Wake Forest Law Review

By: Adam McCoy & Shawn Namet

On April 13, 2018, the United States Court of Appeals for the Fourth Circuit published an opinion in Association for Accessible Medicines v. Frosh.  The Court reversed the district court’s dismissal of the dormant commerce clause challenge brought by the Association for Accessible Medicines (“AAM”) to a Maryland statute intended to prohibit price gouging in the sale of prescription drugs. The Court held that the statute violates the dormant commerce clause because it directly regulates transactions that took place outside of Maryland.

Facts and Procedural History

During the 2017 legislative session Maryland’s legislature passed HB 631, “An Act concerning Public Health – Essential Off-Patent or Generic Drugs – Price Gouging – Prohibition” (“The Act”).  Maryland’s governor refused to sign the bill, but the bill was enacted over his refusal. The Act prohibits manufacturers or wholesale distributers from “engag[ing] in price gouging in the sale or an essential off-patent or generic drug.”  Md. Code Ann., Health-General § 2-802(a).  The Act prohibited the “unconscionable increase” in the price of drugs, defined as price increases that are “excessive and not justified by the cost of producing the drug or the cost of appropriate expansion of access to the drug to promote public health” such that consumers are left with “no meaningful choice about whether to purchase the drug at an excessive price” due to the drug’s “importance . . . to their health” and “[i]nsufficient competition in the market.”  Id. § 2-801(f).  “Essential” drugs are those “made available for sale in [Maryland]” included “on the Model List of Essential Medicines most recently adopted by the World Health Organization” or are “designated . . . as an essential medicine due to [their] efficacy in treating a life-threatening health condition or a chronic health condition that substantially impairs an individual’s ability to engage in activities of daily living.”  Id. § 2-801(b)(1).

Violations of the Act could carry a penalty of $10,000 per violation.  The Act also authorized actions to enjoin the sale of a given medication at the increased price.  To assist with enforcement, the Act permitted the Maryland Medical Assistance Program to bring potential violations to the attention of the Maryland Attorney General.  The Medical Assistance Program was authorized to notify the Attorney General in the event prices rose above thresholds provided by the Act.

AAM, an organization of pharmaceutical companies including drug manufacturers and distributors, challenged the statute in the United States District Court for the District of Maryland.  Only one of the manufacturers in AAM covered by the statute was based in Maryland.  These manufacturers sold their products to wholesale distributors, none of which are based in Maryland, and the majority of these sales took place in states other than Maryland.  AAM challenged the statute on the grounds that it violated the dormant commerce clause and that it was unconstitutionally vague.  The district court granted Maryland’s motion to dismiss the dormant commerce clause claim but denied the motion as to the vagueness claim. 

The Act Violates the Dormant Commerce Clause

AAM asks the Fourth Circuit to overrule the district court decision dismissing AAM’s claim that the Act violated the dormant commerce clause by directly regulating wholly out-of-state commerce.  The Fourth Circuit outlines the Supreme Court precedent that governs the existence and application of the dormant commerce clause.  Implicit in the power given to Congress through the textual commerce clause is a corollary power to constrain states from enacting legislation that interferes with or burdens interstate commerce.  This doctrine is known as the dormant commerce clause and is designed to prevent state economic protectionism and to prevent states from enacting “regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors.” Brown v. Hovatter, 561 F.3d 357, 362 (4th Cir. 2009).

Within the dormant commerce clause is the principle against extraterritoriality that “a State may not regulate commerce occurring wholly outside of its borders.” Star Sci., Inc. v. Beales, 278 F.3d 339, 355 (4th Cir. 2002).  The Fourth Circuit walks through several Supreme Court cases that established the elements of the principal against extraterritoriality, but there are essentially three restrictions from the principal against extraterritoriality.  (1) State statutes may not regulate commerce that takes place wholly outside the state’s borders, whether or not the commerce has effects within the state; (2) State statutes that directly control commerce occurring wholly outside the legislating state’s boundaries are invalid; (3) Courts may invalidate a state statute if the statute may interact with legitimate regulatory schemes of other states to cause inconsistent legislation arising from projection of one state regulatory regime into the jurisdiction of another state.

The Fourth Circuit first rejects a reading of Supreme Court precedent offered by Maryland that the principle against extraterritoriality is limited to the context of price affirmation statutes.  The Fourth Circuit rejects Maryland’s interpretation, which was shared by two other circuits, and holds the principle against extraterritoriality is violated if the state law “regulates the price of any out-of-state transaction, either by its express terms or by its invariable effect.” Pharmaceutical Research & Manufacturers of America v. Walsh, 538 U.S. 644, 669 (2003).

Next, the Fourth Circuit agrees with AAM’s argument that the district court was wrong in upholding the Act and agrees that the Act violates the dormant commerce clause by directly regulating prices for prescription drugs in out-of-state transactions, even though the provisions are not triggered until the drugs are offered for sale in Maryland.  The Fourth Circuit holds the Act violates the dormant commerce clause because the Act is not triggered by any conduct that takes place in Maryland and the price controls apply outside of the state.  Additionally, the Act has the potential to create a significant burden on the interstate commerce of prescription drugs.

The Fourth Circuit focuses on the plain language of the statute to find it regulates conduct that takes place outside of Maryland and does not even require that conduct actually occur within Maryland.   The Act applies to price gouging of “essential off-patent or generic drug[s]” but only requires they be made available for sale in Maryland, not that any sale actually occur.  The Act specifically targets the gouging of prices that occur outside of Maryland.

The impact on transactions outside of Maryland also causes the Act to violate the dormant commerce clause.  The Act is not concerned with the price Maryland consumers pay for the drugs, but instead focuses on the price the manufacturer or wholesalers charge at the initial sale of the drug.  It then measures that price against the price increase to determine if it is an “unconscionable” increase because it is not justified by the cost of product the drug or expanding access to the drug.  The Fourth Circuit found this compelled manufacturers and wholesalers to comply with Maryland law outside of Maryland since the majority of the initial sales of the drug take place outside of Maryland.  It violates the dormant commerce clause for the Act to attempt to penalize a manufacturer or wholesaler based on what they charge for a drug outside of Maryland.

The Fourth Circuit was also concerned by the burden this type of legislation would create on interstate commerce if it was enacted by other states.  The Fourth Circuit relies on Healy v. Beer Inst., 491 U.S. 324, 335–36 (1989) to support that it must consider how the statute would interact with legitimate regulatory schemes of other states and what effect would arise if other states implemented similar statutes.  Particularly concerning is the possibility that similar restrictions imposed by other states could cause drug manufacturers and wholesalers to be subject to conflicting price requirements.  The pricing of the drug in one state could be illegal based on laws, such as the Act in Maryland, of another state.  The Fourth Circuit found this was precisely the type of conflict the dormant commerce clause exists to prevent.

Conclusion

The Fourth Circuit reversed the district court’s decision and found the Act is an unconstitutional violation of the dormant commerce clause.  The Fourth Circuit remanded the case to the district court to enter judgment for AAM.

 

By: Hailey Cleek & Mike Garrigan

In 2014, David E. Abbott, a detective with the Manassas City Police Department in Virginia, investigated allegations that seventeen-year-old Trey Sims used his cell phone to send sexually explicit photographs and video recordings of himself to his fifteen-year-old girlfriend.[1] Detective Abbott obtained a search warrant authorizing photography of Sims’ naked body, including his erect penis. When Abbott executed the warrant, he allegedly demanded that Sims manipulate his penis to achieve an erection. Sims unsuccessfully attempted to comply with Abbott’s order. Detective Abbott died before the present case was filed. Sims therefore initiated this action against Kenneth Labowitz, the administrator of Abbott’s estate.

Suspect Sims brought a 42 U.S.C. § 1983 action[2] against the administrator of Detective Abbott’s estate, alleging that this search violated his Fourth Amendment right of privacy and that, as result of search, he was victim of manufactured child pornography. Traditionally, public officials are granted either absolute or qualified immunity from lawsuits when performing their official duties.[3] Qualified immunity is generally extended to police officers or other officials. Yet, actions taken by these officials with a “deliberate indifference” may impose liability.[4] The district court determined that the administrator was entitled to qualified immunity on the § 1983 claims. The Fourth Circuit heard arguments on whether a reasonable police officer would have known that attempting to obtain a photograph of a minor child’s erect penis, by ordering the child to masturbate in the presence of others, would unlawfully invade the child’s right of privacy under the Fourth Amendment.

Plaintiff’s Arguments

Plaintiff argued that while the Fourth Amendment does at times protect sexually invasive searches, Detective Abbott clearly violated personal privacy rights. In examining sexually invasive searches under the Fourth Amendment, courts balance “the invasion of personal rights caused by the search against the need for that particular search.”[5] Factors to determine this balance are: (1) the scope of the particular intrusion; (2) the manner in which the search was conducted; (3) the justification for initiating the search; and (4) the place in which the search was performed.[6] Courts have described such sexually invasive searches, including strip searches, as humiliating and demeaning.[7] In  King v. Rubenstein,[8] the Fourth Circuit previously held that sexually invasive searches relate to deep “interest[s] of bodily integrity,” which “involves the most personal and deep-rooted expectations of privacy.”[9]

Using these factors, Plaintiff-Appellant Sims illustrated the severe Fourth Amendment violations by Detective Abbott. Although Detective Abbott sought to obtain photographs of Sims’ erect penis for an evidentiary purpose, the Commonwealth ultimately agreed not to use the photographs of Sims’ body as evidence.[10] There was no need to take these photographs. Instead, Detective Abbot executed the search warrant by ordering teenager Sims to masturbate to obtain an erection in the presence of three armed officers.[11] Such alleged conduct would necessarily invade Sims’ bodily integrity, regardless if Sims’ body was not penetrated or physically harmed.[12] Plaintiff was humiliated throughout the reckless disregard of his bodily privacy; he deferred applying for college, despite his outstanding academic and extracurricular records.[13] Throughout the investigation and prosecution, he was mortified to face his peers.[14]

Plaintiff strongly asserted that Detective Abbott was not entitled to qualified immunity. Qualified immunity only protects public officials from constitutional violations when resulting from “reasonable mistakes.”[15] It does not protect “the plainly incompetent or those who knowingly violate the law.”[16] A Virginia police detective is properly charged with knowledge of laws criminalizing the creation of child pornography.[17] There is no exception for police officers. While there were fortunately no other related cases on point to illustrate a lack of exception, the Fourth Circuit has previously held that some facts of abuse are so clear that they do not require case law justification.[18] Beyond a passive excuse of following orders, Detective Abbott had no reason to believe that this search was reasonable. Yet, even with a warrant, Detective Abbott was not bound to seek or execute a plainly unconstitutional warrant.[19] The request of a prosecutor for a search is not nullifying to the responsibility to act reasonably. An officer cannot receive the protections of qualified immunity when asking a teenager to masturbate in front of three armed guards.

