News You Can Use: Tenth Circuit limits use of community caretaking exception and inevitable discovery doctrine in Fourth Amendment case

In United States v Neugin, __F.3d__, 2020 WL 2091842 (10th Cir. May 1, 2020) (published), the Tenth Circuit limited the use of the community caretaking exception and refused to apply the inevitable discovery doctrine to a search of an automobile. Judge Matheson authored, joined by Judge Ebel. Judge Hartz dissented.

Facts: An officer spotted ammunition while lifting the lid of a truck’s camper; he ran a background check and the driver was a felon.

Officers responded to a domestic dispute between Mr. Neugin and his girlfriend, Ms. Parrish, that was taking place at a restaurant. While mediating the dispute, one officer, without permission, opened the lid of the truck’s camper to get Ms. Parrish’s belongings. In doing so, he looked inside the camper and saw a large bucket containing several rounds of ammunition. Officers ran a background check on Mr. Neugin, which showed that he was a felon. An officer asked Ms. Parrish whether Mr. Neugin had a firearm. She said he had a shotgun in the truck and had threatened her with it the evening before. Ms. Parrish consented to the search of the vehicle, and one officer saw the stock of a firearm protruding from the truck. It turned out to be a shotgun, and Mr. Neugin was arrested. Mr. Neugin pleaded guilty to being a felon in possession of a firearm and ammunition, but preserved the suppression issues for appeal.

The community caretaking exception did not excuse the warrantless search.

The community caretaking exception applies only when an officer’s actions are warranted by (1) state law or sound police procedure, and are (2) justified by concern for the safety of the general public. The officer’s actions must also outweigh the individual’s privacy interests. Here, opening the camper wasn’t necessary to protect anyone, even Ms. Parrish. While the search was intended to facilitate the retrieval of Ms. Parrish’s belongings from the scene of the dispute, an officer’s “benign motive” is not enough, and the search was not “de minimis.”

The inevitable discovery doctrine didn’t apply because there would have been no reason to impound the car absent the warrantless search that led to Mr. Neugin’s arrest.

The government argued that even if opening the camper was unconstitutional, the evidence should not have been suppressed because the truck inevitably would have been impounded and searched. The Tenth Circuit disagreed. Instead, the Court reasoned that, if officers had not opened the camper, they wouldn’t have necessarily seen the ammunition, run a criminal history check, or found the gun. Without the violation, therefore, Mr. Neugin would not inevitably have been arrested. And without the arrest, the truck would not inevitably have been impounded and searched. Even though the truck was broken down, Mr. Neugin could have called his own towing company or a mechanic.

Notes from the notes.

Some other key points appear in footnotes, but are worth noting.

  • The plain-view exception did not apply because the officer was not lawfully positioned when he found the ammunition.
  • The officer could not rely on Ms. Parrish’s consent to search because any consent came after the warrantless search that uncovered the ammunition.
  • The automobile exception didn’t apply because the officer did not have probable cause to believe that contraband would be found inside. 

Hartz dissents.

Judge Hartz would have affirmed the district court’s decision that the community caretaking exception applied. He reasoned that the community caretaking exception extended to the officers’ attempts to keep the disputing couple under control and keep an eye on Ms. Parrish while she retrieved her belongings from the truck. He thus thought it was proper for the officer to lift the lid of the camper shell, so as to mediate any further argument.

Key Takeaways

The community caretaking exception is limited. Non-investigatory searches of automobiles under the community caretaking function are only justified if warranted by state law or sound police procedure, and are justified by concern for the safety of the general public.

Use this case for its good language on inevitable discovery. The Court reaffirms that “the inevitable discovery exception to the exclusionary rule cannot be invoked because of [a] highly speculative assumption of ‘inevitability.’” United States v. Owens, 782 F.2d 146, 153 (10th Cir. 1986).

Resource: US Sentencing Commission Releases Statistics for Fiscal Year 2019

The United States Sentencing Commission has just released a number of reports on federal sentencing practices in fiscal year 2019.

Particularly useful are the data reports compiling federal sentencing statistics from each judicial district, the districts within each judicial circuit, and the districts within each state. Each report compares the statistics from the respective district, circuit, or state to the nation as a whole.  You can find all of the reports here.

Data specific to the Tenth Circuit is available here, see USSC Data for Fiscal Year 2019.

And, a short Overview of Federal Criminal Cases for Fiscal Year 2019 is also worth your time.

News You Can Use: SCOTUS holds officers have reasonable suspicion to stop a car if the owner has a revoked license

In Kansas v. Glover, the Supreme Court considered the narrow question “whether a police officer violates the Fourth Amendment by initiating an investigative traffic stop after running a vehicle’s license plate and learning that the registered owner has a revoked license.”  Kansas v. Glover, No. 18-556, 2020 WL 1668283, at *2 (U.S. April 6, 2020). The Court held that “the stop is reasonable,” unless the officer learns “information negating an inference that the owner is the driver of the vehicle.” Id.

