20Mar

North Carolina’s Nesting Doll Dilemma: Attorneys Fees as a Sanction in Family Law Criminal Contempt Proceedings

Categories: Current Issues Blog

By Nate Drum

From the very first day of law school, students are taught that every legal action can be placed into one of two distinct categories: civil cases and criminal cases. This distinction implicates everything from the substantive rights of the parties, to the rules of procedure, to which courts have jurisdiction to hear the case.^[1] However, despite these fundamental differences, the distinction between civil and criminal is not always as clear as it first appears. While this is apparent in a number of different areas of the law, none is clearer than North Carolina’s complex and often contradictory case law governing contempt of court proceedings.[2]

A recent case heard by the North Carolina Court of Appeals, Grier v. Grier,^[3] highlights such a case where the law surrounding contempt proceedings continued to blur the line between civil and criminal law. The issue presented was whether a party in a family law dispute (a civil proceeding) prosecuting a claim of criminal contempt of court (a criminal proceeding) could recover attorneys fees (civil penalty) as a sanction.^[4] In other words: does the overarching essence of the case determine what remedies and penalties are available or does the specific substance of the proceeding control? For the time being, we are left without an answer.[5]

To understand this “nesting doll” dilemma, in which a party in a civil action initiates a criminal proceeding and seeks a civil remedy,[6] this article will provide a brief overview of the North Carolina rule governing the award of attorneys fees as a civil penalty, North Carolina laws governing criminal contempt proceedings, and a discussion about how these issues came together in Grier.[7]

Attorneys Fees Generally: A Civil Penalty

North Carolina follows the traditional “American Rule” regarding the award of attorneys fees,[8] holding that “a party can recover attorney[s] fees only if such a recovery is expressly authorized by statute.”^[9] Such statutory authorization has typically been narrowly crafted to only apply in certain types of cases.[10] For example, N.C. Gen. Stat. § 50-13.6 authorizes the award of attorneys fees “[i]n an action or proceeding for the custody or support, or both, of a minor child . . . to an interested party acting in good faith who has insufficient means to defray the expense of the suit.”^[11] While the overwhelming majority of statutes authorizing the award of attorneys fees in North Carolina are only applicable in the civil context,[12] there are circumstances in which a criminal defendant may be ordered to pay the costs of attorneys fees.[13] For example, N.C. Gen. Stat. § 7A-455 authorizes the court to order a criminal defendant to pay the reasonable attorneys fees incurred by appointed counsel.^[14]

Yet, even when awarded in the context of defense of a criminal proceeding, the award of attorneys fees is quintessentially a civil remedy.^[15] Rather than a criminal “punishment,” attorneys fees have typically been viewed by North Carolina courts as a civil penalty as most court-appointed attorneys fees are entered against criminal defendants in the form of a civil judgment.^[16]

Criminal Contempt Proceedings Generally: A Criminal Proceeding

Black’s Law Dictionary defines contempt of court as follows: “The act of demeaning the court, preventig [sic] justice adminstration [sic], or disobeying a sentence of the court. It is [generally] criminal [in nature] and can lead to fines or imprisonment.”^[17] However, North Carolina law surrounding contempt of court is somewhat more complicated than such a simple definition would lead one to believe.[18] For example, in North Carolina, contempt of court can be either civil in nature or criminal in nature.^[19] What more, the overarching nature of the original action does not dictate the nature of the contempt proceeding.[20] For example, a criminal defendant can be held in civil contempt of court,[21] just as a civil defendant can be held in criminal contempt of court.[22] Further, a contemptnor defendant can be held in both criminal and civil contempt in the same proceeding, so long as each finding of contempt is based on separate and discrete conduct.^[23]

However, determining whether a contempt proceeding is civil or criminal is of utmost importance for litigants because the nature of the proceeding will define the parties’ procedural and substantive rights (including what penalties can be imposed), the burden of proof required, and the right of appellate review.^[24] Though, as North Carolina courts have repeatedly recognized, “the demarcation between [civil and criminal contempt] may be hazy at best.”^[25] Therefore, North Carolina courts look to the purpose for which the proceeding was initiated, while considering the nature of the conduct being punished.^[26] Generally, “[c]riminal contempt is imposed in order to preserve the court’s authority and to punish disobedience of its orders.”^[27] Further, criminal contempt “is generally applied where the judgment is in punishment of an act already accomplished.”^[28]

Upon a finding of criminal contempt, like all criminal statutes, the available penalties a trial court may impose are codified.^[29] Generally, a criminal contemptnor can be punished via a judicial censure, a fine, and/or imprisonment for up to thirty days.^[30] As noted in the statutory framework of the North Carolina general statutes, the provisions pertaining to criminal contempt were meant to preempt existing common law by providing a uniform and exclusive statutory scheme governing such proceedings.^[31]

Criminal Contempt in the Family Law Context: A Civil Action

The interaction of North Carolina law governing attorneys fees and contempt of court collided in Grier v. Grier.^[32] In this case, the contemptnor defendant, Mrs. Grier, was held in criminal contempt of court for violating the court’s child custody order.^[33] As a result of the finding, the prosecuting party, Mr. Grier, sought an award of attorneys fees from Mrs. Grier under N.C. Gen. Stat. § 50-13.6.^[34] Mrs. Grier challenged the award of attorneys fees as an improper remedy under the exclusive criminal contempt remedies enumerated at N.C. Gen. Stat. § 5A-12.^[35] Ultimately, the question asked to the court was whether a party in a family law dispute (a civil proceeding) prosecuting a claim of criminal contempt of court (a criminal proceeding) could recover attorneys fees (civil penalty) as a sanction.

If the answer would be yes, how would that implicate the rule of lenity, holding that statutory ambiguity should be resolved in favor of the defendant? Would that mean that the remedies provided in N.C. Gen. Stat. § 5A-12 are not exclusive, despite language to the contrary?

If the answer is no, would that create a bright line rule that the substance of a proceeding overwrites the overarching essence of the case? Would that mean that the award of attorneys fees under N.C. Gen. Stat. § 50-13.6 would be limited only to those proceedings substantively connected to the custody proceeding and while excluding related disputes arising through the course of the litigation? Would it create perverse incentives for litigants to force their opposing party to permit a violation of court orders or to engage in the costly prosecution of criminal contempt proceedings without a monetary remedy?

Unfortunately, the court declined to answer.^[36] While recognizing the challenging internal conflict within the laws, the court concluded that Mr. Grier did not meet the statutory requirements of N.C. Gen. Stat. § 50-13.6 which required that he have “insufficient means to defray the expense of the suit.”^[37] Notably, the North Carolina Supreme Court has previously disposed of a similar case in which this exact question was raised on procedural grounds.^[38] So, until a case arises which cannot be disposed of on unrelated grounds, the question of whether a party in a civil case, prosecuting a criminal contempt charge, can recover a civil remedy of attorneys fees remains open ended.

^[1] Lawsuits, North Carolina Judicial Branch, https://www.nccourts.gov/help-topics/lawsuits-and-small-claims/lawsuits (explaining the difference between civil and criminal cases).

[2] See Spencer L. Blaylock Jr., Contempt of Court — Civil or Criminal, 36 N.C. L. Rev. 221, 223 (1956) (observing that “much confusion” has arisen regarding North Carolina’s contempt of court statutory framework and that it has been consistently “applied by the lower courts and attorneys” in improper ways).

^[3] Grier v. Grier, No. COA 22-37, 2022 N.C. App. LEXIS 832 (N.C. Ct. App. Dec. 6, 2022).

^[4] Id. at *P12.

[5] Id. at *P13 (concluding that the court “need not decide” whether the attorneys fee award was statutorily permissible).

[6] Id. at *P10 (noting that an order “directing a party to pay attorney[s] fees in the context of a criminal proceeding is itself civil in nature”).

[7] Id.

[8] Ehrenhaus v. Baker, 776 S.E.2d 699, 704 (N.C. Ct. App. 2015).

^[9] Wadsworth v. Wadsworth, 868 S.E.2d 636, 644 (N.C. Ct. App. 2021).

[10] Sullivan v. Woody, 882 S.E.2d 707, 211 (N.C. Ct. App. 2022) (noting that fee shifting statutes should be narrowly construed).

^[11] N.C. Gen. Stat. § 50-13.6 (2023).

[12] See Jim Gale, Awarding Attorneys’ Fees in North Carolina, UNC School of Government (2018 Superior Court Judges’ Summer Conference) (last visited Mar. 18, 2024), https://www.sog.unc.edu/sites/default/files/course_materials/09%20Attorneys%27%20Fees%20Awards%20in%20NC_Gale.pdf (listing all North Carolina statutes authorizing the award of attorneys fees).

[13] John Rubin, Are Attorney Fees’ Permissible?, UNC School of Government, https://www.sog.unc.edu/resources/faqs/are-attorneys%E2%80%99-fees-permissible

^[14] N.C. Gen. Stat. § 7A-455(a) (2023).

^[15] See Rubin, supra note 13.

^[16] State v. Webb, 591 S.E.2d 505, 513 (N.C. 2004); see also State v. Jacobs, 648 S.E.2d 841, 842 (N.C. 2007) (noting that an order for attorneys fees, even in a criminal case, is a civil penalty).

^[17] Contempt of Court, Black’s Law Dictionary(2d ed. 1910) (last visited Mar. 18, 2024), https://thelawdictionary.org/contempt-of-court/.

[18] See, e.g., State v. Wendorf, 852 S.E.2d 898, 902 (N.C. Ct. App. 2020) (noting that in addition to the differences between civil contempt and criminal contempt, North Carolina recognizes a difference between “direct” and “indirect” contempt).

^[19] Bishop v. Bishop, 369 S.E.2d 106, 108 (N.C. Ct. App. 1988).

[20] See Id. (noting that the same conduct may be criminal contempt, civil contempt, or both, and that the nature and purpose of the court’s “punishment” will be determinative, rather than nature of the overarching case).

[21] NC Prosecutors’ Resource Online, UNC School of Government (last visited Mar. 18, 2024), https://ncpro.sog.unc.edu/manual/204-3#:~:text=A%20person%20may%20be%20held,to%20comply%20with%20that%20order.

[22] Michael Crowell, North Carolina Superior Court Judges’ Benchbook, UNC School of Government (last visited Mar. 18, 2024), https://benchbook.sog.unc.edu/judicial-administration-and-general-matters/contempt (noting that a party to a civil case, an attorney in a civil case, or even a witness in a civil case can be held in criminal contempt of court).

^[23] See, e.g., Adams Creek Assocs. V. Davis, 652 S.E.2d 677, 687 (N.C. Ct. App. 2007) (holding a defendant in civil contempt for violating a court order and then separately held in criminal contempt for threatening a witness); see also N.C. Gen. Stat. §§ 5A-21(c), 5A-23(g) (2023) (prohibiting a defendant from being held in both criminal and civil contempt for the same conduct).

^[24] See Hartsell v. Hartsell, 393 S.E.2d 570, 575 (N.C. Ct. App. 1990) (noting that civil contempt proceedings do not afford defendants the same procedural and substantive protections as criminal contempt proceedings); see also O’Briant v. O’Briant, 329 S.E.2d 370, 372 (N.C. 1985) (noting that criminal contempt proceedings trigger Constitutional safeguards applicable to all criminal proceedings).

^[25] State v. Revels, 793 S.E.2d 744, 747 (N.C. Ct. App. 2016).

^[26] O’Briant, 329 S.E.2d at 372.

^[27] Id.

^[28] Revels, 793 S.E.2d at 747.

^[29] N.C. Gen. Stat. § 5A-12 (2023).

^[30] Id.

^[31] See, e.g., N.C. Gen. Stat. § 5A-11(a) (2023) (providing that the statutorily enumerated grounds for criminal contempt “are exclusive, regardless of any other grounds for criminal contempt which existed at common law”).

^[32] Grier v. Grier, No. COA 22-37, 2022 N.C. App. LEXIS 832 (N.C. Ct. App. Dec. 6, 2022).

^[33] Id. at *P4–P5.

^[34] Id. at *P6.

^[35] Id. at *P12.

^[36] Id. at *P13.

^[37] Id.

^[38] Reynolds v. Reynolds, 569 S.E.2d 645, 646 (N.C. 2002).

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24Apr

U.S. Jails & Prisons Poorly Positioned to Prevent COVID-19 Spread

Categories: Current Issues Blog

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By Amanda Manzano

The rapid spread of COVID-19 has disrupted business as usual across the globe and created a “new normal” for human social behavior; a normal that U.S. prisons and jails as we know them do not have the luxury, or ability, to implement. Physical distancing in public, self-isolation, and the use of face masks have all cemented themselves as routine practices in daily American life per CDC guidelines issued in the virus’s wake.[1] The CDC advises that avoiding exposure to the illness is the single best measure to prevent infection, and accordingly, recommends a minimum of six feet between person to person.[2] The Federal Bureau of Prisons (the “BOP”) has limited visitation, transfers, and staff training to limit the spread as much as possible, but what is happening within prison walls to manage internal spread and keep inmates safe?[3] The reality is, the infrastructure of American jails and prisons is such that managing disease is difficult during ordinary times, let alone in a pandemic of this magnitude, and the virus is taking its toll behind bars.

The BOP notes modified operations in light of COVID-19 to maximize social distancing.[4] These efforts include “consideration of staggered meal times and staggered recreation times . . . to limit congregate gatherings.”[5] A cursory glance at infections throughout the BOP’s 122 facilities demonstrates this response is failing.[6] As of April 23, 620 federal inmates and 357 BOP staff have tested positive for COVID-19.[7] Twenty-four inmates have died.[8] Reports from state prisons are even more grim. The Marion Correctional Institution in Ohio is home to one of the most rampant outbreaks in the country.[9] There, 73 percent of inmates have tested positive for the virus.[10] The Ohio Department of Rehabilitation and Correction reports 3,816 inmates and 346 staff have tested positive in its twenty-eight facilities.[11] At Rikers Island, home to New York City’s largest jail complex, upwards of 1,000 inmates have contracted the virus.[12]

Pandemic aside, the CDC acknowledges that health problems are more apparent in jails and prisons than in free communities.[13] The close proximity among inmates and staff, poor circulation, and limited sanitization resources create a breeding ground for contagious disease, and our ability to respond within the current framework is limited.[14] As it stands, the United States has nearly 2.3 million individuals in our jails, prisons, and juvenile correctional facilities.[15] By the numbers, following social distancing guidelines within these institutions would be impossible for the 10.6 million people going into jail each year and additional 600,000 checking into prisons.[16] The BOP’s modifications of staggered meal and recreation times cannot overcome crowded cells and intake rooms to prevent the spread of a virus of this contagion.

For the time being, the best measure of precaution for the safety of inmates, staff, and the general public is to reduce jail and prison populations as much as possible. U.S. Attorney General William Barr released a memo on April 6 that addresses the heart of this remedy and contentious issue generally: pretrial detention.[17] The purpose of pretrial detention is to assure (a) the appearance of the defendant at trial and (b) the safety of others.[18] The Attorney General acknowledges the risk that every new intake poses to our jails and prisons and recommends an analysis weighing each defendant’s individual risk of flight and threat to the community against the benefits of preventing spread of COVID-19 in these vulnerable institutions.[19] Some cities have halted arrests and prosecutions for low level offenses to help control the flow of inmates.[20] Some have even begun to release low-level offenders from their sentences to clear even more space.[21] Additionally, some argue the elimination of cash bail would avoid undue risk to those who have not been convicted of a crime and free precious space in our jails.[22] A defendant’s inability to post bail during a pandemic broadens the threat from a person and a community to our entire society as each jail and prison becomes a hot spot for COVID-19.

The infrastructure of our prison complexes and the ethics of incarceration in the United States present challenges every day. COVID-19 highlights some of our shortcomings in the most dramatic of fashions, demonstrating how the risks of crowded and unsanitary facilities extend far beyond those walls. These institutions achieve segregation but cannot, in even the best of circumstances, entirely insulate themselves from the greater public. Providing inmates and corrections staff with subpar facilities and operations will reflect on communities accordingly, and the spread of COVID-19 has shown exactly that.

[1] Coronavirus Disease 2019, CDC (Apr. 13, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html.

[2] Id.

[3] BOP Implementing Modified Operations, Fed. Bureau of Prisons, https://www.bop.gov/coronavirus/covid19_status.jsp (last visited Apr. 24, 2020).

[4] Id.

[5] Id.

[6] About Our Facilities, Fed. Bureau of Prisons, https://www.bop.gov/about/facilities/federal_prisons.jsp (last visited Apr. 24, 2020).

[7] COVID-19 Coronavirus, Fed. Bureau of Prisons, https://www.bop.gov/coronavirus/ (last visited Apr. 24, 2020).

[8] Id.

[9] Bill Chappell, 73% of Inmates at an Ohio Prison Test Positive for Coronavirus, NPR (Apr. 20, 2020, 3:58 PM), https://www.npr.org/sections/coronavirus-live-updates/2020/04/20/838943211/73-of-inmates-at-an-ohio-prison-test-positive-for-coronavirus.

[10] Id.

[11] COVID-19 Inmate Testing, Ohio Department of Rehabilitation and Correction (Apr. 23, 2020), https://coronavirus.ohio.gov/static/DRCCOVID-19Information.pdf.

[12] Deanna Paul & Ben Chapman, Rikers Island Guards Are Dying in One of the Worst Coronavirus Outbreaks, Wall St. J. (Apr. 22, 2020, 8:19 AM) https://www.wsj.com/articles/rikers-island-jail-guards-are-dying-in-one-of-the-worst-coronavirus-outbreaks-11587547801.

[13] Correctional Health: Behind the Wall, CDC, https://www.cdc.gov/correctionalhealth/default.htm (last visited Apr. 24, 2020).

[14] Stir Crazy – Prisons Worldwide Risk Becoming Incubators of COVID-19, The Economist (Apr. 20, 2020), https://www.economist.com/international/2020/04/20/prisons-worldwide-risk-becoming-incubators-of-covid-19 [hereinafter Stir Crazy]

[15] Wendy Sawyer & Peter Wagner, Mass Incarceration: The Whole Pie 2020, Prison Policy Initiative (Mar. 24, 2020), https://www.prisonpolicy.org/reports/pie2020.html.

[16] See Id (discussing current incarceration rates and annual trends in new incarcerations). See also Stir Crazy, supra note 14 (analyzing the role of prison population in increasing risk of COVID-19 spread amongst the incarcerated).

[17] Memorandum from the Office of the Attorney General for All Heads of Department Components and All United States Attorneys (Apr. 6, 2020), https://www.justice.gov/file/1266901/download [hereinafter Attorney General’s Memorandum].

[18] 18 U.S.C. § 3142(e)(1) (2018).

[19] Attorney General’s Memorandum, supra note 17.

[20] Chris W. Surprenant, COVID-19 and Pretrial Detention, Mercatus Ctr. (Mar. 30, 2020), https://www.mercatus.org/publications/covid-19-policy-brief-series/covid-19-and-pretrial-detention.

[21] Id.

[22] The Bail Project Urges Jail Releases Amid Coronavirus Spread, The Bail Project, https://bailproject.org/covid-19/ (last visited Apr. 24, 2020).

Tags: COVID-19 Criminal Law Criminal Procedure Prisoner Civil Rights

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12Nov

Adnan Syed and the Right to Counsel

Categories: Current Issues Blog

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By Amanda Manzano

“That a person who happens to be a lawyer is present at trial alongside the accused, however, is not enough to satisfy the constitutional command.” Strickland v. Washington, 466 U.S. 668, 685 (1984).

The 1984 U.S. Supreme Court case Strickland v. Washington safeguarded a criminal defendant’s 6th Amendment rights by unequivocally confirming that the right to counsel is, by law, the right to effective counsel.[1] A two-part test thus emerged to satisfy a convicted defendant’s claim of ineffective assistance: (1) that counsel’s performance was deficient, and (2) that the deficient performance prejudiced the defendant.[2] Courts agree on the elements of this test. But on the parameters of its application, they divide. In that divide lives the case of Adnan Syed v. State of Maryland and a pending petition for a writ of certiorari with the United States Supreme Court.

The compelling facts of Syed’s case grabbed national attention and spurred a flurry of media coverage that raised questions as to Syed’s possible innocence. On January 13, 1999, 17-year-old Baltimore high school student Hae Min Lee went missing. On February 9 of that year, Lee’s body was discovered in a shallow park grave, and nearly three weeks later ex-boyfriend Adnan Syed was arrested for murder. A jury found Syed guilty as charged and he is currently serving a life sentence.

Prosecutors presented evidence at trial that Syed killed Lee sometime between 2:15 and 2:35 p.m. and subsequently called friend Jay Wilds for help with the cover-up at exactly 2:36 p.m.[3] What was not presented at trial was testimony from Asia McClain, Syed and Lee’s classmate who claims she saw and spoke with Syed at the library during the same timeframe the State alleged the murder took place; the same timeframe the jury used to convict Syed. McClain was known to Syed’s defense attorney Cristina Gutierrez but was never contacted for an interview. Her story was not a factor in weighing Syed’s guilt or innocence simply because it was not told.

In 2016, Baltimore City Circuit Judge Martin Welch vacated Syed’s conviction and ordered a new trial based, in part, on McClain’s new testimony as an alibi witness and allegations of ineffective assistance of counsel.[4] The Maryland Court of Special Appeals upheld this ruling, but in March 2019 the Maryland Court of Appeals (Maryland’s highest court) reversed the decision and reinstated Syed’s conviction. Now, nearly 21 years after his arrest, Syed is awaiting a response on whether the Supreme Court will grant certiorari.

The petition’s question presented is “whether a court evaluating prejudice under Strickland v. Washington must take the State’s case as it was presented to the jury . . . or whether the court may instead hypothesize that the jury may have disbelieved the State’s cas[e].”[5] The Court of Appeals held that under the Strickland analysis (1) Gutierrez was deficient in failing to contact McClain, but that (2) this deficiency did not prejudice Syed. In a 4-3 opinion, the court found that given the totality of the evidence, “there is not a significant or substantial possibility that the verdict would have been different had [Gutierrez] presented Ms. McClain as an alibi witness.”[6]

Now, petitioner Syed urges the Supreme Court to establish a uniform standard. Must courts conduct a Strickland analysis in light of the case the state actually presented to the jury at trial? Or else, may courts consider a state’s response to what an effective counselor would have presented—a response a jury never considered at trial—to determine there is not a significant or substantial possibility that a verdict would be altered? Syed argues for the former approach, one which at least ten state and federal courts currently apply.[7] The Maryland Court of Appeals ruled using the latter, determining McClain’s testimony would have “contradicted defendant’s own statement[s], which were themselves already internally inconsistent; thus [potentially] undermin[ing] Mr. Syed’s credibility.”[8] Additionally, the court determined that even if the jury would have accepted McClain’s testimony as true, it could have decided Syed still committed the murder later that day, a theory the State never argued at trial.[9]

Strickland puts the burden of proof on the defendant to show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”[10] If the Supreme Court agrees with Syed and overturns the Court of Appeals’ decision, the Strickland analysis will be conducted using the case the state of Maryland actually presented at trial; that is, that Hae Min Lee was last seen at 2:15 p.m. and was definitively dead by 2:36 p.m., then McClain’s testimony, if believed, accounts for Syed in that 21-minute window and could eliminate him, at least in the mind of a juror, as a viable perpetrator of the crime.

Each Term, the U.S. Supreme Court receives about 7,000-8,000 new cases, 100-150 of which are accepted for review,[11] and about 80 of which are granted plenary review with oral argument.[12] The Court is generally inclined to take cases that will have national significance, create a uniform standard for conflicting federal courts, or set precedent.[13] While the statistical odds are not in Syed’s favor, the substantive value of his claim might be. His petition was filed in August and is now distributed and scheduled to be considered at the Justices’ Conference on November 22, 2019.[14]

Syed’s fate is pending, and followers of his case are faced with this new question presented, one of procedure rather than guilt or innocence. Advocates of Syed’s innocence would agree with his position that courts should not be able to consider “a hypothetical case that sidesteps the weaknesses in the State’s presentation of the evidence.”[15] Perhaps this may be true in the case of Syed, but the impact of a Supreme Court opinion on the matter would create binding precedent nationwide. Should reviewing courts be tied to the case a state presents at trial, a case whose crafting was deprived the opportunity to consider evidence effective counsel should have presented? Perhaps the state is not to be blamed for arguing a jury would still be persuaded by its case, one that maybe would have swiftly and thoroughly discredited any new evidence with ease during trial.

At what point, however, should the state redirect its efforts? The resources funneled toward appeal after appeal (since 2015, Syed and the State have each appealed rulings twice)[16] could be focused on conducting a new trial. If the Supreme Court reverses and grants Syed a new trial, both he and the state of Maryland stand to gain a fuller presentation of what happened that January day with the addition of new evidence his counsel failed to acquire and present. Theoretically, both sides would be better informed with the most important matter in a criminal case: truth, in pursuit of justice. Isn’t that what everybody wants?

[1] Strickland v. Washington, 466 U.S. 668, 686 (1984) (citing McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)).

[2] Strickland, 466 U.S. at 687.

[3] Petition for Writ of Certiorari at 2–8, Syed v. Maryland, No. 19-227 (U.S. filed Aug. 19, 2019).

[4] Bill Chappell, Adnan Syed, Subject of ‘Serial’ Podcast, Will Get a New Trial, NPR (June 30, 2016, 4:52 PM), https://www.npr.org/sections/thetwo-way/2016/06/30/484225226/adnan-syed-subject-of-serial-podcast-will-get-a-new-trial.

[5] Petition, supra note 3, at (i).

[6] State v. Syed, 204 A.3d 139, 158 (Md. 2019).

[7] Petition, supra note 3, at 3.

[8] Syed, 204 A.3d at 158.

[9] Id. at 157.

[10] Strickland, 466 U.S. at 703.

[11] Supreme Court Procedures, U.S. Courts, https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/supreme-1.

[12] The Justices’ Caseload, Supreme Court U.S., https://www.supremecourt.gov/about/justicecaseload.aspx.

[13] Supreme Court Procedures, supra note 11.

[14] Syed v. Maryland, Pending Case Page, SCOTUSblog, https://www.scotusblog.com/case-files/cases/syed-v-maryland/.

[15] Petition, supra note 3, at 5.

[16] See id.

Tags: 6th Amendment Criminal Law Criminal Procedure right to counsel Strickland v. Washington

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20Sep

“Take the Marijuana Out of It; It’s Not Marijuana:” Law Enforcement, Farmers, Smokable Hemp, and Probable Cause in North Carolina

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By Katharine Batchelor

On August 20, 2019, the North Carolina House passed its version of Senate Bill 315, the North Carolina Farm Act of 2019, sending it to the North Carolina Senate for a vote.[1] The bill, intended originally to expand the industrial hemp industry in North Carolina, revises the definition of “hemp product” to exclude smokable hemp, effectively banning smokable hemp.[2] That one revision is currently the source of great debate, with the state’s farmers and agriculture industry on one side and law enforcement on the other.[3] Before explaining the significance of this particular controversy, let me take two steps back and explain the root cause of the conflict.

A Quick Background on Hemp Legislation

In 2014, the 113th Congress passed a bill permitting state departments of agriculture to establish pilot programs for growing industrial hemp, if state law allowed.[4] In 2015, the N.C. General Assembly passed Senate Bill 313 which created the Industrial Hemp Commission to oversee the licensing and regulation of hemp farmers.[5] Since the creation of the Commission, industrial hemp production has boomed, with 634 licensed farmers currently growing on over 8000 acres and 3.4 million square feet of greenhouse space, at a time when the state’s farmers need the bump.[6] The declining demand for tobacco and trade issues with China have hurt North Carolina farmers, who currently produce half of all tobacco in the United States.[7] Hemp production has received another boost on a national-level when President Trump signed the 2018 Farm Bill into law, which reclassified hemp products from a controlled substance to an agricultural commodity.[8]

Is the THC less than 0.3%? Hemp v. Marijuana

Taking one more step back, it is important to understand the difference (and the similarities) between hemp and its closely-related cousin, marijuana. Hemp and marijuana are both part of the cannabis plant family, they are simply two different varieties.[9] There are a few types of hemp, one grown predominately for its seeds, another for its fiber, and another for its floral buds from which CBD is extracted.[10] The latter variety is the kind used for smokable hemp and thus where the problem lies. As the North Carolina State Bureau of Investigation (SBI) put it, “This type looks just like marijuana, including the leaves and buds, and it smells the same as marijuana. In fact, there is no way for an individual to tell the difference by looking at the plant; one would need a chemical analysis to tell the difference.”[11] Indeed, the only difference between hemp and marijuana is the amount of tetrahydrocannabinol, or THC, which is the psychoactive chemical in marijuana that produces a high when smoked.[12] Hemp products must contain 0.3% or less THC; anything greater and it is considered illegal.[13] While the N.C. Department of Agriculture utilizes private labs to test for the percentage of THC, the SBI crime lab currently only tests for the presence of THC and not the percentage of THC.[14] Why does that matter? Two words: probable cause.

The Impact of Hemp on Probable Cause

Under existing North Carolina case law, probable cause only requires law enforcement officers to reasonably believe that there is a “probability or substantial chance” of criminal activity.[15] To seize an item, an officer simply has to believe that it is evidence of a crime.[16] The existence of legal, smokable hemp thus creates a huge issue for the way marijuana is currently policed, investigated, and prosecuted.[17] In State v. Fletcher, the North Carolina Court of Appeals upheld a marijuana conviction based on an officer identifying marijuana visually using her experience and training.[18] Now, however, if an officer cannot distinguish on sight between hemp and marijuana, then that officer does not have probable cause to seize evidence or make an arrest, because the cannabis plant material an officer sees or smells could very well be smokable hemp – a legal commodity people are free to use whenever and wherever.[19]

Law enforcement agencies across the state have acknowledged the impact of smokable hemp on marijuana enforcement.[20] In fact, the SBI stated that at least one district attorney’s office has stopped prosecuting marijuana possession because officers can no longer distinguish hemp from marijuana; thus there is no evidentiary grounds for a conviction.[21] Many have even forecasted that the continued legality of smokable hemp could lead to the legalization of marijuana in North Carolina.[22] While there are tests to determine the amount of THC in a substance, there currently is no field test available to North Carolina law enforcement to use on site and again, the SBI currently only tests for the presence of THC.[23] The visual identification evidence by which so many marijuana cases are prosecuted is no longer available to law enforcement and prosecutors.

Senate Bill 315

In response to law enforcement’s concerns, a Senate subcommittee revised SB 315 to ban smokable hemp on June 6.[24] “Hemp product does not include smokable hemp.”[25] That version of the bill passed the Senate on June 18. Almost immediately, the state’s farmers spoke out in protest with the Industrial Hemp Commission calling on the N.C. General Assembly to keep smokable hemp legal.[26] The smokable hemp bud is more lucrative for farmers and many have already invested in new equipment and seed because the state has been loosening hemp laws since 2015.[27] That single revision, which would go in effect on May 1, 2020, could diminish farmers’ ability to obtain the necessary crop insurance and to compete with other states where smokable hemp is legal.[28]

Nevertheless, SB 315 made its way to the N.C. House where representatives went one step further in response to the impact of smokable hemp on probable cause. Before voting to pass the bill as a whole, the House passed the following amendment to the section titled, “Exclusion or suppression of unlawfully obtained evidence:”[29]

(a1) If evidence was obtained as the result of a search that was supported by probable cause at the time of the search, no evidence obtained as a result of that search shall be suppressed solely on the basis of either of the following:
(1) A subsequent determination that a substance believed to be a controlled substance at the time of the search was not a controlled substance.
(2) A subsequent determination that the presence of a controlled substance at the time of the search was not a violation of law.

In essence, the amendment returns probable cause based on visual identification to law enforcement and allows officers to search and arrest for suspected marijuana using sight and smell alone.[30] Furthermore, the amendment explicitly states that even if officers later determine a substance is a legal hemp product, any evidence found through a search can be used as evidence for other charges: the evidence is not fruit of the poisonous tree.[31] This amendment raises significant constitutional questions regarding legal search and seizure, which at least two Republican representatives highlighted before the House voted on the bill.[32] The bill was sent to the Senate Committee on Rules and Operations on August 22, which has to approve the current edition before it is sent to the governor.[33]

Whether the current edition[34] of the bill is signed into law remains to be seen. With two of the state’s most influential groups, law enforcement and farmers, on opposing sides, it’s likely that this debate isn’t over quite yet, and SB 315 could evolve once again before it passes into the hands of Roy Cooper.

[1] Dawn Baumgartner Vaughan, NC House Votes for Ban on Smokable Hemp, Reacting to Police Concern Over Pot Arrests, Charlotte Observer (Aug. 21, 2019, 12:12 PM), https://www.charlotteobserver.com/news/politics-government/article234178387.html (quoting Fen Rascoe, a North Carolina Industrial Hemp Commission member and hemp farmer).

[2] S.B. 315 – 10th Ed., Gen. Assemb., 2019 Sess. (N.C. 2019), https://www.ncleg.gov/Sessions/2019/Bills/Senate/PDF/S315v10.pdf.

[3] Vaughan, supra note 1.

[4] Industrial Hemp Pilot Program in North Carolina, N. C. Dep’t of Agric. & Consumer Serv., https://www.ncagr.gov/hemp/index.htm (last visited Sept. 19, 2019).

[5] S.B. 313, Gen. Assemb., 2015 Sess. (N.C. 2015), https://www.ncleg.net/Sessions/2015/Bills/Senate/PDF/S313v5.pdf.

[6] Matthew Burns, NC Sees Hemp as Next Big Cash Crop, WRAL (Mar. 20, 2019), https://www.wral.com/nc-sees-hemp-as-next-big-cash-crop/18273125/.

[7] Heather Wilkerson, North Carolina Farmers Embrace Hemp as the Market for Tobacco Dwindles, Green Entrepreneur (June 11, 2019), https://www.greenentrepreneur.com/article/334739; Will Doran, NC Lawmakers See Hemp as the State’s Next Big Cash Crop. But Police are Opposed., Raleigh News & Observer (June 11, 2019, 8:19 PM), https://www.newsobserver.com/news/politics-government/article231439078.html.

[8] John Hudak, The Farm Bill, Hemp Legalization and the Status of CBD: An Explainer, Brookings (Dec. 14, 2018), https://www.brookings.edu/blog/fixgov/2018/12/14/the-farm-bill-hemp-and-cbd-explainer/.

[9] Industrial Hemp Pilot Program in North Carolina: Frequently Asked Questions, N. C. Dep’t of Agric. & Consumer Serv., https://www.ncagr.gov/hemp/FAQs.htm (last visited Sept. 19, 2019).

[10] Id.

[11] N.C. State Bureau of Investigation, Memo on Industrial Hemp/CBD Issues (May 2019), https://www.sog.unc.edu/sites/www.sog.unc.edu/files/doc_warehouse/NC%20SBI%20-%20Issues%20with%20Hemp%20and%20CBD%20Full.pdf.

[12] Id.

[13] Id.

[14] Id.

[15] State v. Riggs, 328 N.C. 213, 219 (1991).

[16] N.C. State Bureau of Investigation, supra note 11.

[17] Paul A. Specht, Some NC Lawmakers Want to Ban Smokable Hemp. It Looks Too Much Like Marijuana, They Say., Charlotte Observer (July 23, 2019, 7:36 PM), https://www.charlotteobserver.com/news/politics-government/article233012142.html.

[18] State v. Fletcher, 92 N.C. App. 50, 56 (N.C. Ct. App. 1988).

[19] Phil Dixon, Hemp or Marijuana?, U.N.C. Sch. of Gov’t: N.C. Crim. Law (May 21, 2019, 10:14 AM), https://nccriminallaw.sog.unc.edu/hemp-or-marijuana/.

[20] Specht, supra note 17.

[21] N.C. State Bureau of Investigation, supra note 11.

[22] Specht, supra note 17.

[23] N.C. State Bureau of Investigation, supra note 11.

[24] N.C. Senate Comm. on Agric./Env’t/Nat. Resources, PCS 15357 (2019) https://webservices.ncleg.net/ViewBillDocument/2019/4790/0/S315-PCS15357-TQf-5.

[25] Id.

[26] Specht, supra note 17.

[27] Id.

[28] Id.

[29] N.C. House, Amendment A1 to S.B. 315 (2019) https://webservices.ncleg.net/ViewBillDocument/2019/6292/0/S315-ASA-85-V-1.

[30] Vaughan, supra note 1.

[31] Id.

[32] Id.

[33] Id.

[34] S.B. 315 – 10th Ed., Gen. Assemb., 2019 Sess. (N.C. 2019), https://www.ncleg.gov/Sessions/2019/Bills/Senate/PDF/S315v10.pdf.

Tags: Criminal Procedure hemp marijuana North Carolina Probable Cause

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4Sep

As Free as a Bird: The Middle Finger and the First Amendment

Categories: Current Issues Blog

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By Michael Johnston

When Shawn Ellis extended his middle finger while riding in the passenger seat of a vehicle on U.S. Highway 52, he likely did not know that he would become involved in the latest of a string of appellate cases on the First Amendment.

The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech . . . .”[1] Freedom of speech under the First Amendment was incorporated against the states via the Fourteenth Amendment, limiting the ability of the states to restrict freedom of speech under the United States Constitution.[2] Expressive conduct outside of verbal speech can also merit First Amendment protections if there is an intent to convey a particularized message and there is a great likelihood that the message will be understood by those who view it in the surrounding circumstances.[3]

The extension of one’s middle finger, colloquially known as shooting or flipping the bird,[4] has a long history of being used to express emotions ranging from anger and protest to comfort and familiarity.[5] While this gesture can be used to express contempt, several courts have been reluctant to conclude that the middle finger gesture falls into a category of unprotected speech that can be prosecuted.[6] For example, the Sixth Circuit recently determined that a police officer did not have reasonable suspicion or probable cause of criminal activity to stop plaintiff a second time simply because she extended her middle finger after the first stop.[7] The court reasoned that the plaintiff violated no identified law and that “[a]ny reasonable officer would know that a citizen who raises her middle finger engages in speech protected by the First Amendment.”[8]

Fighting words, however, are one exception to the First Amendment; they are words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”[9] The Supreme Court further explained that fighting words are not essential to the discussion of ideas, and any benefit to the social discourse derived from them is outweighed by society’s interest in morality and order.[10] Despite the expressive value of extending one’s middle finger, courts are more willing to conclude that the gesture can support a disorderly conduct charge if there are other disruptive circumstances or if a third party can testify that they felt offended or threatened.[11] For example, the Third Circuit held that a police officer had probable cause to charge plaintiff with disorderly conduct under the totality of the circumstances, namely the plaintiff’s display of his middle finger and aggressive driving directed at another driver on the road.[12] With additional disruptive circumstances, a court is more likely to conclude that the speech constitutes fighting words and that the person using such speech can be charged with disorderly conduct.[13] For expressive purposes, disorderly conduct statutes have been limited by the Supreme Court to the proscription of fighting words.[14]

In State v. Ellis,[15] the defendant was stopped by a police officer after the officer observed the defendant extending his middle finger in the officer’s general direction.[16] The defendant was initially using a waving gesture as his vehicle drove past the stopped officer, but after the defendant’s vehicle passed the officer, the defendant changed his gesture to an extended middle finger.[17] There were other vehicles moving down the highway near the defendant’s vehicle.[18] In its initial opinion, the North Carolina Court of Appeals concluded that this conduct was sufficient for an officer to have reasonable suspicion of disorderly conduct.[19] The panel then withdrew its initial opinion and substituted it with another opinion; the panel majority clarified that the officer had reasonable suspicion of disorderly conduct because there was an objective basis to believe that the defendant’s gesture could have been directed at a third party and that the changing gestures suggested that the potential disorderly conduct was escalating.[20] While the court noted cases concluding that giving a middle finger to law enforcement is protected by the First Amendment, the court distinguished them by concluding that the possibility that defendant’s middle finger could have been directed at a third party was a sufficient basis for reasonable suspicion for disorderly conduct.[21] According to the court, this reasonable suspicion justified the stop and later justified the defendant’s charge and conviction of resisting, delaying, or obstructing a public officer for failing to provide his identification.[22]

The standard for a police officer to conduct a traffic stop is reasonable suspicion of criminal activity,[23] which is a lower standard than probable cause of criminal activity.[24] For reasonable suspicion, the police officer must, under the totality of the circumstances, have specific and articulable facts supporting a suspicion of criminal activity.[25] An innocent explanation for suspicious conduct does not defeat reasonable suspicion,[26] and innocent conduct can contribute to reasonable suspicion under the totality of the circumstances.[27]

However, as the dissenting opinion notes, the majority’s opinion in Ellis seems to disregard the First Amendment protections for defendant’s speech.^[28] There is a sizeable amount of authority from around the United States concluding that extending one’s middle finger in the presence of third parties does not constitute disorderly conduct under the First Amendment.[29] Furthermore, there is also authority concluding that simply displaying one’s middle finger is insufficient for reasonable suspicion of criminal activity under the First Amendment.[30] In both Cruise-Gulyas v. Minard^[31] and Ellis, for example, an officer stopped someone after they displayed their middle finger in the direction of the officer.^[32] While the Sixth Circuit concluded that the officer in Cruise-Gulyas lacked reasonable suspicion to stop the plaintiff in response to the gesture under the First Amendment, the court of appeals in Ellis distinguished Cruise-Gulyas on the basis that it was unclear whom the gesture was directed at in Ellis, even though it seems unlikely that there were no other drivers on the street who might have seen the gesture in Cruise-Gulyas.^[33] Just as there was no reasonable suspicion of criminal activity and “[a]ny reasonable officer would know that a citizen who raises her middle finger engages in speech protected by the First Amendment” in Cruise-Gulyas,^[34] the same should be true in Ellis. Furthermore, other courts have viewed the middle finger as sufficient for reasonable suspicion or probable cause of criminal activity only when there are other disruptive circumstances associated with the conduct or a third party can testify that they felt offended or threatened.^[35] Unlike in Favata v. Seidel,[36] there were no other disruptive circumstances in Ellis, such as reckless driving, to justify reasonable suspicion or probable cause of disorderly conduct.[37] The Ellis opinion does find some support in North Carolina case law, but one of the more helpful cases for the Ellis opinion is also likely inconsistent with other authorities interpreting the First Amendment.[38]

On a practical note, the Ellis opinion will give law enforcement broader discretion to stop people, even if the stops are only motivated by personal animus. While the motivation of an officer might not be legally relevant when determining whether the officer had reasonable suspicion,[39] such stops can undermine community faith in law enforcement.[40] To justify such a stop, an officer would only need to claim that the offensive conduct of the defendant occurred in the presence of a third party. As in Ellis, the State would not need to provide evidence that the third party was actually offended by the gesture or even observed the gesture.[41] If the analysis of this question focused purely on reasonable suspicion standards under North Carolina law, this outcome might be logical due to the lower standard required for reasonable suspicion. However, in light of the protections for expressive conduct under the First Amendment, law enforcement officers stopping someone simply for using expressive, albeit distasteful, conduct in the presence of others is inconsistent with our constitutional freedoms and history.[42] Given our nation’s long history of protecting dissident speech under the First Amendment even when it happens to be offensive, extending a middle finger should not be a criminal offense, and it should not be treated as reasonable suspicion of a criminal offense simply because a third party might have seen it.

Mr. Ellis is in the process of appealing the panel’s decision.[43] In light of this appeal, the North Carolina Supreme Court should establish that the First Amendment protects expressive conduct in the form of extending a middle finger in public.

[1] U.S. Const. amend. I.

[2] U.S. Const. amend XIV, § 1; see Stromberg v. California, 283 U.S. 359, 368–70 (1931); Gitlow v. New York, 268 U.S. 652, 666 (1925).

[3] See Texas v. Johnson, 491 U.S. 397, 404 (1989) (quoting Spence v. Washington, 418 U.S. 405, 411–12 (1974)).

[4] See Ira P. Robbins, Digitus Impudicus: The Middle Finger and the Law, 41 U.C. Davis L. Rev. 1403, 1405–06 (2008).

[5] See id. at 1407–10.

[6] See Cruise-Gulyas v. Minard, 918 F.3d 494, 497 (6th Cir. 2019) (holding that plaintiff’s extension of middle finger did not justify officer stopping her a second time because the gesture was protected under the First Amendment and the gesture itself did not create probable cause or any reasonable suspicion of any criminal act); Swartz v. Insogna, 704 F.3d 105, 110 (2d Cir. 2013) (holding that traffic stop was not lawful because plaintiff giving officer middle finger while riding in vehicle did not create a reasonable suspicion of criminal activity); Sandul v. Larion, 119 F.3d 1250, 1255 (6th Cir. 1997) (holding that, despite defendant directing his middle finger and profane language at protestors while driving, “a reasonable officer should have known that the words and gestures employed by Sandul amounted to protected speech” because they were not likely to incite an immediate breach of the peace when Sandul’s vehicle was traveling quickly on the opposite side of the street from the protestors, the incident only lasted a few seconds, there was no evidence that any protestor was offended or even acknowledged the conduct except for the officer, and there was no face-to-face contact between Sandul and protestors), cert. dismissed, 522 U.S. 979 (1997); Duran v. City of Douglas, 904 F.2d 1372, 1378 (9th Cir. 1990) (holding that vehicle passenger’s use of profanity and display of middle finger to police officer protected by the First Amendment); Youngblood v. Qualls, 308 F. Supp. 3d 1184, 1190, 1195–97 (D. Kan. 2018) (holding that plaintiff’s display of middle finger and use of profanity directed at neighbor’s house was insufficient for probable cause for disorderly conduct under Kan. Stat. Ann. § 21-6203 and the First Amendment); Brown v. Wilson, No. 1:12-CV-1122-DAE, 2015 U.S. Dist. LEXIS 88871, at *8–14 (W.D. Tex. July 9, 2015) (holding that plaintiff’s middle finger to police officer while driving was not in violation of Texas’s disorderly conduct statute and did not fall under the fighting words exception to the First Amendment because there was no indication of actual or threatened violence tending to incite an immediate breach of the peace); Corey v. Nassan, No. 05-114, 2006 U.S. Dist. LEXIS 68521, at *23–37 (W.D. Pa. Sept. 25, 2006) (holding that plaintiff’s alleged raising of his middle finger to police officer while driving was protected by the First Amendment in part because of the absence of “some particularized showing that the gesture in the specific factual context constitutes ‘fighting words’ or is otherwise illegal”); Perkins v. City of Gahanna, No. C2-99-533, 2000 U.S. Dist. LEXIS 23209, at *5–11 (S.D. Ohio Sept. 21, 2000) (holding that plaintiff’s display of middle finger to police officer as he was leaving a police station was protected by the First Amendment and not disorderly conduct); Nichols v. Chacon, 110 F. Supp. 2d 1099, 1101, 1110 (W.D. Ark. 2000) (holding that officer improperly charged plaintiff with disorderly conduct after officer observed plaintiff display his middle finger while driving because the disorderly conduct statute, Ark. Code Ann. § 5-71-207(a)(3), was limited to fighting words and the display of one’s middle finger did not constitute fighting words); United States v. McDermott, 971 F. Supp. 939, 942–43 (E.D. Pa. 1997) (holding that defendant’s use of profanity with only officers and two other people present insufficient for fighting words exception under disorderly conduct statute); Cook v. Bd. of the Cty. Comm’rs, 966 F. Supp. 1049, 1052 (D. Kan. 1997) (holding that “the Court cannot infer that a reasonable police officer would necessarily believe that plaintiff was engaged in disorderly conduct or that — in light of clearly established law and the information known to Officer Drake — a reasonable police officer would have had probable cause to arrest plaintiff and charge him with disorderly conduct in violation of Kansas Law” when plaintiff displayed his middle finger while driving past officer’s parked patrol car); Freeman v. State, 805 S.E.2d 845, 849–51 (Ga. 2017) (holding that defendant’s disorderly conduct conviction based on his display of his middle finger in church was improper because the statute Ga. Code Ann. § 16-11-39(a)(1), as applied to expressive conduct under the First Amendment, only criminalized fighting words and there was no evidence that defendant engaged in any other threatening conduct or intended anything other than protest against secular education); In re Fechuch, No. 2005 AP 02 0012, 2005 Ohio App. LEXIS 3941, at *3–9 (Ohio Ct. App. Aug. 16, 2005) (holding that there was insufficient evidence to support defendant’s conviction for disorderly conduct because defendant’s use of profanity and her middle finger did not constitute fighting words under the First Amendment as they were not inherently likely to provoke a violent reaction from the ordinary citizen); Coggin v. State, 123 S.W.3d 82, 87–88, 91–92 (Tex. App. 2003) (holding that the evidence at trial was legally insufficient to uphold defendant’s conviction of disorderly conduct after defendant in car displayed his middle finger to driver of another car because the interaction was brief, there was no actual or threatened violence, and the interaction was not face-to-face).

[7] See Cruise-Gulyas, 918 F.3d at 497.

[8] See id.

[9] See Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72 (1942) (footnote omitted).

[10] See id.

[11] See Favata v. Seidel, 511 F. App’x. 155, 159–60 (3d Cir. 2013) (holding that there was probable cause for disorderly conduct because plaintiff was driving recklessly in addition to displaying his middle finger); City of Akron v. Lorenzo, No. 20475, 2001 Ohio App. LEXIS 4327, at *8 (Ohio Ct. App. Sept. 26, 2001) (holding that it was not a manifest miscarriage of justice for a trial court to find defendant guilty of disorderly conduct under fighting words exception because defendant repeatedly shouted profanities at officers and displayed his middle finger); State v. Wood, 679 N.E.2d 735, 739–40 (Ohio. Ct. App. 1996) (holding that defendant’s conviction for disorderly conduct was proper after concluding that defendant’s actions, namely approaching university police officers and then repeatedly using profanities against them and displaying his middle finger to them, constituted fighting words); In re S.J.N-K., 647 N.W.2d 707, 711–13 (S.D. 2002) (holding that there was sufficient evidence to justify a guilty jury verdict for disorderly conduct under the fighting words exception after defendant repeatedly displayed middle finger and mouthed profanity to school principal while following principal in car); Estes v. State, 660 S.W.2d 873, 874–75 (Tex. App. 1983) (holding that there was sufficient evidence to justify a guilty jury verdict for disorderly conduct after defendant displayed his middle finger to high school principal and principal resisted “animal instinct to retaliate” because the gesture could have constituted fighting words to an average person).

[12] See Favata, 511 F. App’x at 156–57, 159–60.

[13] See, e.g., Wood, 679 N.E.2d at 739–40 (holding that defendant’s conviction for disorderly conduct proper after concluding that defendant’s actions, namely approaching university police officers and then repeatedly using profanities against them and displaying his middle finger to them, constituted fighting words).

[14] See Gooding v. Wilson, 405 U.S. 518, 527–28 (1972); State v. Summrell, 192 S.E.2d 569, 574–76 (N.C. 1972), overruled in part on other grounds in State v. Barnes, 380 S.E.2d 118, 119 (N.C. 1989).

[15] No. COA18-817, 2019 N.C. App. LEXIS 713 (N.C. Ct. App. Aug. 20, 2019) petition for writ of supersedeas filed, motion for temporary stay allowed, No. 340A19-1, 2019 N.C. LEXIS 848 (N.C. Aug. 29, 2019). While this case was officially filed for publication by the North Carolina Court of Appeals on August 20, 2019, it has not been given an official reporter designation at the time of this publication.

[16] Id. at *7–8.

[17] Id.

[18] Id. at *6.

[19] N.C. Gen. Stat. § 14-288.4(a)(2) (2017); State v. Ellis, No. COA18-817, 2019 N.C. App. LEXIS 628, at *6–8 (N.C. Ct. App. Aug. 6, 2019), withdrawn (Aug. 13, 2019), modified, No. COA18-817, 2019 N.C. App. LEXIS 713 (N.C. Ct. App. Aug. 20, 2019), petition for writ of supersedeas filed, motion for temporary stay allowed, No. 340A19-1, 2019 N.C. LEXIS 848 (N.C. Aug. 29, 2019).

[20] Ellis, 2019 N.C. App. LEXIS 713, at *9–11.

[21] Id.

[22] See id. at *9–12.

[23] See State v. Barnard, 658 S.E.2d 643, 645 (N.C. 2008).

[24] See State v. Johnson, 803 S.E.2d 137, 139 (N.C. 2017).

[25] See Terry v. Ohio, 392 U.S. 1, 20–22 (1968); State v. Styles, 665 S.E.2d 438, 443–40 (N.C. 2008).

[26] See United States v. Arvizu, 534 U.S. 266, 277 (2002); State v. Williams, 726 S.E.2d 161, 167 (N.C. Ct. App. 2012).

[27] See United States v. Sokolow, 490 U.S. 1, 9–11 (1989); Terry, 392 U.S. at 22.

[28] See State v. Ellis, No. COA18-817, 2019 N.C. App. LEXIS 713, at *22 (N.C. Ct. App. Aug. 20, 2019) (Arrowood, J., dissenting), petition for writ of supersedeas filed, motion for temporary stay allowed, No. 340A19-1, 2019 N.C. LEXIS 848 (N.C. Aug. 29, 2019).

[29] See Sandul v. Larion, 119 F.3d 1250, 1255 (6th Cir. 1997) (holding that, despite defendant directing his middle finger and profane language at protestors while driving, “a reasonable officer should have known that the words and gestures employed by Sandul amounted to protected speech” because they were not likely to incite an immediate breach of the peace when Sandul’s vehicle was traveling quickly on the opposite side of the street from the protestors, the incident only lasted a few seconds, there was no evidence that any protestor was offended or even acknowledged the conduct except for the officer, and there was no face-to-face contact between Sandul and protestors), cert. dismissed, 522 U.S. 979 (1997); Youngblood v. Qualls, 308 F. Supp. 3d 1184, 1190, 1195–97 (D. Kan. 2018) (holding that plaintiff’s display of middle finger and use of profanity directed at neighbor’s house was insufficient for probable cause for disorderly conduct under Kan. Stat. Ann. § 21-6203 and the First Amendment); United States v. McDermott, 971 F. Supp. 939, 942–43 (E.D. Pa. 1997) (holding that defendant’s use of profanity with only officers and two other people present insufficient for fighting words exception under disorderly conduct statute); Freeman v. State, 805 S.E.2d 845, 849–51 (Ga. 2017) (holding that defendant’s disorderly conduct conviction based on his display of his middle finger in church was improper because the statute Ga. Code Ann. § 16-11-39(a)(1), as applied to expressive conduct, only criminalizes fighting words and there was no evidence that defendant engaged in any other threatening conduct or intended anything other than protest against secular education); Coggin v. State, 123 S.W.3d 82, 91–92 (Tex. App. 2003) (holding that the evidence at trial was legally insufficient to uphold defendant’s conviction of disorderly conduct after defendant in car displayed his middle finger to driver of another car because the interaction was brief, there was no actual or threatened violence, and the interaction was not face-to-face).

[30] See, e.g., Cruise-Gulyas v. Minard, 918 F.3d 494, 497 (6th Cir. 2019) (holding that plaintiff’s extension of middle finger did not justify officer stopping her a second time because the gesture was protected under the First Amendment and the gesture itself did not create probable cause or any reasonable suspicion of any criminal act); Sandul, 119 F.3d at 1255.

[31] 918 F.3d 494 (6th Cir. 2019).

[32] See id. at 497; Ellis, 2019 N.C. App. LEXIS 713, at * 7–8.

[33] See Cruise-Gulyas, 918 F.3d at 495–97; Ellis, 2019 N.C. App. LEXIS 713, at *6–10.

[34] See Cruise-Gulyas, 918 F.3d at 497.

[35] See, e.g., Favata v. Seidel, 511 F. App’x. 155, 159–60 (3d Cir. 2013) (holding that there was probable cause for disorderly conduct because plaintiff was driving recklessly in addition to displaying his middle finger); State v. Wood, 679 N.E.2d 735, 739–40 (Ohio. Ct. App. 1996) (holding that defendant’s conviction for disorderly conduct was proper after concluding that defendant’s actions, namely approaching university police officers and then repeatedly using profanities against them and displaying his middle finger to them, constituted fighting words).

[36] 511 F. App’x. 155 (3d Cir. 2013).

[37] See id. at 156–57, 159–60; Ellis, 2019 N.C. App. LEXIS 713, at *6–10.

[38] See In re V.C.R., 742 S.E.2d 566, 568, 570–71 (N.C. Ct. App. 2013) (holding that officer had reasonable suspicion to seize teenage defendant for disorderly conduct under N.C. Gen. Stat. § 14-288.4(a)(2) after officer began driving away and defendant said, “What the fuck, man?”). It is unlikely that a reasonable person would sincerely believe that a teenager’s use of what was likely rhetorical profanity amongst friends would be plainly likely to provoke violent retaliation and thereby cause a breach of the peace. Furthermore, such speech is likely protected by the First Amendment. Compare id., with Cruise-Gulyas, 918 F.3d at 497 (holding that officer’s second stop of plaintiff after plaintiff extended her middle finger was not based on reasonable suspicion of any criminal act and that plaintiff’s gesture was protected under the First Amendment).

[39] See Whren v. United States, 517 U.S. 806, 813 (1996); State v. Nicholson, 813 S.E.2d 840, 846 (N.C. 2018).

[40] See Albert J. Reiss, Jr., The Police and the Public 175–76 (1971).

[41] See State v. Ellis, No. COA18-817, 2019 N.C. App. LEXIS 713, at *2–3 (N.C. Ct. App. Aug. 20, 2019); id. at *22 (Arrowood, J., dissenting).

[42] See, e.g., Texas v. Johnson, 491 U.S. 397, 414 (1989); Cohen v. California, 403 U.S. 15, 25–26 (1971).

[43] See State v. Ellis, No. COA18-817, 2019 N.C. App. LEXIS 713 (N.C. Ct. App. Aug. 20, 2019), petition for writ of supersedeas filed, motion for temporary stay allowed, No. 340A19-1, 2019 N.C. LEXIS 848 (N.C. Aug. 29, 2019).

Tags: Criminal Law Criminal Procedure First Amendment middle finger North Carolina reasonable suspicion

« “This Case Is Not Close”: Three-Judge Panel Enjoins Use of 2017 North Carolina Legislative Maps as Partisan Gerrymanders

Of Subtweets and Bedbugs: Libel in the Age of Social Media »

17Oct

Judges of the Fourth Circuit – Hon. Francis D. Murnaghan, Jr.

Categories: 4th Cir. Blog Judges of the 4th Cir.

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By: Jason Wiener

Francis Dominic Murnaghan, Jr. was born in Baltimore, Maryland on June 20, 1920.[1] After he received an undergraduate degree from Johns Hopkins University in 1941, he served his country during World War II as a U.S. Naval Reserve Lieutenant from 1942 to 1946.[2] Upon graduating from Harvard Law School in 1948, he went into private practice in Pennsylvania until 1950 and then served as a staff attorney for the U.S. Department of State’s High Commission on Germany from 1950 to 1952.[3] Before taking the bench, Judge Murnaghan was a partner at Venable, Baetjer and Howard and served as the Assistant Attorney General for the State of Maryland.[4]

From 1967 to 1970, Judge Murnaghan was president of the Baltimore City School Board.[5] He served as president and then chairman of the Walters Art Gallery from 1963 until being named chairman emeritus in 1985.[6] Known for his participation in the public and political spheres in Baltimore, he assisted in the successful campaigns of Senator Paul Sarbanes in 1976 and Governor Harry Hughes in 1978.[7]

On May 8, 1979, he was nominated to the U.S. Court of Appeals for the Fourth Circuit by Jimmy Carter.[8] While on the bench, Judge Murnaghan wrote over 500 opinions and more than half as many concurrences and dissents.[9] Known for his compassion and professionalism, his opinions had great impacts in the areas of civil rights, labor, First Amendment law.[10]

Although it is rare for a circuit to reverse a district court finding on a clearly erroneous standard of review, in United States v. Gregory, Judge Murnaghan reversed the lower court’s finding that the Sheriff of Patrick County, Virginia, was not discriminating against women in the hiring of deputies.[11] Judge Murnaghan stated that the district court erred in its factual findings and found that the record indicated that Sheriff Gregory routinely engaged in discriminatory practices against women in violation of Title VII.[12]

In a notable dissent, Judge Murnaghan alone argued against the constitutionality of a Virginia statute that allowed the Commonwealth to collect the DNA of all convicted felons for a law enforcement data bank.[13] Judge Murnaghan believed that the Commonwealth did not justify the statute with an important state interest that outweighed non-violent felons’ reasonable expectations of privacy.[14] He went on to warn of his “deep, disturbing, and overriding concern that, without a proper and compelling justification, the Commonwealth may be successful in taking significant strides towards the establishment of a future police state, in which broad and vague concerns for administrative efficiency will serve to support substantial intrusions into the privacy of citizens.”[15]

Judge Murnaghan’s contributions helped strengthen the foundations of democracy and equality, and he will be remembered for his devotion to civil rights.[16] On August 31, 2000, the Honorable Francis Dominic Murnaghan, Jr. died at the age of 80.[17] Upon his death, the Baltimore Sun avowed, “Judge Murnaghan was one of the most admired figures in the legal establishment for his urbane scholarship, legal knowledge, and public spirit.”[18]

[1] Francis Dominic Murnaghan, Jr., Fed. Jud. Ctr., https://www.fjc.gov/node/1385506 (last visited Oct. 14, 2018).

