Still an Open Question Whether Attempted Hobbs Act Robbery Is a Crime of Violence

In United States v. Clancy, the Sixth Circuit addressed only one of the two questions Mr. Clancy raised on appeal. The other circuits are split on the second question, and we'll have to wait to find out the Sixth Circuit's view.

First, the question the court did resolve: when Lamar Clancy tried to rob a store at gunpoint, the store manager and an employee grabbed their guns and shot. One bullet hit Mr. Clancy in the arm. His colleagues took him to the hospital, where staff took off his bloody clothes and left them on the trauma room floor.

Police officers went to the store, where employees described the suspects and what they were wearing. A short time later, they learned that the hospital had admitted a shooting victim, and two officers headed there. When they walked in, they saw Mr. Clancy in the trauma room and clothes, matching a description they'd heard at the store, lying on the floor. After staff airlifted Mr. Clancy to another hospital, crime-scene investigators retrieved his bagged clothes from the trauma room.

Mr. Clancy moved to suppress the clothes, and the district court denied the motion. The Sixth Circuit affirmed. The court held that, while officers were lawfully in the hospital, they saw the clothes in plain view, and they matched what one of the robbery suspects was wearing. Seeing and seizing the clothes from the hospital room thus didn't violate the Fourth Amendment.

Second, the question left open: the jury convicted Mr. Clancy of attempted Hobbs Act robbery and of using a firearm in relation to a crime of violence under 18 U.S.C. § 924(c). On appeal, he argued that, unlike a completed Hobbs Act robbery, attempted Hobbs Act robbery is not a crime of violence. Other courts of appeals have given different answers to that question. Compare United States v. St. Hubert, 909 F.3d 335 (11th Cir. 2018) (attempted Hobbs Act robbery is a crime of violence) with United States v. Taylor, No. 19-7616, 2020 WL 6053317 (4th Cir. Oct. 14, 2020) (attempted Hobbs Act robbery is not a crime of violence).

For Mr. Clancy, though, that split of authority was fatal to his argument on appeal. He did not object at trial, so the court reviewed the issue only for plain error. And because the courts of appeals are split, even if there were error, it was not plain. We'll find out the Sixth Circuit's view on this question one day, but not yet.

Telling Jurors *They* Are the Victims of Bank Fraud Is Plain Error, But Not So Flagrant to Reverse

The ban on "Golden Rule" arguments means prosecutors can't ask jurors to put themselves in the victim's shoes. In Sharon Hall's bank-fraud trial, the prosecutor "went a step further and called them [the jurors] the victims of Hall's crime." But in United States v. Hall, even though the Sixth Circuit concluded that those statements were "no doubt improper," the court affirmed Ms. Hall's convictions.

The problem for Ms. Hall's appeal was in the court's analysis of whether the statements were flagrant, using the so-called Carroll factors: (1) whether the remarks tended to prejudice the defendant; (2) whether the remarks were isolated or extensive; (3) whether they were deliberate or accidental; and (4) whether the evidence against the defendant was strong. The court concluded that the remarks prejudiced Ms. Hall and a post-closing general curative instruction didn't eliminate the harm, but that the three remarks weren't extensive or deliberate, and the evidence against Ms. Hall was strong. 

Two Phones Does Not Provide Reasonable Suspicion to Search

 

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When courts decide whether a warrantless search is “reasonable,” and therefore constitutional, they essentially ask if the ends justify the means. By this I don’t mean whether the search uncovered evidence of a crime, which is nearly always true when there is a motion to suppress evidence. Instead, the search must advance a government interest other than pure investigation, which must be balanced by the person’s privacy interest in the thing searched.

In Riley v. California, the Supreme Court issued a robust opinion that acknowledged the unique privacy interests we have in our phones. When law enforcement officers search a phone, there must be a significant government need to conduct the search to with the warrant requirement.

In United States v. Fletcher, the Sixth Circuit addressed whether the search of a probationer’s cell phone was sufficiently justified. Fletcher was convicted of “importuning a minor” under Ohio law. He was sentenced to five years’ probation. A condition of probation was that Fletcher agreed to warrantless searches of his person, car, and home. Note that phones and computers are not expressly enumerated.

When the probation conducted a routine check of Fletcher’s home, she saw that Fletcher had two phones. When the officer stated that she was going to search the phones, Fletcher “responded nervously” and began looking through one of the phones. The officer thought Fletcher might be deleting something, so she grabbed the phone, demanded the passcodes, and then required Fletcher to unlock the phones with his fingerprint. During the warrantless search of the phone, the probation officer saw a pornographic image of a child. She contacted a detective, who obtained a warrant. Federal charges were filed, and Fletcher pled guilty and was sentenced to 35 years in prison.

The Ohio statute governing warrantless searches of probationers’ person and property requires that, before a search, the probation officer “must have reasonable grounds to believe” the person is committing a crime or not abiding by the terms of probation. The Sixth Circuit held this statute is reasonable before turning to answer the question about whether Fletcher’s conduct provided reasonable cause to search the phone. The court then turned to the question of whether the officer had reasonable cause to conduct the warrantless search.

Does the possession of two phones create reasonable cause to believe there is something nefarious on the phone? Not really. As the majority explained, “there are countless, innocent reasons for having two cell phones, and possessing more than one cell phone is a practice common in the general public.” So, that fact alone is not enough.

Does the fact that Fletcher was convicted of a sex offense (not involving child pornography) change the equation? Also no. Important to the majority’s analysis was the fact that Fletcher’s conviction was not for a pornography offense, and therefore the terms of his probation did not include restrictions on or monitoring of his digital devices.

How about Fletcher’s nervous behavior when the probation officer asked to see the phone? This also wasn’t enough because officers cannot create an exigency to justify a warrantless search. Even though the officer thought Fletcher was deleting something, she created this risk by threatening to search. The important moment was when the officer said she would search and whether there were reasonable grounds to search at that moment. The majority held that the probation officer did not have reasonable suspicion at the moment she asked to search the phone.

Although the government tried to claim that the condition requiring consent to warrantless searches of the probationer’s person, car, and home extended to cell phones, the majority was unpersuaded. The plain terms of the condition did not authorize warrantless searches of cell phones, so the probation officer could not reasonably rely on that condition.

The majority acknowledged that probationers have a diminished expectation of privacy. But a probationer has a greater expectation of privacy than parolee (who is free as an act of grace) or someone on supervised release. The terms of probation can also create or diminish a probationer’s expectation of privacy. And the fact that the search condition did not expressly cover cell phones was critical here—particularly because the privacy interests in cell phones may actually be greater than the privacy interest in a house.

In the majority’s view, the government’s interests in ensuring successful completion of probation, crime prevention, and evidence preservation do not outweigh Fletcher’s interest in the privacy of his phone. This was true particularly when the officer could have prevented the destruction of evidence by merely seizing the phone.

Even if a violates the Fourth Amendment, the Supreme Court has said suppression of evidence is not always warranted. But here, the majority concluded that the probation officer’s disregard for the warrant requirement was deliberate. The officer could not rely in good faith on the warrant issued after the fact based, in part, on the photo the officer saw during the warrantless search.

Judge Batchelder dissented. She believed the possession of two cell phones provided enough reason to conclude Fletcher was violating probation. And she thought that his reaction to the request to see the phone elevated her cause for concern.