Thursday, October 30, 2008

Search Warrant Requirement on Life-Support

The Sixth Circuit recently took another step on its road to rendering the search warrant requirement of the Fourth Amendment meaningless. See, e.g., United States v. Allen, 211 F.3d 970 (6th Cir. 2000) (en banc) (upholding search warrant based on allegations of CI having seen unstated quantity of cocaine in residence without any evidence that drugs would be present when warrant executed), and United States v. Pinson, 321 F.3d 558 (6th Cir. 2003) (upholding search warrant based on purchase of 1 rock of crack cocaine from residence without any other proof of connection of seller to residence or that any other drugs would be found 5 days later)*. In a January 2006 post to this blog titled "The Drug Exception To The Fourth Amendment," I noted a trend toward decreasing the Fourth Amendment burdens on law enforcement in drug cases. In that post, I discussed United States v. Newton, 389 F.3d 631 (6th Cir. 2004), in which the Court of Appeals created a presumption that evidence will exist in the home of anyone charged with being a dealer in drugs. This inference was extended last year to those suspected of manufacturing drugs for distribution in United States v. Kenny, 505 F.3d 458 (6th Cir. 2007). The effect of these rulings is that in cases of felony drug possession or manufacturing, the government is relieved of its burden to establish that there is probable cause to believe that the thing sought is on the property sought to be searched.

Now the Sixth Circuit in United States v. (David) Williams, No. 06-2018 (6th Cir. 2008), has extended that rationale to ANY search of a suspect's home for the fruits or instrumentalities of on-going criminal activity. The warrant application in Williams contained information that Williams had recently removed 2 guns of his from someone else’s home and had used 1 of them to rob a drug dealer of 5 pounds of marijuana. There was no information connecting either of the guns to the location to be searched. In fact, as Judge Moore notes in her dissent, the information known to the police was that he kept guns at someone else’s house or in his car (where a gun was found by police in a separate incident during the time in question). Regardless, the majority upholds the validity of the search warrant by holding that where there is on-going criminal activity there is an inference that the target suspect will keep evidence of the criminal activity where he lives. (There was also an open question whether Williams lived at the address on the search warrant given that he had listed two other addresses as his residence at his two other arrests during the time in question.)

In its opinion, the majority – Judges Siler and McKeague - cites United States v. Bethal, 245 Fed.Appx. 460 (6th Cir. 2007), 2007 WL 2286541, for general search warrant propositions of law. They do not, however, cite Bethal for its holding, which refused to extend the "drug-dealing" presumption to cases involving allegations of gang affiliation. Perhaps this is so because Judge McKeague dissented in Bethal and would have allowed the search based on evidence of on-going criminal activity. The holding in Williams is exactly that urged by Judge McKeague in his dissent in the prior-existing, but unpublished, Bethal decision.

This result can only be accomplish by ignoring the history of the Bill of Rights and in derogation of the Court’s constitutional duty to act as a check on the actions of the executive branch of government. The people of the soon-to-be United States originally rejected the proposed Constitution because it did not contain an enumeration of the rights of the people, something that the Framers had thought was not necessary to enumerate because they were known to all. The result was the Bill of Rights. It’s creation came out of the experience of the people that no government – royal or democratic - could be trusted with power. The Bill of Rights, then, serves as proof of the people’s recognition that government cannot be trusted with certain powers, and their intention that the exercise of those powers be carefully circumscribed. This recognition that government cannot be trusted with power, and the intention to carefully limit the exercises of that power, are at the heart of the design of the Constitution, with its system of checks-and-balances between the three branches of government. The result in Williams - relieving the executive branch of government of part of its constitutionally required burden before it exercises its power - is contrary to this whole notion that government power be controlled, if not by the branch wielding it, then by one (or both) of the other two. The burden in the Fourth Amendment - "probable cause" - is not very heavy, but it does exist. Or at least it did until this decision.

[*disclaimer: Pinson was my case. - SLC]

Thursday, October 02, 2008

"Impermissible Factors" Follow-up

As a follow-up to my recent blogpost about U.S. v. Davis, I did some research into what the Sixth Circuit had found to be "impermissible factors" outside of Davis. As a result, the list now includes:

– "defendant's behavior at trial" and prior arrests for which there were no known dispositions. United States v. Whitfield, 259 Fed.Appx. 830 (6th Cir. 01/15/08), 2008 WL 142782 (unpublished) (Per Curiam: Daughtrey & Cole, JJ., & Collier, D.J. (E.D.Tenn.)) (reversing upward variance as substantively unreasonable)

– the district court’s disagreement with Congress’ penalties. United States v. Ortega-Rogel, – Fed.Appx. – (6th Cir. 6/16/08), 2008 WL 2415917 (unpublished) (Norris, Martin, JJ., & Stamp, D.J. (NDWVa.)) (possession of false identification) (reversing upward variance as substantively unreasonable); United States v. Franklin and Clarke, 499 F.3d 578 (6th Cir. 8/28/07), rehrg and rehrg en banc denied 1/25/08 (Forester, D.J. (EDKy) & Gilman, J; Moore, J., concurring in the judgment) (18 U.S.C. § 924(c)) (reversing downward variance as substantively unreasonable).

– defendant’s post-conviction behavior. United States v. Sutherlin, 498 F.3d 316 (6th Cir. 8/8/07), rehrg and rehrg en banc denied 12/13/07 (Cole, Guy, & McKeague, JJ.) (reversing downward variance as substantively unreasonable) (but, see, United States v. Ragland, 2007 WL 1028845 (6th Cir. 2007), allowing use of post-conviction bad conduct to justify upward variance.)

– a lack of extraordinary circumstances that would justify such an extreme downward variance. United States v. (Haywood) Johnson, 239 Fed.Appx. 986 (6th Cir. 9/4/07), 2007 WL 2492405 (unpublished) (reversing downward variance as substantively unreasonable). [Ed.: doesn't this sound like Guidelines departure language?]

– lack of a compelling explanation. United States v. Fink, 502 F.3d 585 (6th Cir. 9/7/07) (Gibbons, Suhrheinrich, JJ., & Heyburn, CDJ (WDKy.) (reversing downward variance as substantively unreasonable). [Ed.: wouldn't that really be procedural unreasonableness?]

– consideration of the defendant’s likely state court sentence. United States v. Malone, 503 F.3d 481 (6th Cir. 10/4/07) (McKeague, Sutton, JJ., & Forester, D.J. (EDKy.)) (reversing downward variance as substantively unreasonable).

– doubt by the district court that the defendant intended to commit fraud. United States v. Hunt, 521 F.3d 636 (6th Cir. 4/11/08) (Rogers & Siler, JJ.; Martin, J., concurring in part and dissenting in part) (reversing downward variance as substantively unreasonable).

– justifications give for variance not supported by the record. United States v. (William) Hughes, – Fed.Appx. – (6th Cir. 6/26/08), 2008 WL 2604249 (unpublished) (Moore & Clay, JJ; Rogers, J., concurring) (reversing downward variance as substantively unreasonable).

Is that clear now? Do you have a clear grasp on what is and is not an impermissible factor? Because you may have to explain it to your district judge, so make sure.