens than the police.

Lest we get too depressed at this point, let me just say that it is not my intention to send criminal defense attorneys rushing out to find a building to jump off of or a new country to move to. A lot of wrong exists simply because no light has been shone on it. What this trend shows is that it is time for us to go back to Terry (and other bedrock criminal procedure cases) and remind the courts of the principles on which those cases were decided and how far we have strayed from them. Terry was viewed as a major victory by law enforcement (witness the plaque that the Cleveland Police Historical Society has erected on the site from which Detective Marty McFadden launched us down this path [thanks, Dennis, for the tour]), but it is time for us to use it as a sword of our own. We must always remember that in every case we have two clients - the man or woman at our side in the courtroom and the Constitution. As we have seen, we are the only ones in the courtroom who will be arguing to protect those freedoms that are guaranteed there. We must remember that when The Founders (as they have been sanctified) sent the new constitution to the people, the people sent it back saying, we refuse to give this kind of power to any executive, legislative or judicial body without certain protections. The people, who are most often on the receiving end of The Law, knew that even the checks and balances built into this unique document were not enough to protect them from the abuse of power that comes from government of any stripe. The Bill of Rights is truly the work of the people and we are the ones who must constantly fight to protect it for, as we have seen, no one else will. As Winston Churchill said, "What is the use of living if it be not to strive for noble causes and to make this muddled world a better place for those who will live in it after we are gone?" [thanks, Dean] With that in mind, let us name the Drug Exception for what it is and work to oppose its spread. Keep up the good fight!

Wednesday, January 25, 2006

"Reasonableness" Dreams of Booker, Bullfrogs, and Wheelbarrows

United States v. McBride, No. 04-4347 (6th Cir. Jan. 17, 2006) (opinion available here) is the latest Sixth Circuit discussion of Booker reasonableness review. The import of this opinion was nicely captured by Prof. Berman when he wrote: "McBride covers a lot of important basic ground concerning the ground rules for reasonableness review, and does so in a cogent and engaging way." I urge those who haven't before, to got to Prof. Berman's award-winning blog and review the commentary on McBride, which is available here.

In this opinion, written by Circuit Judge Martin, the McBride panel begins by finding the Booker error in the case, harmless, because the district court announced an identical alternative sentence. Judge Martin then described the current state of post-Booker issues among the circuits in a unique comparison. He wrote:

Achieving agreement between the circuit courts and within each circuit on post-Booker issues has, unfortunately, been like trying to herd bullfrogs into a wheelbarrow. The courts have particularly struggled to -- and often failed at -- properly applying the remedial portion of Booker along with the remedy. One murky area is what to do about the pre-Booker concept of "departures" under the Guidelines now that the Guidelines are merely advisory.

The main issue in McBride was whether a district court's refusal to grant a downward departure under the sentencing guidelines was reviewable on appeal. In discussing United States v. Puckett, 422 F.3d 340 (6th Cir. 2005), the panel held that Puckett does not prevent the court of appeals from reviewing "a defendant's claim that his sentence is excessive based on the district court's unreasonable analysis of the section 3553(a) factors in their totality." Puckett only precludes the court from reviewing "the narrow determination of a denial of a Chapter 5 Guideline departure within the context of the Guideline calculation."

Judge Martin went on to describe how a district court must still determine the appropriate advisory guideline range, to include departures, and then proceed to consider the statutory factors and arrive at a reasonable sentence. He wrote:

Before Booker, we reviewed the district court's sentence to determine whether it properly calculated and applied the Guidelines. Now when a district court imposes and we review a sentence for reasonableness, the focal point is on 18 U.S.C. § 3553(a). In section 3553(a), there are numerous factors for a court to consider, and under Booker's remedial holding, the Sentencing Guideline range is one of those factors. That is, while the Guidelines remain important, they are now just one of the numerous factors that a district court must consider when sentencing a defendant.

An important point to note in the opinion is what is stated about the scope of reasonableness review. Judge Martin wrote:

Once the appropriate advisory Guideline range is calculated, the district court throws this ingredient into the section 3553(a) mix. Considering, as Booker requires, all of the relevant section 3553(a) factors, including the Guideline range, the district court then imposes a sentence. This sentence we may -- and Booker requires us to -- review for reasonableness. See Webb, 403 F.3d at 383-85 (discussing reasonableness review). This is so, even if the district court rejects a defendant's claim for a lesser sentence in light of the section 3553(a) factors.
This opinion suggests that the court of appeals is obligated to review each sentence for reasonableness, in every case, absent a valid appellate waiver. Two practical lessons can be taken from this opinion. First, Practitioners should note this opinion to the sentencing judge in urging a consideration of all of the statutory factors and the advisory guideline range. This opinion arms practitioners with the argument that the advisory sentencing guidelines constitute one of the factors, not the most important factor, in sentencing.

Second, this opinion suggests that the sentencing hearing/record is more crucial than ever on appeal. If the court of appeals is going to make an independent determination of whether a sentence is reasonable, the record must be fully developed for that review.

Tuesday, January 17, 2006

A Call For Bloggers

If you are an AFPD interested in contributing to this blog, please contact Caryll Alpert at caryll_alpert@fd.org.

Friday, January 06, 2006

Sentencing under 18 U.S.C. §3553: Do we really have to analyze these factors?

On January 5, 2006, the Sixth Circuit decided to publish its recent unpublished decision in United States v. Williams, No. 04-4152 (6th Cir. Dec. 14, 2005), published (Jan. 5, 2005) (opinion available here). This decision rejected a government appeal of a district court's (pre-Booker) four-level downward departure in a felon-in-possession case. Thanks to Professor Berman, we have some insightful commentary on this decision and its failings. Professor Berman's commentary is available here.

Despite its lack of clarity on a number of important sentencing issues, this opinion does have a potentially positive side. As noted by Professor Berman, "Williams does usefully reinforce the basic principle that district courts should thoroughly explain the bases for their sentencing determinations, especially when deciding not to follow the guidelines." For practitioners in the Sixth Circuit that have been subjected to District Court sentencing hearings where there has been a "ritualistic recitation" of the 18 U.S.C. §3553 factors with no analysis as to its application to the defendant, (which I suspect is a high number), this decision appears to strengthen the argument that a District Court must conduct a thorough analysis of the statutory factors and explain the reasons for their sentencing determinations. Perhaps now, with more encouragement from counsel, District Courts will issue findings of fact and conclusions of law with respect to each 18 U.S.C. §3553 factor when sentencing a defendant in the Sixth Circuit. As the Williams decision clearly illustrates, in such a case, the District Court's decision is likely to be affirmed.