Sixth Circuit Discusses Requirements For Probable Cause

An anonymous informant notified police about the presence of cocaine in Sidney Brown’s house and a search warrant was subsequently issued. When the police arrived, warrant in hand, they found the cocaine mentioned by the tipster along with a pistol and several thousands of dollars in cash. Brown was eventually convicted on several drug-related crimes and appealed the case. The Sixth Circuit used the case, U.S. v. Brown, as an opportunity to clarify exactly what amount of information is sufficient to create probable cause for a search warrant application.

When Brown appealed, he argued that the police did not have probable cause to search his home based only on an informant’s information. Brown tried to suppress the incriminating evidence that the police had discovered relating to the drugs. Browns’ attorney argued that the confidential informant was not reliable enough and the information had never been corroborated before the warrant was signed by the judge.

The Sixth Circuit used the common sense and totality of the circumstances approach to determining whether there was sufficient probable cause to conduct a search. In this case, the Court found that the informant had a track record of reliability, having given accurate information to the police that had previously led to two convictions. Given this track record, the Court found that the police officer’s reliance on the tip was sufficient to apply for a search warrant.

Beyond agreeing that the information in this case came from a reliable source, the Court held that the police are not required to corroborate the information they receive from such an informant before seeking a search warrant. The Court said that the practical reason for this is that officers seldom have the time or resources to fully investigate each tip before requesting a search warrant.

Because of the court’s approval of the anonymous tip, the Sixth Circuit affirmed the lower court’s denial of a Motion to Suppress evidence gathered as a result of the police search. The takeaway lesson from the case is that the Sixth Circuit made clear anonymous tips do not have to be overly detailed to be a valid basis for a search warrant. The Court reiterated that affidavits are judged on the adequacy of what they contain, not on the information that they lack.

To read the full opinion, click here.

Sixth Circuit Allows Crack Cocaine Defendants To Be Resentenced In Light Of Fair Sentencing Act

In an important recent decision, U.S. v. Blewett, the Sixth Circuit Court of Appeals found that the Fair Sentencing Act should apply retroactively. The Court decided that to continue to uphold the prior racially discriminatory laws would violate the Equal Protection Clause. In making its decision, the Court reversed lower court decisions regarding two defendants who were charged with crack cocaine possession: Cornelius Blewett and his cousin, Jarreous Blewett.

The Fair Sentencing Act at issue was implemented in 2010 and designed to create fairness in federal cocaine sentencing which notoriously handed down far harsher sentences to those convicted of possessing crack cocaine than to those found to possess powder cocaine. The sentencing laws were viewed as racially biased, given that crack cocaine users were more likely to be black while powder cocaine users were typically white. The Act helped lower the disparity in sentences from 100:1 to 18:1. For many inmates who were imprisoned before the Act was passed, their sentences remained the same.

The Blewett cousins were sentenced back in 2005, years before the Fair Sentencing Act was a reality. They both faced a mandatory minimum sentence of ten years based on the amount of crack cocaine they were found to possess. However, if they were arrested today with the same amount of drugs their sentence would not even be subject to the mandatory five-year minimum contained in the Act, highlighting just how much of a change the new law has led to.

The Sixth Circuit ultimately tossed out the ruling of the lower courts with regard to the Blewetts and remanded the cases back to the lower courts to resentence while applying the new Fair Sentencing Act. The opinion from the Sixth Circuit will likely lead to many inmates seeking a resentencing in accordance with the Fair Sentencing Act.

To read the full opinion, click here.

Sixth Circuit Tackles Electronic Filing Typos

Everyone who does enough paperwork has surely made a mistake at some point. The wrong key was entered or the wrong box was checked. Thankfully, most typos are harmless and can either be quickly remedied or ignored. Unfortunately, when you work as a criminal defense attorney and you make a typo on an electronic filing system, it’s possible that the consequences could be much more grave.

In the case Shuler v. Garrett, the Sixth Circuit dealt with a case where an attorney made a very small mistake on an electronic court filing. The question that the Sixth Circuit was left to grapple with was whether or not the technical error could cause the attorney’s client to lose his right to appeal.

