As teased in the previous post (thanks Laura!), the Court on Monday issued an en banc opinion holding that, in our post-Johnson and Mathis word, Tennessee's aggravated burglary statute (Tenn. Code Ann. § 39-14-403) is not a violent felony under the ACCA.
In United States v. Stitt, 9 judges of the en banc court joined together in finding that "[b]y including 'mobile homes, trailers, and tents,' as well as any 'self-propelled vehicle,' Tennessee’s aggravated-burglary statute includes exactly the kinds of vehicles and movable enclosures that the Court excludes from generic burglary" The Court found unpersuasive the argument that, because Tennessee law required such structures to be “designed or adapted for the overnight accommodation of persons”, that the statute met the generic definition of burglary. Rather, it is nature of the place itself, rather than its intended use, that controls whether a location meets the generic burglary standard.
Congrats to AFPD Timothy Ivey!!!
Thursday, June 29, 2017
Tuesday, June 27, 2017
Friday, June 16, 2017
The marital communications privilege allows a defendant-spouse to preclude testimony by his or her spouse regarding confidential marital communications. The privilege has exceptions, of course, as do all privileges, and the Sixth Circuit recognized a child abuse exception in United States v. Underwood.
Underwood was charged with sex crimes perpetrated against his step-granddaughter, who was between eleven and twelve years old at the time. On appeal he challenged admission of testimony over his assertion of the marital communications privilege from his wife (1) that she became concerned about defendant’s favoritism toward their step-granddaughter; (2) about an incident when she found that defendant had changed the bed linens while he and the child had been at home alone; and, (3) regarding text messages and voicemails she received from defendant where he did not deny sexually assaulting the child and “apologized for not being a perfect man.”
The Court principally relied on decisions from the First and Tenth Circuits, United States v. Breton, 740 F.3d 1 (1st Cir. 2014), and United States v. Bahe, 128 F.3d 1440 (10th Cir. 1997), to recognize and apply a child-abuse exception to the marital communications privilege. The child-abuse exception rests on four considerations: (1) a crime against a spouse or a spouse’s child profanes the trust and bond of marital partners and disrupts family harmony; (2) parental testimony is particularly necessary in child-abuse cases, because child abuse occurs most often in the home at the hands of a parent or parent-substitute; (3) the marital privilege, like all privileges, must be interpreted narrowly; and, (4) overwhelming state legislative and judicial authority that the marital communications privilege does not apply where the crime is against a spouse’s child.
Applying these considerations in a “fact-intensive inquiry” the Court explained as follows: (1) defendant’s sexual abuse of his wife’s granddaughter profaned the marital relationship and disrupted family harmony; (2) defendant sexually abused his spouse’s granddaughter while serving as a parental-substitute; (3) that the child was a granddaughter as opposed to a daughter made no significant policy difference; and, (4) that the crime occurred in defendant’s “sleeper truck,” as opposed to their home made no difference since the truck was the functional equivalent.
The Court also upheld admission of testimony from defendant’s daughter concerning his sexual assault on her more than 20 years prior to the trial pursuant to FRE 414.
Tuesday, June 06, 2017
As noted in a previous post, the Sixth Circuit recently held in United States v. Riley that tracking a fugitive’s real-time GPS location through his cell phone was not a Fourth Amendment search. The Supreme Court has now taken up a case that involves the government’s seizure of cell phone location records. On the same day that the Riley opinion was issued, the Supreme Court granted certiorari in Carpenter v. United States, No. 16-402, which presents the question “whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cell phone user over the course of 127 days is permitted by the Fourth Amendment.”
In Carpenter, the defendants were charged with multiple robberies in violation of the Hobbs Act (18 U.S.C. § 1951). They sought to suppress evidence that included “business records from [their] wireless carriers showing that each man used his cellphone within a half-mile to two miles of several robberies during the times the robberies occurred.” United States v. Carpenter, 819 F.3d 880, 884 (6th Cir. 2016). The defendants argued that the government’s acquisition of those records constituted a warrantless search in violation of the Fourth Amendment. The Sixth Circuit upheld the denial of the suppression motion.
