In United States v. Brown, the Sixth Circuit considered the district court's admission of 9-1-1 calls in a firearm possession case in which the caller referenced prior domestic violence perpetrated by the defendant. The district court admitted the evidence at trial and reasoned that the evidence was "inextricable intertwined" with the offense conduct. The defendant had been charged under 922(g) with possessing a firearm after he was alleged to have shot a windows in a home where his girlfriend was staying with an aunt. The tape included statements by the girlfriend that the defendant was dangerous. The district court refused to redact portions of the 9-1-1 calls and would only allow them to be played in their entirety.
The Sixth Circuit has historically permitted background evidence when
there is a close connection between the charged offense and the
proffered background evidence.In Mr. Brown's case, the Sixth Circuit concluded the district court actually did abuse its discretion in not allowing for a redaction of the tapes. The district court incorrectly "relied on the temporal proximity of the calls themselves, not the temporal proximity of the domestic violence referred to." Because there was nothing "to support that these references are intrinsic to the story being told," they should have been excluded. Particularly noteworthy is the Sixth Circuit's statement that because Mr. Brown was charged with a gun possession crime, references to his violent past or history of domestic violence "was not necessary or integral" to telling the story of what occurred on the day in question.
However, the Sixth Circuit ultimately held that the error was harmless because the Court was not convinced that the error affected Mr. Brown's substantial rights or contributed to his conviction.
Sixth Circuit Again Denies Johnson Habeas Relief
The Sixth Circuit's recent published decision in Potter v. United States, affirming the district court's denial of a post-Johnson habeas petition, is yet another decision restricting Johnson habeas relief. In this case, Potter filed a habeas petition requesting resentencing in light Johnson by claiming his Georgia burglary conviction no longer qualified as a "violent felony" after the Supreme Court's decision. The district court denied his motion, holding that the conviction still qualified under the Armed Career Criminal Act's ("ACCA") enumerated offense clause.
Potter fared no better on appeal. Noting that Potter's presentence report did not specify under which clause his burglary conviction qualified under the ACCA and that he did not challenge that part of the report, the Court concluded the district court could find that the conviction qualified under the enumerated offense clause. It was up to Potter, the Court concluded, to prove the district court relied upon the ACCA's now-defunct residual clause. Further, the Court deferred to the district court, which, it claimed, was in the best position to know whether it relied upon the residual clause.
On a parting note, the Court also issued a general advisory to future Johnson habeas cases: if you are going to seek a resentencing under Johnson, bring some proof the district court relied upon the residual clause. Johnson, the Court held, did not "open the door" for collateral attacks any time the district court may have relied upon the residual clause.
Court Holds Third-Party Exception Applies to Cell Phones
May police officers reasonably rely upon the apparent authority of another to unlock and search a cell phone? According to the Sixth Circuit in United States v. Gardner, they may.
Gardner, an adult, was in an intimate relationship with B.H., who was seventeen, and thus, a minor. Gardner began positing invitations for dates and sex with B.H. on the website, Backpage.com. His postings invited "customers" to call or text B.H. using his cell phone number. When B.H. began objecting to the meetings, Gardner threatened her.
Gardner's activities soon caught investigators' attention. On October 10, 2017, Gardner posted an advertisement for B.H. on Backpage and listed his cell phone number as the contact number. An undercover officer called the number an arranged a meeting with B.H. at a local motel. When B.H. arrived, the officer disclosed his identity and alerted his fellow task force officers, who entered the hotel room and began conducting a search. During their search, officers found a white iPhone, which B.H. said belonged to her. In addition, B.H. authorized the officers to search the phone and provided them with the pass code.
A federal grand jury subsequently indicted Gardner for one count of trafficking a minor for sex and one count of producing child pornography by using his phone to distribute pictures of B.H. Prior to trial, Gardner filed a motion in limine seeking to suppress evidence obtained from his cell phone. Crucial to Gardner's argument before the District Court and before the Sixth Circuit was his claim B.H. lacked the apparent authority to consent to the search of his cell phone. Both courts disagreed. Although it recognized the "singular" role cell phones play today, the Court concluded that "the third-party consent exception to the warrant requirement applies to cell phones all the same...." The critical question, the Court then concluded, was whether a reasonable officer could believe B.H. had authority over the phone based on the facts available to them at the time of the search. Noting how Gardner and B.H. had used the phone to set up their "meetings," that B.H. regularly had the same phone with her during such meetings, and that B.H. knew the pass code to the phone, the Court held a reasonable officer would have concluded B.H. controlled the phone and that B.H. had the apparent authority to permit a warrantless search of Gardner's phone.
Although he has not researched this issue, the author is curious whether the result would have been different had B.H. admitted it was not her phone but that she still knew the pass code. If a person gives a third party their pass code, does that fact, by itself, constitute apparent authority?
Sixth Circuit Curbs Anticipatory Warrants
The Sixth Circuit last week, in United States v. Perkins, issued a very helpful decision for criminal defendants, affirming suppression of evidence obtained through a faulty "anticipatory warrant."
Specifically, the court held that, if a warrant requires delivery of a package to a particular
person, then its delivery to another person, even at the same address, is not enough to establish probable cause.
Anticipatory warrants require a "triggering
event" to establish probable cause. If that triggering event doesn’t occur, and police searched anyway, suppression
ensues, right?
It isn’t quite that easy. Warrants must not be read "hypertechnically" but in a "commonsense fashion." For
example, in an earlier case, the warrant required that a package be delivered to a residence and "taken by someone inside." But officers actually
delivered the package to someone who had just left the house and then left the
premises altogether. It would be "hypertechnical," the court said, to read the warrant to require the
package to be taken by someone remaining in the house.
In Perkins’s case, the warrant required hand delivery to
Perkins as the triggering event. It was "hardly hypertechnical," the court ruled, to read this language to mean
exactly what it says. So when officers (who hadn’t actually read the warrant) delivered
the package to Perkins's fiancé instead of Perkins himself, there was no
probable cause to search.
Judge Thapar, writing for a unanimous panel, rejected the
government’s argument that the court could read the warrant to require delivery
"to anybody inside the residence with apparent authority to accept delivery." Not
so, he said, as "the replace-some-words canon of construction has never caught
on in the courts."
Notably, the government did not argue that the search was “reasonable”
under the Fourth Amendment even if the warrant was invalid, leaving that fight for another day.
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