The case essentially came down to whether, in the context of an investigative detention based on reasonable suspicion, an officer can infer that the owner is the person driving the car, even though their license has been revoked.  An eight-judge majority concluded that inference was reasonable.

The majority began with the premise that it is reasonable to infer that a car’s owner is the one driving, and under the circumstances here, no evidence rebutted that reasonable inference.  “The fact that the registered owner of a vehicle is not always the driver of the vehicle does not negate” that inference because the “reasonable suspicion inquiry ‘falls considerably short’ of 51% accuracy.”  Id. at *3.  Neither does the fact that the owner’s license was revoked negate it because, according to the Court, common sense and statistics demonstrate that drivers with revoked licenses often continue to drive.  Moreover, under Oklahoma’s license revocation scheme, only “drivers who have already demonstrated a disregard for the law or are categorically unfit to drive” may have their license’s revoked. Id. at *4. Thus, it is not unreasonable to infer that they may continue to drive in violation of the law.

The majority rejected Justice Sotomayor’s concerns in her dissent that the Court was doing away with the requirement that reasonable suspicion be based an officer’s training and experience rather than data and probabilities.  The majority countered that officers may apply common sense, not only expertise, and that reliance on data-driven probabilities is wholly appropriate (although, relying “exclusively” on probabilities might not be).

Finally, the Court “emphasize[d] the narrow scope of [its] holding.”  Id. at *5. Not only is the holding limited to revoked licenses (as opposed to suspended licenses), but the inference that the owner is driving can be easily rebutted.  “For example, if an officer knows that the registered owner of the vehicle is in his mid-sixties but observes that the driver is in her mid-twenties, then the totality of the circumstances would not ‘raise a suspicion that the particular individual being stopped is engaged in wrongdoing.’” Id.

TAKEAWAYS

  • This decision does not change Tenth Circuit law.  The Tenth Circuit, in a decision by then-circuit-judge Gorsuch, has already held that an officer has reasonable suspicion to stop a vehicle where a database indicates the owner does not have insurance, notwithstanding that the non-owner driver might be independently insured.  See United States v Cortez-Galaviz, 495 F.3d 1203, 1207-08 (10th Cir. 2007) (“[C]ommon sense and ordinary experience suggest that a vehicle’s owner is, while surely not always, very often the driver of his or her own car.”).  And, at least one district court has relied on Cortez-Galaviz to find reasonable suspicion to stop a car where the owner had their license revoked, which was the fact pattern in GloverSee United States v Wissiup,2013 WL 4430872, at *4 (D. Utah Aug. 16, 2013).
  • The holding is narrow.  Officers may stop cars if the owner has a revoked license, unless they have reason to believe that someone other than the owner is driving (for example they look different, or the non-owner driver shows their ID).
  • And the result appears to depend on the state’s particular statutory scheme. The holding is at least somewhat dependent on Oklahoma’s scheme allowing revocation for only relatively serious offenses.  Thus, in another state where revocation could be based on more minor conduct, an officer may not be able to infer that the owner is driving on a revoked license.

Practice Tip: Data-Driven Filings in the Time of COVID-19

As we make release arguments in light of COVID-19, consider using data visualizations in your filings to advance the cause.

Check out the charts and graphs developed, and updated daily, by The Federal Defenders of New York, using data from the BOP’s website:  www.bop.gov/coronavirus

But there is good reason to believe the numbers reported by the BOP understate the actual number of tested-positive cases. When using BOP data, make sure to keep in mind that just because a facility isn’t listed on the BOP website does not mean there are no presumptive positive or clinically confirmed cases in that facility.

The Prison Policy Initiative is aggregating information about the criminal justice system and COVID-19.

Other sources of COVID-19 data and statistics can be found here. This is a website maintained by Johns Hopkins University Center for Systems Science and Engineering; they are tracking the COVID-19 spread in real time on an interactive dashboard with data available for download.

The Centers for Disease Control and Prevention also provides daily updates on the cumulative numbers of COVID-19 cases in the United States.

Data about COVID-19 cases in Colorado is updated daily by the Department of Health.

 

Resource: District of Colorado Enters General Order Authorizing Video or Telephone Conferencing in Certain Criminal Proceedings

The District of Colorado continues to respond to the ongoing impact of COVID-19 on the functioning of federal courts. 

On April 6, 2020, Chief Judge Philip A. Brimmer entered a General Order, pursuant to the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), authorizing judges in the district, with the consent of the defendant after consultation with counsel, to use video teleconferencing, or telephone conferencing if video teleconferencing is not reasonably available, for a number of criminal proceedings.   The specific hearings covered are listed in the General Order, and include felony pleas under Rule 11 and felony sentencings under Rule 32 “if judges in individual cases find, for specific reasons, that felony pleas or sentencings in those cases cannot be further delayed without serious harm to the interests of justice[.]”