Defense’s Arguments

Labowitz asserted that Sims failed to state enough facts to support a Fourth Amendment violation.[20] Here, Labowitz argued that Abbott’s search neither placed Sims at risk of bodily harm nor physically invaded Sims’ body,[21] and therefore fell outside of Fourth Amendment protection. The defense used four arguments to assert that this search fell outside of Fourth Amendment protection. First, Labowitz cited several cases where valid search warrants were issued in similar circumstances–namely involving identifying scars, moles, and/or tattoos on a suspect’s genitalia.[22] Second, Labowitz observed that Abbott took no action that aimed to bring about an erection by Sims.[23] Third, Labowitz cited multiple cases that validate warrantless custodial strip searches of juveniles.[24] Finally, Labowitz argued that a photograph is not invasive, but even if it were, case law supports warrantless searches of a defendant’s physical person in certain circumstances.[25]

Labowtiz also argued that the district court properly recognized Abbott’s immunity. Qualified immunity protects government officials from civil liability as long as their conduct does not “violate clearly established statutory or constitutional rights of which a reasonable person would have known.”[26] Here, the key question was whether Abbott “acted as an objectively reasonable police officer would have acted under similar circumstances.”[27]  Labowitz offered three reasons why Abbott behaved as a reasonable police officer.[28] First, a reasonable officer would rely on a warrant an attorney directed him to seek. Second, a reasonable officer would conclude that strip search conducted at a detention center under a warrant is appropriate. Third, no reasonable officer would have thought that he was producing child pornography when acting under a search warrant.

Sexually Intrusive Search Jurisprudence Addresses Questions for Immunity

While the majority for the Fourth Circuit strongly condemned Detective Abbott’s actions and held that such alleged conduct necessarily invaded Sims’ bodily integrity and privacy rights,[29] Judge King, in a dissenting opinion, notes that the case raises distinct questions for qualified immunity.[30] He notes that Detective Abbott was acting pursuant to the advice of counsel and adhering to a court order.[31] It is a foundational rule to the legal system and independent judiciary that court orders should be respected, complied with, and obeyed among law enforcement officers.[32] Court orders ensure compliance with the rule of law in society, and public officials are bound by both the cultural and institutional weight afforded to judge’s decisions.[33] When a judicial officer, Judge King suggests, has issued a search warrant upon probable cause, it is “unreasonable to require the officer charged with executing the warrant to reject the judicial decision and disobey the court’s directive.”[34] Generally, citizens want officers to comply and follow court orders in respect for the rule of law

Although the rule of law encourages officers to comply with and follow warrants accordingly, an entire body of sexual search jurisprudence has emerged to establish limits on sexually invasive searches. In Illinois v. Lafayette,[35] the Supreme Court held that an officer cannot disrobe an arrestee publicly without justifying factors. In United States v. Edwards,[36] the Fourth Circuit held that an officer’s sexually invasive search was unlawful because the dangerous manner in which he removed the contraband outweighed the interest in retrieving contraband. Likewise, in Amaechi v. West,[37] the Fourth Circuit found no justification for an officer’s pat-down search to include touching arrestee’s buttocks and penetrating her exposed genitalia. While these cases involved warrantless searches, they highlight the plainly unreasonable nature of the present case, as sexually invasive searches generally only happen in exigent circumstances.[38] Officers are encouraged to follow the boundaries of the search warrant, yet citizens cannot be expected to tolerate an officer acting beyond the guided parameters of sexual search warrants. Here, the warrant did not authorize Abbott’s conduct of requiring Sims to masturbate in the presence of the officers.[39] There was neither an evidentiary justification nor valid reason to demand Sims to masturbate in the presence of others.[40]

Conclusion

A little over a month after the Fourth Circuit heard Sims v. Labowitz, the Children’s Justice Fund (“CJF”), a nonprofit organization dedicated to aiding victims of child sex abuse, filed an amicus brief in support of a rehearing.[41] CJF argued that the Fourth Circuit panel erred by defining “sexually explicit conduct” in a way that could have “potentially profound implications for this case and future plaintiff victims.”[42] The Court, CJF argued, eschewed four objective terms for a subjective term. “Sexual intercourse,” “bestiality,” “masturbation,” and “sadistic or masochistic abuse” are more or less objective while “lascivious exhibition of the genitals or pubic area” relies on subjective “Dost factors.”[43] CJF contended that masturbation is per se explicit conduct under 18 U.S.C. § 2256(2)(A) and bringing Dost factors into the analysis was “unnecessary and unwarranted.”[44]

On March 14, 2018, the Fourth Circuit granted the motion for rehearing. While the rehearing will likely only correct the definitional scope of “sexually explicit conduct,” Sims reinforces the limits of police immunity. Moving forward, public officials in Maryland, South Carolina, North Carolina, West Virginia, and Virginia are officially on notice that such unreasonable sexual search conduct is not permissible. In line with previous sexual search jurisprudence, the Fourth Circuit has reaffirmed the bodily integrity of individuals.

 

 

 

[1] Sims v. Labowitz, 877 F.3d 171 (4th Cir. 2017).

[2] This refers to lawsuits brought under Section 1983 of Title 42 of the United States Code. See 42 U.S.C. § 1983. Section 1983 provides an individual the right to sue state government employees and others acting “under color of state law” for civil rights violations.

[3] Janell M. Byrd, Rejecting Absolute Immunity for Federal Officials, 71 Cal. L. Rev. 1707, 1713 (1983).

[4] See Farmer v. Brennan, 511 U.S. 825, 843 (1994).

[5] Bell v. Wolfish, 441 U.S. 520, 559 (1979).

[6] Id.

[7] See, e.g., Mary Beth v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983).

[8] 825 F.3d 206 (4th Cir. 2016).

[9] Id. at 215.

[10] Brief for Appellant at 10–11, Sims v. Labowitz, 877 F.3d 171 (2017) (No. 16-2174).

[11] Id. at 8.

[12] Id. at 38 (“Manifestly, this amounts to ‘state intrusion[] into realms of personal privacy and bodily security through means so brutal, demeaning, and harmful as literally to shock the conscience of a court.’”)(quoting Hall v. Tawney, 621 F.2d 607, 613 (4th Cir. 1980)).

[13] Id. at 12.

[14] Id.

[15] Saucier v. Katz, 533 U.S. 194, 206 (2001).

[16] Malley v. Briggs, 475 U.S. 335, 341 (1986).

[17] Brief for Appellant at 36, Sims v. Labowitz, 877 F.3d 171 (2017) (No. 16-2174).

[18] Clem v. Corbeau, 284 F.3d 543, 553 (4th Cir. 2002) (“[W]hen the defendants’ conduct is so patently violative of the constitutional right that reasonable officials would know without guidance . . .  closely analogous pre-existing case law is not required to show the law is clearly established.”).

[19] See Graham v. Gagnon, 831 F.3d 176, 183 (4th Cir. 2016)(“I]f no officer of reasonable competence would have requested the warrant… [t]he officer then cannot excuse his own default by pointing to the greater incompetence of the magistrate.”).

[20] Sims v. Labowitz, 877 F.3d 171, 177 (4th Cir. 2017).

[21] Id.

[22] Response Brief for Appellee at 10, Sims v. Labowitz, 877 F.3d 171 (2017) (No. 16-2174).

[23] Id. at 11.

[24] Id. at 12.

[25] Id. at 13.

[26] Harlow v. Fitzgerald, 457 U.S. 800 (1982).

[27] Defendant Estate of David Abbott’s Memoradum in Support of Motion to Dismiss Second Amended Complaint at 17, Sims v. Labowitz, 877 F.3d 171 (2017) (No. 16-2174).

[28] Response Brief for Appellee at 30, Sims v. Labowitz, 877 F.3d 171 (2017) (No. 16-2174).

[29] Sims v. Labowitz, 877 F.3d 171, 178 (4th Cir. 2017).

[30] Id. at 183 (J. King, dissenting).

[31] Id.

[32] Id.

[33] See Stephen G. Breyer, Judicial Independence in the United States, 40 St. Louis U. L.J. 989, 994-96 (1996)

[34] Sims v. Labowitz, 877 F.3d 171, 184 (4th Cir. 2017) (J. King, dissenting).

[35] 462 U.S. 640 (1983).

[36] 666 F.3d 877 (4th Cir. 2011).

[37] 237 F.3d 356 (4th Cir. 2001).

[38] Sims v. Labowitz, 877 F.3d 171, 182 (4th Cir. 2017).