In the case, the defendant moved to dismiss the plaintiff’s appeal as untimely after the plaintiff’s attorney made a technical mistake while electronically filing a Rule 59 motion to appeal or amend the judgment. The standard rule says that a notice of appeal must be filed within 30 days of the entry of a judgment, but that this period can be extended if a party files a Rule 59 motion in time.

In the case, the attorney accidently entered the wrong docket information into the system when electronically filing the motion for her client. As a result of the mistake, the motion was listed under the docket of a different case. By the time the lawyer realized her mistake, the time had run out and the filing was now late.

The attorney in the case waited until the last day to file the motion, perhaps unnecessarily stretching the deadline to its breaking point. However, as the attorney argued, using the electronic case filing system can be a time consuming process which explained some of the delay in getting the motion filed.

The Sixth Circuit examined how other circuits have handled similar issues and noted that the Seventh Circuit found that a complaint filed under the wrong docket number was timely. The Court also mentioned that had the forms been filed on paper, the incorrect docket number would likely have been detected and the motion would not have been deemed untimely.

The Court said that the Federal Rules of Civil Procedure plainly state that clerks shall not refuse to accept filings solely because they are not presented in proper form. Given this, the Court found that the motion should be considered timely and that the client should not be punished for an electronic filing error on the part of their attorneys. The Sixth Circuit said that electronic filing typos should not hold your client back so long as the motion itself was filed within the proper time limits.

To read the full opinion, click here.

NTSB Pushes States To Lower Legal Alcohol Limit

The National Transportation Safety Board took a surprising step earlier this week when it recommended that the all states, including Tennessee, lower the threshold for what constitutes impaired driving.

Currently, Tennessee state law says that drivers who are operating a motor vehicle with a blood alcohol concentration greater than 0.08 percent are impaired. This number is supposed to indicate the level at which the majority of drivers are intoxicated enough that they cannot safely operate a vehicle. Every state in the country follows this rule, as do many other countries around the world, including neighboring Canada, which also deems those with a BAC above 0.08 legally impaired.

The NTSB has now said that, as part of its larger push to completely eliminate incidents of drunk driving in the U.S., all states should lower the legal limit to 0.05 percent. Though some groups, such as Mothers Against Drunk Driving, have come out in support of the recommendation, there are significant concerns that should be taken into consideration by lawmakers facing a possible change. First, lowering the number will likely lead to many hundreds or thousands more drunk driving arrests each year. Already huge numbers of Tennesseans have DUI convictions on their records, expensive and embarrassing mistakes that surface even years later in school applications and job interviews. Whether it would do anyone any good to flood the criminal justice system with more impaired drivers is a question worth considering.

Another concern is whether there would truly be a substantial benefit to making the change. The NTSB claims that by lowering the BAC from 0.08 to 0.05, between 500 and 800 lives would be saved each year by getting those who have had a few drinks off the roadways. The problem is that alcohol is a relative thing and by lowering the legal limit even further, the NTSB is ignoring that fact that some drivers may be convicted of a crime who are actually perfectly safe to operate a vehicle. Factors such as age, weight, height and gender can dramatically influence how alcohol affects a person and the truth is that even at 0.05 percent, some drivers might demonstrate some signs of impairment. However, that does not mean that the number must be lowered across the board for all other drivers.

In terms of real life behaviors, the decrease recommend by the NTSB will lead to big changes. Currently, a 180-pound man can have three drinks in an hour and be under the existing 0.08 BAC limit. Under the new rules, that same man would only be able to have one to two drinks in an hour to avoid being found legally impaired. If such a change were implemented in Tennessee it would likely mean radical shifts in people’s behavior and take some time to learn what kind of social drinking is legally acceptable.

Read: “NTSB recommends lowering blood alcohol level that constitutes drunken driving,” by Tom Costello, published at NBCNews.com.

See Our Related Blog Posts:
Sixth Circuit Permits Warrantless Search In Tennessee Case
Sixth Circuit Vacates Sentencing Enhancement Based On Defendant False Identification

Sixth Circuit Discusses Validity Of Search Warrant That Lacked An Address

This case began in 2008 when the Cincinnati Police were tipped off that a man named Kenneth Rose had sexually abused three minors. The police met with all three children who told authorities about being raped and then viewing pornography in Rose’s bedroom on a laptop computer. Based on the information gathered in the interviews, the police were able to obtain a warrant for Rose’s computers located in his home.

The police executed the search warrant and seized Rose’s computer which revealed many images of child pornography including several that depicted Rose engaged in sexual contact with male minors. Rose was subsequently indicted on one count of possession of child pornography and five counts of production of child pornography. Rose ended up pleading guilty to three counts of production of child porn and was sentenced to fifty-one years in prison.

Rose then appealed his sentence, claiming that the district court made a mistake in not suppressing the evidence collected in the search, saying that the affidavit filed by the officer never listed the address of Rose’s home and thus failed to establish a link between the location of the search and the evidence sought.

The Sixth Circuit stated that for there to be probable cause justifying a search warrant, the judge must believe there is a substantial basis for thinking that evidence of a crime will be found on the premises. In this case, the affidavit explained that the name “Rose” was written over the doorbell, but did not provide a definitive link between the property and Rose. The affidavits from the victims explained that criminal activity took place in Rose’s bedroom, but never provided a specific address. The Court said that given this, there was no way to read the affidavit to conclude that the judge had the requisite basis for thinking evidence of a crime would be found at the address that was searched. The Sixth Circuit found that the affidavit did not provide probable cause to search the house.

The Sixth Circuit wrote that while the affidavits show a link between criminal activity and Rose’s bedroom, no thread was ever drawn by the victims or the police to link Rose to the house that was ultimately searched. Had the police included an address in the warrant, showing that an investigation had discovered that Rose resided at the location, that alone would have been sufficient.

Despite this flaw in the affidavit, the Sixth Circuit determined that the evidence collected should be admitted at court because of the good faith exception which provides for an exception to the exclusionary rule in cases where an officer conducts a search in good faith, relying on what he or she believes is a valid warrant. The Court described the error about the address as being akin to a clerical mistake and that such a small omission did not qualify the warrant as bare bones, and thus a bad faith search. Finally, because there was no indication of police misconduct, only police sloppiness, the good faith exception should apply to he search, allowing the child pornography to be admitted into evidence.

To read the full opinion, click here.

Interesting Sixth Circuit Opinion regarding Miranda Rights And Public Safety Exception

An interesting opinion, especially in light of the recent Boston Marathon bombing and subsequent arrest, is the Sixth Circuit case of U.S. v. Hodge. In Hodge, a suspect’s home was raided by police and a bomb was discovered after the suspect divulged its existence during questioning by police that took place without reading the suspect his Miranda rights. The issue before the court was whether evidence of the bomb gleaned from his statements to police should be suppressed. The Sixth Circuit held: no, it should not, that the questioning was valid due to the public safety exception to Miranda.

The case began when an informant approached police in Calhoun County, Michigan to say that an acquaintance, Lonnie Hodge, was using a one pot meth making method known as “shake and bake.” The method requires combining the ingredients of methamphetamine into a single bottle and shaking it until the drug is properly formed. The informant further said that Hodge had a pipe bomb and a black rifle that he suspected was an AK-47.

The police investigated Hodge by going through the list of pseudoephedrine purchasers and coordinating with neighboring police departments who were also investigating the man. After gathering sufficient evidence, the police were able to obtain a search warrant for Hodge’s home.

When police arrived things did not begin well. They knocked down the door to be greeted by a 6-foot 6, 320-pound Hodge waiving a screwdriver and screaming incoherently. Eventually Hodge was subdued and removed from the premises for questioning. A few minutes later, once Hodge calmed down, an officer asked whether Hodge he had anything in his house such as a meth lab or a pipe bomb that could hurt officers. Hodge said no. A few minutes later Hodge said that there was a bomb in the house. The police then pressed him for more information and he admitted that there was a pipe bomb, giving the location of the device that was eventually disarmed by the bomb expert. A subsequent search of the house uncovered drugs, though not meth, and a black rifle.

Hodge asked the trial court to suppress evidence of the pipe bomb, saying that the officer’s failure to read him his Miranda rights meant that the fruits of the interrogation should be inadmissible in court. The Sixth Circuit disagreed, ruling that the bomb should be admitted given the pubic safety exception established by the Supreme Court in New York v. Quarles as well as the inevitable discovery doctrine.

The Sixth Circuit said that in some cases “overriding considerations of public safety” can permit officers to omit reading a suspect his or her Miranda rights before questioning. The Court held that because bombs, especially pipe bombs, are by their very nature unstable and could explode at any time, they posed a real and present danger to all the officers at Hodge’s house.

Additionally, the Sixth Circuit wrote that even if a Miranda violation had occurred, the pipe bomb would still not be suppressed due to the inevitable discovery doctrine. This is because the police had a valid warrant to search the home and, given the bomb’s location, would have eventually discovered it even without Hodge warning them in advance.

To read the full opinion, click here.

What does it take to prove a defendant's possession of drugs in his co-defendant's house?

By Stevie Phillips

  

In State v. Robinson, police had staked out the co-defendant's house after receiving a tip from a confidential informant. The defendant was seen leaving the co-defendant's house on the way to a drug deal in a Backyard Burger parking lot.  Police took down the defendant and co-defendant at the Backyard Burger.  

The co-defendant subsequently consented to a search of his car as well as his house.  The cops found large amounts of cocaine in both.  Police also found some paraphernalia in plain view at the co-defendant's house.  On basically this proof alone, a jury convicted the defendant of possession of the cocaine in both the car and the house.  

It's one thing to find that the defendant constructively possessed the cocaine in the co-defendant's car. But the co-defendant's house? The TN Supreme Court held this week that that requires substantially more compelling circumstantial evidence and reversed the jury verdict.  It's simply not enough for the State to prove that a defendant had knowledge that drugs were present; the State must prove that the defendant had the power to exercise control over the drugs.

Our Supreme Court rarely grants appeal to assess sufficiency of the evidence.  Nor will it grant appeal for mere error correction.  The Court will however grant appeal if there is an absence of case law on a particular issue. It appears that's why the Court granted appeal here.  Before now, few TN courts have addressed whether a defendant's contact with another residence is sufficient to establish constructive possession. 

The Supreme Court therefore looked at cases from a number of other states.   The following is a list of factors that, based on the Court's analysis, should be considered in the "totality of the circumstances" when determining whether a defendant's contact with another residence is sufficient to establish constructive possession:  

- the defendant's access to the residence, i.e. whether he resides in, leases, or has the right to enter without the     co-defendant present

- whether the defendant was present when the drugs were discovered by police

- the frequency of the defendant's visits to the residence 

- the location of the drugs in the residence, i.e. whether the drugs are in plain view

- whether the defendant's personal belongings are in the residence 

- whether the defendant receives mail at the residence 

- whether the defendant's fingerprints are present on paraphernalia in the residence 

Read the unanimous opinion in State v. Robinson.  

Supreme Court agrees that warrantless DUI blood draw illegal, but still unanswered questions.

The Supreme Court has released its opinion in Missouri v. McNeely. This is a case about a Missouri officer's decision to conduct a warrantless blood draw in a DUI arrest. Unfortunately, the four separate opinions issued by the justices raise more questions than they answer. The warrantless blood draw here was found to be a violation by the Missouri's highest court and this finding was upheld by the U.S. Supreme Court.

The biggest takeaway from the Court’s majority and two supporting opinions is that in the future every case will be judged on its own merits. While this provides substantial flexibility to both law enforcement officials and judges, it fails to create a bright line rule that officers might rely on when out making traffic stops. The only thing clear from the Court’s Wednesday ruling is that none of the justices were willing to go so far as to say that officers investigating drunk driving cases must always obtain a warrant before conducting a blood draw. Officers are instead left to conclude that getting a warrant is the best outcome and the only way to ensure that a drunk driving arrest is not later tossed out of court beacuse of a constitutional concerns.

