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!!!
A blog by federal public defenders and criminal defense lawyers practicing in the Sixth Circuit.
Stitt!!!!!!!!!!!!!!!!!
Tennessee aggravated burglary is NOT a crime of violence. Details to be posted by whichever colleague whose thunder I just stole. I'm just really excited.
Opinion here
Opinion here
Sixth Circuit Recognizes Child Abuse Exception to Marital Communications Privilege
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.
Robert L.Abell
Zach Turpin
Zach Turpin
Certiorari granted in Sixth Circuit case involving seizure of cell phone location records.
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.”
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).
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