Saturday, May 21, 2016

Search Warrants Target Places, Not People

In United States v. Church, the Defendant quickly learned that some meals can wait.  David Church, Jr. was bringing home fast food when detectives appeared at his door looking to serve him with a warrant for violating his probation.  The detectives then placed Church under arrest.  At that time, Church asked the officers if he could go inside his home to finish his dinner.  The detectives agreed and Church let them follow him inside.  When they entered, the detectives smelled marijuana.  Recognizing his situation, Church admitted to smoking marijuana and even showed the officers a blunt.  Church then called his girlfriend.  However, his girlfriend did not help the situation when she admitted Church regularly smoked marijuana at the home.
One of the arresting officers left to prepare a search warrant affidavit while Church stayed at his home with another agent and his girlfriend (presumably, he finished his dinner).  In addition to recounting the detective’s conversations with Church and his girlfriend, the search warrant affidavit asserted there was probable cause to believe Church committed a plethora of crimes: RICO, money laundering, and drug trafficking.  The affidavit requested a warrant to search Church’s house for evidence of drugs and drug paraphernalia.  The judge subsequently issued a search warrant that, upon execution, revealed evidence of drug trafficking, guns and ammunition.
Church plead guilty to drug possession with intent to distribute and being a felon in possession of a firearm after the district court denied his motion to suppress the evidence obtained pursuant to the search warrant.  On appeal, Church argued the search warrant affidavit was narrower, i.e. showing probable cause for evidence of simple drug possession, than the search warrant, which authorized detectives to search for evidence for drug possession with intent to distribute.

The Sixth Circuit disagreed and affirmed his conviction.  Holding that “[s]earch warrants are not directed at persons; they authorize the search of ‘places’ and the seizure of ‘things,’” the Court concluded the affidavit needed to only show probable cause to search for marijuana in Church’s house, regardless of what he meant to do with it.  Church and his girlfriend had given the detectives more than enough cause to search his house for marijuana.

Wednesday, May 18, 2016

Guns and Waterbeds Don't Mix

The Sixth Circuit’s recent decision in United States v. Barnes, recently confirmed two well-known facts: (a) it is not a good idea to hide guns in a waterbed; and (b) inmates will continue to ignore the advisory that their  jailhouse calls are being recorded.  In Barnes, federal agents executed a search warrant on Barnes’s trailer home.  In executing the warrant, agents not only discovered pills and cash, they also discovered two guns tucked into the corners of the waterbed mattress where Barnes was then sitting.  A grand jury subsequently indicted Barnes for several drug possession charges and for one count of unlawful possession of a firearm in violation of 18 U.S.C. §924(c) and one count of unlawful possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1).
While he was being detained in a local jail, Barnes made a colossal error: he made three recorded telephone calls in which he appeared to discuss pill distribution, the handling of drug proceeds, and certain firearms.  Barnes subsequently moved to exclude the calls.  The district court subsequently granted his motion in part and denied it in part, ruling that the government could introduce only the portion of the recordings in which he appeared to make statements about distributing pills.  In reaching this decision, the district court concluded that the evidence was relevant to showing Barnes’s intent to distribute the pills found in his trailer.  A jury subsequently convicted barns of all six counts of the indictment.
On appeal, Barnes challenged the sufficiency of the evidence supporting his § 924(c) conviction, the district court’s decision to admit portions of his recorded jail calls, and his sentence.  With respect to his § 924(c) conviction, Barnes, who was apparently in poor health at the time, argued that due to his physical limitations, including his need for an oxygen tank, he lacked “the agility, quickness, and stamina” to reach the firearms underneath the waterbed mattress.  The Court disagreed.  Noting that one of the firearms was loaded and that the agents found the other weapon unloaded but stored with a loaded magazine, the Court held that a reasonable jury could have concluded that Barnes intended to use the firearms for both protection and deterrence.

Barnes also argued the district court should have excluded the calls under Fed. R. Evid. 404(b)(1) as “other crimes” evidence.  The Court again disagreed, holding that: (a) the Government did not have to prove the other acts were criminal; and (b) the phone calls were probative of Barnes’s intent to distribute drugs.
What can we take away from this case?  First, the proximity of the weapons to the defendant and ammunition is an important factor in supporting a §924(c) conviction.  Second, many defendants will continue to make terrible decisions from their jail cells.