The majority opinion, written by Justice Sonia Sotomayor, found that the natural dissipation of alcohol in a defendant’s system does not serve as sufficient justification to ignore constitutional warrant requirements. Justice Sotomayor wrote that officers should generally get a warrant before conducting such a test. Emergencies that permit a deviation from this general rule can only be decided on a case-by-case basis, though officers should be careful and understand that these circumstances are rare and that most cases allow for plenty of time to obtain a warrant.

In this case, the majority sided with Missouri’s Supreme Court, which threw out a warrantless blood test obtained after an officer puled over Tyler McNeely on suspicion of drunk driving. Justice Sotomayor wrote that though there would be some cases that could arise where delays may justify a blood test without judicial authorization, she did not believe that this was often the case and that a small delay would not seriously hamper the ability of the government to prosecute drunk drivers in the future.

In a curious alliance, Justice Sotomayor had the backing of Justices Scalia, Kennedy, Ginsburg and Kagan. Justice Thomas was the only justice to completely dissent, saying that he believed the dissipation of alcohol in the bloodstream created an emergency that did not require a warrant.

Chief Justice Roberts agreed with the outcome of the case, but criticized the vagueness of the majority’s opinion. Robert’s wrote that a police officer reading the opinion would have no idea what the Fourth Amendment requires of him. Though his critique was stinging, Roberts failed to come up with a better solution. Roberts’ rule stated that if there is time to secure a warrant then the arresting officer must secure one. If, however, an officer can reasonably conclude there is not enough time to secure a warrant without compromising the results of the test, then a warrantless blood draw can proceed. Clear as mud.

To read the full opinion, click here.

See Our Related Blog Posts:

U.S. Supreme Court to Rule on DUI Forced Blood Draws

Supreme Court Addresses Whether Drug Dog Sniffs Are Up To Snuff

Sixth Circuit Permits Warrantless Search In Tennessee Case

The case, U.S. v. Kevin Patrick Daws, involves sheriff’s deputies in Henderson County, Tennessee who conducted a warrantless search of Kevin Daws’ home based on a public safety issue. The question was whether the threat posed by Daws justified the search of the house, something the Sixth Circuit Court of Appeals ultimately decided it did.

The incident began after a home invasion in 2010. Daws had smashed through a window of an acquaintance’s house, shoving a shotgun in the man’s face while demanding cash. Before leaving, Daws told the victim that if he ever called the police Daws would kill him. Later that same night Daws invaded the home of yet another acquaintance and demanded that the man store his shotgun and money, yet again insisting that if the victim informed police of Daws’ actions that Daws would return and kill the man.

Unsurprisingly, both men called the police that night and reported the incidents. One of the responding officers had previously worked as a correctional officer at a prison where Daws served time for aggravated burglary and remembered hearing how Daws had fired a weapon in his front yard and held up a gas station attendant at gunpoint. Based on the two incidents that had occurred earlier that evening and the background knowledge of the officer, the deputies decided it was best to arrest Daws as soon as possible and to do so carefully, calling for backup and to put on body armor.

After arriving at the house, the officers noticed an accomplice on the front porch crying, talking on the phone about how he and Daws had done something bad and would be going to jail as a result. The officers arrested the man who informed them that Daws was inside and asleep. The officers then took this as an opportunity to move in without possible armed resistance, and entered through an open back door and found Daws asleep in the living room. After detaining Daws, a sweep of the house turned up the shotgun used in the earlier home invasions.

Daws was charged with possession of a firearm by a convicted felon, ultimately pleading guilty and being sentenced to 210 months in prison. Daws decided to appeal the district court’ decision, arguing the evidence found in the house should have been suppressed due to the lack of a warrant.