[2] Id.

[3] Id.

[4] Biography of Judge Murnaghan, Francis D. Murnaghan Appellate Advocacy Fellowship, http://www.murnaghanfellowship.org/judge_murnaghan (last visited Oct. 14, 2018).

[5] Longtime Federal Appellate Judge Francis D. Murnaghan Dies at 80, Wash. Post (Sept. 1, 2000), https://www.washingtonpost.com/archive/local/2000/09/01/longtime-federal-appellate-judge-francis-d-murnaghan-dies-at-80/d1be1771-8f0b-4d10-b094-77d7ac3820ba/?noredirect=on&utm_term=.1823226946fb.

[6] Id.

[7] Id.

[8] Fed. Jud. Ctr., supra note 1.

[9] Biography of Judge Murnaghan, supra note 4.

[10] Id.

[11] United States v. Gregory, 871 F.2d 1239, 1241 (4th Cir. 1989).

[12] Id. at 1247.

[13] Jones v. Murray, 962 F.2d 302, 311 (4th Cir. 1992).

[14] Id. at 312.

[15] Id. at 315.

[16] Biography of Judge Murnaghan, supra note 4.

[17] Fed. Jud. Ctr., supra note 1.

[18] Confirmation Hearing on the Nomination of Claude A. Allen, of Virginia, to be Circuit Judge for the Fourth Circuit; and Mark R. Filip, of Illinois, to be District Judge for the Northern District of Illinois Before the S. Comm. on the Judiciary, 108th Cong. 5 (2003) (statement of Sen. Paul S. Sarbanes).

Tags: 4th Circuit Appellate Law Baltimore Biography Civil Rights Constitutional Law Court of Appeals Criminal Procedure Discrimination First Amendment Fourth Circuit Free Speech Jimmy Carter Judge Judge Bio Justice Murnaghan The Sun Title VII

« Fourth Circuit Clarifies Rules for Designations of ACCA Predicate Convictions

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9Oct

Fourth Circuit Clarifies Rules for Designations of ACCA Predicate Convictions

Categories: 4th Cir. Blog Issues in the 4th Circuit

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By Samuel D. Gilleran and Nicholas T. Pappayliou

Background

On August 22, 2018, the Fourth Circuit decided United States v. Hodge,[1] clarifying whether the government may ask a district court to designate a conviction as an Armed Career Criminal Act (“ACCA”) predicate conviction, when that conviction was not so designated during the initial sentencing. In 2011, Garnett Hodge pleaded guilty to possession of crack cocaine with intent to distribute and possession of a firearm as a felon.[2] Because of his prior convictions, Mr. Hodge was eligible for a “sentence enhancement” under the ACCA.[3] The ACCA states that a person convicted of possession of a firearm as a felon, who also has three prior “violent felony” or “serious drug offense” convictions, must receive a mandatory minimum of fifteen years in prison.[4] Mr. Hodge’s Presentence Investigation Report (“PSR”) designated exactly three qualifying, or ACCA predicate, convictions: a July 1992 felony drug possession with intent to distribute, a July 1998 felony drug possession with intent to distribute, and three counts of misdemeanor reckless endangerment in 1998.[5] The drug possession felonies qualified as “serious drug offense[s],” and – at the time – the misdemeanor reckless endangerment qualified as a “violent felony.”[6] But another section of Mr. Hodge’s PSR, labeled “criminal history,” enumerated seven additional convictions.[7] One of those convictions, a March 1992 felony cocaine possession with attempt to distribute, could have been designated in the PSR as an ACCA predicate conviction, as it was identical to the other cocaine possession charges that were so designated.[8] But, for some reason, the Probation Office that prepared the PSR failed to designate the March 1992 felony as a qualifying predicate conviction, and the Government did not object to the Probation Office’s failure to so designate that conviction.[9]

After his plea, Mr. Hodge was sentenced to 188 months of imprisonment on the cocaine charge and 204 months of imprisonment on the firearm charge, running concurrently.[10] In 2014, Mr. Hodge filed his first motion to vacate his sentence in district court, but it was dismissed as untimely.[11] In 2015, however, the United States Supreme Court “substantially narrowed” the ACCA’s definition of a “violent felony” in Johnson v. United States[12] (referred to as Johnson II).[13] Specifically, Johnson II struck down the ACCA’s “residual clause,” which classified “conduct that presents a serious potential risk of physical injury to another” as a “violent felony” for purposes of sentence enhancement.[14] The Supreme Court then declared in Welch v. United States[15] that Johnson II would apply “retroactively on collateral review.”[16] Pursuant to those rulings, the Fourth Circuit gave Mr. Hodge permission to file another motion to vacate his sentence.[17]

The Parties’ Arguments and the District Court’s Ruling

Mr. Hodge asserted that his reckless endangerment conviction was only an ACCA predicate conviction because of the now-unconstitutional residual clause.[18] Because the reckless endangerment conviction no longer qualified as an ACCA predicate conviction, he only had two predicate convictions and the mandatory minimum of fifteen years did not apply.[19]

The Government agreed with Mr. Hodge that the reckless endangerment conviction no longer qualified as an ACCA predicate conviction, and it initially recommended to the district court that Mr. Hodge be resentenced.[20] But ten days after filing papers agreeing with Mr. Hodge, the Government evidently discovered the March 1992 drug conviction could have served as a predicate conviction, if it had been so designated.[21] The Government therefore chose to argue that Mr. Hodge had four predicate convictions, and that the failure to designate the March 1992 conviction on the PSR notwithstanding, that conviction could be substituted for the reckless endangerment conviction that no longer qualified as an ACCA predicate.[22] In order to excuse its failure to object to the Probation Office’s non-designation of the March 1992 conviction, the Government claimed that it would have been superfluous to designate more than three convictions.[23]

The district court sided with the Government and denied Mr. Hodge’s motion, ruling that courts “should ordinarily examine the defendant’s entire criminal record” when evaluating eligibility for ACCA sentence enhancement.[24] The district court pointed to Mr. Hodge’s three convictions that could have been listed as ACCA predicates, although only two were so listed.[25] In the district court’s view, because Mr. Hodge had the requisite three predicate convictions, it was of no consequence that the Government had failed to designate one of them in the PSR.[26] Mr. Hodge then appealed to the Fourth Circuit, asking whether the Government would indeed be permitted to substitute the “potential ACCA predicate conviction that was listed in [Mr. Hodge’s] PSR but never designated nor relied upon as an ACCA predicate.”[27]

The Fourth Circuit’s Holding

Chief Judge Gregory, writing for the court, held that the Government was not permitted to substitute the undesignated potential ACCA predicate conviction for the conviction that no longer qualified.[28] The Government could not substitute the undesignated conviction because it “failed to provide Hodge with sufficient notice of its intent to use this conviction to support an ACCA enhancement.”[29] Defendants are entitled to “adequate notice of . . . the convictions that may support [an ACCA] enhancement,”[30] so that they may “contest the validity or applicability of the prior convictions upon which [the] statutory sentencing enhancement is based.”[31] Applying the canon of expressio unius est exlusio alterius, the Government had indicated “an intentional exclusion” of the March 1992 conviction because the PSR expressly identified the three other convictions as ACCA predicates.[32] And because the Probation Office did not designate the March 1992 conviction as an ACCA predicate and the Government did not object to that failure, if Mr. Hodge had wanted to challenge “the validity or applicability” of that conviction, he himself would have had to draw attention to it, an anomaly that the court said “would undermine the adversarial process.”[33]

The court rejected the Government’s contention that designating more than three predicate convictions would have been superfluous by noting that “the U.S. Probation Office often designates more than three convictions as ACCA predicates,”[34] and the Government’s inclusion of two convictions for felony possession of cocaine with intent to distribute but exclusion of the third conviction for the same crime militated the conclusion that the “exclusion was deliberate.”[35]

The court also noted that when a defendant fails to timely contest the designation of a crime as an ACCA predicate, the issue is waived on collateral review.[36] In the court’s view, it is only fair to require the Government to meet the same standard.[37] Citing a recent case in the First Circuit, the court recognized that “it is unfair to allow parties to surprise one another with new argument that they did not make at the appropriate procedural juncture.”[38] In Mr. Hodge’s case, “the appropriate procedural juncture” was at sentencing.[39] If the Government ever wanted to rely on the March 1992 conviction, it should have objected to the PSR “during the sentencing proceedings.”[40] Because of the unfairness that the opposite rule would work on the defendant, the court held “that the Government must identify all convictions it wishes to use to support a defendant’s ACCA sentence enhancement at the time of sentencing.”[41]

This decision comports with the Eleventh Circuit’s holding in Bryant v. Warden, FCC Coleman–Medium.[42] In that similar situation, a defendant had three designated ACCA predicate convictions, but a change in the law left one of those designations invalid; meanwhile, the Government urged that court to substitute a previously undesignated burglary conviction as the necessary third ACCA predicate conviction.[43] The Eleventh Circuit refused to do so, relying on the Government’s failure to object to the district court’s non-designation of that conviction as a predicate conviction.[44] Similarly, in United States v. Petite,[45] the Eleventh Circuit flatly stated, “The government cannot offer for the first time on appeal a new predicate conviction in support of an enhanced ACCA sentence. The argument should have been made prior to or during sentencing. . . .”[46]

Conclusion

When the Government fails to designate a potential ACCA predicate conviction as such, it may not then seek it so designated in later proceedings to support an ACCA enhancement.[47] The Fourth Circuit therefore reversed the district court’s denial of Mr. Hodge’s motion to vacate his sentence and remanded for resentencing.[48] As of this writing, the resentencing hearing has not yet been scheduled.

[1] 902 F.3d 420 (4th Cir. 2018).

[2] Id. at 423.

[3] Id.

[4] Id. at 423–24.

[5] Id. at 424.

[6] Id.

[7] Id.

[8] Id. at 424–25.

[9] Id. at 426.

[10] Id. at 424.

[11] Id.

[12] 135 S. Ct. 2551 (2015).

[13] Hodge, 902 F.3d at 424–25.

[14] Id. at 425.

[15] 136 S. Ct. 1257 (2016).

[16] Hodge, 902 F.3d at 425.

[17] Id. at 424.

[18] Id. at 425.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Id. at 428 n.4.

[24] Hodge v. United States, No. 1:16-CV-781, 2016 WL 7480397, at *3 (M.D.N.C. Dec. 29, 2016).

[25] Id. at *2.

[26] Id.

[27] Hodge, 902 F.3d at 426.

[28] Id. at 427.

[29] Id.

[30] Id. (quoting United States v. O’Neal, 180 F.3d 115, 125–26 (4th Cir. 1999)).

[31] Id. (quoting United States v. Moore, 208 F.3d 411, 414 (2d Cir. 2000)).

[32] Id. at 427–28.

[33] Id. at 428.

[34] Id. at 428 n.4.

[35] Id. at 428.

[36] Id. at 429.

[37] Id.

[38] Id. (quoting United States v. Fernandez-Jorge, 894 F.3d 36, 54 n.16 (1st Cir. 2018)).

[39] Id.

[40] Id.

[41] Id. at 430.

[42] 738 F.3d 1253, 1256–57 (11th Cir. 2013), overruled on other grounds by McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076 (11th Cir. 2017).

[43] Id. at 1279.

[44] Id.

[45] 703 F.3d 1290 (11th Cir. 2013), abrogated on other grounds by Johnson II, 135 S. Ct. 2551.

[46] Id. at 1292 n.2.

[47] Hodge, 902 F.3d at 430.

[48] Id. at 432.

Tags: Criminal Law Criminal Procedure Sentencing

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Judges of the Fourth Circuit – Hon. Francis D. Murnaghan, Jr. »

14Mar

4th Amendment Rights: The Reasonableness of Prolonged Traffic Stops

Categories: 4th Cir. Blog Weekly Roundup

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By: Matthew Welch & Gilbert Smolenski

On March 1, 2018, the United States Court of Appeals for the Fourth Circuit published an opinion for United States v. Brian Bowman. The court held that Bowman’s Fourth Amendment right, freedom from unreasonable seizures, was violated and reversed the district court ruling.

