Wednesday, March 27, 2013

Canine Sniff of Home is Fourth Amendment Search

Florida v. Jardines, No. 11-564, _ S. Ct. _, 2013 WL 1196577 (Mar. 26, 2013)

Majority (Scalia, Thomas, Ginsburg, Sotomayor, Kagan)
"The government’s use of trained police dogs to investigate the home and its immediate surroundings is a ‘search’ within the meaning of the Fourth Amendment." Here, based on an unverified tip, officers surveilled the house in question. Approximately fifteen minutes after beginning the surveillance, without having seen any suspicious activities, the officer approached the house with a canine on a six-foot leash. The canine detected an odor and alerted at the front door. The officers used the canine alert to obtain a warrant to search the house. Scalia wrote that, while background norms invite a person to come to the front door and knock,
introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else. There is no customary invitation to do that. An invitation to engage in canine forensic investigation assuredly does not inhere in the very act of hanging a knocker. To find a visitor knocking on the door is routine (even if sometimes unwelcome); to spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to—well, call the police.

Basically, officers have an implied license to approach a door and knock, just like other citizens. Officers do not, however, have an implied license to enter the porch to conduct a search.

Concurrence (Kagan, Ginsburg, Sotomayor)
Justice Kagan argues the case could have been decided on the reasonable expectation of privacy test to arrive at the same conclusion. She compares the canine to a sense-enhancing device such as the thermal-imaging device in Kyllo, which cannot be used to search a home without a warrant or exigent circumstances.

Dissent (Alito, Roberts, Kennedy, Breyer)
Justice Alito disagrees with the majority’s approach since the officer and canine did not commit any sort of trespass by approaching the front door, remaining there a few seconds, and then leaving. He disagrees with the concurrence’s conclusion, finding that the occupant of a house does not have a reasonable expectation of privacy in odors emitted from the house that are detectable by dogs. He distinguishes canines from the thermal-imaging devise in Kyllo by focusing on the use of technology.

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Tuesday, March 19, 2013

New “Plain-Meaning” Approach for Non-Common Law Enumerated Offenses Under § 2L1.2 Crimes of Violence: Use Dictionaries, Not 50-State Surveys or Model Penal Code

United States v. Cabecera Rodriguez, No. 11-20881 (en banc) (Mar. 15, 2013)

Majority (Elrod, Higginson, Stewart, King, Jolly, Davis, Smith, DeMoss, Clement, Prado, Southwick)

The Fifth Circuit en banc, frustrated with the Sentencing Commission’s lack of definitions for enumerated offenses and the categorical approach, created a "plain-meaning" approach for non-common law enumerated offenses and concluded that Cabecera Rodriguez’s Texas conviction for sexual assault of a child is a U.S.S.G. § 2L1.2 crime of violence (COV) under "sexual abuse of a minor" and "statutory rape."

The Fifth Circuit held that:
(1) "Minor" for "sexual abuse of a minor" means a person under the age of 18. It does not matter how many years of age difference between the minor and the perpetrator.
(2) "Statutory rape" is sexual intercourse with a person under the age of consent as defined by the statute in the jurisdiction where the conviction was obtained.

The New "Plain-Meaning Approach"
(1) Identify "the undefined offense category" that could trigger the sentencing enhancement.
That means those enumerated offenses in the COV definition. Evaluate whether the meaning of that offense category is clear from the language of the enhancement or applicable commentary. If it is, stop and compare to the statute of conviction. If not, go onto Step 2.
- In this case, the meanings of "sexual abuse of a minor" and "statutory rape" were not clear, so the Court continued onto Step 2. 

(2) Is that offense category defined at common law?
If it is, stop using this new approach and go back to the Taylor approach for defining generic, contemporary definition (using 50-state surveys, Model Penal Code, treatises, etc.). If it’s not, go to Step 3.
- According to the majority, "sexual abuse of a minor" and "statutory rape" are not common law offenses. So, the analysis proceeded to Step 3.
- How to determine whether the offense category was defined at common law? The majority provides some footnotes (16 and 17) to help us figure out whether the offense is defined at common law, but this is most likely going to become a complicated inquiry. (For example, the majority thinks statutory rape is not common law, but concurring Judge Graves thinks it is.) They suggest looking at "books by recognized writers on English crimes, especially Blackstone."