[39] Id. at 182, n. 3.

[40] Id. at 180.

[41] Under Federal Rule of Appellate Procedure 27(b)(2), “[t]he United States or its officer or agency or a state may file an amicus-curiae brief without the consent of the parties or leave of court. Any other amicus curiae may file a brief only by leave of court.”

[42] Amicus Brief of the Children’s Justice Fund and Child USA in Support of the Plaintiff-Appellant Trey Sims at *4, Sims v. Labowitz, 877 F.3d 171 (2017) (No. 16-2174).

[43] Id. at *3.

[44] Id. at *8.

By: Adam McCoy and Shawn Namet

Kenny v. Wilson

In this civil case, plaintiff-appellants, Kenny, argued the district court incorrectly dismissed their 42 U.S.C. § 1983 claim for lack of standing for failure to state an injury in fact.  The plaintiff-appellants challenge two South Carolina statutes as unconstitutionally vague that criminalize any person, including students, from disturbing any school or college.  The district court found fear of future arrest and prosecution under the vague statutes was not an injury sufficient to provide standing.  The Fourth Circuit overturned the district court decision and found the plaintiffs did have standing to challenge vagueness where they had been previously charged under the statute and did not know what future actions would be interpreted as violations.  The Fourth Circuit also found standing for claims that the statutes chill First Amendment speech because they were too vague to constitute what may be considered a violation.

Hodgin v. UTC Fire & Security Americas Corp., Inc.

In this civil case, the plaintiff-appellants, Hodgin, sued UTC Fire & Security Americas Corp., Inc., and Honeywell International, Inc., claiming they were vicariously liable for illegal calls made by telemarketers in violation of the Telephone Consumer Protection Act.  The district court granted summary judgment to UTC and Honeywell after denying plaintiffs’ motion to postpone the ruling on summary judgment until after the close of discovery.  The Fourth Circuit affirmed the district court’s denial of the motion to postpone because the plaintiffs failed to show the discovery allowed was not sufficient to allow them to find evidence to oppose summary judgment.  The plaintiffs had sufficient opportunity to depose the defendants and failed to identify what information they could have discovered to defeat summary judgment.

Sims v. Labowitz

In this civil case, the plaintiff-appellants, Sims, sued under 42 U.S.C. § 1983 alleging police detective Abbot’s search of his person violated the Fourth and Fourteenth Amendments by trying to force seventeen-year-old Sims to recreate a sexual explicit image he had sent a fifteen-year-old girl.  The district court dismissed the complaint based on Abbot’s qualified immunity.  The Fourth Circuit overturned the district court because a reasonable officer would have known that attempting to force a minor to recreate the sexually explicit image would invade the minor’s right to privacy.  Abbot would not be entitled to qualified immunity because a reasonable officer should have known the that action violated the constitution.

Sky Angel U.S., LLC v. Discovery Communications, LLC

This case involved a contract dispute between television distributor Sky Angel U.S. and media company Discovery Communications.  Discovery terminated its contract granting distribution rights to Sky Angel upon discovering that Sky Angel’s IPTV distribution system delivered content to consumers over the “public internet” without using a closed dedicated pathway.  The Fourth Circuit affirmed the District Court of Maryland’s finding that the contract was ambiguous on this point, and found that the District Court therefore properly considered extrinsic evidence.  The Fourth Circuit further agreed with the District Court that the extrinsic evidence established that Sky Angel had no reasonable expectation that it could distribute Discovery programming over the public internet because Discovery made its internal policy disallowing the distribution model clear to Sky Angel.

Int’l Brotherhood Local 639 v. Airgas, Inc.

In this labor dispute, the Fourth Circuit affirmed the District Court of Maryland’s issuance of a preliminary injunction preventing Airgas, Inc. from relocating some operations to nonunion facilities until the arbitrator in the case had issued a final decision regarding whether the relocation violated the collective bargaining agreement.  On appeal, however, the Fourth Circuit found the case to be moot because the arbitrator made a final decision in favor of the Union while Airgas’s appeal was pending.  The Fourth Circuit rejected Airgas’s argument that the case was still “live” because it would be entitled to damages in the event that the Fourth Circuit held the District Court had no jurisdiction to issue the injunction. Instead, the Fourth Circuit held that Airgas would not be entitled to damages because it had only been prevented from taking action it had no legal right to take under the collective bargaining agreement.  The Fourth Circuit added that while federal courts generally lack jurisdiction to issue injunctions in labor disputes, the case fell within the exception for cases in which the arbitrator would otherwise be unable to restore the status quo ante.

The dissent argued that the district court’s exercise of jurisdiction dangerously broadened a narrow exception.  According to the dissent, the case would set a precedent allowing courts to unduly interfere with labor disputes, noting that the extensive litigation surrounding the injunctive relief in this case was contrary to the purpose of the parties submitting to mandatory arbitration in the first place.  Further, the dissent argued that the case was not moot, as the district court’s lack of jurisdiction should have at least entitled Airgas to the $5,000 injunction bond paid by the Union.

U.S. v. Savage

In this criminal case, Defendant Savage appealed his convictions for banking fraud and identity theft on the basis that the district court did not conduct an in camera review of the prosecutor’s notes to determine whether information was being withheld that could impeach his accomplice’s testimony against him.  Savage enlisted an accomplice employed by the targeted bank to provide him with identifying information in customer’s accounts.  The accomplice agreed to testify against Savage.  Before the court is required to conduct in camera inspection under the Jencks Act, a defendant must establish a foundation for the request by stating with reasonable particularity a basis for his belief that material subject to required disclosure under the act exists.  Under the rule set forth in Brady v. Maryland, a defendant must show that “the non-disclosed evidence was favorable to the defendant, material, and that the prosecution had the evidence and failed to disclose it.”  373 U.S. 83 (1963).  The Fourth Circuit rejected Savage’s argument that the existence of some inconsistent statements properly disclosed by the prosecution required the district court to conduct in camera review of the prosecutor’s personal notes to determine if additional inconsistent statements were made.  Similarly, the existence of the disclosed inconsistent statements was insufficient to establish that the prosecution had additional material information it failed to disclose.

The Fourth Circuit rejected Savage’s argument that the district court erred in denying his requested jury instruction that would have instructed the jury to closely scrutinize accomplice testimony.  The jury found no error in refusing to distinguish accomplice witnesses from all witnesses and that the district court properly instructed the jury to closely scrutinize all witness testimony when determining credibility.

Savage also argued that the district court erred in permitting the jury to receive written jury instructions regarding aiding and abetting after declining to provide written copies of all jury instructions.  The Fourth Circuit rejected Savage’s argument, citing the strong deference afforded to trial courts in the use of jury instructions, finding no abuse of discretion.

U.S. v. Bell

This appeal arose from the district court’s order finding Respondent Kaylan Bell to be a “sexually dangerous person” under the Adam Walsh Child Protection and Safety Act of 2006, thereby civilly committing him to the custody of the Attorney General upon his release from prison.  Bell had a long history of numerous sexual offenses involving children, beginning in 1999, which were predominantly for repeatedly exposing himself to minors.  He challenged the district court’s finding that he would have serious difficulty refraining from child molestation upon release because it had been eighteen years since his last “hands-on” child molestation offense.  The Fourth Circuit affirmed the district court’s findings that, despite the time lapse, Bell’s repeated offenses established an inability to control his impulses.  The Fourth Circuit also found that the district court properly credited an expert who had twice prior declined to reach the conclusion that Bell was a sexually dangerous person as defined by the act because she had changed her position only after Bell reoffended just two weeks after his last release.

By: Ashley Collette and Evan Reid

On October 12, 2017, the Fourth Circuit issued a published opinion in the civil case Siena Corporation v. Mayor and City Council of Rockville, Maryland. In its colorfully-worded decision, the court affirmed the dismissal of the “garden-variety zoning dispute recast in constitutional terms.”

Facts and Procedural History 

In 2013, Siena Corporation set out to construct an “ezStorage” self-storage facility in Rockville, Maryland. The property on which it chose to build was located down the block from an elementary school. Parents at the school expressed fears that the storage facility would lead to safety concerns for the elementary-aged students, including an increase in traffic and “U-Haul-style trucks” driven by inexperienced drivers, the storage of illegal or hazardous materials, and the potential release of asbestos. In response to these concerns, the City Council proposed the Planning Commission adopt a new zoning amendment that prohibited self-storage facilities within 250 feet of public schools. The Planning Commission recommended that the amendment be denied and held a public hearing on the proposed amendment.

While this was taking place, Siena obtained conditional site plan approval from the Planning Commission for their proposed “ezStorage” facility. However, this was conditional approval awaiting Siena’s full compliance with nineteen additional conditions as well as reviews by numerous local agencies.

The Rockville City Council ultimately adopted the zoning amendment prohibiting self-storage facilities in February of 2015. Siena brought suit against the City Council, the Mayor and two Councilmembers who had supported the amendment, and a Rockville resident who had urged its adoption (collectively “the Council”) seeking judicial review of the adoption of the zoning amendment in State court. Siena alleged in its complaint that the amendment violated its due process and equal protection rights under the Fourteenth Amendment and that the newly adopted zoning amendment targeted them specifically.

The Council removed the case to federal court and then moved to dismiss. The federal district court dismissed Siena’s federal due process claim, concluding that “Siena lacked a protected property interest in the ezStorage facility’s construction because it had not applied for a building permit.” Regarding Siena’s equal protection claim, the court held the zoning amendment had a rational basis and was thus constitutional. Siena appealed the district court’s decision to the Fourth Circuit, which reviewed the court’s decision de novo.

