March 6, 2014

United States Supreme Court Rules No Warrant Needed To Enter Home

The Supreme Court recently ruled that police do not always need a warrant to search your property. As long as two occupants disagree about allowing officers to enter, and the resident who refuses access is then arrested, police may enter the residence.

This contradicts previous case law from 2006. Prior to this new decision, when there was a disagreement between two occupants about allowing officers to enter, the refusal by one party would have kept authorities from entering the home, without a search.

The majority of the Justices now say police need not take the time to get a magistrate’s approval before entering a home in such cases. The Majority opinion states, “We therefore hold 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.” However, the dissenting Justices warned that the decision would erode protections against warrantless home searches. The court had previously held that such protections were at the “very core” of the 4th Amendment and its ban on unreasonable searches and seizures.

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January 9, 2014

Pennsylvania Supreme Court Rejects Search of Automobile

The Supreme Court of Pennsylvania recently reviewed a case involving “live-stop” procedures. A police Corporal in Harrisburg, PA initiated a vehicle stop after the defendant was observed entering the flow of traffic without using a turn signal. The vehicle, driven by the defendant, pulled over and came to rest with the passenger side tires close to the curb so that the vehicle was not blocking traffic or causing a safety hazard. The defendant was found to be driving under a suspended license and without the required emissions sticker.

The defendant was placed under arrest and the Corporal initiated the inventory policy of the vehicle because the vehicle was to be towed under a “towing policy” of the police department. The defendant indicated that his friend drove a tow truck and could take possession of the vehicle. The Corporal eventually searched the trunk of the vehicle discovering two guns.

After review, the Supreme Court of Pennsylvania held that the Corporal had no basis to tow the defendant’s vehicle since it was not blocking traffic or creating a safety hazard. Therefore a search of the vehicle for inventory purposes was improper and the evidence of the weapons was to be suppressed.

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October 25, 2013

United States Supreme Court Says GPS Tracking Requires a Warrant

Antoine Jones was being investigated by the FBI and a local police department for narcotics violations. During the course of the investigation, the FBI placed a global positioning device on Jones’s vehicle without a warrant. This device tracked his movements 24 hours a day for about four weeks. The government used the tracking information in the criminal trial against Jones to show his whereabouts and to show how Jones visited the “narcotics stash house” on multiple occasions.

After numerous arguments and appeals, the Supreme Court ultimately held that "the Government's installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a 'search'" under the Fourth Amendment. This police action violated Jones’s reasonable expectation of privacy. This violation precluded the government from introducing the tracking information at trial against Jones.

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September 10, 2013

Court Restricts Police Searches of Phone Data

Recently, the New Jersey Supreme Court ordered that law enforcement agencies will now have to obtain a search warrant before obtaining tracking information from cell phone providers. The ruling involved a case that began with a string of burglaries in homes in New Jersey. A court ordered the tracing of a cell phone that had been stolen from one of the homes and located a suspect. Further cell phone tracing and data obtained from a cellular phone provider by the police led to the location where the defendant was ultimately found with stolen goods from the burglaries.

This decision has implications for everyone that possesses a cell phone. A national survey focusing on law enforcement practice revealed that cell phone tracking was routine and typically done without any court oversight or public awareness. The Supreme Court of New Jersey reasoned that people who have entered cell phone contracts “can reasonably expect that their person information will remain private.” The Court’s decision is a strong reminder that Federal and State Constitutional standards entitle citizens be protected against unreasonable searches and seizures. As technology evolves, the courts and law enforcement must adapt.

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March 26, 2013

Another Strong Affirmation of the Fourth Amendment’s Protections

In United States v. Black, No. 11-5084 (3:10-cr-00206-MOC-1) (Feb. 25, 2013), two officers in Charlotte began to follow a car as it left a gas station. The driver, Dior Troupe, parked and joined a group of five other men, including Black, standing and talking in the parking lot. After calling for backup, in order to make "voluntary contact," the officers approached the men, one of whom an officer recognized from prior arrests. When he saw officers approaching, Troupe pointed to the openly-carried gun in a holster on his hip. An officer seized the gun and other officers began frisking the other men.

When another officer began talking to the men, Black voluntarily provided his ID, which the officer thought suspicious because the other men were "argumentative and did not give any information." It showed that he was living in another part of Charlotte. He told the officer he was visiting friends. The officer kept Black's ID and "pinned it to his uniform" while questioning the others. Another officer described Black as "extremely cooperative." While the others were being frisked, Black was seen leaning forward on the edge of his seat and looking left and right, which officers interpreted as him looking for an escape route. Black got up and started to leave, but was told he wasn't free to go. He walked away anyway, until an officer grabbed his bicep (and felt his "'extremely fast' pulse through Black's t-shirt"). A struggle ensued, during which Black was placed in handcuffs and a firearm was recovered from Black. He was charged with being a felon in possession of a firearm. His motion to suppress was denied, Black entered a conditional guilty plea, and he was sentenced to 180 months in prison.

