Driver on Cross-Country Trip Did Not Have Authority to Consent to Search Passengers’ Luggage in Trunk

United States v. Iraheta, No. 13-30545 (5th Cir. Aug. 19, 2014) (Stewart, Dennis, Gilstrap)

The panel affirms suppression of drugs found during a traffic stop in Louisiana.  The car with a California license plate was occupied by three people on a cross-country trip from California to Miami.  Out of the hearing of the other two occupants, the officers asked Iraheta for consent to search the car, and he consented.  Based on this consent, the officers searched the luggage in the truck and found drugs in one of the bags.

Typically, consent to search a vehicle applies to any unlocked containers within it.  However, “[t]he sole fact that luggage is located in a car’s trunk is insufficient to show joint control over those items.”  “Iraheta clearly did not have actual authority to consent to the search of multiple pieces of luggage in the trunk of a vehicle occupied by him and two passengers.”  The officers were on notice of this because the car was occupied by three people on a cross-country roadtrip and there were multiple unmarked bags in the trunk. 

While the defendants did not object to the search or assert ownership of the bags, the panel found this not to be determinative, particularly since the other defendants did not hear Iraheta consent and were not informed about it.  Furthermore, the defendants had standing to challenge the search because they did not abandon the bag prior to the search.

Search & Seizure Update from Oregon Federal Public Defender

The Oregon Federal Public Defender issued its latest version of Developments of Search and Seizure Law.  Read more about it on the Ninth Circuit Blog.

SCOTUS: Randolph Does Not Apply When Person Objecting to the Search Not Physically Present

Fernandez v. California, No. 12-7822 (U.S. Feb. 25, 2014) (Majority: Alito, Roberts, Scalia, Kennedy, Thomas, Breyer; Concurrences: Scalia, Thomas; Dissent: Ginsburg, Sotomayor, Kagan)

This decision does not change the law in the Fifth Circuit.  See United States v. Cooke, 674 F.3d 491, 498 (5th Cir. 2012).  It describes Georgia v. Randolph, 547 U.S. 103 (2006) as a narrow exception to the rule that police officers may search jointly occupied premises if one of the occupants consents.  Under Randolph, consent of one occupant is insufficient when another occupant is present and objects to the search.  Fernandez holds that the person objecting to the search must be physically present; otherwise, Randolph does not apply.

In Fernandez, the police officers removed the objecting occupant by arresting him for suspected assault.  They later returned to the apartment and obtained consent from the remaining occupant (the abused woman) to search the premises is valid.  The Court interprets the dictum in Randolph that consent by one occupant might not be sufficient if “there is evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection” to only apply to removals that are not objectively reasonable.  The Court holds “that an occupant who is absent due to a lawful detention or arrest stands in the same shoes as an occupant who is absent for any other reason.” 

The Court also rejects Fernandez’s argument that his objection when he was physically present remained effective until he changed his mind and withdrew his objection.  The Court explains that this argument cannot be squared with widely shared social expectations or customary social usage on which Randolph relied.  The Court claims that it would also result in the “practical complications that Randolph sought to avoid,” by inviting other questions such as duration of the objection.

In his concurrence, Scalia addresses the Fourth Amendment argument under property law, finding that there was no violation because a guest of one tenant does not trespass simply because the other tenant forbids the guest from entering.  He also agrees with Thomas that Randolph was wrongly decided.

Thomas writes separately to “make clear the extent of [his] disagreement with Randolph.”  “[N]o Fourth Amendment search occurs where . . . the spouse of an accused voluntarily leads the police to potential evidence of wrongdoing by the accused.”

The dissent emphasizes the importance of the warrant requirement and drawing only narrow exceptions to it: “[T]he Framers saw the neutral magistrate as an essential part of the criminal process shielding all of us, good or bad, saint or sinner, from unchecked police activity.”  “Instead of adhering to the warrant requirement, today’s decision tells the police they may dodge it, nevermind ample time to secure the approval of a neutral magistrate.”

More analysis available on SCOTUSblog.com.

Conviction for Attempted Use of WMD Affirmed Despite Challenges to FISA Searches and “Some Preparations Taken Together” Jury Instruction

United States v. Aldawsari, No. 12-11166 (5th Cir. Jan. 23, 2014) (Reavley, Davis, Higginson)

The panel affirms Aldawsari’s conviction for attempted use of a weapon of mass destruction and sentence of life imprisonment.

Aldawsari appeals the denial of his motion to suppress evidence gathered pursuant to the Foreign Intelligence Surveillance Act (FISA). Under the Foreign Intelligence Surveillance Court of Review (FISCR), FISA searches do not violate the Fourth Amendment so long as they are at least partially motivated by a purpose to “protect the nation against terrorists and espionage threats directed by foreign powers” and are thus not performed with the “sole objective of criminal prosecution.” As a statutory matter, evidence can be collected during a FISA search where protection against terrorist threats is at least a “significant purpose” of the FISA search and admissible in a criminal prosecution.

Aldawsari argues that searches were not validly authorized under 50 U.S.C. § 1805 and § 1824. In particular, Aldawsari claims that the FISC failed to authorize a search upon a showing of probable cause to believe the searches’ target is “an agent of a foreign power” under 50 U.S.C. § 1801.  Aldawsari speculates that the government likely never made the requisite showing of any foreign power’s involvement since no evidence was presented during trial.

The panel, based upon a review of the classified materials in camera, finds that Aldawsari’s inference is incorrect. Moreover, the panel finds that the objective of the searches was not solely the criminal prosecution of the Aldawsari, but protecting the nation against terrorist threats.

Additionally, Aldawsari argues the jury instructions allowed Aldawsari to be convicted even though he had only performed “mere preparations” and never completed a “substantial step” toward committing the offense. The instruction in question states that “some preparations, when taken together with intent, may amount to an attempt.” The panel holds the instruction was proper since it directed the jury to look at the evidence, when “taken as a whole,” describing the preparation-attempt continuum. When read in context, the instruction adequately distinguishes between “mere preparation” and “some preparations” which “may amount to an attempt” so long as such “acts...clearly indicate a willful intent to commit a crime.” See United States v. Mandujana, 499 F.2d 370 (5th Cir. 1974).

Lastly, Aldawsari argues that the district court erred procedurally and substantively in imposing a life sentence. First, Aldawsari claims the district court erred when it applied the § 2K1.4 cross-reference to the guidelines for “attempted murder” because it is unclear whether Aldawsari ever identified a final bombing target. The panel finds there is no authority that requires a finding of a clear targeted victim, location or facility to apply § 2K1.4. See United States v. Polk, 118 F.3d 286, 297-98 (5th Cir. 1997). Second, the panel overrules Aldawsari’s objection that the district court erred when it applied § 3C1.1 adjustment for obstruction of justice based on its finding that Aldawsari feigned mental illness according to a physician’s report. Finally, the panel overrules Aldawsari’s objection that the district court abused its discretion by imposing a substantively unreasonable term of imprisonment.

Thanks to FPD intern Linda Corchado for this post.

Officer Trickery Can Taint Subsequent Admissions or Consent Depending on Circumstances

United States v. Guzman, No. 12-11279 (5th Cir. Jan. 7, 2014) (Higginbotham, Owen, Higginson)

The panel vacates Guzman’s conviction and remands since “the district court expressly declined to make factual findings that may have had a determinative impact on the outcome of the suppression hearing.”  What factual findings did the court refuse to make?  Whether Guzman consented, whether the officer misrepresented his authority to search Guzman’s car, and whether the officer’s misrepresentation rendered Guzman’s statements inadmissible and consent involuntary.  Instead, the court decided that even if the officer tricked Guzman into making an admission, such trickery did not taint the search.

Here’s what happened: Officers arrive at a house based on a tip that meth is being sold there.  Guzman was sitting in a car in the driveway, and he exited the car when the officers approached.  An officer “struck up a conversation” with Guzman, during which Guzman mentioned that he was just released from prison.  In the officer’s version of what happened next, he asked Guzman if he could search his car for drugs; Guzman consented, saying there were no drugs but there was a handgun.  In Guzman’s version (corroborated by the audio recording of his later interrogation), the officer said he was going to search the car, and Guzman responded that there were no drugs but there was a handgun.  The officers found the handgun but no drugs.  Of course, the officers also discovered that Guzman was a convicted felon, and he was then charged with being a felon in possession.

In response to Guzman’s suppression motion, the Government argued that Guzman gave verbal consent or, alternatively, that the search was permissible under the automobile exception since Guzman said he was released from prison and there was a gun in the car.  During closing, the district court asked whether an officer could trick a defendant into making a guilty admission by saying, “I’m going to search your car whether you like it or not.  When I do, am I going to find any contraband?,” and whether a guilty admission would justify probable cause to search the car.  The court decided an officer could do such a thing, which would justify probable cause for the automobile exception to the warrant requirement, and denied the motion to suppress without deciding whether or not Guzman voluntarily consented to the search or whether or not the officer asked for consent or said he was going to search the car.

The panel points out that a false claim of lawful authority could affect the validity of Guzman’s consent and the admissibility of his subsequent statements.  “An inadmissible statement cannot constitute probable cause to support an otherwise illegal search.”  Further, “‘any misrepresentation by the Government is a factor to be considered in evaluating’ whether the defendant’s consent was voluntary.”  The panel clarified that United States v. Andrews, 746 F.2d 247 (5th Cir. 1984), “did not establish a general rule that officers can use trickery to obtain consent” but was a “narrow” decision holding that the Government carried its burden in that case to show that Andrew’s consent was voluntary.

Since the district court did not ask the right legal questions in making its ruling and declined to make the factual findings necessary to resolve the issue, the panel remands to the district court to obtain additional findings.

Note: As an alternative, Guzman argues for the first time on appeal that the automobile exception could not apply to this case because his car was parked in a private driveway.  Even though the panel finds Guzman waived this argument by not raising it at the suppression hearing, the panel notes that this argument does not have clear support in Fifth Circuit precedent when officers believe the home in question was being used for illegal activity.

Prosecutor Violated Bruton by Cross-Examining Defendant with Non-Testifying Co-Defendant’s Statements

United States v. Powell, No. 11-51205 (Oct. 3, 2013) (Jones, Smith, Garza)

Both Powell and Akin went to trial on charges of conspiracy to possess crack cocaine with intent to distribute and possession with intent to distribute.  The crack cocaine was discovered pursuant to a legitimate traffic stop and tip from an informant.  Akin made inculpatory statements after her arrest that the Government introduced at trial through the testimony of officers.  Akin did not testify, but Powell did.  During cross-examination of Powell, the prosecutor repeatedly asked Powell to explain Akin’s inculpatory statements.

The panel held that the introduction of Akin’s statements did not violate Bruton v. United States, 391 U.S. 123 (1968), because the statements “did not clearly refer to [Powell] and could only be linked [to him] through additional evidentiary material.”  The statements only focused on Akin’s personal actions and personal knowledge about the crack cocaine.  However, the panel held that the use of Akin’s statements against Powell through cross-examination violated Bruton and the Confrontation Clause because Akin did not testify, so Powell could not confront the witness against him.  The cross-examination “drew the jury’s attention to Akin’s statements and used her statements against” Powell thereby “significantly increas[ing] the danger of improper use” of the statements.  The Bruton error did not mandate reversal, though, because it was harmless given the weight of other evidence against Powell.

The panel also analyzed Powell’s and Akin’s suppression arguments but held that the duration of the stop did not violate Terry because officers had reasonable suspicion that Powell and Akin were transporting cocaine (based on the informant’s tip that contained very specific details) and that the intrusive search of the vehicle was based on probable cause (also the informant’s tip that was gradually corroborated by the officers’ investigation).

Lastly, the panel affirmed Powell’s sentence as reasonable and also the U.S.S.G § 3B1.4 use of a minor enhancement.  The panel reiterated that the test of whether the enhancement applies is purpose-driven:  whether the defendant took “‘some affirmative action to involve the minor in the offense’” and “‘used the minor to avoid detection.’”  (quoting United States v. Mata, 624 F.3d 170, 175 (5th Cir. 2010)).  Here, Powell decided to take the minor on a previously-planned drug trafficking trip.  The panel recognized a plausible explanation for the minor’s presence in the vehicle other than to avoid detection: both parents were young, in the vehicle, and without means for childcare.  However, Powell told the traffic officers that he was returning from picking up his child, which the panel took to “demonstrate use of a minor to avoid detection and provide the additional circumstantial evidence necessary under Mata” for the enhancement.

 

Evidence Suppressed from Wiretap: Court Lacked Territorial Jurisdiction and Agents Failed to Follow Minimization Protocols

United States v. North, No. 11-60763 (Aug. 26, 2013) (Stewart, DeMoss, Graves) (per curiam)

In the days of Edward Snowden and SOD parallel construction, it is somewhat comforting to see the Fifth Circuit limit the Government’s wiretap reach. North, who was indicted for conspiring to distribute more than fifty grams of cocaine, appealed the district court’s denial of his motion to suppress evidence obtained from the interception of his cellular phone. The panel reversed the district court’s denial based on two grounds.

First, the panel found that the Southern District of Mississippi court that issued the wiretap did not have "the authority to permit interception of cell phone calls form Texas at a listening post in Louisiana." The panel interpreted Title III of the Omnibus Crime Control and Safe Streets Act of 1968 to "mean that, except in the case of a mobile interception device, a district court cannot authorize interception of cell phone calls when neither the phone nor the listening post is present within the court’s territorial jurisdiction." In this case, however, the district court explicitly authorized the wiretap "‘in any other jurisdiction within the United States" without requiring that the listening post remain in the Southern District of Mississippi. The panel concluded that a cell phone was not "a mobile interception device" and that the Government had not provided any proof that the interception device was mobile; so, the exception to territorial jurisdiction did not apply here. Since the order of authorization for the interception was insufficient on its face and "the territorial jurisdiction limitation serves important substantive interests and implicates core concerns of the statute," the interception must be suppressed.

Note: In reaching this conclusion, the panel disagrees with the Seventh Circuit, which held that "a mobile interception device" means a cell phone or other mobile communication device that is being intercepted (not the device doing the interception), and with the Eleventh Circuit, which held that the territorial jurisdiction limitation was not a core concern of Title III that merited suppression.

Second, the panel agrees with North that the agents failed to follow minimization protocols during the interception of a phone call between North and a female friend who was not under investigation. The minimization instructions authorized spot monitoring for not more than two minutes and continued monitoring only when the conversation related to the alleged crimes under investigation. North called his friend shortly after a traffic stop for speeding. They spoke for over an hour, and the agents listened for several minutes before "‘dropping out’ for less than one minute at a time before resuming their near continuous listening." North and his friend did not speak about any criminal matters until the very end of the conversation.

Under these circumstances, it was not objectively reasonable for agents to listen in for nearly one hour to a conversation that did not turn to criminal matters until the last few minutes. As such, the evidence obtained from the May 16, 2009 interception of North’s cell phone must be suppressed.

The panel rejected North’s arguments that the wiretap applications for his cell phone and another phone contained material misrepresentations and omissions and were merely boilerplate applications lacking sufficient specificity.

Being Detained at Gunpoint, Handcuffed and Placed in Police Car Is Not a Full Arrest if Reasonable Suspicion Armed and Dangerous

United States v. Abdo, No. 12-50836 (Aug. 19, 2013) (Reavley, Elrod, Graves)

Being detained at gunpoint, forced to the ground, and then placed in a police car in handcuffs for fifteen minutes is not a full arrest—at least not when you’re suspected of planning a terrorist attack at Fort Hood. The panel decided this was simply an investigatory stop and that, since the officers had reasonable suspicion to believe that Abdo was armed and dangerous, the officers simply used force commensurate with the risk to officer and public safety. Accordingly, the panel affirmed the district court’s denial of his suppression motion.

Abdo also argued that one of his convictions for possession of a firearm in furtherance of a crime of violence must be vacated since 18 U.S.C. § 924(c)(1) does not permit multiple convictions for a single use of a firearm based on multiple predicate offenses. The panel agreed with this statement of law but disagreed with its application to these facts—on plain error review—since Abdo possessed the firearm for the purpose of shooting soldiers (in furtherance of the offense of attempted murder) and also possessed a firearm on the previous day when he purchased items for the explosive device (in furtherance of attempted use of a weapon of mass destruction). Thus, he separately used or possessed firearms in conjunction with distinct offenses.

Finally, Abdo argued that he was denied his right to present a defense because the district court denied his request for funds for an expert witness. The panel found that Abdo waived this argument, however, by not articulating the argument in his appellate brief and that the issue would fail on its merits because the expert’s testimony would not have materially assisted the defense. The testimony would have been that the device Abdo was capable of making would not have caused much damage. The panel concluded that since Abdo was charged with an attempt offense, evidence was sufficient that an explosive device could have been constructed, regardless of its destructive force.

Consent Was Limited to Luggage; Prolonged and More Extensive Search Violated Fourth Amendment

United States v. Cotton, No. 12-40563 (July 2, 2013) (Wiener, Dennis, Owen)

According to the audio recording of the traffic stop, the officer asked if Cotton if he could search his car. Cotton’s response is unintelligible. The officer then asked, "Is it okay if I search it?" Cotton responded, "Search my luggage." "Okay. Is it okay if I search everything in the car?" Cotton responded, "My luggage, yeah." The officer proceeded to search the trunk and the passenger cabin for forty minutes before prying back the driver’s-side rear door after noticing loose screws and tool markings on the door’s panel. Cotton made incriminating statements after being arrested for the drugs in the door panel.

The district court denied Cotton’s motion to suppress the drugs and his statements, but the panel vacated his conviction and reversed. The panel found that Cotton limited his consent to the luggage and that the video showed that the officer had already located and searched the luggage before expanding the search and later examining the driver’s-side rear door. By that point, the officer did not have authority to keep searching, and Cotton’s failure to object to the extended search was irrelevant since the officer could not have reasonably interpreted Cotton’s consent to apply to the whole vehicle. The panel found that both the drugs and the statements must be suppressed.

If only all suppression cases actually had audio and video of the search instead of playing the officer-said, defendant-said game that we so often lose.

Federal Agents Cover Up Program Used to Investigate Americans

Just because you're a conspiracy theorist doesn't mean the Government's not making up fake investigation trials to conceal the real sources of tips.  Check out this Reuters article:
Exclusive: U.S. directs agents to cover up program used to investigate Americans

A secretive U.S. Drug Enforcement Administration unit is funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans.

Although these cases rarely involve national security issues, documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations truly begin - not only from defense lawyers but also sometimes from prosecutors and judges.

The undated documents show that federal agents are trained to "recreate" the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant's Constitutional right to a fair trial. If defendants don't know how an investigation began, they cannot know to ask to review potential sources of exculpatory evidence - information that could reveal entrapment, mistakes or biased witnesses.

The article goes on to say that the "unit of the DEA that distributes the information is called the Special Operations Division, or SOD" and it partners with two dozen partner agencies, "including the FBI, CIA, NSA, Internal Revenue Service and the Department of Homeland Security. It was created in 1994 to combat Latin American drug cartels and has grown from several dozen employees to several hundred."

Here's one example of how a SOD tip would be concealed:

"You'd be told only, ‘Be at a certain truck stop at a certain time and look for a certain vehicle.' And so we'd alert the state police to find an excuse to stop that vehicle, and then have a drug dog search it," the agent said.  . . . After an arrest was made, agents then pretended that their investigation began with the traffic stop, not with the SOD tip, the former agent said. The training document reviewed by Reuters refers to this process as "parallel construction."

Sound familiar?

As a practical matter, law enforcement agents said they usually don't worry that SOD's involvement will be exposed in court. That's because most drug-trafficking defendants plead guilty before trial and therefore never request to see the evidence against them. If cases did go to trial, current and former agents said, charges were sometimes dropped to avoid the risk of exposing SOD involvement.

Recap of Recent Supreme Court Decisions

Categorical Approach Wins: No Modified Categorical Approach for “Missing” Element

 

Descamps v. United States, No. 11-9540 (June 20, 2013) (Kagan, Roberts, Scalia Kennedy, Ginsburg, Breyer, Sotomayor, majority; Kennedy, concurrence; Thomas, concurrence in judgment; Alito, dissent)

 

The Supreme Court once again reiterates its support of the categorical approach, rejecting the Ninth Circuit’s attempt to allow judges to look beyond the statute when a statute has a single, indivisible set of elements.  The statute at issue in this case is California’s burglary statute, California Penal Code section 459, which does not have as an element unlawful entry, an element of the generic definition of burglary.  The majority holds firmly that the modified categorical approach is a tool that only applies to divisible statutes to permit a court to determine which statutory phrase was the basis for the conviction.  The modified categorical approach does not provide an excuse to look at underlying facts for indivisible statutes that are broader than the corresponding generic offense.  Under the categorical approach, the key is elements, not facts.  Since section 459 is indivisible and broader than generic burglary, it categorically is not a “violent felony” under the Armed Career Criminal Act.

 

Justice Thomas concurs in judgment, arguing that, pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), any judicial fact-finding that increases the statutory maximum violates the Sixth Amendment.

 

Justice Alito dissents, opting for “a more practical reading” that would allow a sentencing enhancement “[w]hen it is clear that a defendant necessarily admitted or the jury necessarily found that the defendant committed the elements of” the generic offense.  How it becomes “clear” to the district court that the defendant committed acts that are not elements of the charged offense is a little fuzzy, but, then again, that’s the majority’s point.

 

For more analysis, see the Steve Sady’s post on the Ninth Circuit Blog: http://circuit9.blogspot.com/2013/07/q-on-descamps-and-categorical-approach.html.

 

 

Statutory Elements that Increase Mandatory Minimum Must Be Submitted to Jury

 

Alleyne v. United States, No. 11-9335 (Thomas, Ginsburg, Breyer, Sotomayor, Kagan, majority for Parts I, III-B, III-C, and IV; Sotomayor, Ginsburg, Kagan, concurrence; Breyer, concurrence in part; Roberts, Scalia, Kennedy, dissent)

Pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), any fact—other than a conviction per Almendares-Torres, which the Court did not address—that increases the mandatory minimum is an “element” that must be submitted to the jury and found beyond a reasonable doubt.  In a 5-4 split, the Supreme Court extends the Sixth Amendment to findings triggering mandatory minimums, thereby reversing Harris v. United States, 536 U.S. 545 (2002).  This case dealt with 18 U.S.C. § 924(c), carrying a firearm in relation to a crime of violence.  The jury did not find that Alleyne brandished the firearm, but the district court did, resulting in an increase of the mandatory minimum from five years to seven years.  The Supreme Court disagreed.  So, now, brandishing and other “elements” that result in an increased penalty range must be submitted to the jury.

 

Justice Sotomayor’s concurrence explains why overturning such recent precedent is permissible under the Court’s stare decisis precedent.  Justice Breyer concurs and states that he still disagrees with Apprendi but can no longer abide the incongruity of Harris given Apprendi.  Justice Roberts dissents, reiterating the reasoning of Harris—that Alleyne could have gotten seven years and that findings relating to mandatory minimums infringe on the judge’s discretion, not on the jury trial right, so the Sixth Amendment does not apply.

 

 

Eroding the Fourth Amendment: DNA Testing of Arrestees OK

 

Maryland v. King, No. 12-207 (June 3, 2013) (Kennedy, Roberts, Breyer, Alito, majority; Scalia, Ginsburg, Sotomayor, Kagan, dissent)

 

Anyone who does not like the idea of his DNA being taken for a simple arrest should just skip to Justice Scalia’s dissent, delight in his sharp criticism of the majority’s tortured reasoning, and then complain that the majority won out.  As Justice Scalia points out, the DNA collection permitted by the Maryland DNA Collection Act does not aid in identification but is specifically designed to aid in the investigation of crimes, for which suspicionless searches are prohibited.  Thanks to the majority, however, the Act is declared constitutional even though—since all parties concede that Maryland could have constitutionally taken King’s DNA after his conviction—it “manages to burden uniquely the sole group for whom the Fourth Amendment’s protections ought to be most jealously guarded: people who are innocent of the State’s accusations,” those who are arrested and not convicted.

 

How does the majority justify such an intrusion for someone who is only arrested, not convicted, of a crime? First, the majority places great weight on the benefits to the criminal justice system and police investigative practices.  Then, the majority characterizes the cotton-swab intrusion in the arrestee’s mouth as minimal—“a light touch on the inside of the cheek.”  Plus, since the arrestee had the misfortune to be arrested, he has diminished expectations of privacy.  Next, the majority states that the search was a tool, like fingerprints, to confirm the identity of the arrestee.  (Nevermind that King’s DNA was not tested until months after his arrest and that the Act itself prohibits the DNA to be examined until after the first scheduled arraignment date.)  Finally, the majority believes that the requirement in the Act that “[o]nly DNA records that directly relate to the identification of individuals shall be collected and stored” adequately safeguards against using the DNA to find non-identity information.  This places a lot of trust in statutory protections against invasion of privacy. 

 

 

Applying SORNA to Pre-SORNA Military Offender Is Necessary and Proper

 

United States v. Kebodeaux, No. 12-418 (June 24, 2013) (Breyer, Kennedy, Ginsburg, Sotomayor, Kagan, majority; Roberts, concurrence; Alito, concurrence; Scalia, dissent; Thomas, dissent with Scalia joining as to Parts I, II, and III-B)

 

The short story is that SORNA applies to someone convicted of a sex offense by court martial pre-SORNA even though he never travelled interstate and was not on supervised release at the time of SORNA’s enactment in 2006.  The majority reasons that this is a proper use of the Necessary and Proper Clause since Kebodeaux was subject to a federal registration requirement prior to 2006 pursuant to the Wetterling Act.  The majority characterizes SORNA as merely modifying Kebodeaux’s duties under the Wetterling Act.

 

Chief Justice Roberts concurs separately to clarify that the Constitution does not grant the federal government police powers (since the majority gets very close to suggesting that it does), and that applying SORNA to someone like Kebodeaux was a reasonable and necessary to execute Congress’s power to regulate the conduct of members of the military.

 

Justice Scalia’s dissent challenges whether the Wetterling Act’s registration requirement was itself a valid exercise of any federal power and whether SORNA was actually designed to carry the Wetterling Act into execution.  He concludes that the federal power for the Wetterling Act was doubtful and that SORNA obviously was not designed to carry the Wetterling Act into execution.

 

Justice Thomas’s dissent emphasizes the limited powers that the Constitution bestows on the federal government and criticizes the majority’s failure to identify an enumerated power that SORNA carries into execution.  He concludes that Congress’s power to make rules and regulations for the armed forces does not include sex offender registration under SORNA.

 

 

Federal Sentencing Guidelines Are Subject to the Ex Post Facto Clause

 

Peugh v. United States, No. 12-62 (June 10, 2013) (Sotomayor, Ginsburg, Breyer, Kagan, Kennedy [except for Part III-C], majority; Thomas, dissent joined by Roberts, Scalia, Alito as to Parts I and II-C; Alito, dissent joined by Scalia)

 

The majority concludes that, even though the Federal Sentencing Guidelines are no longer mandatory, the Ex Post Facto Clause applies to them.  A district court must apply the Guidelines in effect on the date the defendant is sentenced unless the Guidelines on the sentencing date violate the Ex Post Facto Clause.  If that’s the case, then the district court must use the Guidelines in effect on the date the offense was committed. 

 

Here, Peugh was charged with nine counts of bank fraud.  Under the 1998 version of the Federal Sentencing Guidelines, when the acts occurred, his guideline sentencing range was 30 to 37 months.  Under the 2009 Guidelines, his advisory guideline range was 70 to 87 months.  Since he was sentenced under the 2009 Guidelines in violation of the Ex Post Facto Clause, the case was remanded.

 

Justice Thomas argues in his dissent that the retroactive application of the 2009 Guidelines to Peugh did not alter his punishment or violate the Ex Post Facto Clause since the Guidelines are not mandatory and sentencing remains subject to the district court’s discretion.  Fortunately for us defenders, he loses that argument.

Special Concurrence Casts Doubt on Precedent that Identity Evidence Is Never Suppressible

United States v. Hernandez-Mandujano, No. 12-30793 (June 27, 2013) (Reavley, Jolly, Smith) (per curiam)

Two U.S. Border Patrol Agents "clearly violated the Fourth Amendment in stopping Hernandez" 450 miles from the nearest international border. The agents "felt convinced that Hernandez was transporting illegal aliens," but the panel found that the agents’ reasons for stopping Hernandez—because he had both hands on the wheel, was focused on the road ahead of him, stopped talking to the passenger when the patrol car passed him, slowed down after passing the agents, and was driving an SUV registered to a woman—did not rise to reasonable suspicion. After being illegally stopped, Hernandez admitted to being a Mexican national present in the United States without permission.

So, what’s the remedy? Hernandez requested that all evidence from the warrantless stop be suppressed. The district court denied this request, and the panel affirmed based on Fifth Circuit precedent that an immigrant’s identity and his alien file ("A-file") cannot be suppressed. See United States v. Roque-Villanueva, 175 F.3d 345, 346 (5th Cir. 1999).

Judge Jolly wrote a special concurrence criticizing this binding precedent. He lays out how the denial of such suppression motions is based on a misapplication of the Supreme Court’s holding in I.N.S. v. Lopez-Menodoza, 468 U.S. 1032 (1984), and how—while all "Circuits seem to agree that if a defendant sought only to suppress his identity itself, he would fail"—the "Fourth, Eighth, and Tenth Circuits . . . correctly distinguish between such a broad attempt to suppress one’s identity itself and an attempt to suppress evidence relating to one’s identity, such as statements made during an unlawful arrest."

But for the binding precedent of Roque-Villanueva, Judge Jolly concludes the proper disposition of the case would be to remand for further development of the record to determine whether Hernandez made any statements that are potentially suppressible. 

[A]llowing our erroneous interpretation of Lopez-Mendoza to persist essentially affords law enforcement officers staggering authority to detain anyone they suspect of being an illegal alien, for so long as they retrieve only evidence related to that person’s identity, they will escape any ramifications for even grossly unconstitutional behavior. Thus, while precedent requires me to concur with the majority, I hope I have made clear that our precedent is an incomplete and erroneous reflection of the propositions for which Lopez-Mendoza stands.

So, file those suppression motions even if the remedy seems precluded by Roque-Villanueva, and read Judge Jolly’s special concurrence.

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.

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.

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.

GPS Tracking of Vehicle Neither a Search nor a Seizure (At Least Not on the Facts of This Case)

United States v. Hernandez, No. 10-10695 (5th Cir. July 18, 2011) (Jones, Higginbotham, Southwick)

Let's suppose police decide to track a suspect by surreptitiously attaching a GPS device to his vehicle.  Let's also suppose that the police did not obtain a warrant to conduct this electronic surveillance.  Fourth Amendment violation?

Actually, there's no need to suppose such a scenario, because that's what happened in Hernandez. DEA agents in Dallas were investigating Hernandez's brother, Angel, for drug-trafficking. To that end, they slapped a "slap-on tracker"on the underside of Angel's pickup truck.  What's a slap-on tracker, you ask?

This unsophisticated battery-operated GPS device . . . was accurate to 50 yards, but could neither relay a precise address nor transmit a signal from an enclosed area like a garage. Instead of a continuous signal, the device emitted a “ping” at intervals ranging from 15 minutes to two hours.

Two days later, the agents intercepted a phone call that tipped them that Hernandez was going to drive Angel's truck to California to pick up some drugs.  The tracker then showed the pickup heading westbound. California DEA agents located the truck at a hotel and set up visual surveillance.  They saw Hernandez load several packages into the truck.  Local police pulled Hernandez over for traffic violations, and a consent search turned up 20 pounds of methamphetamine.
 
Hernandez moved unsuccessfully to suppress the meth, and appealed.
 
Hernandez argued that both the placement and the use of the GPS device violated his Fourth Amendment rights. The court first held that he lacked "standing" to challenge the placement of the device, because he lacked a legitimate expectation of privacy in the pickup, which belonged to his brother Angel. (The court added (in dicta?) that even if Hernandez did have standing on that issue, attaching the device was not a Fourth Amendment violation. It was not a search because a car's undercarriage is in public view. And it was not a seizure because the device did not interfere with anyone's possession or use of the truck.) But Hernandez did have standing to challenge the use of the GPS device, because he had permission from Angel to use the truck and therefore lawfully possessed it.
 
On the substance, the court held that the Government's use of the device to track Hernandez was not a search and therefore not a Fourth Amendment violation.  The device here was essentially no different than an electronic beeper, the use of which the Supreme Court held in United States v. Knotts to not constitute a search or seizure.  The court noted that the Seventh and Ninth Circuits have also so held. The Eighth Circuit has also approved such use of GPS trackers, at least where the police had a reasonable suspicion of drug activity and the device was installed for a reasonable period of time while the vehicle was in a public place.

The only arguably contrary authority arises from the D.C. Circuit, which concluded that extensive GPS monitoring of a subject’s movements over the course of a month does constitute a search because “the likelihood a stranger would observe all those movements is not just remote, it is essentially nil.” United States v. Maynard, 615 F.3d 544, 560 (D.C. Cir. 2010), cert granted, ____ U.S. ____. Maynard concluded, in other words, that even though GPS monitoring of an individual trip is not a search, the aggregated monitoring of a suspect’s daily comings and goings somehow becomes a search. Regardless of our theoretical concern about continuous GPS monitoring, Maynard is easily distinguished because here, Hernandez’s movements were recorded over a single cross-country trip. He was not subject to continuous, around-the-clock electronic surveillance over the extended period of time that concerned the Maynard court.

