News You Can Use: Tenth Circuit Vacates Denial of Suppression Motion in a Published Decision (With Photos!)

In US v. Gaines, the Tenth Circuit vacated the denial of a motion to suppress in a published opinion, ruling: (1) the defendant was seized when police officers confronted him about reported drug sales in a parking lot; and (2) the subsequent discovery of an arrest warrant did not attenuate the connection between the seizure and the evidence. And they did so with style, buttressing their points with actual photographs of the alleged seizure in question. The opinion doesn’t break new legal ground, but it provides a nice review of some basic Fourth Amendment principles—and is a great example of creative appellate advocacy.

Background

Kansas City police received a 911 call reporting a man dressed in red had sold drugs in a local parking lot. Based on that call, uniformed officers driving two separate police cars pulled into the parking lot and parked behind a car occupied by a man wearing red clothing—Mr. Gaines. Police turned on their flashing roof lights and gestured for Mr. Gaines to get out of his car. To help established the scene, Mr. Gaines included the following image the Opening Brief:

Photo1

After Mr. Gaines got out of his car, one officer confronted him about the reported drug sale, observed an open container of alcohol, and smelled PCP. Officers told Mr. Gaines he would be detained. Mr. Gaines then grabbed a pouch from his car and fled the scene. He was soon captured. Meanwhile, police discovered cocaine, marijuana, PCP, drug paraphernalia, cash, and a handgun in his car.  Mr. Gaines unsuccessfully moved to suppress this evidence, and was convicted after trial. He appealed the denial of his motion to suppress.

Tenth Circuit Decision

The Tenth Circuit vacated the denial of the suppression motion in a published opinion, focusing on two issues: (1) whether there was a seizure; and (2) whether the relationship between the seizure and the evidence was attenuated.

  • There was a seizure

The Tenth Circuit found Mr. Gaines was seized because a reasonable person would not have felt free to leave the scene, and Mr. Gaines in fact yielded to the police’s show of authority. The opinion goes into a lot of detail about what specifically made the encounter a seizure, including that it involved uniformed police officers in marked police cars with flashing lights, where state law requires motorists to stop for flashing lights. The Court also emphasized one of the officers had gestured for Mr. Gaines to get out of his car before asking him an accusatory question.

  • There was no attenuation

The Tenth Circuit also rejected the government’s attempt to salvage the case through the attenuation doctrine. Under that doctrine, evidence does not need to be excluded if the Government can meet its heavy burden of showing that there is only a weak or attenuated connection to the asserted Fourth Amendment violation. When applying the attenuation doctrine, the court considers: (1) the temporal proximity between the alleged Fourth Amendment violation and the discovery of the evidence; (2) the presence or absence of intervening circumstances; and (3) the purpose and flagrancy of the police wrongdoing.

Specifically, the Tenth Circuit rejected the government’s arguments that either an outstanding arrest warrant or the subsequent development of probable cause established attenuation in this case. With respect to the warrant, the Tenth Circuit noted that executing the warrant and arresting Mr. Gaines would not automatically have allowed the search of his vehicle—citing the Court’s recent decision limiting officer authority to conduct warrantless searches of arrestees in US v. Knapp. The Court also observed that neither the warrant nor the observations arguably amounting to probable cause were discovered until after the challenged seizure. The Court therefore reasoned both the close temporal proximity and the absence of intervening circumstances weighed against application of the attenuation doctrine in this case.

Takeaways

  • Preservation matters. The standard of review is important, and this is another appellate win born of  preservation. Mr. Gaines moved before trial for an order suppressing all evidence derived from law enforcement’s initial seizure of him. The court held an evidentiary hearing on the motion, ultimately denying it. Mr. Gaines reasserted his motion towards the end of trial.  Notably, this belt and suspenders approach is commendable, but the issue was already preserved for appeal. Under  Federal Rule of Evidence 103(b):“[o]nce the court rules definitively on the record—either before or at trial—a party need not renew an objection or offer of proof to preserve a claim of error for appeal.” 
  • Detail matters. Suppression motions often require fact-intensive inquiries, and as this case demonstrates, it’s useful to do everything you can to marshal the facts in your favor. Explain in detail exactly what happened: How many police officers were there? What were they wearing? What were they driving? And what exactly did they do when they encountered the defendant? And then those details to the relevant legal standard.
  • A picture is worth a thousand words. Check out the Opening Brief  in this appeal(filed by the Kansas FPD). Sometimes, it’s useful not only to tell the court why your motion should be granted, but also show them. If there’s an image that really captures the essence of your argument, consider including it in your brief so your point doesn’t get lost in the shuffle. Nobody’s suggesting you file a comic book, but when done right, this technique shakes up legal writing and can be quite effective.
  • Arrest authority is not the end of the story. As the Tenth Circuit’s in-depth attenuation analysis demonstrates, the fact that police could have lawfully arrested your client doesn’t necessarily excuse any Fourth Amendment violations. Pick apart any attenuation argument to see if the Government’s claim holds up: Would an arrest really have led to the discovery of the evidence, independent of the Fourth Amendment violation? And can the warrant really be considered an “intervening event” that weakens the causal connection between the Fourth Amendment violation and the evidence sought to be excluded?

News You Can Use: SCOTUS holds Counsel has Duty to File a Notice of Appeal Despite an Appeal Waiver

In Garza v. Idaho, the Supreme Court recently ruled 6-3 that, if a defendant wants to appeal, defense counsel must always file a notice of appeal — even if the defendant has signed an appeal waiver and even if counsel judges an appeal to be frivolous or self-defeating. The opinion clarifies trial counsel’s obligations during the post-trial period. And the lineup of the Justices is potentially revealing.

Background

Mr. Garza entered into a plea agreement that included a clause stating he “waive[d] his right to appeal.” After sentencing, however, Mr. Garza clearly and repeatedly told his lawyer that he wished to appeal. Trial counsel did not file a notice of appeal, telling Mr. Garza “that an appeal was problematic because he waived his right to appeal.”

Later, Mr. Garza sought post-conviction relief, claiming that trial counsel rendered ineffective assistance by failing to file a notice of appeal despite Mr. Garza’s requests. The Supreme Court’s prior decision in Roe v. Flores-Ortega lent support to Mr. Garza’s claim. The Court had held in Flores-Ortega that trial counsel’s failure to file a notice of appeal when the client requests an appeal amounts to ineffective assistance of counsel. But the Idaho courts denied Mr. Garza’s claim, purporting to distinguish Flores-Ortega on the basis of the appeal waiver in Mr. Garza’s case.

Majority Opinion

The Supreme Court reversed in an opinion authored by Justice Sotomayor and joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Kagan, and Kavanaugh. Assessing the two elements of an ineffective assistance of counsel claim — deficient performance and prejudice — the Court held that, even in the face of appeal waiver, both elements are met when counsel disregards a defendant’s request to file an appeal.

Addressing the deficient performance element, the Court rejected the State’s argument that counsel could strategically decide not to file an appeal for fear of risking a breach of the plea agreement. The Court explained that, first, “simply filing a notice of appeal does not necessarily breach a plea agreement, given the possibility that the defendant will end up raising claims beyond the waiver’s scope.” Second, “the bare decision whether to appeal is ultimately the defendant’s, not counsel’s, to make.” The Court noted that defense counsel’s obligation to perform the “purely ministerial task” of filing a notice of appeal did not imply an obligation to file a merits brief in the court of appeals, as defense counsel may move to withdraw from representing the defendant on appeal if the appeal would be frivolous.

Addressing the prejudice element, the Court held that a presumption of prejudice applied because counsel’s deficient performance “forfeit[ed] an appellate proceeding all together,” and there was no principled way to assess the reliability of a proceeding that never took place. An appeal waiver does not show that a defendant has no right to an appellate proceeding, the Court explained, because there are some issues that can always be appealed notwithstanding an appeal waiver — including but not limited to the issue of whether the appeal waiver itself was knowing and voluntary. The Court rejected the federal government’s argument for a case-by-case assessment of whether the defendant planned to raise an issue outside the scope of the appeal waiver as unworkable.