On appeal, the Fourth Circuit reversed the district court's denial of Black's motion to suppress. The court first concluded that Black had been seized (for Fourth Amendment purposes) prior to the officer's statement that he was not free to leave, due to a combination of factors including the "collective show of authority" of the officers, the fact that Troupe's firearm had been seized and that he, at least, was not free to leave, and the retention of Black's ID. Thus Black was seized at the point his ID was pinned to an officer's uniform and another officer began frisking everyone on the scene. The court then concluded that the totality of circumstances at the time of the seizure (which didn't include Black's looking left and right or his attempt to leave the area) did not support reasonable suspicion to support a seizure. The court called this case "yet another situation where the Government attempts to meet its Terry burden by patching together a set of innocent, suspicion-free facts, which cannot be rationally relied on to establish reasonable suspicion."

Because the officers who stopped him lacked reasonable suspicion to believe he was engaged in a crime, the stop violated the Fourth Amendment, and the firearm should have been suppressed as fruit of the unlawful search.

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March 18, 2013

Police Need Probable Cause to Seize Someone Who Has Left The Immediate Vicinity of a Place Where a Search Warrant is Being Executed

In Bailey v. United States, the Supreme Court of the United States held that the rule of Michigan v. Summers (1982), which permits the detention of persons found on the premises during the lawful execution of a search warrant, does not extend beyond the premises’ immediate vicinity. In Bailey, police officers saw Bailey leaving an apartment shortly before they planned to execute a search warrant. They detained him approximately a mile away and discovered a key to the apartment – in which other officers had found a gun and drugs – in his pocket. When federal prosecutors brought charges against him, Bailey sought to have the key (as well as his statement to police officers) suppressed on the ground that his detention violated the Fourth Amendment. The district court denied his motion, holding that the detention was justified by the Court’s decision in Michigan v. Summers and, in the alternative, by Terry v. Ohio (1968). The jury found Bailey guilty. On appeal, the U.S. Court of Appeals for the Second Circuit affirmed. It read Summers to permit detaining the occupant of premises being searched pursuant to a valid warrant when the occupant leaves those premises so long as the detention is made “as soon as reasonably practicable.”
On appeal, the government relied on the Summers rule to justify the stop and detention of Bailey. The government argued that Summers was a bright-line rule that justified his detention, as he had been the recent occupant of a location subject to a lawful search warrant.
The Supreme Court noted that the Summers Rule was based on three justifications, “officer safety, facilitating the completion of the search, and preventing flight.” The Supreme Court then found that these justifications were not present under the given facts.
Accordingly, the Court held that the application of the Summers rule is limited to “the immediate vicinity of a premises to be searched . . .” Justice Kennedy went on to write that, “Because detention is justified by the interests in executing a safe and efficient search, the decision to detain must be acted upon at the scene of the search and not at a later time in a more remote place.” Because Bailey was detained at a point beyond any reasonable understanding of “immediate vicinity”, his detention was not justifiable.

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December 26, 2012

Court Grants Motion to Suppress Based on Warrantless Search Where No Exigent Circumstances Existed

In United States v. Delgado, 2012 U.S. App. LEXIS 24549 (7th Cir. Nov. 29, 2012), Appellant's convictions for being a felon in possession of a firearm and possession of an unregistered firearm were the result of police officers' warrantless search of his apartment.

On December 29, 2010, a Milwaukee police officer responding to a report of gunshots near the 1900 block of South 12th Street saw a Hispanic male running towards a building at 1830 South 13th Street. A witness then told the officer that her cousin Adrian Aviles had been shot by a black male and that he was hiding in an apartment in that building. After police officers approached the apartment and knocked, Defendant Luis G. Delgado, who was the Hispanic male seen earlier, and Aviles, the shooting victim - who had a visible graze wound on his wrist - came out of the apartment. The officers detained Delgado in the squad car and then, without a warrant, entered and searched his apartment finding various firearms.

Delgado was indicted for being a felon in possession of a firearm and for possessing an unregistered firearm. Delgado moved to suppress. Both the magistrate judge and the district court agreed that the warrantless search was not justified by exigent circumstances, but the district court found that the search was a valid protective sweep and denied Delgado's motion. Pursuant to the conditional plea agreement, Delgado pled guilty and was sentenced to a year and a day of imprisonment.

