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?

Resource: USSC releases new report on Revocations Among Federal Offenders

Check out the latest in the United States Sentencing Commission’s ongoing study of the criminal history of federal offenders.  A new report — Revocations Among Federal Offenders — explores a subset of the Commission’s criminal history rules—those regarding the revocation of terms of probation, parole, supervised release, special parole, and mandatory release.  The report analyzes the prevalence of revocations among federal offenders and the nature of the revocations. The Commission’s other research reports on criminal history are also worth a read.

Key findings include:

  • Only a minority of offenders (35.0%) with criminal history points under the federal sentencing guidelines had at least one scored conviction with a revocation. Most often such offenders had only one such conviction.
  • For the minority of offenders who did have at least one scored conviction with a revocation, it often increased their criminal history score and resulting Criminal History Category.
  • Among offenders with at least one scored conviction in their criminal history, three-fifths (60.2%) received additional criminal history points, and just under a third (30.9%) received an increase in Criminal History Category. For those offenders who received an increase into a higher Criminal History Category, the impact was generally limited to one Criminal History Category.
  • The rate at which offenders had at least one scored conviction with a revocation varied significantly depending on the type of federal offender. Firearms offenders were the most likely (54.3%) and immigration offenders the least likely (20.9%) to have at least one scored conviction with a revocation. However, the impact of such convictions on their criminal history scores and Criminal History Categories varied much less. Among offenders with at least one such conviction, firearms offenders were the most often (66.2%) and immigration offenders least often (55.9%) to receive additional criminal history points. Among offenders who received additional criminal history points, those points resulted in a higher Criminal History Category most often for drug trafficking offenders (53.1%) and least often for firearms offenders (42.9%).

 

News You Can Use: 2018 Amendments to the Sentencing Guidelines, Effective 11/1/2018

The 2018 Amendment to the Sentencing Guidelines go into effect on November 1, 2018.  The National Sentencing Resource Counsel Project has prepared a helpful summary of the changes and also included relevant practice tips (noted as “Defender comments”). The SRC memo is available here: SRC Summary of 2018 Amendments to the Sentencing Guidelines.

Notable changes include amendments to:

(1) the drug guidelines for synthetic drugs, namely cathinones, cannabinoids, and fentanyl analogues;

(2) the illegal reentry guideline;

(3) the acceptance of responsibility guideline (now adding language to clarify that unsuccessful challenges to relevant conduct should not bar application of the acceptance reduction);

(4) the Commentary to §5C1.1 (now directing that courts “should consider imposing a sentence other than” imprisonment for nonviolent first offenders falling in Zones A and B);

(5) the Commentary to §4A1.3 (now providing a non-exhaustive list of factors a court may consider in determining whether and to what extent to depart upward based on tribal court convictions);

(6) the fraud guideline (now adding the 20th specific offense characteristic to §2B1.1 for defendants convicted of certain forms of social security fraud).

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Please make sure to look at the actual language of the Amendments  on the Commission’s website. And, recall that, for amendments that hurt defendants, ex post facto limitations apply, and the Guidelines Manual in effect on the date of the offense of conviction should apply if beneficial.

 

 

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.

 

Practice Tip: How to Tackle Implicit Bias in the Courtroom

If you think implicit bias in the courtroom may be at issue in your next federal trial, consider filing a motion, asking the court for permission to do the following:

(1) Use a case-specific juror questionnaire that includes questions geared towards uncovering racial prejudice and implicit bias;

(2) Play this Western District of Washington juror orientation video on implicit bias to potential jurors;

(3) Give a preliminary instruction to potential jurors about implicit bias (also based on the W.D. Wash. materials); and

(4) Permit 30 minutes of attorney-led voir dire, including questions based on the What Would You Do?

To learn more, check out these law review articles on implicit bias in the courts. 

Unraveling Knot of Implicit Bias in Jury Selection (implicit bias)

Implicit Bias in the Courtroom (implicit bias)

215 Motion for case-specific jury questionnaire (implicit bias)

 

 

Practice Tip: Federal Civil Pro Se Litigation Clinic Opens in the District Of Colorado

For our criminal clients with civil issues, check this out:

The Colorado Bar Association opened a federal civil pro se clinic at the end of June. 

The clinic will provide assistance to litigants with federal civil cases involving civil rights, labor and employment law, contracts, personal injury, and other areas of federal and state law.

Examples of the clinic’s services include:

  • Legal advice and counseling
  • Assisting litigants with formulating claims prior to filing
  • Interpreting and explaining rules and procedures
  • Reviewing and explaining motions and court orders
  • Assisting with pleadings and correspondence

One caveat: the clinic will not provide in court representation.

This clinic is located at the Alfred Arraj Courthouse (first floor) and appointments can be made here: http://www.cobar.org/cofederalproseclinic or at 303-380-8786. Walk-ins are also allowed.

Practice Tip: How to Stay Updated via Email on Tenth Circuit Criminal Decisions

The Tenth Circuit publishes a daily email summarizing the criminal decisions, both published and unpublished, in the Tenth Circuit each day. To receive a daily email with Tenth Circuit cases, just contact Gregory Townsend Research and Reference Librarian at the Tenth Circuit, U.S. Courts Library, Albuquerque Branch, and ask to subscribe.