This General Order will remain in place for 90 days “unless terminated earlier.” 

A previously-entered General Order describing COVID-19-related changes to court operations (in place through May 1, 2020) can be found here.

 

News You Can Use: Recent developments in home confinement in the age of COVID-19

The number of positive-COVID-19 cases in the BOP continues to rise.

As of this morning the BOP reports  138 inmates and 59 staff have tested positive for the virus. The BOP updates this data every afternoon.

On March 26, 2020, Attorney General Barr issued a memorandum to the Director of BOP, outlining a new policy by the United States Department of Justice to deal with confined inmates who are most vulnerable to the COVID-19 virus.  Barr directed BOP to use home confinement “where appropriate, to protect the health and safety of BOP personnel and the people in our custody.” 

Despite that step, barriers remained to release.

On April 1, 2020, the Federal Public & Community Defenders Legislative Committee wrote a letter to AG Barr and urged him to exercise his authority under the CARES Act to allow the BOP to transfer more people to the “relative safety of home confinement.”

On April 3, 2020 (after 7 deaths in BOP custody and uncontained spread in multiple facilities), AG Barr made a CARES-Act finding that “emergency conditions are materially affecting the functioning of the Bureau of Prisons.” He told the BOP to review all inmates with COVID-19 risk factors, starting with FCI Oakdale, FCI Danbury, and FCI Oakton (and “similarly situated” facilities), and to transfer “suitable candidates for home confinement” to home confinement.

The memo directs the BOP to “be guided by the factors in [Barr’s] March 26 Memorandum,” which drastically limits the number of people prioritized for home confinement.  But it also says all inmates with “a suitable confinement plan will generally be appropriate candidates for home confinement rather than continued detention at institutions in which COVID-19 is materially affecting their operations.”

On April 5, 2020, the BOP issued a press release responding to AG Barr’s April 3 memorandum.  BOP says it is reviewing all inmates to determine which ones meet the criteria established by the Attorney General.  While inmates do not need to apply to be considered for home confinement, any inmate who believes they are eligible may request to be referred to Home Confinement and provide a release plan to their Case Manager.

TAKEAWAYS

If you have a client who might be a candidate for home confinement, don’t wait for the BOP to identify them.  Now is the time to figure out a release plan and bring eligibility to the attention of the Case Manager.

The BOP is using the eligibility criteria established by AG Barr as a benchmark for home-confinement determinations:

(1) The age and vulnerability of the inmate to COVID-19;

(2) The security level of the facility;

(3) The inmate’s conduct in prison;

(4) The inmate’s score under PATTERN;

(5) The inmate’s release plan; and

(6) The inmate’s crime of conviction and assessment of danger posed to the community.

But remember that list of criteria is not exhaustive; the BOP must consider the “totality of the circumstances.”

Inmates deemed suitable for home confinement must be immediately processed for transfer out of BOP, but there is still a required 14-day quarantine before the transfer can happen.  Note that AG Barr (in the April 3 memorandum) gave the BOP discretion “on a case-by-case” basis to allow an inmate to quarantine outside the BOP facility “in the residence to which the inmate is being transferred.”

 

 

Resource and Practice Tips: Defender Services Office Training Division announces video presentation on COVID-19 & Pretrial Release

The Administrative Office of the United States Courts, Defender Services Office Training Division has announced that a newly recorded presentation is currently available for viewing on www.fd.org.

This pre-recorded session, COVID-19 & Pretrial Release, is presented by Miles Pope, Assistant Federal Defender, Federal Defender Services of Idaho.

This presentation reviews core principles of constructing effective bail strategies to obtaining our clients’ release from custody during the novel coronavirus (COVID-19) pandemic. As this is a rapidly evolving area of law – and as we are constantly improving our arguments as courts issue rulings and we learn how to deal with the government’s responses to our arguments on protecting our clients’ health – viewers are encouraged to explore the resources regularly being posted on fd.org.

REGISTRATION, VIEWING VIDEO & MATERIALS

To view the presentation, you will need to register for the video. To register, you will need log in credentials for the password protected part of www.fd.org.

For panel attorneys, if you have already applied and been approved for log in credentials, you also have access to the password protected portions of www.fd.org.

For panel attorneys who have not already applied for log in credentials, you will need to do so before you can view the video. In order to apply for credentials, fill out the online application available at this link: http://cjaresources.fd.org/pl_cjaverify.aspx.

Once your application has been approved you will receive an email from “Defender Services Office” with instructions on how to set your password. Once you have taken those steps, you will be able to log in and view the video. It may take several days for you to receive the email.

LINKS TO VIDEO AND MATERIALS

Please use this password-protected link to view the video: https://www.fd.org/program-materials/tips-getting-your-client-released-detention-during-pandemic-covid-19-pretrial.

Materials associated with this presentation and other COVID-19 issues, can be found by clicking here.