The Sixth Circuit recognized a distinction between “a communication’s content and the information necessary to send it.” In the court’s view, cell-site data is information that facilitates personal communications, “rather than part of the content of those communications themselves.” Carpenter, 819 F.3d at 887. The bottom line was that the government’s acquisition of records containing cell-site data was not a search under the Fourth Amendment and the defendants did not have a reasonable expectation of privacy in those records.
The Supreme Court may rule on the issue by the end of the year.
Government’s tracking of real-time GPS coordinates from fugitive’s cell phone is not a Fourth Amendment search.
In United States v. Skinner, 690 F.3d 772, 774, 776-77 (6th Cir. 2012), the court held that the government’s use of real-time cell phone GPS data to track a suspected drug trafficker as he traveled for several days in a motorhome driven on public roads was not a search. An important factor in Skinner’s Fourth Amendment analysis was that the defendant’s movements could have been observed by members of the public. Id. at 779. Relying on Skinner, the Sixth Circuit held in United States v. Riley, that tracking the real-time GPS location data from a fugitive’s cell phone for about seven hours preceding his arrest did not constitute a Fourth Amendment search.
A state court issued an arrest warrant for Mr. Riley. He bought a cell phone and gave the number to his girlfriend who gave it to law enforcement officers. The officers obtained a court order for call metadata which included real-time tracking of the cell phone. Following the issuance of the court order, officers received real-time GPS data which showed that Mr. Riley’s cell phone was located at a motel in Memphis. The officers went to the motel and learned Mr. Riley’s room number from an employee. Mr. Riley was arrested and subsequently filed a motion to suppress a gun that was found in his room. Mr. Riley contended that the gun was the fruit of an unconstitutional search because the government’s method of tracking him violated his reasonable expectation of privacy and therefore required a search warrant. The Sixth Circuit upheld the denial of the suppression motion.
The court recognized that a warrantless search inside a home (or a hotel room) is presumptively unreasonable. Mr. Riley, however, was not subject to a Fourth Amendment search because the use of GPS location data to determine the location of a person or a cell phone “does not cross the scared threshold of the home,” as long as the tracking “does not reveal movements within the home (or hotel room).” Riley, at p. 8 (court’s emphasis). The tracking here only showed that Mr. Riley “traveled to [the motel], “not which room (if any) the phone was in at the time of the tracking.” Id. (court’s emphasis). A significant factor in the court’s reasonable-expectation-of-privacy analysis was that the government learned no more about Mr. Riley’s whereabouts from the tracking than what “he exposed to public view by traveling to the motel lobby ‘along public thoroughfares.’” Riley, at p. 9 citing Skinner, 690 F.3d at 774 (court’s emphasis). The court emphasized that “one cannot expect privacy in one’s public movements.” Riley, at p. 9 (court’s emphasis).
The per curiam opinion concludes with some good advice: if a person “truly wished to avoid detection, he could have chosen not to carry a cell phone at all, or to turn it off.” Riley at p. 9 (court’s emphasis).
In a concurring opinion, Judge Boggs discussed several other factors that in his view supported the court’s holding. The most significant factor was Mr. Riley’s status as a fugitive as opposed to being a suspect. In Judge Boggs’ view, Payton v. New York, 445 U.S. 573 (1980), “as corroborated by significant historical evidence of the original meaning of the Fourth Amendment, provides strong support for the proposition” that fugitives who are on the run from arrest warrants have a diminished expectation of privacy. Riley, at p. 12 (concurring opinion). He would hold that Mr. Riley’s Fourth Amendment argument fails because “he was a fugitive subject to a valid arrest warrant,” and the officers had reasonable suspicion that he was in possession of the cell phone they were tracking. Riley, at p. 10 (concurring opinion).