Friday, May 13, 2016

The Long and Winding Road

Looking nervous and moving around during a traffic stop (for marginally touching a faded yellow line on a long and winding road) late at night is sufficient to give a police officer reasonable suspicion to detain you, search your person, and extend a traffic stop to investigate potential criminal conduct. In United States v.Coker, the Sixth Circuit decreased the threshold for prolonging a traffic stop and lowered the bar for reasonable suspicion. Perhaps much of Judge Sutton’s (writing for the majority) reasoning relied on the clearly erroneous standard applied to the magistrate judge’s factual findings. But as Judge Boggs noted in dissent, the “majority points to no Sixth Circuit case upholding a seizure on so little.”

The facts relied upon by the majority demonstrate the damage to the Circuit’s Fourth Amendment jurisprudence. For example, Judge Sutton indicates that Coker was more nervous than the average person during a traffic stop (though there is no record citation given for support). Perhaps this conclusion is meant to be bolstered by the earlier referenced statement that the officer thought Coker was “nervous as hell.” But there is no cited evidence that the officer deemed that vague colloquialism to mean more nervous than the average person. Moreover, as Judge Boggs points out, the Court has repeatedly given little weight to nervousness because “it is an unreliable indicator, especially in the context of a traffic stop.”

The central piece of the majority’s decision is Coker’s “‘leaning forward,’ ‘reaching into the backseat,’ and ‘digging around’ in the car, after being told to stop moving.” Judge Sutton cited numerous cases reflecting such movement—the problem with these cases (as Judge Boggs pointedly found) is that each case identifies such movement in combination with “far more compelling evidence of nefarious activity.” So while the majority clings to the rationale that it is the combination of factors that gives rise to reasonable suspicion, the Circuit’s previous cases require purportedly furtive movement plus something far more compelling than nervousness and the time of day.

While people undoubtedly enjoy less protection under Fourth Amendment jurisprudence in cars than in their homes, one wonders when this long and winding road will lead to your door.

The Sentencing Guidelines' Residual Clause is Unconstitutionally Vague

The Sixth Circuit has (finally) issued a published opinion holding that the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015), which invalidated the residual clause of the Armed Career Criminal Act, applies with equal force to the career offender definition found in U.S.S.G. § 4B1.2 and used in many other Guideline provisions. In United States v. Pawlak, No. 15-3566 (6th Cir. May 13, 2016), the Sixth Circuit invalidated the identical residual clause used in the Guidelines because it is likewise unconstitutionally vague. The Court held that the Sentencing Guidelines are subject to constitutional vagueness challenges, explaining that its prior precedent stating otherwise was fatally undermined by intervening Supreme Court decisions.

Citing Peugh v. United States, 133 S. Ct. 2072 (2013), Judges Boggs, Gibbons, and Griffin reasoned that the Guidelines are subject to vagueness challenges because of the procedures district courts must follow when imposing a sentence; even though judges have the discretion to impose sentences outside the guideline range, the guideline range is the mandatory starting point and a sentence may be reversed if the Guidelines are not correctly applied. Thus, even advisory guidelines may raise concerns about fair notice and arbitrary enforcement under the Due Process Clause.

Importantly, the opinion handily discredits the Eleventh Circuit’s opinion in United States v. Matchett, 802 F.3d 1185 (11th Cir. 2015), which found the Sentencing Guidelines immune from vagueness challenges and refused to apply Johnson to the Guidelines. The Court explained that Matchett relied solely on a limited universe of cases that have been overruled by Peugh and Johnson, and thus it is unpersuasive.

Pawlak will be extremely helpful to defendants challenging their career offender or other residual clause-enhanced sentences in all contexts. The opinion contains great language and analysis that closes the door on nearly all of the arguments the government has been relying on to assert that Johnson does not impact the Sentencing Guidelines. Hopefully, a clear decision on Johnson's retroactivity in the Guideline context will soon follow this opinion.