Due Process

To prevail on its claim that it was denied due process, Siena needed to show “(1) that it possessed a ‘cognizable property interest, rooted in state law,’ and (2) that the Council deprived it of property interest in a manner ‘so far beyond the outer limits of legitimate governmental action that no process could cure the deficiency.’” The Court found that Siena failed to meet either prong of the test. As to the first prong, Siena had not satisfied the conditions necessary to file for a building permit. But even if it had, the Court explained that zoning issues are local matters that should be decided at the local level. The Fourth Circuit noted that “[e]ven if Siena had a protected property interest here, the enactment of the zoning text amendment would fall short of a substantive due process violation.” Under its analyses of the second prong, the Court held that the action taken by the Council (the passing of an amendment barring self-storage businesses within 250 feet of public schools) was inside the limits of legitimate governmental action. The support for that conclusion was based on evidence that the Council heard testimony about the negative effects of self-storage sites and could have reasonably believed that testimony.

Equal Protection

The Fourth Circuit quickly disposed of Siena’s claim that the amendment violated the equal protection clause by pointing out that the action in question did not involve any rights protected by a higher level of scrutiny than rational basis. The Court stated that “the zoning text amendment is rationally related” to “the state interest in protecting schoolchildren.” Additionally, the Court noted that legislatures have great discretion in drafting statutes that involve economic matters, and this statute did not target Siena but rather applied equally to all self-storage businesses.

Conclusion

This case reaffirms the deference given to local authorities in zoning matters. The Fourth Circuit is hesitant to intervene absent a fundamental right at stake or targeting language.

Overview

M.L. was born in 2003 with Down Syndrome and lives with his family in an Orthodox Jewish community in Maryland.[1]  M.L’s faith governs almost every aspect of his life, including how he dresses, eats, and works.[2]  In 2009, M.L. enrolled in a private special education program that was tailored to his religious needs.[3]  In 2012, M.L.’s parents met with the Montgomery County Board of Education (“MCPS”) to create an individualized education program (“IEP”) as part of his public school education, but his parents rejected the IEP, complaining that it did not offer instruction on preparing for life in an Orthodox Jewish community.[4]  MCPS replied that an IEP meeting the standards of M.L.’s parents would be too specific, too religious, and not part of the public school curriculum.[5]

M.L. filed a due process claim against the School Board with the Maryland Office of Administrative Hearings, arguing a violation of the Individuals with Disabilities Education Act (“IDEA”).[6]  The administrative law judge (“ALJ”) ruled that the IDEA does not require a public school to offer specialized religious instruction in an IEP because the IDEA only requires “access [to] the general curriculum.”[7]  M.L. then filed a claim in the United States District Court for the District of Maryland where summary judgment was granted to the School Board. M.L. appealed to the Fourth Circuit Court of Appeals.[8]

Arguments for Tailoring an IEP to Religious Needs

The National Jewish Commission on Law and Public Affairs (“COLPA”) argued in its amicus brief that directing certain IDEA benefits toward “the non-practice of religion is coercive.”[9]  In support of their argument, COLPA cited the Supreme Court’s firmly established precedent that the “Free Exercise Clause bars government action aimed at suppressing religious belief or practice.”[10]  While the Court previously noted “a law that burdens religious practice need not be justified by a compelling governmental interest if it is neutral and of general applicability,”[11] the Court recently held that a policy that makes practicing one’s religion more expensive “imposes a burden on the exercise of religion.”[12]  Thus, COLPA raised a valid question as to whether the IEP, as written, violated the Free Exercise Clause.

M.L. argued that “a student’s religious, cultural, or other individual circumstances are relevant to the fashioning of an appropriate special education program for that student.”[13]  Specifically, the appellants observed that, because M.L. was unable to distinguish home and school settings, his religious background is part of his “unique needs.”[14]  Thus, the IEP should have accounted for “[l]earning Hebrew, recognizing kosher signs and impurities in foods, and telling time according to [M.L.’s] dietary restrictions.”[15]

Arguments against Tailoring an IEP to Religious Needs

In brief, the School Board suggested that pursuing the goals and objectives that M.L. requested would itself violate the Establishment Clause due to their religious nature.[16]  However, despite both parties’ Establishment Clause arguments, both the ALJ and the district court quickly dismissed any Establishment Clause considerations by resolving the relevant issues using only the IDEA and Maryland state law.  The School Board argued that neither the IDEA nor Maryland state law requires it to provide M.L. with IEP goals and objectives that incorporate his religious practices.[17]

M.L. also asserted that requests that his religious practices be developed through his IEP were simply requests for accommodation of his religious practices.  In response, the School Board countered by asserting that M.L. was clearly seeking “affirmative IEP goals and objectives” that were designed to incorporate M.L.’s religion into his IEP.  The School Board’s counterargument effectively diverted the court’s analysis of M.L.’s claims from a focus on accommodation toward a focus on affirmative IEP goals.[18]  In brief, the School Board reminded the court that, religious concerns aside, M.L. previously and consistently agreed that the IEP was otherwise adequate to meet M.L.’s educational needs.[19]

Conclusion

The Fourth Circuit Court of Appeals held that the appellants had been mistaken in reading “other education needs” as “all other educational needs.”  The court observed that the IDEA is not so comprehensive—not every limitation a disabled student may possess needs to be addressed.[20]  The court further elaborated that the IDEA does not ensure a specific scholastic result and therefore does not address a disabled student’s ability to practice his chosen religion.[21]  Relying on the reasoning in Rowley, the court emphasized the function of the IDEA, not as a guarantee for providing certain levels of education to disabled students, but as a way to “open the door of public education to handicapped children on appropriate terms.”[22]  Similarly, the court emphasized that Free Appropriate Public Education (“FAPE”) requires only that a child receives an educational benefit that is slightly more than trivial from the special instruction and services provided.[23]  The court declined to address COLPA’s Free Exercise Clause arguments because the appellants did not raise a Free Exercise argument in their opening brief.[24]

By finding for the School Board in this case, the court made clear that the IDEA does not require a school board to provide a religious or cultural curriculum to a disabled student.[25]  Under the IDEA, disable students do not need a religious curriculum in order to have equal access to education.[26]

By Mike Garrigan & Mary Kate Gladstone

_______________

[1] M.L. by Leiman v. Smith, 867 F.3d 487, 490 (4th Cir. 2017).

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id. at 492.

[8] Id.

[9] Brief for National Jewish Commission on Law and Public Affairs as Amicus Curiae Supporting Appellants at 11, M.L. by Leiman v. Smith, 867 F.3d 487 (4th Cir. 2017).

[10] See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 559 (1993).

[11] See Employment Div., Dep’t of Human Res. of Oregon v. Smith, 494 U.S. 872 (1990).

[12] See Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2770 (2014).

[13] Brief for Appellants at 19, M.L. by Leiman v. Smith, 867 F.3d 487 (4th Cir. 2017).

[14] Id.

[15] Id. at 34.

[16] Brief for Appellees at 14, M.L. by Leiman v. Smith, 867 F.3d 487 (4th Cir. 2017).

[17] Id.

[18] Brief of Appellants, supra note 13, at 14–15.

[19] Id. at 21.

[20] M.L. v. Smith, 867 F.3d 487, 498–99 (4th Cir. 2017).

[21] Id. at 499.

[22] Id. at 498.

[23] Id. at 495.

[24] Id. at 499

[25] Id. at 499.

[26] Id.

By: Kristina Wilson

On Monday, March 20, 2017, the Fourth Circuit issued a published opinion in the civil case Grutzmacher v. Howard County. The Fourth Circuit affirmed the District Court for the District of Maryland’s grant of summary judgment in favor of the defendant, holding that the defendant’s termination of plaintiffs did not violate the plaintiffs’ First Amendment Free Speech rights. The plaintiff raises two arguments on appeal.

Facts and Procedural History

Prior to initiating this action, plaintiffs worked for the defendant, the Howard County, Maryland Department of Fire and Rescue Services. In 2011, the defendant started drafting a Social Media Policy (“the Policy”) in response to a volunteer firefighter’s inflammatory and racially discriminatory social media posts that attracted negative media attention. The Policy prevented employees from posting any statements that may be perceived as discriminatory, harassing, or defamatory or that would impugn the defendant’s credibility. Additionally, in 2012, the defendant promulgated a Code of Conduct (“the Code”) that prohibited disrespectful conduct toward authority figures or the chain of command established by the defendant. Finally, the Code required employees to conduct themselves in a manner that reflected favorably on the defendant.

On January 20, 2013, one of the plaintiffs advocated killing “liberals” on his Facebook page while on duty for defendant. The defendant asked the plaintiff to review the Policy and remove any postings that did not conform. Although the plaintiff maintained that he was in compliance with the Policy, he removed the January 20th posting. On January 23, 2013, the plaintiff posted a series of statements that accused the defendant of stifling his First Amendment rights. On February 17, 2013, the plaintiff also “liked” a Facebook post by a coworker was captioned “For you, chief” and displayed a photo of an obscene gesture. Shortly thereafter, the defendant served the plaintiff with charges of dismissal and afforded the plaintiff an opportunity for a preliminary hearing on March 8, 2013. On March 14, 2013, the defendant terminated the plaintiff.

At the district court, the plaintiff argued that the defendant fired him in retaliation for his use of his First Amendment Free Speech rights and that the Policy and Code were facially unconstitutional for restricting employees’ Free Speech. The district court granted the defendant’s motion for summary judgment regarding the retaliation claims, holding that the plaintiff’s January 20th posts and “likes” were capable of disrupting the defendant’s ability to perform its duties and thus did not constitute protected speech. Similarly, the January 23rd post and February 17th “like” were not protected speech because they did not implicate a matter of public concern. In June of 2015, the defendant revised its Policy and Code to eliminate all the challenged provisions. As a result, the district court dismissed the plaintiff’s facial challenge as moot.