The Dissent

Justices Thomas, Gorsuch, and Alito dissented. Justice Thomas authored the dissent, which Justice Gorsuch joined in full and Justice Alito joined only in part. In the section joined by each of the dissenters, Justice Thomas maintained that a case-by-case inquiry into deficient performance and prejudice should be required. In a more radical section of the dissent, joined only by Justice Gorsuch, Justice Thomas argued that the Sixth Amendment, as originally understood and ratified, “meant only that a defendant had a right to employ counsel, or to use volunteered services of counsel.” Thus, Justice Thomas (and Justice Gorsuch) suggested that landmark decisions reading the Sixth Amendment to require “counsel at taxpayers’ expense” (i.e., Gideon) and to guarantee “effective counsel” (i.e., Strickland) were wrongly decided. At a minimum, Justice Thomas maintained “the Court should tread carefully before extending our precedents in this area.”

 

Takeaways

  • Whether to appeal is up to the client. The defendant’s right to decide whether to appeal his case is a vital procedural protection.While defense counsel may advise the client that an appeal would be pointless, the client’s decision to proceed on appeal controls — just like the client controls other final decisions including whether to plead guilty or go to trial. An  amicus brief filed in the Garza litigation explains why fundamental principles of constitutional law and legal ethics vest the final decision to appeal in the client.
  • If the client wants to appeal, counsel must file a notice of appeal, even if the plea agreement contains an appellate waiver. Defense counsel must always file a notice of appeal when the client expresses the desire to appeal. In Roe v. Flores-Ortega, the Supreme Court held that when an attorney “disregards specific instructions from the defendant to file a notice of appeal,” the attorney has rendered deficient representation, and the defendant should be “presum[ed]” to have suffered prejudice. 528 U.S. 470 (2000). Garza teaches that the existence of an appeal waiver in a plea agreement does not change counsel’s fundamental obligations in this area.
  • Garza resolves a circuit split but doesn’t really change Tenth Circuit law. Since 2005, the Tenth Circuit has applied the rule in Flores-Ortega with equal force where a defendant enters a guilty plea containing an appeal waiver. In U.S. v. Garrett, the Tenth Circuit held that an “[a]ppellate waiver does not foreclose all appellate review” a sentence, and if the defendant “actually asked counsel to perfect an appeal, and counsel ignored the request, he will be entitled to a delayed appeal.”See US v Garrett, 402 F.3d 1262, 1266 (10th Cir. 2005).
  • Of course, you may end up filing an Anders brief. If you think the appeal is frivolous, keep in mind the procedure under Anders v California, 386 U.S. 738, 744 (1967). That is, when a client asks his lawyer to file an arguably frivolous appeal, the lawyer should file a notice of appeal, submit “a brief referring to anything in the record that might arguably support the appeal,” and request permission to withdraw. This procedure, requiring lawyers to file “Anders briefs,” allows defense counsel to act “with honor and without conflict,” and it preserves defendants’ right to appeal. For additional requirements on Anders briefs in the Tenth Circuit, see the Tenth Circuit Rules on the subject, particularly 10th Cir. R. 46.4(B)(1) through (3), and US v Cervantes, 795 F.3d 1189, 1190 (10th Cir. 2015).
  • Don’t just assume an appellate waiver is enforceable. Like it or not, appeal waivers are a part of plea agreements in the Tenth Circuit. But appellate waivers are not absolute and even the broadest waivers can sometimes be challenged. Review the appellate waiver enforcement analysis in US v Hahn, the key case on the issue in the Tenth Circuit, to determine if the appeal falls within the scope of the appellate waiver, if the defendant knowingly and voluntarily waived his appellate rights, or whether waiver will result in a miscarriage of justice.

News You Can Use: Tenth Circuit Limits Officers’ Authority to Search Incident to Arrest

In United States v. Knapp, the Tenth Circuit reversed the denial of a motion to suppress and held a warrantless search of an arrestee’s purse could not be sustained as a search incident to arrest.

Defendant Stacy Knapp was arrested on an outstanding warrant. Police officers seized the purse she was carrying and handcuffed her behind her back. The police walked Ms. Knapp to the police car while they carried her purse.  An officer then put Ms. Knapp’s purse on the hood of the car, about three to four feet away from Ms. Knapp (who was still handcuffed). One officer stood next to Ms. Knapp and two other officers were nearby. After Ms. Knapp admitted there was a gun inside her purse, an officer searched the purse and recovered a pistol.

