Wake Forest Law Review
3Feb

Fourth Circuit Affirms Conviction of Felon In Possession of Firearm

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By Eric Jones

On December 18, 2015, the Fourth Circuit issued a published opinion in the criminal case United States v. Stover.  Lavelle Stover was convicted of possession of a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1).  At trial, Stover motioned to suppress the firearm that he discarded in front of his vehicle, but the motion was denied.  On appeal Stover argued that the firearm should have been suppressed as the product of an illegal seizure under the Fourth Amendment.  The Fourth Circuit affirmed his conviction.

The Arrest and Trial

In the early morning hours of March 13, 2013, police noticed Stover sitting in a vehicle that was double-parked in a small private parking lot.  When they returned several minutes later and saw that Stover was still double-parked, the officers decided to approach the vehicle because there had recently been several violent robberies in the area.  The uniformed officers activated their emergency lights and aimed a spotlight on Stover’s vehicle as they pulled in to block the car in the parking lot.  As the officers exited the patrol car, