Thursday, June 13, 2019

Carpenter on Remand: Good Faith Exception Applies

On remand from the Supreme Court, the Sixth Circuit considered United States v. Carpenter, the subject of the Supreme Court’s groundbreaking decision on the use of cell-site location data.  In light of the Supreme Court’s holding that such data requires a warrant, the Sixth Circuit considered whether the data should be suppressed.  Unfortunately for Mr. Carpenter, the court held that the good faith exception applied. 

The Sixth Circuit held that the FBI agents relied in good faith on the Stored Communications Act when they obtained the defendant’s cell-site data. The court reasoned that there is little logical difference between an agent relying in good faith on a faulty warrant and an agent relying in good faith on a faulty law.

Going forward, the government must obtain a warrant to compel a wireless carrier to provide cell-site location data, but data obtained under the SCA prior to Carpenter falls under the good faith exception. 

Opinion available here.

Possessing Ammunition Does Not Bar a Defendant from Safety Valve

18 U.S.C. § 3553(f) allows courts to sentence defendants below the mandatory minimum in certain situations.  One requirement is that the defendant must not possess a firearm or a dangerous weapon in connection with the offense.  In United States v. Penny, the Sixth Circuit decided whether possessing ammunition constituted possession of either a firearm or a dangerous weapon.

In a straightforward opinion, the court held that a defendant with only ammunition does not possess a firearm or a dangerous weapon.  Barring a defendant from the safety valve provision requires actual or constructive possession of a firearm, not just ammunition.  Further, possessing ammunition does not allow the sentencing court to infer possession of a firearm.  The Sixth Circuit also clarified that ammunition itself is not a dangerous weapon.  Ammunition without a firearm cannot be used to inflict death or serious injury.

Opinion available here.

Friday, June 07, 2019

Initiating Meth Production in Tennessee Is a Serious Drug Offense

Following its in United States v. Eason, 919 F.3d 385 (6th Cir. 2019), which held that the Tennessee offense of promoting meth manufacture is a serious drug offense under the Armed Career Criminal Act, the Sixth Circuit held that the related Tennessee offense of initiating meth production was also an ACCA drug predicate in United States v. Myers.

Essentially, the Sixth Circuit concluded that the same reasoning employed in Eason applied. The defendant argued that using thousands of commonplace chemicals - also used in meth manufacture - would violate the statute. But the Sixth Circuit again returned to Eason, explaining that if purchasing a meth ingredient with reckless disregard for its intended use involves the manufacture of meth, then knowingly initiating a process intended to manufacture meth "surely involves its manufacture as well." The statutes "knowingly" language lent further support to this conclusion.

Thursday, June 06, 2019

Commentary That Seeks to Make Additions to the Guidelines' Actual Language Is Entitled to "No Deference"

Sitting en banc, the Sixth Circuit issued a short and elegant opinion in United States v. Havis, which addressed whether the definition of "controlled substance offense" in Guideline 4B1.2(b) includes attempt crimes where the commentary alone includes attempt.  The simple answer: NO - to find otherwise would violate the separation of powers.

Noting that the Commentary has no freestanding definitional power, the Sixth Circuit looked to the plain language of 4B1.2(b). Finding no "attempt" in that language, the Sixth Circuit reasoned that was the end of the inquiry as to what constitutes a "controlled substance offense" under the Guidelines. "The guideline expressly names the crimes that qualify as controlled substance offenses under 2K2.1(a)(4); none are attempt crimes."

Moreover, to allow the Commentary to add an offense not listed in the Guidelines would run afoul of separation of powers. The Sixth Circuit explained this is so because the Commentary "never passes through the gauntlets of congressional review or notice and comment" that the regular Guidelines experience. As a result, the Sentencing Commission's use of commentary to add attempt offenses "deserves no deference."

What Is a Year?: Engaging in a Pattern of Activity Involving Sexual Abuse

What constitutes a year - exactly? In United States v. Doutt, this Sixth Circuit addressed the Guideline § 2G2.2(b)(5) enhancement, which applies where a defendant engaged in a "pattern of activity involving the sexual abuse or exploitation of a minor." Specifically, sexual abuse requires  sexual activity with a minor between the ages of twelve and sixteen "if the perpetrator was at least four years older than" the minor. 18 U.S.C. § 2243(a).

Mr. Doutt, in relationship to a child pornography charge, told law enforcement during a polygraph that he had a sexual relationship with a neighbor when he was 16and the neighbor was 11 or 12. The district court determined that was a difference of 4 years or more and applied the enhancement.

The Sixth Circuit reversed and remanded for resentencing because the district court employed the wrong legal standard in finding the enhancement applied. Authoring Judge Thapar points out that year - traditionally 365 days - does not account for the fact that the sexual abuse could have taken place when Mr. Doutt had just turned sixteen or when the victim and was at the end of his twelfth year or anywhere in between. Depending on where in the year the offense conduct occurred relative to their ages, the gap could be as many as five years to as few as three years. Employing the district court's methodology would apply the enhancement in all of those situations, making imposition of the enhancement "random and somewhat meaningless."