The Court of Appeals disagreed, finding that absent any verbal or non-verbal indication from the victim, the witness, or Delgado that anyone else was in the apartment or that the victim or Delgado had been subjected to violence inside the apartment, the mere fact that the shooter was generally at large was not enough for a reasonable officer to believe that the shooter was specifically in the apartment. Because the search was not a valid protective sweep and was not justified by the exigent circumstances exception to the warrant requirement, the district court erred in denying appellant's motion to suppress the firearms. For these reasons, appellant's convictions were vacated and the case was remanded to the district court with instructions to grant the suppression motion.

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December 19, 2012

Maximum Term on Revocation of Supervised Release Is Based on Class of Underlying Felony at the Time of the Offense

In United States v. Turlington, 2012 WL 4237611 (3d Cir. Sept. 21, 2012), defendant’s conviction for conspiring to distribute more than 50 grams of cocaine base was a class A felony, permitting up to five years of imprisonment on revocation of supervised release pursuant to 18 U.S.C.A. § 3583(e)(3). In 2004, he was sentenced by the District Court of the Third Circuit to eighty-four months' imprisonment and sixty months' supervised release. His sentence was less than one-third of that recommended by the Sentencing Guidelines.

On October 29, 2008, Turlington began his term of supervised release. On September 6, 2009, Turlington was charged with driving under the influence in New Jersey. Then, on December 7, 2009, New Jersey state police observed Turlington engaging in three hand-to-hand drug transactions. When the police approached Turlington and announced themselves, he attempted to flee. During flight, Turlington threw a loaded handgun to the ground. The state police eventually arrested him, and found $245 in cash and a plastic bag of cocaine. Turlington pleaded guilty to a state charge of possessing a weapon while committing a controlled dangerous substance crime. However, by this time, the Fair Sentencing Act of 2010 amendments had reduced the maximum term of imprisonment for Turlington’s original offense, such that it became a class B felony, which would permit only three years of imprisonment upon revocation of supervised release.

The Third Circuit held that where an underlying offense was a class A felony at the time of conviction, but had since been reduced to a class B felony, the maximum term of imprisonment upon violation of supervised release, pursuant to 18 U.S.C.A. § 3583(e)(3), was still determined based on the classification of the offense at the time of conviction. The Court cited Johnson v. United States, 529 U.S. 694 (2000), in which the Supreme Court found that new revocation terms were a part of the first offense of conviction, and McNeil v. United States, 131 S.Ct 2218 (2011), holding that in determining whether a prior conviction qualified as a predicate under the ACCA, a court must look at the prior offense as it was at the time of conviction. Thus the District Court did not plainly err in sentencing Turlington to five years' imprisonment, a term which was clearly authorized by § 3583(e)(3).

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December 7, 2012

Court Finds Proof of Witness Tampering Insufficient

In U.S. v. Shavers, No. 10-2790 (Aug. 27, 2012), the Court of Appeals for the Third Circuit considered the defendants’ Hobbs Act and witness tampering convictions, arising out of the robbery of a "speak-easy" in Philadelphia.

On the Hobbs Act counts, the defendants had argued that the government failed to show a "substantial effect" on interstate commerce. The Court held that only a minimal or potential effect was necessary, and found that the evidence – which showed the speakeasy had operated for years, the proprietress bought alcohol at retail and resold it to friends, and made enough money to help pay her bills, but that she shut down the business after the robbery – met that threshold, particularly if robberies like this were considered in the aggregate.

The Court found the evidence on the witness tampering counts insufficient, however. The defendants were charged under § 1512(b)(1). The Court held that a successful prosecution under this provision requires proof that the defendant contemplated a particular, foreseeable proceeding that constitutes an "official proceeding," that is, "a proceeding before a judge or court of the United States, a United States magistrate judge, a bankruptcy judge, a judge of the United States Tax Court, a special trial judge of the Tax Court, a judge of the United States Court of Federal Claims, or a Federal grand jury." Here, the defendants’ tampering was directed at preventing witnesses from testifying at specific state court hearings. Even if a federal proceeding might have been foreseeable, there was no nexus between their conduct and the possible federal proceeding.

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October 16, 2012

Unprovoked Flight, Without More, Cannot Elevate Reasonable Suspicion to Detain and Investigate into the Probable Cause Required for an Arrest

In United States v. Navedo, No. 11-3413 (3d Cir. Sept. 12, 2012), Defendant appealed the United States District Court for the District of New Jersey's denial of a motion to suppress weapons that police discovered in his home after a warrantless arrest. He argued that he was detained without reasonable suspicion or probable cause to arrest and that the weapons that were subsequently recovered from his apartment should therefore have been suppressed.

While performing surveillance, two undercover police officers observed Navedo’s co-defendant approach him carrying a bookbag. Co-defendant pulled what appeared to be a gun out of the bag. Defendant never touched or possessed the gun, he just leaned forward to see what was inside the bag. At that point the officers approached and identified themselves. Co-defendant threw the gun back into his bag and ran. Defendant also ran into his home and just as he had opened his apartment door, an officer tackled him and arrested him. Multiple weapons were found inside defendant's apartment.

The Court reaffirmed that reasonable suspicion for a Terry search is specific to the person who is detained. Until the officers approached, the Defendant had looked at the gun a third party showed him, engaged in a brief conversation, and nothing more. Officers had no information that would support a reasonable suspicion the defendant was engaged in arms trafficking and knew of nothing to connect him to prior criminal activity. From these facts, the officers did not have reasonable suspicion to detain and investigate.

The Court held that unprovoked flight, without more, only elevates reasonable suspicion into probable cause to arrest if officers have reasonable suspicion. In this case, although the reasonable suspicions of the police had justified a brief investigative detention of co-defendant, they did not have a reasonable suspicion to detain defendant who merely looked at the gun that co-defendant was showing him and engaged in brief conversation. This was not a high crime area, and police had no reason to suspect that defendant was demonstrating anything other than curiosity at the sight of a gun. The police, therefore, had no reason to suspect that defendant was involved in criminal activity, and even if they had a suspicion, they were only entitled to detain and investigate, not arrest.

The case was remanded with instructions that the order denying defendant's motion to suppress be vacated.

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September 17, 2012

Third Circuit Rules Unlicensed Distribution of Prescription Drugs Not an “Aggravated Felony”

In Borrome v. Attorney General, 2012 U.S. App. LEXIS 14676, Petitioner Borrome was an immigrant from the Dominican Republic, who, since August 1996 had been a lawful permanent resident of the United States. Following his conviction under a federal indictment alleging the distribution of prescription drugs including Oxycontin, an immigration judge (IJ) ordered Borrome removed. On the Government's motion, the Board of Immigration Appeals (BIA) summarily affirmed the IJ's decision without opinion pursuant to 8 C.F.R. § 1003.1(e)(4). Borrome petitioned for review.

The Circuit court applied the categorical approach used to assess the nature of prior convictions to hold that a federal conviction for the unlicensed wholesale distribution of prescription drugs was not an "aggravated felony." The "case hinges," the Court explained, "on the relationship between prescription ‘drugs’ and ‘controlled substances.’" Id. The statutory provisions criminalizing the unlicensed wholesale distribution of prescription drugs — 21 U.S.C. §§ 331(g) and 353(e)(2)(A) — do not define a form of "illicit trafficking in a controlled substance" because "while some prescription drugs contain chemicals that are also regulated as ‘controlled substances’ under the [Controlled Substances Act,. 21 U.S.C. § 801 et seq.], many do not." Id. at 18. By the same token, the prior conviction was not for a "drug trafficking crime" under § 924(c)(2) because § 924(c)(2) defines "drug trafficking crime" to mean any felony punishable under the federal controlled substance laws.

In the course of its analysis, the Court stated that it "is well established that the aggravated felony enumerating statute at issue here, [8 U.S.C. § 1101(a)(43)(B)], does not permit departure from the categorical approach nor does it invite inquiry into the underlying facts of conviction." Accordingly, the defendant’s guilty plea under an indictment alleging the wholesale distribution of Oxycontin — a prescription drug containing the controlled substance oxycodone — did not turn the conviction into an "aggravated felony."

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June 13, 2012

Court of Appeals for the Third Circuit Upholds Defendant’s Classification as a “Career Offender”

In U.S. v. Marrero, No. 11-2351 2012 U.S. App. LEXIS 8386, Defendant Ricardo Marrero appealed his judgment of sentence after pleading guilty to two counts of bank robbery. Marrero claimed the District Court erred in classifying him as a "career offender" under § 4B1.1 of the United States Sentencing Guidelines, arguing that under Pennsylvania law neither his prior third-degree murder nor his simple assault conviction qualified as a crime of violence because "a conviction for mere recklessness cannot constitute a crime of violence." The “career offender” designation resulted in a final Guidelines range of 151 to 188 months' imprisonment. Had Defendant Marrero not been deemed a career offender, his Guidelines range would have been 57 to 71 months.

The appellate court held that the district court properly examined defendant's simple assault plea colloquy transcript to determine that defendant's conviction was for intentional (or, at the very least, knowing) simple assault. Defendant had admitted to placing his hands around his wife's neck and attempting to pull her up a flight of stairs. This constituted intent to cause bodily injury, which qualified as a crime of violence.

The Court found that whether defendant's third-degree murder conviction also qualified as a crime of violence depended on the enumeration of "murder" in U.S. Sentencing Guidelines Manual § 4B1.2 application n. 1. Applying a Taylor analysis, the court determined that it was. Because defendant's prior third-degree murder and simple assault convictions both qualified as "crimes of violence" under § 4B1.2, he was properly designated a career offender under § 4B1.1. Thus, his Guidelines range was properly calculated.

The appellate court affirmed defendant's sentence.

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June 6, 2012

3rd Circuit Rules That Tip From Reliable Source Plus Dark Window Tint Does Not Provide Reasonable Suspicion to Stop and Search a Vehicle

The Court of Appeals for the Third Circuit recently handed down a significant decision concerning evidence suppression in U.S. v. Lewis.

After receiving a tip from a reliable source that individuals in a white Toyota Camry were carrying firearms, police officers in St. Thomas, Virgin Islands initiated a traffic stop of the vehicle. During the traffic stop, a firearm was discovered on the driver, Defendant Ahmoi Lewis. The source provided no details about the legal status of the firearms, and when making the stop, an officer testified that the tints on the vehicle's windows exceeded the threshold permissible under Virgin Islands law. The officer who initiated the traffic stop did not testify. Before pleading guilty to two firearm offenses, Lewis unsuccessfully moved to suppress the firearm as the fruit of an unlawful search and seizure. Defendant appealed the denial of his motion.

The appellate court determined that suppression was warranted under the Fourth Amendment because (1) the excessive tints did not provided a legal justification for the traffic stop since the only logical conclusion was that the tints were a contrived, after-the-fact explanation for the traffic stop, and there was no testimony that any officer observed a traffic violation prior to the initiation of the traffic stop, and (2) absent any information about the criminality of the firearms, the tip that individuals in the vehicle were carrying firearms in the Virgin Islands, in and of itself, did not provide officers with reasonable suspicion to conduct a Terry stop.

The appellate court vacated defendant's judgment of conviction and sentence, reversed the denial of his motion to suppress, and remanded for further proceedings.

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May 21, 2012

New Jersey Residents Do Not Give Up Their Expectation of Privacy When Hosting Large House Parties – Even When Violating Noise Ordinances

In New Jersey v. Kaltner, the Supreme Court of New Jersey held that a trial court correctly suppressed drug evidence found in a bedroom during a warrantless search of a residence by police officers who were responding to noise complaints.

On October 22, 2009, housemates of defendant Derek J. Kaltner hosted a party in the home they rented in Long Branch, New Jersey. Five Long Branch police officers in plain clothes responded to the home after receiving noise complaints. The officers canvassed the house, looking for its residents. An officer peered into Kaltner’s bedroom and saw pills, which he seized. The same officer also observed Kaltner's identification cards sitting on the table near the pills. One of the partygoers telephoned Kaltner, who was at his parent's home in Rochelle Park. Kaltner returned to the residence and was arrested and charged with possession of a controlled dangerous substance.

The trial court found that the officers were invited to enter - at least into the common area of the home. However, the trial judge suppressed the drug evidence after concluding that the officers unlawfully extended their search beyond entry into the first floor main living area. The judge explained that any number of methods could have been employed by the officers to locate a resident of the premises that would not have required invading the private areas of the home without a warrant. On appeal, the question was whether, after their legitimate entry, the community caretaking exception to the warrant requirement justified the officers' conduct in fanning out in search of those in control of the premises in an attempt to abate the noise nuisance.

The appellate court upheld the trial court, noting that the objective of noise abatement could have been achieved well short of the officers' full-scale search. For example, given the number of officers present and the fact that the offending noise emanated from the crowd itself, the officers could easily have dispersed the partiers. The Supreme Court agreed, holding that because the police officers' warrantless search of the home after they were called to address a noise complaint was not objectively reasonable, the evidence obtained during the search was properly suppressed.

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April 27, 2012

Third Circuit Rules that Federal Sentencing Enhancement for Possessing a Firearm While Committing A Felony Applies – Even When the Felony is the Burglary of the Same Firearm

In United States v. Keller, 666 F.3d 103 (3d Cir. 2011), the prosecution appealed a decision of the United States District Court for the Western District of Pennsylvania, which found that a sentencing enhancement under U.S. Sentencing Guidelines Manual § 2K2.1(b)(6) did not apply to defendant's conduct. This enhancement increases a defendant's offense level by four points when he "used or possessed any firearm or ammunition in connection with another felony offense."

In 2007, Defendant Jason Keller and two others burglarized a gun shop in Western Pennsylvania. Keller and his co-conspirators drove a vehicle through the front doors of Fazi's Firearms in Plum Boro and absconded with thirty firearms. After his apprehension, Keller confessed that he sold about eighteen of the firearms to "Adrian" in Maryland for $2,000.

A grand jury of the United States District Court for the Western District of Pennsylvania indicted Keller for conspiracy to commit an offense against the United States in violation of 18 U.S.C. § 371, and stealing firearms from a federally licensed firearms dealer in violation of 18 U.S.C. § 922(u). The Government subsequently filed an information against Keller, charging him with possessing an unregistered firearm in violation of 26 U.S.C. § 5861(d). Keller pleaded guilty to all three offenses.

The probation office which prepared Keller’s presentence investigation report concluded that his burglary was "another felony offense" justifying application of the enhancement under § 2K2.1(b)(6), which, inter alia, had to be applied if the defendant used or possessed any firearm or ammunition in connection with another felony offense. The district court held that the enhancement did not apply. On appeal, the United States Court of Appeals for the Third Circuit held that Amendment 691 to the Sentencing Guidelines, U.S. Sentencing Guidelines Manual app. C, amend. 691, essentially overruled its precedents holding that § 2K2.1(b)(6) did not apply when the predicate offense was burglary of the firearms that were the subject of the conviction.

The court vacated the judgment and remanded so the district court could recalculate defendant's guidelines range by applying the four-point enhancement in § 2K2.1(b)(6) before considering the 18 U.S.C.S. § 3553(a) factors and imposing a new judgment of sentence.

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April 18, 2012

5th Circuit Holds that a Defendant’s Confession to Harboring Illegal Aliens Can Be Suppressed Where ICE Agents Violated the Fourth Amendment

In United States v. Hernandez, 670 F.3d 616 (Ct. App. 5th 2012), The United States Court of Appeals for the Fifth Circuit found error in the denial of a Defendant’s motion to suppress her post-Miranda statements as fruit of the poisonous tree. The Court reversed the denial of defendant's suppression motion, vacated the conviction and sentence, and remanded.

In Hernandez, law enforcement officers received an anonymous tip that ten to fifteen illegal aliens were being held against their will in Defendant Melinda Hernandez's trailer. The officers, including Immigration and Customs Enforcement ("ICE") agents, went to Hernandez's trailer around midnight to investigate. After announcing themselves and receiving no response, the officers banged on the doors and windows, shouting that they were police and that the occupants should open the door. The officers then heard movement within the trailer. They tried to open the front door, but the outer screen door was locked. After one of the officers broke the glass pane of the screen door with a baton, Hernandez screamed that she was coming to open the door. When Hernandez opened the door, she noticed that the officers had their weapons drawn.

The officers searched the trailer and found two illegal aliens, Luis Alberto Andrade-Quesada and his nephew, Jose Moises Regalado-Soto, in the trailer. Hernandez, Andrade-Quesada, Regalado-Soto, and Hernandez's boyfriend, Sergio Guadalupe Ayala, who was also in the trailer at the time, were taken to the ICE office for questioning. Hernandez and Ayala waived their Miranda rights and admitted that Andrade-Quesada and Regalado-Soto stayed in the trailer and that they knew that the two men were illegal aliens. Andrade-Quesada also made a statement indicating that he had agreed to pay Hernandez $150 per month so that he and his nephew could stay with her.

Hernandez was charged with harboring an illegal alien for financial gain. She argued that the post-Miranda statements that she, Ayala, and the illegal alien made at the ICE office constituted fruits of the poisonous tree and should be excluded. She also argued that her doorstep admission that she had at least one illegal alien in her home, which the Government asserted gave authorities probable cause to arrest her, was obtained by exploiting the illegal entry into her home. The district court denied Hernandez’ motion to suppress the statements.

The appellate court disagreed, holding that suppression of Hernandez’ post-arrest confession was warranted under the “fruits of the poisonous tree doctrine” because (1) her doorstep admission was tainted by the agents' Fourth Amendment violation since she was illegally "seized" without probable cause before the admission due to the agents' actions, and the fact that an agent informed her about the anonymous tip after or during the course of the violation was not an "intervening event of significance," and (2) factors weighed heavily in her favor since there was no indication that more than a few hours passed between the violation and the statements, there were no intervening circumstances, and the agents' conduct was egregious.