The Plaintiff’s Free Speech Rights Did Not Outweigh the Defendant’s Interest

In evaluating the plaintiff’s First Amendment retaliation claim, the Fourth Circuit applied the Mcvey v. Stacy three-prong test. 157 F.3d 271 (4th Cir. 1998). Under Mcvey, a plaintiff must show the following three conditions: i) that he was a public employee speaking on a matter of public concern, ii) that his interest in speaking about a matter of public concern outweighed the government’s interest in providing effective and efficient services to the public, and iii) that such speech was a “substantial factor” in the plaintiff’s termination. Id. at 277–78.

The first prong is satisfied when a plaintiff demonstrates that his speech involved an issue of social, political, or other interest to a community. Urofsky v. Gilmore, 216 F.3d 401, 406 (4th Cir. 2000) (en banc). To determine whether the issue was social, political, or of interest to a community, courts examine the speech’s content, context, and form in view of the entire record. Id. The Fourth Circuit concluded that at least some of the content of plaintiff’s posts and “likes” were matters of public concern because the public has an interest in the opinions of public employees. Although not all of the postings were of public concern, the Fourth Circuit advocated examining the entirety of the speech in context and therefore proceeded to the second prong of the Mcvey analysis.

The Mcvey Factors Weighed More Heavily in Favor of the Defendant

The Fourth Circuit next balanced the plaintiff’s interest in speaking about matters of public concern with the government’s interest in providing efficient and effective public services. The Fourth Circuit used the Mcvey multifactor test to weigh the following considerations: whether a public employee’s speech (1) impaired the maintenance of discipline by supervisors; (2) impaired harmony among coworkers; (3) damaged close personal relationships; (4) impeded the performance of the public employee’s duties; (5) interfered with the operation of the institution; (6) undermined the mission of the institution; (7) was communicated to the public or to coworkers in private; (8) conflicted with the responsibilities of the employee within the institution; and (9) abused the authority and public accountability that the employee’s role entailed. McVey, 157 F.3d at 278.

The Fourth Circuit held that all of the factors weighed in favor of the defendant. The first factor was satisfied because plaintiff was a chief battalion, a leadership position, and allowing plaintiff to violate the Policy and Code without repercussions would encourage others to engage in similar violations. The second and third factors weighed in the defendant’s favor because several minority firefighters issued complaints and refused to work with the plaintiff after the posts. Similarly, the fourth factor weighed in the government’s favor because of the plaintiff’s responsibilities as a leader. The plaintiff’s leadership duties depended on his subordinates taking him seriously and looking to him as an example. By violating the policies he was supposed to uphold, the plaintiff failed to act as a leader and carry out his duties as chief battalion. Finally, plaintiff’s actions also “undermined community trust” by advocating violence against certain groups of people. Community trust and preventing violence are central to the defendant’s mission because the defendant’s function is to protect the community. Therefore, although plaintiff’s speech did involve some matters of public concern, the matters were not of sufficient gravity to outweigh all nine factors of the Mcvey multifactor test. Thus, the government’s interest in effectively providing public services outweighed the plaintiff’s interest in speech about public concerns.

The District Court’s Dismissal of the Facial Challenge on Mootness Grounds Was Proper

While defendant repealed all the challenged sections of the Policy and Code, a party’s voluntary repeal of provisions can only moot an action if the wrongful behavior can be reasonably expected not to recur. The Fourth Circuit affirmed the district court’s dismissal of the facial challenge for mootness because the current Fire Chief issued a sworn affidavit asserting that the defendant will not revert to the former Policy or Code. Additionally, the defendant’s counsel at oral argument declared that the defendant has no hint of an intent to return to the former guidelines. The Fourth Circuit held that these formal declarations were sufficient to meet the defendant’s mootness burden.

Conclusion

The Fourth Circuit affirmed both the district court’s grant of summary judgment and its grant of a motion to dismiss on mootness grounds.

 

 

By Kelsey Mellan

On February 23, 2017, the Fourth Circuit issued a published opinion in United States v. Hill, a criminal appeal on behalf of two defendants. Defendant-Appellants Darren Hill (“Hill”) and Lloyd Dodwell (“Dodwell”) appealed the Western District of North Carolina’s denial of their motion to suppress evidence pertaining to an allegedly unconstitutional traffic stop in 2012. The Defendants argue this traffic  stop violated their Fourth Amendment search and seizure rights. The Fourth Circuit affirmed the district court’s denial of the motion to suppress, determining that the stop did not offend its Fourth Amendment jurisprudence at the time it occurred.

 Facts & Procedural History  

On May 2, 2012, Defendants were traveling in an SUV through Henderson County, North Carolina. Deputy David McMurray (“Deputy McMurray”) was patrolling the area when he noticed Defendants’ SUV traveling closely behind another vehicle. Deputy McMurray subsequently pulled over Defendant’s and approached their vehicle. Dodwell was driving and Hill was in the passenger seat. After Deputy McMurray explained the stop, Dodwell admitted to following too closely. Deputy McMurray then asked Dodwell to exit the vehicle and follow him to his patrol car so he could issue a warning ticket. While Deputy McMurray was entering the ticket information, he engaged Dodwell in conversation. Some of Deputy McMurray’s questions pertained to the stop and others ranged to more personal, off-topic questions. Specifically, Deputy McMurray asked Dodwell who owned the vehicle – to which Dodwell answered that he it belonged to either Hill’s girlfriend or sister. Upon questioning, Dodwell also acknowledged that he had previously been arrested for drugs.

Deputy McMurray then returned to the vehicle to speak with Hill to determine who owned the vehicle. While speaking with Deputy McMurray, Hill made numerous statements that conflicted with information Dodwell provided. As he later testified, Deputy McMurray became concerned that some criminal activity was occurring because of Defendants’ contradictory statements and nervous behavior, and the confusion over the owner of the SUV. Moreover, Defendants were traveling from Atlanta which, according to the government, is the “largest source of narcotics on the east coast.” in a type of vehicle commonly used for drug trafficking. After further discussion with each Defendant, Deputy McMurray notified them he was going to call for another deputy so he could run his drug-detection dog around the SUV. He explained that he would only search the vehicle of the drug-detection dog alerted, but would not search if the dog did not alert. Both Defendants consented to this search.

As a result of the search, Deputy McMurray and his team found over $30,000 of bundled U.S. currency, which Deputy McMurray believed to be drug proceeds. During the search, another officer on the scene read Defendants their Miranda rights and each Defendant consented to questioning. The rest of the search revealed no other contraband in the SUV. Ten days later while reviewing the recording of the stop, Deputy McMurray saw that Hill had deposited a bag containing cocaine hydrochloride behind the patrol car’s driver seat.

A grand jury indicted Defendants for possession with intent to distribute at least 500 grams of cocaine in violation of 21 U.S.C. § 841(a)(1). Both Defendants filed a motion to suppress which the magistrate joined for hearing. After the hearing, the magistrate recommended that the district court deny Defendants’ motion. Defendants generally objected to the magistrate’s memorandum and recommendation (“M&R”) on the grounds that the traffic stop violated the Fourth Amendment. The district court accepted the M&R and denied Defendants’ motion to suppress in full because (1) Deputy McMurray did not unreasonably extend the traffic stop prior to issuing the ticket and (2) Deputy McMurray’s post-ticket extension was justified by both reasonable suspicion and Defendants’ consent.

Defendants’ Fourth Amendment Challenge

On appeal, Defendants argue that Deputy McMurray impermissibly extended the traffic stop both before and after issuing a warning ticket, based on Supreme Court precedent from Rodriguez v. United States and Fourth Circuit precedent set in United States v. Williams. The government argues that any de minimis pre-ticket delay was allowed under governing precedent at the time of the stop. Moreover, the government claims Defendants waived their rights to challenge the reasonableness of the post-ticket extension by failing to sufficiently object on that ground.

The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” According to the Supreme Court in Illinois v. Caballes, a routine traffic stop becomes an unreasonable seizure when law enforcement impermissibly exceeds the stop’s scope or duration. The Supreme Court limited the permissible scope and duration of a traffic stop in Terry v. Ohio. If a traffic stop strays outside the boundaries of its permissible scope or duration, the Fourth Amendment’s exclusionary rule normally prevents the government from using evidence obtained during said search against the victim of the illegal seizure. The Supreme Court explained an exception to this exclusionary rule in Davis v. United States – the good-faith doctrine. This doctrine protects law enforcement action taken in “objectively reasonable reliance on binding appellate precedent” at the time of the search or seizure. The Fourth Circuit determined this doctrine applies in this case.

Yet, Defendants asked the Fourth Circuit to analyze Deputy McMurray’s conduct in 2012 under the standards set out in Rodriguez and Williams – cases that were not decided until 2015. Defendants argued that Deputy McMurray violated their Fourth Amendment rights by asking off-topic questions before writing a ticket. But when this search was conducted in 2012, the Fourth Circuit’s binding precedent set in United States v. Digiovanni held that questioning or other activity unrelated to the initial purposes of the stop only rendered the stop unreasonable if the officer “failed to diligently pursue the purposes of the stop.” In Digiovanni, the Fourth Circuit determined that de minimis delay in issuing a ticket warranted suppression only when an officer did not begin, or completely abandoned, actions related to the cited purpose of the stop.