The Government argued the warrantless search was permissible as a search incident to Ms. Knapp’s arrest. The Tenth Circuit disagreed and held that the search violated the Fourth Amendment.

First, the Court rejected the Government’s argument that the search of Ms. Knapp’s purse amounted to a “search of the person,” which is allowed automatically under United States v. Robinson. The Court held that Robinson should be limited to searches of an arrestee’s clothing — explicitly rejecting authority from other courts that had extended Robinson to apply to searches of handheld containers. The Court explained that searches incident to arrest are justified by the possibility that an arrestee might have a weapon and by the officers’ need to disarm her. In this light, automatic searches of an arrestee’s clothing make sense because separating an arrestee from her clothing to deny her access to any weapon “would be impractical (not to mention demeaning).” But that rationale doesn’t apply to handheld containers like purses, the Court held, because such items are “easily capable of separation from [the] person.”

Second, the Court rejected the district court’s holding that the search of Ms. Knapp’s purse was justified on the ground that she could have accessed it at the time of the search. The Court recognized that, under Chimel v. California, police can search not only an arrestee’s person but also anything else they reasonably believe the arrestee might access to get a weapon or destroy evidence. However, the Court held that, unlike Robinson searches, Chimel searches are not automatic and “must be justified on a case-by-case basis by the need to disarm or to preserve evidence.” Further, the Court held that Arizona v. Gant, which arose in the context of an automobile search, was not limited to that context and required the Court to evaluate “the arrestee’s ability to access weapons or destroy evidence at the time of the search, rather than the time of the arrest, regardless of whether the search involved a vehicle.” Applying Gant and Chimel, the Court held that “it was unreasonable to believe Ms. Knapp could have gained possession of a weapon or destructible evidence within her purse at the time of the search.” Ms. Knapp could not have accessed the contents of her purse, the Court explained, because “not only were Ms. Knapp’s hands cuffed behind her back, [an officer] was next to her, and two other officers were nearby. Moreover, the purse was closed and three to four feet behind her, and officers had maintained exclusive possession of it since placing her in handcuffs.”

Takeaways

  • Preservation matters. This awesome appellate win was born in the district court.  The trial lawyers made a great record, filing a motion to suppress on Fourth Amendment grounds (and later, a reply in support of the motion) and emphasizing the government’s burden to prove that the search and seizure was reasonable.  Because the issue was raised and ruled upon below, the Tenth Circuit applied de novo review on appeal. This favorable standard of review is the result of preservation; and it was the first step on the path to victory.
  • A purse is not a pocket! Searches “of the person” incident to an arrest are allowed automatically, but such searches are limited to searches of the arrestee’s clothing and cannot extend to a search of a handheld container, like a purse.
  • A search of the “grab area” must be justified.  A search of the area within the arrestee’s immediate control (the “grab area”) is not a search “of the person” and must be “justified on a case-by-case basis by the need to disarm or to preserve evidence.”
  • Justification depends on what’s happening at the time of the search, not the time of the arrest.  If, at the time of the search, it isn’t reasonable to believe that an arrestee could access a place or item to destroy evidence or get a weapon, the search of that place or item cannot be justified as a search incident to arrest.

 

 

News You Can Use: Tenth Circuit reaffirms constructive possession requires intent to exercise control over an object, in a published decision involving 18 U.S.C. § 924(c)

The Tenth Circuit just decided United States v. Giannukos, reaffirming that constructive possession requires intent to exercise control over an object, and not just knowledge and ability to exercise control over the object.

Recall, the Supreme Court recently held that “[c]onstructive possession is established when a person, though lacking such physical custody, still has the power and intent to exercise control over the object.” Henderson v. United States, 135 S. Ct. 1780, 1784 (2015). In United States v Little, the Tenth Circuit adopted this holding, and explained that both the power and intent to exercise dominion or control over the object are essential to establish constructive possession. In Giannukos, the Tenth Circuit held that the post-Little definition of constructive possession must apply to a 924(c) charge for possession in furtherance of a drug trafficking crime.

The defendant in Giannukos went to trial on drug and gun charges. The government alleged he was distributing drugs out of his residence, and that he possessed two firearms in furtherance of that crime. The two firearms were found in a house he shared with a friend and his girlfriend.  One gun was found in a hutch in a common area of the house, and the other was found next to a pink bag in the bedroom that the defendant and his girlfriend shared.  DNA testing of the first gun turned up DNA from three unspecified people, at least one of them male. The major DNA contributor to the second gun was female.  A holster fitting the second gun was found inside the pink bag.

