Friday, August 25, 2017

Fourth Amendment vs. "Community-Caretaker" Exception

If you have ever doubted that courts tend to trust the motives of police officers more than the average person might, look no further than today's decision in United States v. Lewis.

Picture this: a woman is walking through Wal-Mart looking sufficiently intoxicated---with her "balance off," eyes closing, and "nodding off"---that someone called the police. Officers notice that her speech is slurred, her eyes were "red and glassy," and, somehow, that her mouth was "real dry." Absent the typical police assessment that she "smelled of alcohol," the woman was clearly under the influence of drugs, a fact she confirmed by stating that she was on pain pills. Officers asked if she was alone, and she said that her boyfriend was in the parking lot. The officers helpfully offered to escort her to the parking lot to "check to make sure" that her boyfriend was able to drive her home. Finding that the truck had tinted windows but still somehow able to see that the boyfriend was asleep, officers opened the door of the truck without a warrant. To no one's surprise, they found more pills.

Based on this fact scenario, the panel declared that the police were "not investigating any wrongdoing" when they opened the door. Rather, they were acting in their "community-caretaker" role, thus invoking what may be the single most obscure exception to the Fourth Amendment's warrant requirement. The exception only applies where the police action is "totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute," a standard that would seem to exclude a situation where police are called to address a woman who is (admittedly) high on pain pills at a Wal-Mart somewhere in the scenic town of Opioid-Epidemic, Kentucky. The Lewis panel concluded otherwise, declaring that the community-caretaker exception applied, and "[f]ortunately, the Fourth Amendment does not impose technical prerequisites upon such a natural act of community service."

If there is any bright side to this further encroachment on the Fourth Amendment, it is that this published decision would seem to make it impossible for officers to claim that an individual's public intoxication on potentially illegal narcotics gave them reasonable suspicion of any criminal wrongdoing. After all, the sight of such a person is "totally divorced" from any investigatory motive.

Tuesday, August 22, 2017

Non-aggravated burglary is more "violent" than aggravated burglary

After the rare Johnson/Mathis victory in the Sixth Circuit's Stitt decision---which held that Tennessee aggravated burglary was not a violent felony under the Armed Career Criminal Act---a strange legal dance ensued. Defense attorneys tried to make the Stitt logic apply to "regular" Tennessee burglary, despite the fact that Stitt relied on the distinctive definition of "habitation" in Tennessee's aggravated burglary statute, which the non-aggravated burglary statute did not have (and prior published decisions had held that Tennessee burglary was a violent felony). Meanwhile, prosecutors and judges had to find an eloquent way to justify the cognitive dissonance of non-aggravated burglary being considered more "violent" than aggravated burglary.

Today's published Ferguson decision settles the matter (barring some later reversal), holding that Stitt has no application to Tennessee non-aggravated burglary. The short three-page opinion leans on prior precedent without much additional explanation, and one might detect a measure of frustration in the panel's observation that "[s]itting en banc, our court recently overruled a decade-old precedent" in Stitt. (Two of the judges on the Ferguson panel joined with the Stitt majority but wrote separate concurrences, and one judge dissented.) Tennessee burglary still qualifies as generic burglary for the ACCA's definition of "violent felony."

Ferguson closes an important door to relief for Johnson/Mathis petitioners, and it creates a confusing conversation for anyone with clients who had prior Tennessee burglaries and hoped for a sentencing reduction.