In this case, the Fourth Circuit decided that the record sufficiently demonstrates that Deputy McMurray’s questions were in continuance of the pursuit of activities related to the initial stop. Moreover, the Deputy continued issuing the warning throughout the pre-ticket process. Although his questions may have been off-topic, Deputy McMurray never strayed from diligently pursuing the purposes of the stop. Moreover, Defendants effectively waived their challenge to any post-ticket extension by failing to specifically object on those grounds before the district court. Therefore, the Fourth Circuit deemed this stop constitutional.

 Disposition

Thus, the Fourth Circuit affirmed the judgment of the district court.

 

By Kelsey Mellan

On January 26, 2017, the Fourth Circuit issued a published opinion in United States v. Moreno-Tapia, a constitutional appeal of an immigration removal and sentencing order. Juan Moreno-Tapia (“Moreno-Tapia”) argued he was unconstitutionally deported in 2009 and thus his conviction for illegal reentry into the United States in 2014 was also unconstitutional. The Supreme Court case in which Moreno-Tapia based his constitutional argument on was decided in 2010. The Fourth Circuit determined that this particular case does not apply retroactively. Therefore, the Fourth Circuit affirmed the district court’s denial of Moreno-Tapia’s motion to vacate his removal order and sentencing determination.

Facts & Procedural History

Moreno-Tapia immigrated to the US from Mexico when he was a child. While he applied for legal permanent residency, the process never advanced due to his eventual removal from the US. In 2006, Moreno-Tapia was charged in a North Carolina court with three counts of felony indecent liberties with a child. At the time of his plea, Moreno-Tapia was aware that he would have to register as a sex offender. However, he claimed his attorney did not inform him that he would be subject to deportation because of his convictions. Shortly after Moreno-Tapia was released from prison in 2009 for these charges, he was deported to Mexico pursuant to a removal order from the Department of Homeland Security. Between 2009 and 2011, Moreno-Tapia reentered the US without permission and returned to North Carolina. He failed to register as a sex offender, despite his convictions for a qualifying sex offense. He was subsequently arrested for an unrelated crime. Because of that arrest, the authorities became aware of his current illegal presence in the US.

In June 2014, Moreno-Tapia was indicted in the Middle District of North Carolina on the charges of illegal reentry by a removed alien and failure to register as a sex offender. Moreno-Tapia pleaded guilty to the illegal reentry charge, and the government agreed to dismissal of the failure to register charge. After these proceedings, Moreno-Tapia returned to North Carolina court and filed a Motion for Appropriate Relief (“MAR”) seeking to vacate his state indecent liberties convictions. He relied on Padilla v. Kentucky to argue that his convictions should be set aside because his lawyer’s failed to inform him of the immigration consequences of his guilty plea – so the plea was not knowing and voluntary. The North Carolina court agreed and vacated his indecent liberties convictions.

Moreno-Tapia then returned to the district court to challenge the removal order on which his illegal reentry charge was based, pursuant to the North Carolina state court decision. He moved to vacate the 2009 removal order and to dismiss both counts of the indictment against him – illegal reentry and failure to register. The district court denied all of Moreno-Tapia’s motions. In September 2015, the district court held a sentencing hearing on the illegal reentry charge using the vacated indecent liberties convictions as the basis for his offense level under the federal Sentencing Guidelines. He was eventually sentenced to 27 months’ imprisonment. This timely appeal follows.

Motion to Vacate the Removal Order

The core issue in this case was whether Moreno-Tapia’s removal order should be vacated, without which he may not be convicted of illegal reentry. Moreno-Tapia’s main argument was that because his lawyer failed to inform him of the immigration consequences of his guilty plea to the indecent liberties charge, the subsequent removal order and reentry charges are unconstitutional. As previously mentioned, he relied on Padilla for the proposition that without this information, the North Carolina state court rightly overturned the original conviction.

However, the Fourth Circuit determined lawyers have no duty to advise aliens of potential legal infirmities in prior criminal proceedings. Thus, his state convictions were constitutionally infirm. However, Moreno-Tapia pleaded guilty in the 2006 case, which was 4 years before the Supreme Court’s decision in Padilla. Because the Supreme Court subsequently decided in Chaidez v. United States that Padilla does not apply retroactively, any failure by Moreno-Tapia’s lawyer to warn him of the possible immigration consequences of his guilty plea would not render Moreno-Tapia’s convictions constitutionally unsound.

That the state MAR court vacated Moreno-Tapia’s convictions under Padilla did not change the Fourth Circuit’s analysis because the state court erroneously applied Padilla retroactively. Thus, there was no federal constitutional violation on which Moreno-Tapia could have based his argument here.

Motion to Vacate the Sentencing Determination

The Sentencing Guidelines on which Moreno-Tapia’s 27-month sentence was based provides for sentence enhancements based on specific offense characteristics. The relevant guideline here, § 2L1.2, imposes an enhancement to the offense level of a defendant who “previously was deported after a conviction for a crime of violence.” Moreno-Tapia argues that because his convictions were vacated after his removal and illegal reentry, they should not have been taken into account at sentencing. In United States v. Moran-Rosario, this court held that eh relevant time for determining whether a prior conviction qualifies for enhancement under § 2L1.2 is the date of the defendant’s deportation and not the date of the subsequent illegal reentry charge or sentencing. Moreno-Tapia argued there should be an exception to this rule if the prior conviction was vacated as a result of a constitutional infirmity, egregious error of law, or determination of innocence. However, the Fourth Circuit determined it had no occasion to decide on this issue in this case. As previously mentioned, because Padilla does not apply retroactively, Moreno-Tapia’s state convictions were constitutionally obtained.

Disposition

Therefore, the Fourth Circuit affirmed the district court’s denial of Moreno-Tapia’s motion to vacate both the removal order and sentencing determination.

 

By John Van Swearingen

On Wednesday, November 23, 2016, the Fourth Circuit issued a published opinion in the civil case Rodriguez v. Bush. This matter was a habeas corpus petition brought by an offender sentenced to forty-five years in prison for drug trafficking. The United States District Court for the District of South Carolina denied Rodriguez’s petition under 28 U.S.C. § 2254 (2012), holding that Rodriguez’s claim for ineffective assistance of counsel failed to establish that his defense was prejudiced by his counsel’s performance. Rodriguez’s claim was rooted in his counsel’s failure to object to state trial judge’s denial of Rodriguez’s accepted plea offer. The Fourth Circuit Court of Appeals affirmed the district court’s denial of Rodriguez’s petition on the basis that there is no federal or constitutional right to have a plea bargain accepted by a trial court, and therefore, his counsel’s failure to object could not establish prejudice to Rodriguez’s defense.

Facts and Procedural History

In 2009, on the day Rodriguez’s trial, the prosecutor offered Rodriguez and his co-defendants various plea bargains. The offer to Rodriguez was for a recommended sentence of 20 years, and Rodriguez’s co-defendants were made similar offers. The offers to the co-defendants were accepted by the court.

However, when Rodriguez’s counsel presented the plea offer to the trial judge, the judge rejected the offer, stating that “he was not going to accept the plea and that he was ready to try a case this week.” While Rodriguez’s counsel did attempt to convince the judge to accept the plea deal, he did not object on the record to preserve the rejection for appeal.

The state court denied Rodriguez’s motion for post-conviction relief, stating that his counsel’s failure to object did not prejudice Rodriguez’s defense and the trial court’s denial of the plea offer did not violate Rodriguez’s due process rights. Rodriguez then appealed to the South Carolina Supreme Court, but certiorari was denied. Rodriguez then filed a petition in federal court under § 2254.

The Ineffective Assistance of Counsel Claim

Strickland v. Washington, 466 U.S. 668, 687 (1984), governs ineffective assistance of counsel claims. Under Strickland, to prove ineffective assistance of counsel, Rodriguez must show (1) “that counsel’s performance was deficient” and (2) “that the deficient performance prejudiced the defense.”

Despite being a two-pronged test, a reviewing court is free to examine the prejudice prong first, as it is dispositive to the claim. Rodriguez was not prejudiced by his counsel’s failure to object to the rejection of the plea deal, because a defendant cannot be prejudiced by a claim that has no merit under governing law. Therefore, Rodriguez’s ineffective assistance of counsel claim fails.

There is No Due Process Claim to Have a Plea Deal Accepted by the Court

In Missouri v. Frye, 132 S. Ct. 1399, 1410 (2012), the Supreme Court held that there is no federal right to have a judge accept a plea deal. The Court further clarified this point in Lafler v. Cooper, 132 S. Ct. 1376, 1387 (2012), explicitly stating that there can be no due process claim even where “a plea deal is accepted by the defendant but rejected by the judge.” Even further, there is no constitutional claim under the same facts. Fields v. Attorney Gen. of Md., 956 F.2d 1290, 1297 n.19 (4th Cir. 1992).

Therefore, the governing law clearly states that Rodriguez, nor any other similarly-situated defendant, claims a right to have an accepted plea offer honored by a presiding judge. Rodriguez based his due process claim on the premise that such a right existed. Since the claim has no support under governing law, and because this same claim forms the basis of his ineffective assistance of counsel claim, both of his claims on appeal fail.

                                                                    Disposition

The Fourth Circuit affirmed the district court’s denial of Rodriguez’s petition under § 2254. Both the ineffective assistance of counsel and due process claims were based on the premise that a defendant has a right to have a plea deal accepted by a presiding judge. Because no such right exists, Rodriguez’s claims were properly denied.