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April 17, 2012

Supreme Court Approves Strip Searches, Even For Minor Offenses

The Supreme Court of the United States recently held, in a 5-4 decision, that officials may strip-search people arrested for any offense, no matter how minor, before admitting them to jails - even if the officials have no reason to suspect the presence of contraband.

In Florence v. Board of Chosen Freeholders, Petitioner Albert W. Florence was arrested during a traffic stop by a New Jersey state trooper. The trooper checked a statewide computer database and found a bench warrant issued for petitioner's arrest after he failed to appear at a hearing to enforce a fine. Petitioner was initially detained in the Burlington County Detention Center and later in the Essex County Correctional Facility, but was released once it was determined that the fine had been paid.

At the Burlington County jail, Florence, like every incoming detainee, had to shower with a delousing agent and was checked for scars, marks, gang tattoos, and contraband as he disrobed. He also had to open his mouth, lift his tongue, hold out his arms, turn around, and lift his genitals. At the second jail, Florence again had to remove his clothing while an officer looked for body markings, wounds, and contraband. He was also required to lift his genitals, turn around, and cough while squatting.

Florence filed a 42 U. S. C. §1983 action in the Federal District Court against the government entities that ran the jails and other defendants, alleging Fourth and Fourteenth Amendment violations, and arguing that persons arrested for minor offenses cannot be subjected to invasive searches unless prison officials have reason to suspect concealment of weapons, drugs, or other contraband. The court granted him summary judgment, ruling that "strip-searching" nonindictable offenders without reasonable suspicion violates the Fourth Amendment. The Third Circuit reversed.

The Supreme Court agreed with the Third Circuit, holding that deference had to be given to jail officials unless substantial evidence showed their response to the situation was exaggerated. The Court felt that concerns about gang members provided a reasonable basis to justify a visual inspection for signs of gang affiliation during intake. The Court also highlighted the importance of detecting contraband concealed by new detainees. Ultimately, the Court found that the search procedures to which Florence was subjected struck a reasonable balance between inmate privacy and the jail's needs.

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April 16, 2012

Third Circuit Court of Appeals Rules That Second Amendment Protections Are Limited for Gun Owners Who Live With Convicted Felons

In United States v. Huet, No. 10-4729 (3d Cir. Jan 5, 2012), Police executed a valid search warrant of a home shared by Melissa Huet and Marvin Hall — Hall happened to be a convicted felon. In the course of the search, police found a firearm. The Government charged Hall with illegal possession of a firearm under 18 U.S.C. § 922(g), and charged Huet with aiding and abetting his possession, also under § 922(g).

Huet filed a motion under Rule 12 (b)(3)(B) to dismiss the charge on grounds that the Indictment failed to state an offense under § 922(g), and also argued that, as a non-felon legally entitled to possess a firearm, she enjoys protection under the Second Amendment. The District Court agreed, and dismissed the Indictment as to Huet.

The District Court then went to rule that even if the Indictment did properly charge a § 922(g) violation, it violated Huet’s Second Amendment rights because otherwise it would eliminate “the right of a sane, non-felonious citizen to possess a firearm in her home simply because her paramour is a felon.”

The Government appealed, and the Third Circuit reversed and remanded.

First, the Court observed that the Indictment properly charged Huet with aiding and abetting under § 922(g): it alleged that Hall was an illegally possessing felon, and that Huet knew or had reason to know Hall was prohibited from possessing a firearm, and rendered aid or assistance in Hall’s possession of a firearm.

With respect to the Second Amendment argument, the Court pointed to the language in District of Columbia v. Heller, 554 U.S. 570, 626-27 (2008), that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.” The Court stated that — contrary to the Fifth and Tenth Circuits — it had “explicitly held “in United States v. Barton, 633 F.3d 168, 171, that this language was not dicta, and so bound the court.

As a consequence, the Court held that the Second Amendment did not shield Huet from being charged with aiding and abetting a felon to possess a firearm, as Huet’s status as a non-felon was irrelevant. Although Huet could legally possess a firearm, she could violate § 922(g), by aiding and abetting a felon.