Hernandez tried to distinguish Knotts, argued that unlike a beeper, a GPS device provides far more detailed and intrusive tracking data, and doesn't require officers to visually follow the suspect. The court disagreed:

Regardless of what a GPS system could do, this GPS was not much more than a glorified, more efficient beeper. We do not mean to suggest that the government’s use of a top-of-the-line GPS, which Hernandez describes as being capable of continuous, precise surveillance, would constitute a search. But that case is not before us.

That case may not have been before the Fifth Circuit, but it is before the Supreme Court, along with the separate question of whether warrantless installation of the GPS device is a Fourth Amendment violation.

They Say This Cat Tolentino's a Bad Mother— Shut Your Mouth! But I'm Just Talking 'Bout Tolentino! Then We Can DIG It!

As you can tell from the post title, today the Supreme Court dismissed as improvidently granted the writ of certiorari in Tolentino v. New York. As is usual with DIGs, the Court didn't explain the reason for the dismissal. But the oral argument transcript suggests a possibility: unanswered questions below.

Recall what happend here: Tolentino was pulled over by police, and arrested when the officers learned via a computer check of DMV records that his driver's license had been suspended. He sought to suppress the DMV records as a fruit of what he argued was an illegal traffic stop. The trial court denied the motion on the ground that DMV records aren't suppressible, a ruling upheld on appeal through the New York courts. The Supreme Court granted cert on this question: Whether pre-existing identity-related governmental documents, such as motor vehicle records, obtained as the direct result of police action violative of the Fourth Amendment, are subject to the exclusionary rule?

At oral argument, Justice Scalia quickly jumped in to ask counsel for Tolentino why he wanted to suppress the DMV records, rather than the officers' observations following the traffic stop.  Later, Scalia said, "What I'm saying is, you're getting at it from the wrong end. What should have been suppressed was the policeman's identification of the person who was driving the car." Justice Alito picked up on the same thing:

You want to suppress the knowledge that the police derived from the stop that Mr. Tolentino's license is suspended, and you would allow an exception to that only if there was attenuation. But why isn't the simpler solution to a case like this that you can't suppress the knowledge of matters that are in a government record, however you can suppress observations by the police on the scene that flow directly from the illegal stop?

A good question. Tolentino's counsel explained that in his motion to suppress he asked the trial court to suppress both the DMV records and the officers' observations at the scene of the traffic stop. The trial court, without holding a hearing, denied Tolentino's motion on the ground that DMV records are categorically not suppressible, and did not rule on whether the officers' observations were suppressible fruit of the traffic stop. That's apparently why the New York appeals courts didn't reach the question, either (if they were even aware of it).

Counsel for New York confirmed that account, and then argued that, under New York law, Tolentino had waived the issue of the officers' observations by pleading guilty without getting a ruling on that issue from the trial court. Of course, none of this was in the parties' briefing.  Then another bombshell: it turned out that none of the New York courts had reached the question whether the traffic stop was bad in the first place. That prompted Justice Ginsburg to ask,

May I ask you something about the practice in New York? I mean, there is an artificiality to this case because we are assuming that the stop was unlawful. . . . [T]he police said it was lawful, because the radio was blasting so loud. Why did this issue even -- the issue of "suppose it was unlawful" even come up, instead of the city or the county saying what the police stopped him for was a traffic violation, was perfectly legal? Why get to the constitutional question when the prosecutor brought into play the argument that this was a lawful stop?

Indeed, the prosecutor had argued that it was a good stop.  But remember that the trial court didn't hold a hearing on the motion, and as with the issue of the officers' observations, didn't reach the question of the stop's legality. Which Justice Alito found bewildering:

It does seem rather strange. That would have been, like, a 10-minute hearing. Why did you stop him? Well, he was playing the music too loud. Defendant testifies, I wasn't playing my music too loud. The trial judge says, Well, I believe you, or I believe you, and that's the end of the matter. It does seem really -- that's how things are done in trial court in New York City? You jump to these big constitutional issues and . . . .

(Earlier, Alito seemed taken aback by the notion, advanced by counsel for New York, that Tolentino was obligated to pester the trial court for a ruling on the suppressibility of the officers' observations in order to preserve that issue for appellate review.)

In rebuttal, Tolentino's counsel argued that he had not waived the issue of the officers' observations. Justice Sotomayor then asked, "[I]n what ways is it tied to the question presented about identity, which is the issue you sought cert on?" Counsel replied that the issue would be in play on remand.

So what do you think? DIG'ed because of a strange procedural history that didn't present the question that the justices seem to think should have been presented, and a basic question (the legality of the traffic stop) that should have been but never was passed on below?

Other oral argument highlights:

• An axe-related hypothetical: Justice Alito posing one in which police break into a house with an axe, find out that "Dagwood" lives there, and learn through a search of police databases that Dagwood "is responsible for all the drugs that come into this country, he's committed numerous acts of terrorism, he's a -- he's a serial killer, he's killed 50 people, we've been chasing him forever . . . ." Sounds like a job for John Shaft. Or James Bond.
• Another axe-related hypothetical, Lizzie Borden edition: Justice Breyer wondering what should happen if the police learn that, in addition to his driver's license being suspended, Tolentino is "wanted on 17 drug warrants and for 3 triple axe murders."
• Justice Kagan declaring: "I am Keyser Soze." (I could've sworn Kevin Spacey was Keyser Soze, but then again, I can't be sure of anything about that movie.)