The government’s theory of the case was the defendant possessed the guns in furtherance of a drug trafficking crime and charged him with a 924(c) offense. The judge instructed the jury that it could find constructive possession of the guns if it determined the defendant “knowingly had the power” to “exercise dominion and control over” them.  Op. at 6.  As the Tenth Circuit would later hold in Little, this instruction misstates the law.  The jury convicted on all counts, including the 924(c) count, which meant the jury found Mr. Giannukos possessed the firearms “in furtherance of” his drug trafficking crimes. Op. at 14.  The jury had been instructed that “in furtherance of” means “for the purpose of assisting in” the drug crimes.  The government argued that if the jury found (as it did) that Mr. Giannukos intended the guns to further his drug dealing, it necessarily – or at least quite likely – thought he also intended to exercise control over the guns, so the Little error was harmless.

The Tenth Circuit disagreed. It first held that the constructive possession instruction was erroneous and that the error was plain, satisfying the first and second prong of the plain error analysis. The Tenth Circuit also held that the error was prejudicial, even as to the 924(c) count. It reasoned the defendant could have known the guns were in the house and believed they would help fend off robberies to protect his stash (possession in furtherance) without intending to exercise control over the guns himself. In other words, the Tenth Circuit held that, under the third prong, there was a “reasonable probability” that a properly instructed jury (one that had been given the post-Little instruction) would not have convicted Mr. Giannukos of constructively possessing firearms. There is also some good fourth-prong plain error law in the opinion.  The Circuit holds that any prejudicial error in a jury instruction on the elements will meet the fourth prong in light of the “revered status of the beyond-a-reasonable-doubt standard in our criminal jurisprudence.”  Op. at 17.


TAKEAWAYS:

  1. There is a relatively new Tenth Circuit Pattern Jury Instruction that adopts the post-Little definition of constructive possession.
  2. The post-Little constructive possession instruction applies to any crime where possession is an element: constructive possession requires both the power and the intent to exercise dominion and control over an object
  3. Where there is prejudicial error in a jury instruction that affects one of the elements of the crime charged, the fourth prong of the plain error test will almost always be satisfied.

 

 

News You Can Use: Tenth Circuit issues first published decision on USSG § 2D1.1(b)(12) — the enhancement for maintaining a premises for drug distribution

In United States v. Murphy, No. 17-5118 (10th Cir. Aug. 24, 2018) the Tenth Circuit issued its first-ever published opinion on U.S.S.G. § 2D1.1(b)(12), the guideline adjustment for maintaining a premises for purposes of drug distribution.  Although the circuit affirmed the application of the adjustment, it made some useful law on how the adjustment applies when the premises at issue is the defendant’s own residence.  

Section 2D1.1(b)(12) provides for a two-level increase if “the defendant maintained a premises for the purpose of manufacturing or distributing a controlled substance.”   The commentary adds that while drug activity need not be the “sole purpose” of the premises, it must be a one of the “primary or principal uses” of the premises and not an “incidental or collateral” use.  § 2D1.1 cmt. n.17. 

In many cases, like this one, the premises at issue is the defendant’s own home.  And that situation raises the question of what it means for drug activity to be a “primary” use of a premises that is constantly used for legitimate activities too?  Mr. Murphy argued that drug activity must be “pervasive and persistent” to qualify for the adjustment.  Op. at 8.  The court rejected that test but ultimately adopted a very similar one: drug activity “must not only be frequent but also substantial.”  Op. at 10.

The court also set out a number of factors to consider: “(1) the frequency and number of drugs sales occurring at the home; (2) the quantities of drugs bought, sold, manufactured, or stored in the home; (3) whether drug proceeds, employees, customers, and tools of the drug trade (firearms, digital scales, laboratory equipment, and packaging materials) are present in the home, and (4) the significance of the premises to the drug venture.”

Takeaway: Mr. Murphy lost under this test because the evidence suggested that he had used his home to sell drugs for a long time.  But in general, this test should be hard to meet, and in most cases you can challenge the enhancement.