By John Van Swearingen

On Wednesday, November 9, 2016, the Fourth Circuit issued a published opinion in the civil case LeBlanc v. Mathena. This matter was a habeas corpus petition brought by a juvenile offender sentenced to life without parole for a non-homicide offense. The District Court of the Eastern District of Virginia had previously concluded that Virginia’s Geriatric Release program, which provides offenders sentenced to life without parole the opportunity to petition for conditional release after the age of sixty, violated the minimum standards of the incorporated Eighth Amendment as held in Graham v. Florida, 560 U.S. 48 (2010). In Graham, the Supreme Court of the United States held that the Eighth Amendment forbids the sentencing of juveniles convicted of non-homicide offenses to life without parole. Juvenile life sentences for non-homicide offenses must provide a meaningful and realistic opportunity to obtain release based on “demonstrated maturity and rehabilitation.” Here, the circuit court affirmed the district court’s ruling, holding that Geriatric Release does not meet the requirements of Graham.

Facts and Procedural History

On January 1, 1995, Virginia enacted Va. Code Ann. § 53.1-165.1 (2015), abolishing parole for felonies convicted after that date. On July 6, 1999, the Petitioner committed the crimes of rape and abduction, and on July 15, 2002, he was convicted and sentenced to two life sentences.

After the Supreme Court decided Graham in 2010, the Petitioner filed a motion in Virginia state court to vacate his sentence of life without parole. In 2011, the state trial court denied Petitioner’s motion based on Angel v. Commonwealth, a contemporaneous Virginia Supreme Court decision holding that Virginia’s Geriatric Release program satisfied the requirements of Graham.

In June of 2012, the Petitioner filed a writ of habeas corpus in the District Court of the Eastern District of Virginia. The district court granted the habeas petition, holding that the Geriatric Release program did not meet the standards established in Graham. The Respondents in this case, the state, timely filed this appeal.

Virginia’s Geriatric Release Program

Virginia’s Geriatric Release program is a two-stage process by which convicted offenders with life sentences can apply for conditional release. Unlike Virginia’s abolished parole doctrine, the Geriatric Release program is not automatic. Offenders must initiate the process with a petition to the Parole Board – and again, they may only do so after their sixtieth birthday.

The first stage of the Geriatric Release process requires the offender’s petition demonstrate a “compelling” reason for the release of the offender. The term “compelling” is not defined in the relevant statute or administrative regulations. The Parole Board is able to deny the petition for Geriatric Release for any reason at this point.

Should the Parole Board permit the petition to go to the second stage, the offender will be provided the opportunity to make oral and written statements to the Parole Board to advocate for his or her release. If at least four out of five members of the Board agree, the offender’s petition for Geriatric Release will be granted.

Again, the process is distinguishable from the old parole system. Geriatric Release cannot be initiated until the offender turns sixty. Virginia’s parole process typically initiated after offenders had served about fifteen years. The Petitioner would likely have been eligible for parole, under the old system, after around twenty years. Under the Geriatric Release program, that length of time is approximately doubled. Further, only three out of five members of the Parole Board had to agree to grant parole. The Geriatric Release program requires one more member of the board for approval.

Standard of Review for Habeas Corpus Petitions

When a habeas petition is filed, the standard of review turns on whether the petition involves a question of law or fact. This case presents a question of law, meaning the standard of review is stated at 28 U.S.C. § 2254(d)(2) (2012). If the court’s decision was an “unreasonable determination” of how the law applies to the facts in this case, then the court’s decision was improper. If the decision was reasonable, it stands.

Habeas petitions in federal district courts must review the case at hand in addition to the most recent state case addressing the issue. In this case, the most recent state case was the Angel decision, which held that the Geriatric Release program met the requirements of Graham. Since the state decision is contrary to the district court’s decision, either Angel or the district court’s decision will be determined unreasonable, and one holding will be affirmed.

The Standard Established in Graham

The holding in Graham was based on the Supreme Court’s conclusion that juveniles are less culpable for crimes than adults. Juvenile brains, the Court noted, are still developing. Because of this, the Court stated, juvenile offenders are less likely to be “irretrievably depraved” than adults. With that in mind, the Court examined the prospect of life without parole for juveniles convicted of non-homicide offenses in the context of the Eighth Amendment.

The Court noted that life without parole is only second to the death penalty in its harshness and ability to deprive convicted persons of hope. Life without parole is, therefore, an ultimate judgment of the irrevocable nature of an offender’s character. Given those points, the Court held that life sentences for juveniles convicted of non-homicide offenses must meet three requirements.

First, the sentence must provide an opportunity to obtain release based on “demonstrated maturity and rehabilitation.” Second, this opportunity must be meaningful and realistic. Third, the state’s parole and release programs at large must account for the lesser culpability of juveniles.

The Geriatric Release Program Does Not Satisfy the Graham Requirements

The Fourth Circuit held that the Virginia Geriatric Release program does not meet any of the three requirements set out in the Graham decision, thus overturning Angel and affirming the district court’s holding.

First, the Geriatric Release program does not require the Parole Board to consider any factors relevant to the juvenile’s maturity or rehabilitation. Additionally, because of the two-stage review process, a petition can be denied at the first stage – before the presentation of oral and written arguments. Also, over 95% of the denials of Geriatric Release petitions were based on the nature of the underlying crimes, which, again, precludes consideration of maturity and rehabilitation. Therefore, the program does not meet the first requirement of Graham.

Second, the circuit court held the extended duration of time compared to parole, coupled with the lack of consideration for juvenile-specific factors, rendered the opportunity provided under the Geriatric Release program neither meaningful nor realistic for juvenile offenders facing life sentences. Therefore, the program does not meet the second requirement of Graham.

Finally, the Geriatric Release program fundamentally contravenes the concerns underlying the Court’s third requirement in Graham. Unlike the abolished parole program, which counted time served regardless of age, the Geriatric Release program requires juveniles serving life sentences to spend a longer percentage of their life incarcerated than an adult serving the same sentence. Essentially, the program ensures that juveniles, though deemed to be less culpable by the Supreme Court, will bear a harsher punishment than adults.

Disposition

The Fourth Circuit affirmed the district court’s order remanding the Petitioner’s case for resentencing. The Virginia Geriatric Release program permits the denial of offender’s petitions without requiring consideration of demonstrated maturity or rehabilitation. The program, in execution, results in more comparably harsh sentences for juvenile offenders than adult offenders. Therefore, the Geriatric Release program does not meet the requirements of the incorporated Eighth Amendment as enumerated in Graham.

By Kelsey Mellan

On November 4, 2016, the Fourth Circuit issued a published opinion in Scinto v. Stansberry, a civil case involving a prisoner who was allegedly denied medical attention while in a North Carolina prison (“Prison”). Plaintiff Paul Scinto, Sr. suffers from diabetes and claims that while he was incarcerated, he was denied medical care that resulted in permanent injury. Plaintiff alleged this denial of medical care violated his Eighth Amendment right, which prohibits the infliction of “cruel and unusual punishment.” The current issue before the Fourth Circuit is whether the district court erred in dismissing Plaintiff’s constitutional claims against Dr. Derick Phillip, Administrator Susan McClintock, and Warden Patricia Stansberry for denying him medical care while under their supervision at the Prison. In response, Dr. Phillip and Administrator McClintock claimed that because of qualified immunity, they were shielded from civil liability. The Fourth Circuit affirmed the district court’s decision regarding Warden Stansberry and vacated its decision in terms of Dr. Phillip and Administrator McClintock as the court determined their actions violated Plaintiff’s Eighth Amendment rights. Furthermore, the Fourth Circuit rejected the Defendants’ invocations of qualified immunity.

Facts & Procedural History

Plaintiff entered custody at the Prison in June 2005 after serving multiple years at different federal prisons. While incarcerated, Plaintiff suffered from numerous medical conditions, including high blood pressure, hepatitis C, and insulin-dependent diabetes. There were multiple incidents that occurred at the Prison giving rise to these claims. When Plaintiff first arrived at the Prison in June 2005, Dr. Phillip, his primary prison doctor, prescribed him daily insulin injections to control his diabetes. On June 14, 2005, Plaintiff alleged that he requested an insulin injection from Dr. Phillip because his blood sugar was abnormally high. Plaintiff then claimed Dr. Phillip denied him an insulin injection, opting to create a diet plan for Plaintiff instead. According to evidence presented by Plaintiff, Dr. Phillip never followed through on this meal plan Dr. Phillip claimed the only reason he did not give insulin to Plaintiff on June 14 was because of his “angry” attitude and threatening behavior. Dr. Phillip routinely failed to provide insulin to Plaintiff. Plaintiff alleged that inadequate treatment of his diabetes resulted in damage to his nervous system, kidneys, and eyesight.

An additional incident took place on August 24, 2005 when Plaintiff suffered from a medical emergency causing him to experience extreme stomach pain, vomit blood, and become incontinent. Plaintiff claims that despite his multiple attempts to render assistance from Dr. Phillip and Administrator McClintock, he was not provided proper medical attention until two days later, at which time he was diagnosed with gallstones. Both Dr. Phillip and Administrator McClintock interacted with Plaintiff during this medical emergency and took no action to provide medical care for him.

Finally, Plaintiff alleged he was denied a proper diabetic diet during his stay at the Prison. He claimed that every meal served at the Prison was high in sugar and was accompanied by a sugary drink. When he expressed these concerns to both Warden Stansberry and his congressman who forward the concerns to the Warden, Plaintiff stated he was told that inmates were educated about how to select foods appropriate for their medical conditions. Because of the lack of diabetes-friendly food, Plaintiff claimed he suffered from high blood sugar levels, the treatment of which caused him to experience loss of diabetic control and severe destructive episodes of diabetic hypoglycemia and hyperglycemia.