Instead, the Sixth Circuit held that a days-and-months standard should be applied in which to qualify for the enhancement the victim must have been 1,461 days or 48 months younger than the perpetrator. In Mr. Doutt's case, there was no evidence of the parties' birthdays, just Mr. Doutt's basic statement. The Sixth Circuit concluded, "That statement is simply not enough to conclude that Doutt was 'at least four years' older than M.R." On remand, the government could introduce further evidence regarding birthdays if it desired.

Sunday, June 02, 2019

How Much Detail is Required in a Search Warrant Affidavit? A Divided En Banc Court Discusses the Issue.

On September 3, 2015, an officer with the Grand Rapid Police Department applied for a warrant to search Defendant Tyrone Christian's residence located at 618 Grandville Avenue.  In his affidavit, the officer stated that: (a) Christian had a history of drug trafficking at the same residence, as evidenced by two prior raids at the residence and four felony drug-related convictions; (b) an informant had notified law enforcement in December 2014 that Christian was dealing drugs; (c) law enforcement conducted a successful controlled buy from him in nine months earlier; and (d) four sources told law enforcement they purchased drugs from Christian.  In addition, and in particular relevance to this case, the affidavit noted that law enforcement had established surveillance of 618 Grandville Avenue, and that during the surveillance, officers had witnessed someone walk away "from the area of [the residence]." After stopping the individual, subsequently identified as Reuben Thomas, officers found heroin in his car.  Although Thomas admitted to being on Grandville Avenue, the affidavit noted he denied being at Christian's residence, "contrary to law enforcement's observations."

A magistrate judge issued a search warrant for 618 Grandville Avenue based on the information contained in the affidavit.  The subsequent search led to the the seizure of narcotics and firearms from the residence and charges for possession of heroin with intent to distribute and being a felon in possession of a firearm for Christian.  

Christian subsequently moved to suppress the evidence seized from his apartment.  The District Court denied his motion, finding that the warrant was supported by probable cause, and, even if it was not so supported, the Leon good faith exception applied.

In United States v. Christian, the Court, sitting en banc, affirmed the District Court's order denying the motion to suppress.  Writing for the majority, Judge Rogers noted that the question of whether the affidavit demonstrated probable cause to support the warrant was "not even close." Judge Gilman , however, penned a vigorous dissenting opinion, joined by Chief Judge Cole,  and Judges Moore, Clay, Stranch, Donald, and White (in part), that would have reversed the District Court's decision.

Since much of the evidence cited in the affidavit was fairly attenuated to the date on which the search actually took place, the Court's decision focused primarily on the more recent surveillance that observed Thomas, subsequently found to have heroin, leave "the area of" 618 Grandville Avenue.  The Court noted that the affidavit did not need to definitively state that law enforcement saw Thomas leave 618 Grandville Avenue.  Instead, it only needed to provide sufficient evidence that there was a "reasonable probability" he did.  Under the totality of the circumstances, including Christian's prior drug convictions and previous controlled buys from the residence, the Court concluded there was a reasonable probability Thomas obtained the heroin from 618 Grandville Avenue and that the warrant was supported by probable cause.

In reaching this conclusion, the majority made several points as to how courts should approach search warrant affidavits.  Noting that police officers are not lawyers, the Court noted that probable cause is not a high bar and that courts should not engage in a hypertechnical review of search warrant affidavits.  Taking a "holistic approach," the Court noted, courts should examine affidavits for what they say, not what they do not say.  In this case, the affidavit said enough to establish probable cause.

Even if the search warrant was not supported by probable cause however, the Court noted that the District Court was correct to conclude that the Leon good faith exception would have applied.   The affidavit, the Court concluded, was far from the "short, conclusory, and selfserving" ones that do not fall under Leon.

In his concurring opinion, Judge Thapar argues the Court should overrule its decision in United States v. Laughton, which limits the Leon good-faith analysis to the affidavit's four corners.  Arguing that a four corners approach is contrary to both Leon and other Supreme Court precedent, Judge Thapar asserts there would have been no question as to whether the good-faith exception had applied if the District Court had considered evidence that was not included in the affidavit, including officers' observations that they saw Thomas and Christian interact on two occasions at Christian's house.

In his dissent, Judge Gilman sets forth, in painstaking detail, his position that the search warrant was not supported by probable cause because the information contained in the affidavit was not only stale but also did not establish a probability that drugs were located at 618 Grandville Avenue at the time law enforcement applied for and executed the search warrant.  Asserting that that the majority was misapplying its totality of the circumstances review in favor of laying "inference upon inference" to support the search warrant, Judge Gilman also examined each fact cited in the affidavit in support of the search warrant application.  Finally, Judge Gilman asserted that the good-faith exception did not apply because the affidavit did not establish a temporal nexus between Christian's residence and drug activity.

This opinion is particularly interesting in that it exposes the varying judges' positions about how much flexibility courts should demonstrate in examining search warrant affidavits.  In this decision, a majority of the judges take a more flexible approach, with at least four judges agreeing to overrule Laughton to allow consideration of evidence outside of the four corners of the affidavit in considering whether the good-faith exception applied.  However, seven judges would take a more critical approach to search warrants affidavits.  Counsel who are preparing appeals regarding search warrant issues should read this opinion and note the judges' varying positions.