Friday, September 17, 2010

Interesting case on drug calculations




In an unpublished decision rendered on September 14, 2010, (United States v. Daniels, 10a0610n.06), the court has remanded a case for resentencing where the district court failed to make sufficient findings of fact to support a drug weight calculation.


Although the remand itself is not "new ground" for the court, the findings are interesting in that the court seemed to indicate that reliance on the PSI Report was not adequate to support a drug weight calculation finding. The Court in remanding noted "Even if the district court implicitly found that Daniels was responsible for at least 1.5 kilograms of cocaine, it did not provide any explanation for such a conclusion, apart from its reliance on the presentence report. The district court’s failure to make a particularized finding and to set forth the reasons for that finding is procedurally unreasonable."


This would seem to contradict the axiom in the Sixth Circuit in United States v. Lang, 333 F.3d 678, 681 (6th Cir.2003) that a "defendant cannot show that a PSR is inaccurate by simply denying the PSR's truth. Instead, beyond such a bare denial, he must produce some evidence that calls the reliability or correctness of the alleged facts into question. If a defendant meets this burden of production, the government must then convince the court that the PSR's facts are actually true. But the defendant gets no free ride: he must produce more than a bare denial, or the judge may rely entirely on the PSR.”


Although the Lang case is a burden of proof/production case, and the Daniels case is one of adequate findings, nonetheless, it is certainly worthy to note that a court may not apparently rely simply on the PSR recitation to meet procedural reasonableness standards.

Tuesday, September 07, 2010

This Just In!!!!! Sixth Circuit finds police CANNOT enter private residence without permission or probable cause!!!



On September 2, 2010, the Court found suppressible evidence obtained where police officers, without a warrant, probable cause, or permission entered a private building by kicking in the back door. In United States v. Kimber, 10a0583n.06, officers, on routine patrol, came upon a private apartment building, which they knew in general was a "hot spot" for criminal activity. The building was protected by a keyed entry system. Officers did not have key access; however, undeterred, officers forced the back door of the property open. After entering the lobby area, the defendant, Mr. Kimber, entered the building, using a valid key. Upon seeing the officers, he turned around to leave; however, officers detained him, frisked him, and found a weapon.


In attempting to rationalize their breaking and entering of the building, officers contended that they had received from the owner of the building a "trespassing letter", which allowed them permission to be on the property. Unfortunately, the letter was dated two months after the defendant's arrest, and the letter did not cover forcible entry. Thus, the Court found this argument to be unavailing. The court also found unimpressive a letter dated two years previous to the arrest, as it was issued by a former owner of the property.


The Government also argued that because the rear door of the building was easily accessible by shoving or kicking the door, that the defendant (and presumably other tenants of the building) had no real reasonable expectation of privacy. The court disagreed with this position, finding "
the appropriate inquiry was not whether it was physically possible for an officer to gain entry, but rather, whether the tenant would have expected him to do so and whether society would regard such expectation as reasonable." The Court therefore reversed the decision of the district court, vacated the conditional plea, and remanded the case for suppression of the evidence as the entry to the property violative of the Fourth Amendment.


Nice to see that the Court still provides reasonable restrictions on police intrusions onto private property. Kudos to AFPD Jim Maus (Southern District of Ohio) on a job well done!