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February 29, 2012

Pennsylvania Spousal Privilege Against Testifying Applies Even to a “Collusive Marriage”

A jury convicted Appellant Lewis of tampering with public records or information, 18 Pa.C.S.A. § 4911. Ms. Lewis had worked as a Probation Officer for the Lebanon County Office of Adult Probation. In August 2007, Appellant started supervising the probation of Jeffrey Gardner, who was on electronic monitoring. In December 2007, while Appellant was supervising Mr. Gardneŕs probation, they began an intimate relationship and made plans to travel together to Atlantic City during the weekend of February 17, 2008. On February 12, 2008, Appellant released Mr. Gardner from electronic monitoring, eleven days ahead of schedule of his six-month period of court-ordered electronic monitoring. Part of Appellant́s duties required her to maintain case files on the probationers she was supervising and to make notations of their progress, plans, and whereabouts. Shortly before their planned trip to Atlantic City, Appellant wrote a note in Mr. Gardneŕs file stating he was visiting Atlantic City with his family, as the Appellant did not want anyone to know that she and Mr. Gardner were actually traveling together. Appellant left her job with the Lebanon County Office of Adult Probation and Parole on February 25, 2008.

Probation Officer Fertenbaugh then took over the supervision of Mr. Gardner. In March 2008, Ms. Fertenbaugh learned about the romantic relationship between Appellant and Mr. Gardner. Mr. Gardner came to the probation office where he admitted his relationship with Appellant. When asked, Appellant confirmed the truth of Mr. Garneŕs statements.

On March 28, 2008, the Commonwealth charged Appellant with tampering with public records or information and obstructing administration of law or other governmental function. Appellant and Mr. Gardner were married on June 17, 2008. Appellant filed an omnibus pre-trial motion to preclude the Commonwealth from calling Mr. Gardner to testify at trial, based on the Section 5913 spousal testimony privilege. The Commonwealth argued the Section 5913 spousal testimony privilege should not apply in this case because Appellant and Mr. Gardner married so Mr. Gardner would not have to testify as a witness against Appellant.

The trial court judge concluded that Section 5913 was unavailable to Mr. Gardner if he had married Appellant to avoid testifying against her. The trial court reasoned that a marriage timed even partly to prevent testimony was "collusive" under Pennsylvania law. Thus, the court barred Mr. Gardner from asserting the Section 5913 spousal testimony privilege at Appellant́s trial. The jury found the Appellant guilty of tampering with public records or information but not guilty of obstructing administration of law or other governmental function.

On appeal, the Appellant successfully argued that the trial court́s interpretation of Section 5913 ignored the unambiguous language of the statute and was inconsistent with the Pennsylvania rules of statutory construction. Notably, neither the statute nor the exceptions eliminate or limit the privilege for collusive marriages or pre-marriage events or actions. The statutory text of Section 5913 is clear in this instance, and any public policy concepts arguably implied in the statute are irrelevant. Thus, the Court refused to adopt the trial court́s rationale for creating an exception to the spousal testimony privilege for a "collusive" marriage on policy grounds and also rejected the trial court́s conclusions regarding the applicability of Section 5913 under the circumstances of this case.

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February 22, 2012

Superior Court of Pennsylvania Rules that Prosecution Cannot Use a Defendant’s Silence to Prove That He is Guilty of Murder

The Superior Court of Pennsylvania reversed a Defendant’s homicide conviction in the case of Commonwealth of Pennsylvania v. Michael Molina, Appellant. Molina appealed from the judgment of sentence entered in the Court of Common Pleas of Allegheny County, Criminal Division (Pennsylvania), following his conviction for murder in the third degree and unlawful restraint. The victim in the case was a woman named Melissa Snodgrass.

On appeal, Molina raised one issue for review. He contended that the trial court committed reversible error when it permitted the Commonwealth, over objection, to reference his pre-arrest silence in response to police questioning as substantive evidence of his guilt. The prosecutor had discussed the fact that during the investigation of Snodgrass’ murder, the detective on the case asked Molina when he last saw Snodgrass. Molina initially told the detective a year and a half before; then moments later, he stated it had been approximately three months since he last saw Snodgrass. The detective testified that she asked Molina to come down to police headquarters so she could further interview him and he refused.

At closing argument, counsel for the Commonwealth commented on Molina's refusal to cooperate with the detective and asked "Why?". The court found it clear that the prosecutor deliberately exploited Molina’s silence by asking the jury to infer guilt from the fact that he refused to go to the police station to be interviewed. The court determined that the prejudice to Molina could not be considered de minimis and was not harmless. The fact that the jury was persuaded to acquit defendant of the most serious charges while convicting him of others did not rule out the possibility that the jury was not overwhelmed by the credibility of the testifying witnesses. Since the court could not be sure that the jury would have resolved the issue in the same manner absent the improper reference to Molina’s silence, it was not convinced beyond a reasonable doubt that the error did not contribute to the verdict. The court reversed the convictions and vacated the judgment of sentence. The court remanded the case to the trial court for a new trial.

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