I. Facts and Procedural History

In the predawn hours the morning of June 20, 2015, Officer Waycaster was patrolling on Route 25 in Henderson County, North Carolina. He received a tip from the DEA that two individuals driving a red, older model Lexus could be narcotics runners. The DEA also provided a license plate number for the car. At 3:40 a.m., Officer Waycaster spotted an older red Lexus. Rather than stopping the vehicle based on information from the DEA, Officer Waycaster followed the car “looking for [his] own infractions . . . for [his own] reason to stop the vehicle.” When the vehicle weaved over a fog line and accelerated to 10 mph over the speed limit, Officer Waycaster pulled the vehicle over, suspecting that the driver may have been under the influence. The government agrees that the DEA tip should not be considered in any legal analysis.

After stopping the vehicle, Officer Waycaster noticed two men in the vehicle: Bowman, the driver, and Alvarez, the passenger. Officer Waycaster testified that Bowman appeared nervous because his hands were shaking, he failed to make eye contact with Waycaster, and that his carotid artery was moving, indicating an elevated heart rate. Officer Waycaster did not see any alcohol or firearms in the vehicle, but he did notice an energy drink in the center console, food wrappers, and a suitcase in the back seat. Officer Waycaster explained why Bowman was stopped and then asked Bowman to exit the vehicle and go to the patrol car so that Officer Waycaster could check his information. Alvarez remained in the passenger seat the entire time.

After Bowman exited the vehicle, he consented to a weapons frisk. Officer Waycaster found no weapons. Officer Waycaster then told Bowman to sit in the patrol car while Waycaster ran his driver’s license and registration. While Officer Waycaster was running Bowman’s information, he asked Bowman where he was coming from. Bowman said that he was heading home after picking up Alvarez from Alvarez’s girlfriend’s house. He said he was returning the favor because Alvarez had done the same for him in the past. When questioned about the address of Alvarez’s girlfriend’s house, Bowman said he did not know it but that it was in his car’s GPS. Officer Waycaster also asked Bowman what he did for a living. Bowman replied, saying that he was a welder but was currently unemployed. Bowman also said that he recently bought the Lexus off Craigslist. Officer Bowman testified that this was a suspicious activity because “it was a known practice with narcotics traffickers to either use rental vehicles or use multiple, different vehicles, or buy and sell vehicles to transport narcotics.” Officer Waycaster, believing that Bowman was not under the influence, then issued Bowman a ticket for speeding and unsafe movement of the vehicle.

Bowman then began to exit the vehicle but Officer Waycaster asked if he could speak further with Bowman. Bowman consented. After another round of questions about what Bowman and Alvarez had been doing that night, Officer Waycaster, who was seated in the patrol car with Bowman said that he “was going to ask [Alvarez] questions if you don’t mind, okay?” Bowman responded, “okay,” and remained in the vehicle. As Officer Waycaster exited the patrol car he told Bowman, “just hang tight right there, okay.” Bowman responded with, “oh, okay.” Office Waycaster testified that at this point, Bowman was not free to get out of the patrol car because Waycaster had developed, from the traffic stop alone, reasonable suspicion of criminal activity.

Office Waycaster then went back to the Lexus and interviewed Alvarez about what had transpired before the two men were pulled over. Alvarez’s story conflicted with Bowman’s. Officer Waycaster then return to the patrol car and asked Bowman if there was meth in the Lexus, to which Bowman responded no. Bowman then refused to let Officer Waycaster search the Lexus. Thereafter, Officer Waycaster removed Alvarez from the Lexus and placed him in the patrol car with Bowman. Then Office Waycaster summoned a K-9 team. The K-9 team passed around the outside of the Lexus. The dog alerted an officer that illegal narcotics were present in the vehicle. Thereafter, Office Waycaster and the K-9 handler searched the interior of the car. They found meth, digital scales, and containers of ammunition.

Bowman was charged with possession with intent to distribute methamphetamine. Bowman filed a motion to suppress the methamphetamine evidence, arguing that Officer Waycaster unlawfully prolonged the completed traffic stop without consent or reasonable suspicion. The district court followed the recommendation of the magistrate judge in denying the motion to suppress. The magistrate judge admitted that Bowman was not free to leave the patrol car but that the prolonged detention was permissible because “Waycaster had a justified, reasonable suspicion that Defendant Bowman was engaged in criminal activity.” The judge said that the totality of the circumstances supported this finding. Bowman then filed an appeal.

II. Standard of Review

The Fourth Circuit reviews the district court’s determination that the officer had a reasonable suspicion to prolong the traffic stop de novo.

III. Reasoning

First, a traffic stop must be reasonable. Here, Bowman does not challenge the reasonableness of the traffic stop. Bowman was swerving and traveling 10 mph over the speed limit. Instead Bowman’s Fourth Amendment challenge rests on the unreasonableness of his prolonged detention in the patrol car. The Fourth Amendment allows an officer to conduct an investigation unrelated to the reasons for the traffic stop as long as it does not lengthen the roadside detention. To extend the length of the detention beyond the time necessary to accomplish the traffic stop’s purpose, an officer must have reasonable suspicion or receive the driver’s consent. Here, the officer did not receive Bowman’s consent or have a reasonable suspicion.

The government argued that Bowman consented to the prolonged detention when he said “okay” after Officer Waycaster asked him to “hang tight right there, ok?” However, under a reasonable person standard, the court said that this was not consent by Bowman. Bowman never had time to respond to Officer Waycaster before Waycaster exited the vehicle and many would feel they were not free to leave in a similar situation. Furthermore, Waycaster was not asking a question, instead he was instructing Bowman what to do. Thus, when Bowman remained in the patrol car as the officer went to question Alvarez, the encounter was no longer a consensual one but instead became a non-consensual seizure.

After the Fourth Circuit concluded the search constituted a non-consensual seizure, the Court then analyzed whether Waycaster’s “prolonged seizure was justified by reasonable suspicion.” The Court noted there is no precise definition for what constitutes reasonable suspicion. Instead, reasonable suspicion is a commonsense, nontechnical standard that considers the realities of everyday life. The bar for reasonable suspicion is less than the probable cause standard and the facts articulated by the stopping officer and trial court must be taken in their totality. However, each factor can be analyzed separately by the court before being taken together in a full consideration of the circumstances surrounding the traffic stop.

The Fourth Circuit focuses on four specific factors in its analysis. First, Waycaster noted that both Bowman and Alvarez appeared to be nervous. However, a driver’s nervousness is not a good indicator since most citizens are nervous when dealing with police. The record indicated that Bowman and Alvarez did not exhibit any signs of nervousness above the norm, and the government conceded Bowman was calm once exiting the vehicle. Moreover, although a suspect’s increased heart rate, which can be evidenced by a suspect’s throbbing carotid artery, can help support there was a reasonable suspicion of criminal activity, the present facts do not show Bowman demonstrated nervousness beyond the norm. The fact that Bowman remained calm in the patrol car and failed to make eye contact with an officer is not indicative of criminal behavior. Thus, the first factor weighed in favor of the Bowman.

Second, Waycaster stated that several articles in the car, specifically clothes, food, and an energy drink, helped give rise to a reasonable suspicion. However, these items are consistent with innocent travel and “in the absence of contradictory information,” cannot reasonably imply criminal activity. While Bowman may have made false statements about his travel plans, the government failed to connect that fact to any wrongdoing in the case. Therefore, just the articles alone cannot be used to established untruthfulness, and subsequently reasonable suspicion.

Third, the district court noted that Bowman’s inability to recall Alvarez’s girlfriend’s address contributed to Waycaster’s reasonable suspicion. But, the Fourth Circuit stated this was entirely reasonable, as it is clear from the video recording that Bowman repeatedly said he used the car’s GPS to find the house, and Waycaster could find the address by looking at the car’s GPS history. The government failed to connect Bowman’s response with criminal activity, and the Fourth Circuit stated it is reasonable that Bowman did not know the address and was relying on GPS in a dark, unfamiliar area.

Finally, Waycaster believed Bowman’s vehicle purchases gave suspicion of criminal activity since he thought it was strange Bowman could afford to purchase multiple vehicles while unemployed and the use of multiple cars was a known practice of drug traffickers. The Fourth Circuit readily disposed of Bowman’s vehicle purchasing habits, noting that Waycaster made “unsubstantiated assumptions.” Even though Bowman was unemployed, there are numerous possible explanations to explain the car purchases that are all within the confines of the law. Likewise, innocent travelers may use multiple vehicles, some of which they could buy from Craigslist, and that fact is entitled to little weight.

Consequently, none of the factors alone provide a basis for reasonable suspicion. Even when looking at the totality of the circumstances, as mandated by precedent, the Fourth Circuit similarly found that the “combination of wholly innocent factors” did not give rise to reasonable suspicion. Therefore, the Fourth Circuit reversed the district court, as Bowman’s motion to suppress should have been granted.

Tags: criminal Criminal Procedure Drug Dealers Drugs Fourth Amendment Fourth Circuit non-consensual seizure Police Probable Cause prolonged seizure reasonable suspicion Search search and seizure totality of the circumstances Traffic Stop unreasonable unreasonable stop

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29Mar

Fourth Circuit Applies Deferential Standard to Affirm Denial of § 2254 Petition

Categories: 4th Cir. Blog Archive Criminal Cases

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By Ali Fenno

On November 23, 2016, the Fourth Circuit issued a published opinion in the criminal case of Rodriguez v. Bush. In Rodriguez, the Fourth Circuit addressed whether the failure of Nicanor Perez Rodriguez’s (“Rodriguez”) trial counsel, James Ervin (“Ervin”), to object to a trial judge’s rejection of Rodriguez’s plea agreement constituted “ineffective assistance of counsel” that justified relief under 28 U.S.C. § 2254. After applying a deferential review standard for ineffective assistance and state-adjudicated § 2254 claims, the Fourth Circuit held that Ervin’s conduct did not constitute “ineffective assistance of counsel” because the alleged omitted objection would have been meritless and thus did not prejudice Rodriguez’s case. Accordingly, the Fourth Circuit affirmed the trial court’s denial of Rodriguez’s § 2254 petition.

Factual and Procedural Background

In 2006, a South Carolina trial court convicted Rodriguez on multiple counts of drug trafficking and sentenced him to 45 years’ imprisonment. He had accepted a plea agreement on the first day of trial that recommended a 20-year sentence, but the plea agreement had been rejected by the trial judge without explanation the very same day.

In 2010, Rodriguez filed a motion for post-conviction relief (the “PCR Motion”), alleging that the rejection of the plea agreement constituted a violation of his federal due process rights and that Ervin provided ineffective assistance of counsel by failing to object to the rejection and thus preserve the issue for appeal. The state court denied the PCR Motion, holding that Rodriguez failed to show that (1) Ervin should have objected to the plea deal, and (2) Ervin’s failure to object prejudiced Ervin’s case. The Supreme Court of South Carolina affirmed.

Rodriguez then filed this § 2554 petition in the United States District Court for the District of South Carolina. The district court denied the petition, and Rodriguez appealed.

Issues on Appeal and Standard of Review

In deciding whether Rodriguez’s § 2254 petition should have been granted, the Fourth Circuit first identified a de novo standard of review for § 2554 issues. But it then noted that § 2254(d) only permits a federal court to grant a § 2254 petition previously adjudicated by a state court on the merits when the state court adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

The court then reasoned that because the trial court addressed whether Ervin’s conduct constituted “ineffective assistance of counsel” to deny Rodriguez’s PCR Motion, the § 2254 petition could only be granted if the Fourth Circuit determined that the state court unreasonably applied the “ineffective assistance of counsel” standard. The Fourth Circuit identified the correct standard as a two-pronged test articulated in Strickland v. Washington, which enables a party to prevail on an ineffective assistance of counsel claim if he or she demonstrates that (1) “counsel’s performance was deficient” and (2) “the deficient performance prejudiced the defense.” Accordingly, the single issue on this appeal was whether any reasonable argument could be made that Ervin satisfied the Strickland test.