Plaintiff originally brought multiple constitutional claims against numerous Prison officials in the District Court for the District of Columbia. The D.C. District Court dismissed most of these claims against officials and transferred the remaining claims to the District Court for the Eastern District of North Carolina. Cross-motions for summary judgment followed and the district court denied Plaintiff’s motion for summary judgment and granted summary judgment to the defendants on each of Plaintiff’s claims. This appeal only concerns three claims dismissed on summary judgment, each arising under the Eighth Amendment against Dr. Phillip, Administrator McClintock, and Warden Stansberry. Pursuant to Federal Rule of Civil Procedure 56(a), summary judgment is appropriate, “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Eighth Amendment and Denial of Medical Care

The Eighth Amendment prohibits the infliction of “cruel and unusual punishment.” In Helling v. McKinney, the Supreme Court determined that this amendment pertains to not only physically cruel punishment, but that it also includes “the treatment a prisoner receives in prison and the conditions under which he is confined.” The Supreme Court further defined this right in Farmer v. Brennan, in which the court established that prison officials are required to provide humane conditions of confinement and that inmates receive adequate food, clothing, shelter, and medical care.

To succeed on this constitutional claim pertaining to denial of medical treatment, a plaintiff must demonstrate a prison official’s “deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment.” In Farmer, the Supreme Court crafted a 2-pronged test that plaintiffs must fulfill to prove an Eighth Amendment violation. First, plaintiffs must demonstrate that the alleged deprivation was, objectively, “sufficiently serious.” In order to be considered sufficiently serious, the medical need being deprived should be either diagnosed by a physician or so obvious that even a layperson would realize medical attention is necessary. Second, plaintiffs must show that, subjectively, prison officials acted with a “sufficiently culpable state of mind,” in that the official knew of and disregarded an excessive risk to the inmate’s health. This prong requires proof of the official’s actual knowledge of both the inmate’s serious medical condition and excessive risk posed by the official’s action or inaction.

Plaintiff’s Eighth Amendment Claims against Defendants

Plaintiff claims that Dr. Phillip violated his Eighth Amendment right when he refused to give Plaintiff insulin to combat his high blood sugar. The Fourth Circuit determined that Plaintiff demonstrated a genuine dispute of material fact as to both Farmer’s objective and subjective prongs. First, Plaintiff sufficiently proved he suffered from a serious medical condition, insulin-dependent diabetes. The issue of fact concerns whether the serious medical condition of diabetes actually led to the more serious kidney and eyesight problems. Moreover, Dr. Phillip actually treated Plaintiff for his diabetes and it is obvious to even a layperson that insulin-dependent diabetics require insulin injections. In terms of the second subjective prong, Plaintiff adequately demonstrated that not only did Dr. Phillip know about his medical condition, but that the doctor was fully aware of the potential ramifications of mistreatment of the disease. The Fourth Circuit decided that the combination of these facts was enough for Plaintiff’s claim against Dr. Phillip to survive summary judgment.

In terms of Plaintiff’s August 24 medical emergency, he again established genuine issues of material fact as to both Farmer prongs. In terms of the objective prong, Plaintiff’s evidence establishes that there is genuine dispute as to whether as to whether the denial of medical attention during this emergency resulted in serious injury or a substantial risk of serious injury. Subjectively, Plaintiff proved that it was likely both Dr. Phillip and Administrator McClintock were aware of his need for medical assistance. Their failure to take action could give rise to an inference of deliberate indifference, and therefore should survive summary judgment and be presented to a jury.

Despite the aforementioned actions by prison officials, the Fourth Circuit decided the district court correctly determined that Warden Stansberry did not violate Plaintiff’s Eighth Amendment rights. Objectively, Plaintiff failed to raise a genuine dispute of material fact regarding whether, in this case, the lack of a diabetic diet was a sufficiently serious deprivation to be actionable under the Eighth Amendment. Subjectively, the Warden provided adequate evidence to prove that on at least two occasions, inmates were educated on how to choose foods appropriate for their medical conditions. Moreover, several sister circuits have decided that as long as a prison provides some foods that are appropriate for different medical conditions, they have fulfilled their constitutional duties under the Eighth Amendment. Likewise, courts have found that inmates who are denied special diets suffer no constitutional harm so long as they are instead given instruction on how to eat the available meals in a way that satisfies their medical needs. Therefore, the district court was correct in awarding Warden Stansberry summary judgment.

Also, the Fourth Circuit determined that Defendants in this case were not protected by qualified immunity, which shields government officials performing discretionary functions from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. This is because there is sufficient evidence that Plaintiff’s Eighth Amendment right to adequate medical care and freedom from officials’ deliberate indifference to his medical needs was violated. This right was clearly established, so Dr. Phillip and Administrator McClintock are not entitled to qualified immunity.

Disposition

Therefore, the Fourth Circuit affirmed the district court’s grant of summary judgment in favor of Warden Stansberry and reversed the grant of summary judgment to both Dr. Phillip and Administrator McClintock.

By: Kristina Wilson

On Friday, October 21, 2016, the Fourth Circuit issued a published opinion in the criminal case United States v. Wharton. The Fourth Circuit affirmed the District Court’s conviction of the defendant for conspiracy, making a false statement, theft, and embezzlement, all in connection with her unlawful receipt of government benefits. On appeal, the defendant argued that the affidavit upon which the search warrant was based was materially false and thus violated her Fourth Amendment rights. The Fourth Circuit affirmed the District Court’s decision that there was no Fourth Amendment violation because the affidavit’s omitted facts were not material.

Facts and Procedural History

After the death of the defendant’s daughter in 2002, the defendant took her two granddaughters into her home. She began receiving Social Security survivors’ benefits on her granddaughters’ behalf. In 2012, the Government discovered that the defendant’s granddaughters had not lived with the defendant since 2009 and were not receiving their benefits. The Government then launched an investigation into the defendant’s use of the Social Security funds.

Following the investigation, a grand jury indicted the defendant on two counts of theft of government property in violation of 18 USC § 641 and 42 USC § 1381a(a)(3) on January 31, 2013. The grand jury issued a sealed superseding indictment on June 26, 2013, which was unsealed on July 10, 2013. The indictment charged both the defendant and her husband with conspiracy to embezzle, embezzlement, and making false statements. While the indictment remained sealed, on July 1, 2013, a special agent from the Social Security Administrator’s office executed an affidavit in which he asserted that the defendant and her husband lived together in the defendant’s home. The magistrate issued a search warrant based on the agent’s affidavit, and the Social Security Administrator’s office searched the defendant’s home, discovering a number of documents relevant to the criminal charges.

Prior to trial, the defendant moved to suppress all evidence uncovered in the search of her home. The District Court denied her motion to suppress for all evidence except that which was obtained from her second-floor bedroom. Ultimately, the District Court convicted the defendant and her husband for conspiracy to embezzle money in violation of 18 U.S.C. § 371, making false statements in violation of 42 U.S.C. § 1383a(a)(2), and embezzlement in violation of 18 USC § 641.

The Information Was Recklessly Omitted but Not Material

The defendant asserted that special agent’s affidavit was materially false in violation of the Fourth Amendment because it omitted the fact that she and her husband did not live together.

In the affidavit, the special agent asserted that the defendant and her husband lived together on the basis of interviews he conducted with the defendant, her husband, and their children. Both the defendant and her husband stated that they had been married continuously for 43 years and lived together in the defendant’s home. The special agent also discovered that the defendant’s husband’s electricity account provided power to the entire home, not just his basement living space. Additionally, the special agent discovered that Dish Network provided cable television to the entire home with the defendant and her husband both listed as authorized users.

The District Court held that the defendant and her husband did live separately in that the defendant’s husband only occupied the common areas of the home upon invitation and kept the door to his basement living area locked. However, the omission was not material and did not violate the Fourth Amendment.

The Omission Did Not Violate the Fourth Amendment

On appeal, the Fourth Circuit applied a de novo standard of review to the denial of the defendant’s motion to suppress.

According to the Fourth Circuit, the District Court properly addressed the defendant’s claim as a Franks v. Delaware question. Franks v. Delaware, 438 U.S. 154 (1978). Although a Franks analysis usually begins with the threshold question of whether a district court improperly denied an evidentiary hearing, the Fourth Circuit eschewed that preliminary question because the District Court granted the defendant an evidentiary hearing before denying the motion to suppress.

When a defendant asserts that an affiant has omitted material facts in the affidavit, the defendant must prove that the affiant intentionally or recklessly made a materially false statement or omitted material information.

While Franks requires proof of both intentionality and materiality, only materiality was at issue on appeal. An omission is material if it is necessary to the magistrate’s finding of probable cause to support the warrant. When evaluating materiality, a court inserts the omitted facts and then determines whether the corrected affidavit supports probable cause. If it does, there is no Franks violation.

In recent cases United States v. Lull, 824 F.3d 109 (4th Cir. 2016) and United States v. Tate, 524 F.3d 449 (4th Cir. 2008), the Fourth Circuit reversed the defendants’ convictions after concluding that the omitted information in question undermined the entire foundation of the affidavits. In Lull, an officer omitted facts that undermined the reliability of a confidential informant who supplied many of the facts in the affidavit. In Tate, an officer omitted the fact that much of the evidence supporting his affidavit originated from a questionable search of the defendant’s trash. The Fourth Circuit reasoned that if the trash search was illegal, that evidence would have to be suppressed. Without the trash search evidence, the officer’s warrant lacked probable cause.

In contrast, the fact that the defendant and her husband did not live together did not change the fair probability that evidence relating to the defendant’s crimes would be discovered in the common areas of the house. The magistrate was reasonable in concluding that the defendant and her husband lived together because they stated that they lived together, and they shared utilities and cable services, creating a reasonable inference that both individuals used those services throughout the home. Finally, the omitted fact did not call into question the inherent reliability or validity of the affidavit supporting the warrant, unlike in Lull and Tate.

Disposition

Therefore, the Fourth Circuit affirmed the District Court’s conviction of the plaintiff on all counts.