Escape from Halfway House Is Not a § 4B1.2(a) COV

United States v. Jones, No. 12-40877 (5th Cir. June 12, 2014) (Higginbotham, Owen, Higginson)

Jones was convicted of possession of a firearm by a felon, and the presentencing officer recommended a base offense level of 20 after concluding that Jones’ prior felony was a “crime of violence” as defined in § 4B1.2(a).  Jones prior felony was a conviction under 18 U.S.C. § 751(a) for leaving a halfway house.  He argues on appeal that his conviction is not a COV under the residual clause of § 4B1.2(a) because it does not “otherwise involves conduct that presents a serious potential risk of physical injury to another.”

The panel refers to Chambers v. United States, 555 U.S. 122 (2009), an Armed Career Criminal Act case in which the Supreme Court held that failing to report for imprisonment was not a violent felony under the ACCA.  In Chambers, the Supreme Court relied on a report that showed that none of the 160 failures to report in 2006 and 2007 resulted in the use or threat of force only five (3.1%) involved a dangerous weapon.  That same report showed that only three (1.7%) of the 177 instances of “leaving nonsecure custody” involved the use or threat of force, and only four (2.3%) involved a dangerous weapon. 

The panel agrees with other circuit courts that “‘[e]scaping’ from a halfway house does not typically ‘present a serious potential risk of physical injury’ to others.”  Jones’ sentence is vacated and remanded.

The panel also addresses the Government’s arguments that finding Jones’ conviction to not be a COV would be inconsistent with Fifth Circuit precedent.  The panel emphasizes that precedent allows looking to the charging document to determine whether the offense is a § 4B1.2 COV since the commentary to § 4B1.2 specifically directs the court to look at the conduct charged whereas the ACCA looks to the statutory offense, not the charged offense.   The panel does not disturb precedent finding that escape from a prison camp can present a “powder keg” situation and be a § 4B1.2 COV (United States v. Ruiz, 180 F.3d 675 (5th Cir. 1999)) and that escape from an institution is typically a COV under the ACCA regardless of the conduct charged in the indictment (United States v. Hughes, 602 F.3d 669 (5th Cir. 2010)).

Escapees Have No Fourth Amendment Rights

United States v. Ward, No. 08-50114 (5th Cir. Feb. 26, 2009) (Higginbotham, Elrod, Haynes)

"Shortly after he received a 10-year federal sentence on a felon in possession charge, state authorities mistakenly released federal prisoner Dan Ward, who exploited the situation by absconding." Marshals tracked down Ward at a motel in Odessa, Texas, and tried to arrest him. Ward managed to maneuver his car around the Marshals' car, and a chase ensued. Fearing an accident, the Marshals broke off the chase and found another motel where Ward had a room registered in his own name. They got a key from the manager, and searched the room. Inside was a camera bag, and inside the bag was another bag, and inside that bag was a loaded 9mm pistol and some ammo. Ward was arrested shortly thereafter in Midland.

Ward was charged with being both a felon and a fugitive in possession of a firearm, based on the gun the Marshals found in the Odessa motel room. After unsuccessfully moving to suppress the evidence from the motel room, Ward conditionally pleaded guilty.

"The question[,]" the court explained, was "whether Ward, as an escapee, had a right of privacy in his motel room entitling him to the protection of the Fourth Amendment against unreasonable searches." The answer: a resounding "no".

The court looked first to the Supreme Court's decision in Hudson v. Palmer, which held that a prisoner has no protected Fourth Amendment privacy interest in his prison cell. Recognizing that a motel room isn't a prison cell, the court nevertheless concluded that many of the same considerations underlying the decision in Hudson weighed against finding that an escapee has a reasoanble expectation of privacy in a motel room:

• recognizing such a right would encourage escape, thus undermining prison security
• "an escapee privacy right remains incompatible with the objectives of incarceration"
• society needs protection from dangerous felons, and escaped felons "self-select[] themselves into an even more crime-prone subset"

The court also discussed Supreme Court cases approving warrantless searches of parolees' and probationers' persons and homes, and concluded that "[e]scape is a frustration of ordered justice that cannot be rewarded with rights greater than those held by felons that leave or avoid prison lawfully."

Although the court ultimately holds "that Ward, as a prison escapee, could not invoke the Fourth Amendment to suppress a warrantless search of his motel room and bag[,]" it cautions against taking the general principle too far:

[T]here remains the nagging risk of invading the privacy rights of third parties attending the warrantless pursuit of escaped prisoners. By his legal status an escaped felon is walking probable cause—police can arrest and, as we have explained, search his dwelling and his bag without a warrant and without justification under the Fourth Amendment. This makes important the circumstance that the motel room at issue in this case was Ward’s own, not just to the presence of probable cause to enter the room, but also in justification of a warrantless search of the bag when officers learned on entry that Ward was not then in his room. We pause to remind that in recapturing escaped prisoners, law enforcement may well encounter the hurdles of the Fourth Amendment rights of third parties.

As an example of such a hurdle, the court cites "Steagald v. U.S., 17 451 U.S. 204, 215 (1981) (requiring, in the absence of consent or exigent circumstances, a search warrant before law enforcement could search the home of a third party for the subject of an arrest warrant)." Presumably there's others.

One final point worth mentioning: Ward argued "that because he was mistakenly released he is not technically an escapee." The court disagreed, citing cases broadly interpreting the term "escape" under the federal escape statute: "They read escape to include a failure to return, even if the initial escape did not involve anything resembling a physical leap over a prison wall. Thus, we can confidently label Ward as an escapee in the general meaning of the word." There was also the fact that Ward fled when the Marshals tried to arrest him at the first motel.