Failure to Meet Strickland’s Prejudice Prong

To address this issue, the Fourth Circuit first noted that pursuant to Harrington v. Richter, review of the Strickland test is highly deferential to the state court, and “doubly” deferential when applied in conjunction with § 2554. The court then looked at the prejudice prong of the Strickland test, reasoning that it did not need to first address the issue of a deficiency because it would be so easy to dispose of the ineffectiveness claim on prejudice grounds. It articulated that to demonstrate prejudice, a petitioner “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” The court further defined a reasonable probability as “a probability sufficient to undermine confidence in the outcome,” and noted that, pursuant to Lockhart v. Fretwell, a petitioner will not show prejudice if the “omitted objection” is “wholly meritless under current governing law.”

In applying these rules to the facts of Rodriguez, the court concluded that the Ervin’s “omitted objection” to the rejection of the plea agreement was “wholly meritless.” To come to this conclusion, it noted that in Missouri v. Frye, Santobello v. New York, and Lafler v. Cooper the Supreme Court clearly articulated that there is no federal due process right that a plea agreement be accepted by a judge. Thus, the Fourth Circuit determined that any objection made by Ervin asserting that the plea agreement’s rejection violated Rodriguez’s federal due process rights would have been entirely without merit. Accordingly, Rodriguez was not prejudiced by Ervin’s failure to make a meritless claim, and Ervin’s omission did not amount to an “ineffective assistance of counsel” justifying relief under § 2254.

Conclusion

Because Ervin’s omitted objection was wholly meritless, the Fourth Circuit determined that it was reasonable for the district court to conclude that Rodriguez did not demonstrate the requisite prejudice for an ineffective assistance of counsel claim. Accordingly, the Fourth Circuit affirmed the district court’s judgment, holding that the district court did not err when it denied Rodriguez’s request for relief under 28 U.S.C. §2254.

Tags: Criminal Law Criminal Procedure habeas corpus Ineffective Assistance of Counsel

« Fourth Circuit Reverses Dismissal of Prisoners’ Complaint for Mootness

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9Feb

Fourth Circuit Upholds Criminal Sentence for “Threatening Communication” Charge

Categories: 4th Cir. Blog Criminal Cases

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By Kelsey Mellan

On February 9, 2017, the Fourth Circuit issued a published opinion in United States v. Spencer, a criminal appeal of an allegedly unreasonable sentence stemming from a “threatening communication” charge. Todd Spencer (“Spencer”) pleaded guilty to sending threatening communication to a federal employee in violation of 18 U.S.C. § 876(c). He was subsequently sentenced to 45 months in prison. Spencer challenged this sentence on both procedural and substantive grounds. The District Court for the Eastern District of Virginia determined this sentence was reasonable and upheld Spencer’s conviction. The Fourth Circuit affirmed, holding the 45-month sentence was both procedurally and substantively reasonable.

Facts & Procedural History

On September 12, 2013, Spencer sent a threatening letter covered in a mysterious white powder to the clerk’s office of the federal courthouse in Norfolk, Virginia. Parts of the letter read, “The very letter you hold may indeed be the last you hold. This letter may contain on it what takes your last breath…Good luck to you.” The clerk who opened the letter was understandably “disconcerted and afraid.” The U.S. Marshals called to the courthouse instructed her to lock herself alone with the letter in the mailroom until inspectors arrived. Inspectors determined the letter was from Spencer, who was currently an inmate at the Chesapeake City Jail. Once questioned, Spencer admitted to sending the letter and explained that the powder was dried toothpaste, which he included “to enhance the effect of the letter in order to put fear into the reader” that it was poison.

On October 2, 2014, Spencer pleaded guilty to sending a threatening communication in violation of § 876(c). His probation officer prepared a pre-sentence report, which yielded an advisory Sentencing Guideline range of 37 to 46 months based on the sentencing enhancement provisions in U.S. Sentencing Guideline Manual § 2A6.1(b)(1). At the actual sentencing hearing on January 13, 2015, the district court overruled Spencer’s objections to the sentencing range based on the “very, very serious” nature of the offense and the “devastating impact” on the victim. On appeal, the Fourth Circuit determined that the district court erred in applying the sentence enhancement because Spencer’s use of harmless toothpaste did not suggest an intent to carry out the threat and/or injure the clerk.

The district court held a resentencing hearing on January 12, 2016 where no sentence enhancements were applied. In order to “afford adequate deterrence” to similarly situated offenders and provide “just punishment” to Spencer, the district court decided to upwardly depart from the advisory Guidelines sentencing range (21 to 27 months) and imposed a sentence of 45 months. This timely appeal followed, in which Spencer argued the 45-month sentence was both procedurally and substantively unreasonable.

Procedural Unreasonableness

Spencer first contended that the district court erred by failing to provide advance notice of its intention to depart from the advisory Guidelines range, in violation of the Federal Rules of Criminal Procedure 32(h). He claimed the district court repeatedly characterized the sentence as an upward “departure,” yet never advised the parties that it was contemplating such an action. Thus, he claims he was deprived of the opportunity to challenge the increased sentence.

Because the circumstances surround threats, like the one made by Spencer, vary substantially, § 2A6.1 of the Sentencing Guidelines gives district courts latitude to depart from the Guidelines. District courts are allowed to apply other generic departures as necessary. At the resentencing hearing, the district court repeatedly stated that it would “upwardly depart” from the Guidelines. Additionally, Spencer should have realized that he would receive a longer sentence then what was originally advised by the Guidelines, based on his earlier sentence for this charge. Therefore, Spencer had every reason to believe that the court might adopt an above-Guidelines sentence.

Spencer also had ample opportunity to address the district court’s concerns about the letter’s effect upon the victim and the record does not indicate that advanced notice of the sentence deviation would have affected the parties’ presentation of the facts in any material way. Thus, the Fourth Circuit determined the 45-month was not procedurally unreasonable.

Substantive Unreasonableness

Spencer also asserts that his 45-month sentence is substantively unreasonable because it is too long. He insisted that the severity of the sentence rested on improper sentencing factors and unfounded factual findings. According to the Fourth Circuit, the district court based its sentence on the intended effect on the victim, which was entirely proper grounds given the seriously nature of the threat accompanied by ostensible poison. The district court tailed its sentence in light of traditional sentencing factors such as deterrence and punishment. The Fourth Circuit determined the inference drawn by the district court lay within the bounds of its discretion.

However, this court has previously determined that district courts must explain the basis for their sentence. In United States v. Carter, the Fourth Circuit instructed that a district court must “justify its sentence with an individualized rationale.” But still, a balance must be struck between providing justification for a sentence and entitling district court decisions “due deference.” Since the district court in this instance based its decision on the factors of deterrence and punishment, the sentence is adequately justified and warranting due deferencTherefore, the Fourth Circuit held the 45-month sentence was not substantively unreasonably.

Disposition

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

Tags: Criminal Law Criminal Procedure Enhanced sentencing Sentencing Guidelines

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26Oct

Fourth Circuit Declines to Invalidate Petitioner’s Guilty Plea

Categories: 4th Cir. Blog Criminal Cases

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By Ali Fenno

On October 25, 2016, the Fourth Circuit issued a published opinion in the criminal case of Dingle v. Stevenson. In Dingle, the Fourth Circuit addressed whether the Supreme Court’s holding in Roper v. Simmons, which invalidated the use of capital punishment against juvenile offenders, should apply retroactively to undo a guilty plea made by Ronald Donald Dingle (“Dingle”). After examining the scope of the holding in Roper and the nature of plea bargains, the Fourth Circuit held that Roper cannot apply retroactively to undo a guilty plea and affirmed the lower court’s dismissal of Dingle’s petition.

Lower Courts Repeatedly Dismiss Dingle’s Petitions

In 1993 the state of South Carolina (the “State”) charged Dingle with murder, assault and battery with intent to kill, first degree burglary, kidnapping, pointing a firearm, two counts of possession of a weapon during a violent crime, and two counts of possession of a sawed-off shotgun. Because the State intended to pursue the death penalty, Dingle plead guilty in exchange for life imprisonment with the possibility of parole.

When it was later discovered that the consecutive nature of Dingle’s sentences precluded parole, an integral part of the plea bargain, Dingle filed an application for post-conviction relief (“PCR”). The PCR court vacated his sentences and remanded for sentencing consistent with the intent of the plea agreement or for a new trial.

Several years later, a hearing still had not been held, so Dingle filed a motion for a speedy trial. The hearing was then held on July 28, 2005, and Dingle contended that his guilty plea should be withdrawn. He argued that the benefit of his plea bargain, avoiding the death penalty, was removed by the Supreme Court’s recent decision in Roper, which held that it was a violation of the Eighth Amendment for the death penalty to be used against juvenile offenders. The Court of General Sessions disagreed, rejecting Dingle’s request for a new trial and holding that pleas should be evaluated based on the law that existed in 1995. The South Carolina Supreme Court affirmed this decision, finding that Roper did not remove the benefit of the plea bargain.

Dingle again filed an application for PCR in 2009, arguing that Roper retroactively applied to his case and, as such, his guilty plea was involuntary because it was made to avoid cruel and unusual punishment. However, the PCR court found that Dingle’s claim was barred by res judicata. Dingle’s subsequent appeal and third petition were unsuccessful.

Dingle also filed a petition for a writ of habeas corpus under 28 U.S.C. § 2554 in the United States District Court for the District of South Carolina. He raised four claims of error, but the district court dismissed the claims without prejudice.

On September 13, 2013, Dingle filed the instant § 2554 petition. The petition contested Dingle’s conviction on six grounds, but the district court adopted the magistrate judge’s recommendation to deny the petition in its entirety.

Issues on Appeal

The Fourth Circuit granted a certificate of appealability to determine the single issue of whether Roper may be applied retroactively to invalidate Dingle’s guilty plea. Dingle argued that the holding in Roper invalidated his guilty plea because (1) it was a substantive rule so applied retroactively to his case, and (2) if it would be improper for the state to seek the death penalty against him now, then it was also improper in 1995. Thus, his plea was invalid because it was attempt to avoid cruel and unusual punishment. However, the Fourth Circuit disagreed, concluding that (1) plea bargains are outside the scope of the Roper holding, and (2) the nature of plea bargains support upholding their validity.

Plea Bargains Are Outside the Scope of Roper

The Fourth Circuit first concluded that the holding in Roper was never intended to apply to plea bargains. Although the court conceded that Roper was indeed a substantive rule that could be applied retroactively, it found that the scope of the rule was limited to the actual sentence delivered in a case. Because Dingle did not actually receive the death penalty, attempting to apply the holding in Roper to his own case was “compar[ing] apples and oranges.” The court further noted that the Supreme Court had never before allowed “a substantive rule to stretch beyond the proscribed sentence to reopen guilty pleas with a different sentence.”

Future Legal Developments Cannot Invalidate Plea Bargains

The Fourth Circuit next concluded that the holding in Roper could not invalidate Dingle’s guilty plea because plea bargains are “a bet on the future,” whereby defendants accept both the benefits of a lighter sentence and the risks of losing out on future favorable legal developments. A defendant’s remorse at missing out on those favorable legal developments is not enough to rescind an entire bargain.

The court found support for this contention in Brady v. United States, where the Supreme Court held that a defendant who entered into a plea agreement to avoid capital punishment could not later withdraw his plea agreement when subsequent legal developments made him ineligible for the death penalty. The Supreme Court suggested that defendants who are offered plea bargains must weigh the benefits and risks of such bargains, and the fact that they did not anticipate certain legal developments could not “impugn the truth or reliability of [their] plea.” Accordingly, the Fourth Circuit concluded that when Dingle entered his guilty plea, he accepted the trade-off between present benefits and future risks that is “emblematic” of plea bargains, and his inability to anticipate the favorable outcome in Roper could not invalidate his plea.

Conclusion

The Fourth Circuit concluded that (1) Roper, even applied retroactively, could not invalidate Dingle’s plea, and (2) precedent and policy argued against setting aside Dingle’s plea bargain. Accordingly, it affirmed the district court’s dismissal of Dingle’s petition and held that Roper could not be applied retroactively to invalidate Dingle’s guilty plea.

Tags: Criminal Law Criminal Procedure Guilty Plea habeas corpus petition Plea Agreements Sentencing

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23Oct

Fourth Circuit Affirms Conviction in Unlawful Receipt of Government Benefits Case

Categories: 4th Cir. Blog Criminal Cases

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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.

Tags: Constitutional Law Criminal Law Criminal Procedure Fourth Amendment

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