(3) Derive the offense category’s "generic, contemporary meaning" from its "common usage as stated in legal and other well-accepted dictionaries."
Do not look to the Model Penal Code or do a nationwide survey of state laws.
- The Fifth Circuit did that here by looking to dictionary definitions of "minor" and deciding it means someone under age 18. For statutory rape, the Fifth Circuit determined that the dictionary definition relied on a statutory age, requiring us look to the age of consent in the jurisdiction of conviction.

(4) Compare the elements of the statute of conviction with the generic meaning of the offense category.
- Phew. Back to common ground. (Except that now the generic meaning of statutory rape is going to rely on the age of consent in the jurisdiction of the conviction. So, instead of comparing the elements of two offenses, you’ll using age of consent from the state offense to define the generic offense and then compare them.)
- Cabecera Rodriguez’s Texas conviction for sexual assault of a child matches both of the generic offenses, so he gets the 16-level enhancement.

Dicta, Concurrences, & Dissent
The opinion is also replete with criticisms of the Sentencing Commission and the categorical and modified categorical approach. Nevertheless, in a doth-protest-too-much fashion, the opinion repeatedly declares that the new approach is in line with Taylor and will help provide uniform decisions across the nation (even though, after using the same approach, the Fifth Circuit’s definition of statutory rape looks to the state statute for age of consent whereas the Ninth Circuit’s definition includes the age of consent as 16).

If you’re skeptical about this new approach, you might want to check out how the concurring and dissenting judges felt:

Concurring (Owen and Jones): Judge Owen’s main concern with the opinion "is its exclusive reliance on dictionaries . . . ." As she points out, "dictionary entries are, by their very nature, broad and tend to encompass all uses of a word or phrase." (Read: more defendants will get enhancements.) Instead, she would "attempt to divine what the Sentencing Commission meant when it used the terms at issue in § 2L1.2," which was "a range of diverse conduct, defying precise definition" but definitely including Texas sexual assault of a child. Judge Owen also criticizes the majority’s lack of consistency by referring to Black’s definition of "statutory rape" to define "minor" as under eighteen but then rejecting Black’s statement that the age of consent to sexual intercourse is "usually" defined by statute at 16 years and instead deferring to state statutes. Concurring in judgment only (Haynes): Judge Haynes writes separately to urge the Sentencing Commission to define "sexual abuse of a minor." She points out that a "myriad of offenses could fall under the broad rubric of ‘sexual abuse of a minor,’" but that a federal sentencing enhancement should provide uniform treatment of similarly-situated defendants. "Although a sixteen-level enhancement is too low for some of the more vile cases . . . , it is too high for others." As she reminds her colleagues, "federal sentencing is not an opportunity to resentence the defendant for a state crime."
Concurring in part and concurring in the judgment (Graves): Judge Graves approves of the plain-meaning approach but disagrees with its application for "statutory rape," which he concludes is a common law crime. As such, under the Taylor majority-based approach, he would adopt the generic, contemporary definition of statutory rape that includes 16 as the age of consent.

Judge Graves concludes that a distinction between judge-created crimes and crimes created by early statute is unworkable, highlighting how murky this inquiry of whether a crime is common law or not can become. He also criticizes the majority’s definition of "statutory rape" as fundamentally flawed because it depends on state law and is therefore not uniform.

Dissenting (Dennis): "The majority’s ‘plain meaning’ approach lacks disciplinary content and cannot help but reduce uniformity and fairness in federal sentencing. It is not this court’s place to overrule Taylor’s approach to defining generic predicate offenses under the guidelines." He cites approvingly the Fourth Circuit’s decision in United States v. Rangel-Castaneda, which is based on a review of the Model Penal Code, treatises, modern state codes, and dictionaries, and concludes that "‘the generic, contemporary meaning of statutory rape sets the general age of consent at sixteen years old.’" The Fourth Circuit also concludes that "sexual abuse of a minor" turns on the general age of consent for the generic definition of statutory rape, which would be 16. So, Cabecera Rodriguez would not get the 16-level enhancement in the Fourth Circuit.