The Sixth Circuit, however, was not convinced. Instead, the Court walked through all the reasons why the officers were justified in entering Daws’ home immediately, without the delay of seeking a warrant. Given Daws’ behavior that evening, his prior instances of violence, threats to others and his ability to escape into the wilderness around his house, the Sixth Circuit decided that the situation presented a case where there was potential for injury to the officers and thus there was a need for swift action. The Court agreed that waiting to get a warrant would have heightened the risk that Daws would act on the threats or, at the very least, escape.

The Sixth Circuit found that the Fourth Amendment does not require that police ignore real risks of a shootout or of a suspect’s escape and can instead take action if there is a reason to do so. In this case, Daws’ own behavior justified quick action on the part of the officers and thus no warrant was necessary before entering Daws’ home.

To read the full opinion, click here.

See Our Related Blog Posts:

Sixth Circuit Excludes Evidence After Officers Search Wrong House

Sixth Circuit Hears TN Case About 13-Year-Old Child Labeled Child Abuser by DCS

NY Times Publishes Interesting Article on Death Penalty Statistics

The NY Times, on April 5th, published an article focusing on the death penalty and its enforcement in the 32 states that still observe it. It is no secret that the death penalty is enforced in an odd way, sometimes appearing sporadic and random. The article, focusing particularly on Arizona and its enforcement of the death penality, outlines a common situation courts face.

In our area, with the prevalence of gang activity, it is not hard to imagine a crime involving multiple defendants with different levels of responsibility.  In a murder case, the court might be faced with 5 or 6 defendants who were involved in various ways. Without going into many scenarios, one defendant would likely act as the instigator, while another may serve as a lookout. All are likely to be charged with murder. Which ones, if not all, are then chosen to face the death penalty? Should all 5 or 6 face the death penality? Should the instigator? Should the lookout?

The article highlights a case such as this in Arizona involving multiple defendants accused of murder. Three of the four defendants, as a result of plea bargaining, entered guilty pleas receiving sentences of various terms of imprisonment. Those three defendants included the instigator, and two others who helped with the beating. The fourth defendant, who "by all accounts was not directly involved in the killing," received the death penalty.

It is not uncommon for the defendant with the least amount of culpability to receive the harshest sentence. The most reasonable explanation for this would be the effects of plea bargaining. According to Richard Dieter, the executive director of the Death Penalty Information Center in Washington, D.C., "In an ideal world, the prosecution would have ironclad proof against all the co-defendants to be able to pick the worst for the death penalty, but we have an inequitable system, a bargaining system. If you give the prosecution some help, you'll get something out of it."

Another factor leading to inconsistency in death penalty enforcement is the cost. A capital case can cost at least $1 million to to try, from start to finish. A lot of times, this does not include the cost of the post-conviction appeals. Capital cases are extremely expensive, and oftentimes, that is a deterrent to its enforcement.

Lastly, the article points out that the laws by which prosecutors refer to when deciding whether to seek the death penalty in a certain case are extremely broad. For instance, Tennessee has statutory authority listing 15 aggravating factors for seeking the death penalty. If the jury finds, beyond a reasonable doubt that one of these aggravating factors occurred, the death penalty is appropriate. Some of the factors include;

• If the victim was a government worker;
• If the defendant has been previously convicted of a violent felony;
• If the victim was under the age of 12 and the defendant was over the age of 18;
• Plus many more. 

The full list of aggravating factors can be found here.  The reoccurring problem with lists such as this is that not every murder case which is found to include one of these factors is pursued as a capital case. It would be hard to find a murder that didn't involve one of these factors, and the death penalty is certainly not pursued on every murder case. The article discusses a group of public defenders in Arizona who examined more than 200 first-degree murder cases between 2010 and 2011 in Arizona, using the state's aggravating factors (Arizona has 14 factors), to see if the most egregious murder cases could be separated. Not surprisingly, the result was that nearly all 200 cases possessed at least one of the aggravating factors, and could be pursued as a capital murder case.

The article sought to shine some light on the broad statutory authority used to enforce the death penalty in 32 states, the inconsistencies of the death penalty in multiple-defendant cases, and the budget concerns that have prosecutors hesitating to enforce capital punishment. Mission accomplished!