Defense Suppression Victory; Court Upbraids Prosecutor for Improper Remarks During Closing Argument

United States v. Raney, No. 10-20007 (5th Cir. Feb. 9, 2011; rev. Feb. 10, 2011) (per curiam) (DeMoss, Elrod; Benavides, dissenting)

This case presents two you-dont-see-that-every-days: a rare Fourth Amendment win for the defense, and a stern warning to prosecutors to knock it off with the improper jury arguments.

So what happened here? Raney drove on the wrong side of the street to get around a long line of cars waiting to get into a gas station.  A police officer, who was standing in that lane directing traffic, motioned for Raney to pull over.  Raney did so.  Upon approaching, the officer could smell marijuana.  He ordered Raney out of the car.  A brown object resembling what the officer to believed to be a jazz cigarette fell on the ground.  Handcuffs and pat-down.  Gun in the waistband, ammo in the glovebox, and a felony conviction on the rap sheet = felon-in-possession charge.  The district court denied Raney's motion to suppress the gun and ammo, finding that the stop was justified due to a traffic violation: driving on the wrong side of the street.  A jury found him guilty of the FIP charge.  Raney appealed.

To make a long story short, the panel majority held that there was not an objectively reasonable basis for believing that Raney had committed the three traffic offenses the Government claimed in the district court (driving in the wrong lane, disobeying an officer directing traffic, and reckless driving), or any of the other claimed violations the Government offered for the first time on appeal.  In so holding, the court mentioned a couple of broader points that bear repeating.  First, "[o]ur case law is clear that unless a defendant actually committed a traffic violation, there is no objective basis for the stop in the context of a traffic stop."  Second, and relatedly, the good-faith exception is not available to salvage a stop based on an officer's subjective, but erroneous, belief that a traffic violation occurred.

As it happens, the district court did not make any findings on the Government's disobeying-an-officer and reckless-driving arguments.  But interestingly, the court of appeals refused to remand for additional fact-finding on whether Raney committed those offenses: because "the record has . . . been developed as to these arguments[, w]e will not afford the government a second opportunity to present evidence to the district court in an attempt to meet their burden of proof."  The court therefore vacated the order denying the motion to suppress, and rendered an acquittal.

Now for the schadenfreude . . .

Read more »

Cert Grant: Are Pre-Existing Identity-Related Governmental Documents, Such as Motor Vehicle Records, Obtained as the Direct Result of Police Action Violative of the Fourth Amendment, Subject to the Exclusionary Rule?

Last month the Supreme Court granted cert to answer that question—a question that has divided courts 'round the land—in Tolentino v. United States, No. 09-11556.

The evidence at issue is Tolentino's driving record, which police obtained by running a computer records check during an allegedly illegal traffic stop.  That record revealed that Tolentino's license was suspended (as it had been on 10 separate occasions), and led to his arrest for "aggravated unlicensed operation of a motor vehicle in the first degree."  The Court of Appeals of New York held, in a divided opinion, that Tolentino's driving record was not suppressible:

The officers learned defendant's identity when they stopped his car; that knowledge permitted the police to run a computer check that led to the retrieval of defendant's DMV records. Under the rationale of Lopez-Mendoza and the above federal circuit court decisions, defendant's DMV records were therefore not suppressible as the fruit of the purportedly illegal stop. In short, "there is no sanction . . . when an illegal arrest only leads to discovery of the man's identity and that merely leads to the official file or other independent evidence[.]"

(citation omitted).
 
Notably, those "federal circuit court decisions"—including one from our very own Fifth Circuit—are all 1326 cases in which the courts held that an alien's A-file is not a suppressible fruit of a Fourth Amendment violation.  And 1326 cases make up the bulk of the cases Tolentino's cert petition cites when discussing the division of authority over this question.  So you may want to consider dusting off those motions to suppress things like A-files and fingerprint exemplars, as the Court's decision will likely apply to more than just DMV records, outstanding warrants, and the like.
 
As usual, head over to SCOTUSblog for comprehensive coverage of the case, which will be argued later this term.

Fourth Amendment Friday: Jail Strip Search of Person Arrested for Minor Offense Still Requires Reasonable Suspicion of Weapon or Contraband Possession . . . For Now

Jimenez v. Wood County, Texas, No. 09-40892 (5th Cir. Sept. 22, 2010) (Garza, Benevides, Lynn, D.J.)

"I'll take 'Book 'em Danno' for $200, Alex."

"Strip searches in a prison setting may be performed on less than probable cause."

"What was the holding of Bell v. Wolfish, 441 U.S. 520 (1979)?"

"Correct.  Go again."

"'Book 'em Danno' for $400."

"'[A] strip search of an individual arrested for a minor offense must be premised on reasonable suspicion that the detainee is carrying weapons or contraband.'"

"What's the Fifth Circuit's take on Wolfish?"

"Yes."

"'Book 'em Danno' for $600."

"No.  A panel cannot overrule prior panel precedent, absent intervening Supreme Court authority, of which there is none.  That said, 'Although overruling is not appropriate at this stage, there may be compelling reasons to reconsider these precedents en banc in an appropriate case. Recent en banc panels of the Ninth and Eleventh Circuits have reconsidered similar precedents in their circuits and ultimately agreed with the County’s position.'"

"Will the panel reconsider Fifth Circuit precedent applying Wolfish and join the 'growing trend' of other circuits that have abolished the reasonable suspicion requirement in this setting?"

"Right again.  And the last clue on the board is our Daily Double.  How much would you like to wager in 'Book 'em Danno?'"

"All of it, Alex."

"Here's the answer in 'Book 'em Danno': Yes, because it's a misdemeanor (although the question of whether the felony version qualifies is not at issue here)."

"Hmmm . . . ."

"Time's almost up."

"Is hindering apprehension under Texas Penal Code § 38.05(a) a 'minor' offense for purposes of this rule?"

"Yes!  We'll be right back after the commercial break to play Double Jeopardy."