Judge Dennis also disagrees with dicta in the majority opinion that criticizes the categorical approach as not "lead[ing] to reasonable results" and as requiring too many analytical "gymnastics." 
I worry that my colleagues have forgotten that ‘[a]mong the considerations that led the Taylor court to conclude that a categorical approach to prior convictions was necessary were concerns about the practical difficulties and fairness problems that would arise if courts were permitted to consider the facts behind prior convictions. . . . I believe the rigors of the categorical approach to be both principled and workable. Taylor made clear that a standard approach to classifying past convictions is essential to fair and uniform federal sentencing. . . . [I]t is not our place to eschew faithful application of the disciplined analysis required by precedent merely because some may become ‘skeptical’ when it produces results favorable to criminal defendants.

Practice Points
(1) Keep on preserving age-of-consent-based attacks on sexual abuse of a minor and statutory rape crimes of violence, acknowledging that they are foreclosed at the moment.
(2) Work on your variance requests since the plain-meaning approach is likely going to be over-inclusive.
(3) Be careful relying on prior Fifth Circuit decisions that address non-common law enumerated offenses. The Fifth Circuit explicitly states that United States v. Lopez-DeLeon and United States v. Munoz-Ortenza are "no longer valid precedent to the extent they use approaches other than a plain-meaning approach to define the ‘generic, contemporary meaning’ of the ‘statutory rape’ and ‘sexual abuse of a minor’ offense categories in § 2L1.2." Precedent is left intact for common law enumerated offenses. It's up to you to argue whether an offense is common law or not (see footnotes 16 and 17 of the decision for some guidance).

Friday, March 15, 2013

Error, if Any, in Relying on Non-Shepard Document to Assess 12-Level Enhancement Did Not Affect Fairness, Integrity, or Public Reputation of Judicial Proceedings

United States v. Duque-Hernandez, No. 11-40642 (Smith, Prado, Higginson)

Duque-Hernandez pled guilty to illegal reentry and was sentenced to 51 months of imprisonment, which was the low end of the guidelines range after the court applied a 12-level enhancement. The court determined that his conviction under Utah Criminal Code § 58-37-8(1)(a)(ii) was a drug trafficking offense (DTO) by relying on a probable cause statement attached to the information. Duque-Hernandez did not object. On appeal, Duque-Hernandez argued that the statute of conviction was broader than a DTO and that the court erred in relying on a non-Shepard document to apply the enhancement.

The panel avoided the issues raised, however, finding that any error did "not seriously affect the fairness, integrity, or public reputation of judicial proceedings, [and] we decline to exercise our discretion to correct it." In sum: it’s not worth re-sentencing this defendant because we think he really did commit a drug trafficking offense (even if the Shepard documents don’t support that conclusion), he did not object even though he previously appealed on this same issue for a prior illegal reentry charge (and won!), and his sentence "has strong foundation" because he "has persistently disregarded the immigration [and drug] laws of the United States."

The one issue that the panel decided: it could rely on the probable cause statement, even if it was not a Shepard document, to determine whether the application of the DTO adjustment seriously affected the fairness, integrity, or public reputation of the proceedings. Since that statement indicates that Duque-Hernandez offered to sell cocaine, the panel allowed it to influence its determination of whether or not to vacate and remand for sentencing.

The lesson: preserve, preserve, preserve. Also, look up prior cases for repeat illegal reentry clients to find out how the courts have treated their priors. You might find arguments - or even decisions - that will help them out on their subsequent cases.

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Wednesday, March 13, 2013

Miranda Violation Does Not Automatically Make Consent to Search Involuntary

United States v. Gonzalez-Garcia, No. 11-41365 (Higginbotham, Smith, Elrod)

Federal agents were surveilling a suspected drug house when they saw Gonzalez-Garcia leave from the house. Agents approached him and asked if he was in the country legally. He admitted that he was not, and the agents arrested him. The agents never read Gonzalez-Garcia his Miranda rights but questioned him about the drug activity in the house. Gonzalez-Garcia responded to some questions but eventually requested a lawyer. Soon after the request for a lawyer, an agent asked him if he would consent to a search of the house. The agent spent 5 to 7 minutes seeking permission to search, which Gonzalez-Garcia eventually gave. Agents found 2043 kilograms of marijuana in the house.

The district court suppressed Gonzalez-Garcia’s statements about the drug activity in the house because they were obtained in violation of Miranda, but the court did not suppress the marijuana found in the house. Gonzalez-Garcia pleaded guilty conditionally and appealed the denial of his suppression request.

The panel first notes that a violation of the prophylactic Miranda rule does not require suppression of the nontestimonial physical fruits of the suspect’s unwarned but voluntary statements. "Because the marijuana seized is physical, nontestimonial evidence, an Edwards violation [questioning after he asked for a lawyer] itself would not justify suppression."

The panel then addressed whether the Miranda violation rendered Gonzalez-Garcia’s consent to search involuntary. The panel held that a categorical rule that consent is coerced whenever police use an unwarned statement to obtain consent is inconsistent with the multi-factor approach to assessing voluntariness endorsed by the Supreme Court. In other words, Gonzalez-Garcia’s "consent was not automatically involuntary merely because his Miranda rights were violated." Since Gonzalez-Garcia did not otherwise argue that the consent was involuntary, the panel affirmed the judgment of conviction.

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Tuesday, March 12, 2013

Imposition of 3-Years Supervised Release for Illegal Reentry Affirmed Despite District Court’s Erroneous Belief that Supervised Release Was Mandatory (Plain Error)

United States v. Cancino-Trinidad, No. 11-41344 (Stewart, Smith, Weiner)

Cancino-Trinidad pled guilty to illegal reentry and was sentenced to 32 months’ imprisonment and three years’ supervised release. He had a lengthy criminal history (28 convictions) and was re-arrested less than 3 months after his deportation.

The PSR included language from the pre-November 1, 2011 version of the Guidelines that the guideline range for a term of supervised release is at least two years but not more than three years. The amended USSG § 5D1.1, which was effective at the time of sentencing, provided that a "court ordinarily should not impose a term of supervised release in a case in which supervised release is not required by statute and the defendant is a deportable alien . . . ."

At sentencing, the PSR was not modified to reflect the new range, and neither the court nor the government noted that the amended guideline rendered the imposition of supervised release discretionary. The panel found that it was plain error for the court to adopt a PSR with an incorrect supervised release range. The panel was not convinced, however, that this error affected his substantial rights since the court implied that supervised release would have a deterrent effect by resulting in greater criminal penalties should Cancino-Trinidad return. While Cancino-Trinidad raised the possibility that the court may have reached a different result had it realized that the imposition of supervised release was discretionary and even discouraged in such circumstances, the panel found that this did not rise to the requisite "probability." The panel even noted that had Cancino-Trinidad made such a showing, this was not an instance meriting the panel’s discretion to remand for resentencing. Lastly, the panel found that since the three years of supervised release was within the Guideline range, it was accorded the presumption of reasonableness, and was reasonable.

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Monday, March 11, 2013

Sequestering Justice

This Atlantic Monthly article entitled How the Sequester Threatens the U.S. Legal System details the impact of the sequester on the Judiciary, including Federal Public Defender offices:
If federal court administrators offer the big picture impact of the sequestration, federal public defenders all over the country are sharing the details on an office-by-office basis. These stories are bad in two dimensions. First, there is the grim business of laying off desperately needed federal workers. Second, there is the impact those layoffs will have on ordinary people who for one reason or another are involved in the federal court system. It’s really quite simple: The people being laid off try each day to help the rest of us secure our constitutional rights.

John Sands, the Federal Public Defender for the District of Arizona is quoted as writing:
We have clients who need mental health experts to examine them, but whom must wait until the next budget allotment comes. We have investigators who can no longer go to the scenes of crimes, but call instead. We watch pennies so we can order transcripts. The impact of sequestration in criminal justice further makes the playing field uneven, with DOJ able to shift resources, while we can’t. We are seeing offices shuttered, and staff sent home for 30, 40 even possibly 90 days.

The sequester will be on the agenda at the semi-annual meeting of the Judicial Conference of the United States beginning on March 12th.

Conviction in ATF-Aided Conspiracy Affirmed; Remanded for Sentencing

United States v. Cervantes, Nos. 11-41385 & 11-41407 (Jolly, Prado, Higginson)

The panel addressed the appellants’ multiple complaints regarding their trial and sentence, affirming their convictions but vacating and remanding the sentences of Cervantes and Alvarez. Here is a brief summary of the highlights:

Appellants Cervantes, Alvarez, and Milan worked with an undercover agent to plan an armed home invasion to steal a large quantity of drugs. The home invasion, though, was a sham, and the appellants were arrested on the day the invasion was set to happen. They were subsequently indicted, and later convicted by jury trial, on six counts.
  1. Court can limit number of family members present if limitation adequately explained and trial still "public."  The court only allowed a few family members to be present for voir dire, citing the courtroom’s space limitations and the chilling effect on the jury panel to have too many family members present (comfort and safety concerns). The panel held that the court adequately explained its reasons for limiting the number and that having a few family members present adequately preserved appellants’ right to a public trial.
  2. Court did not abuse discretion by failing to ask questions about entrapment during voir dire.  The panel found the appellant’s argument unpersuasive since the court asked jurors if they could follow the law as provided by the court.
  3. Court provided sufficient remedy for comment on defendants’ failure to testify.  The first two defendants did not testify. When the third defendant took the stand, the prosecutor asked, "And the first two have already been asked if they wanted to take the stand and they have declined?" Counsel for the first two defendants objected. The court chided the prosecutor and reminded jurors to disregard the comment. The panel held that the comment did not have a clear effect on the jury’s outcome, so it did not warrant reversal.
  4. Court did not err in allowing evidence of prior home invasion (Rule 404(b)). This was permissible to prove motive and to rebut the entrapment defense.
  5. Evidence was sufficient to support conviction and to support predisposition to commit offense.
  6. No cumulative error.
  7. Application of firearm enhancement at sentencing was plain error.  Assessment of an enhancement on the drug conspiracy charge for use of a firearm under 2D1.1(b)(1) constituted "inappropriate double punishment" since the appellants were also separately sentenced for possession of a firearm in furtherance of drug trafficking and drug conspiracy. United States v. Benbrook, 119 F.3d 338, 339 (5th Cir. 1997).
  8. Application of body armor enhancement was not plain error. The PSR stated that an appellant was wearing bulletproof body armor and the appellant did not object or identify any evidence to show that the PSR was untrue.

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Friday, March 01, 2013

Latest Supreme Court Opinions - Fourth Amendment, Plain Error, Padilla, Double Jeopardy

Florida v. Harris, No. 11-817 (Kagan, unanimous)
The government does not need to produce a dog’s training and certification records, in addition to other evidence, to demonstrate a drug detection dog’s reliability. Instead, "[t]he question—similar to every inquiry into probable cause—is whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime. A sniff is up to snuff when it meets that test." In so holding, the Court reversed the Florida Supreme Court’s decision.
[The other dog sniff case, Florida v. Jardines (No. 11-564), which presents the question "whether a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog is a Fourth Amendment search requiring probable cause," has not yet been decided.]

Bailey v. United States, No. 11-770 (Kennedy, Roberts, Scalia, Ginsburg, Sotomayor, and Kagan, majority; Breyer, Thomas, and Alito, dissent)The detention of an individual who had left the premises before the search began and was a mile away before police detained him was not lawful under Michigan v. Summers, 452 U.S. 692 (1981), which authorizes law enforcement officers "to detain the occupants of the premises while a proper search is conducted" without need for any level of suspicion. The Court added that "[i]n closer cases courts can consider a number of factors to determine whether an occupant was detained within the immediate vicinity of the premises to be searched, including the lawful limits of the premises, whether the occupant was within the line of sight of his dwelling, the ease of reentry from the occupant’s location, and other relevant factors." Lawful detention under an alternative avenue, such as a Terry stop, is of course still possible.
Henderson v. United States, No. 11-9307 (Breyer, Roberts, Kennedy, Ginsburg, Sotomayor, and Kagan, majority; Scalia, Thomas, and Alito, dissent)
Under Federal Rule of Criminal Procedure 52(b), error is plain if it is clear at the time of appeal.

Chaidez v. United States, No. 11-820 (Kagan, Roberts, Scalia, Kennedy, Breyer, and Alito, majority; Thomas, concurrence; Sotomayor and Ginsburg, dissent)
Padilla v. Kentucky, 559 U. S. ___ (2010), does not apply retroactively to cases already final on direct review. In Padilla, the Supreme Court held that the Sixth Amendment requires an attorney for a criminal defendant to provide advice about the risk of deportation arising from a guilty plea. The Court concludes in Chaidez that, "under the principles set out in Teague v. Lane, 489 U. S. 288 (1989), Padilla does not have retroactive effect."

Evans v. Michigan, No. 11-1327 (Sotomayor, Roberts, Scalia, Kennedy, Thomas, Ginsburg, Breyer, and Kagan, majority; Alito, dissent)
Retrial following a court-decreed acquittal is barred, even if the acquittal was based on an incorrect legal conclusion, as was the case here.

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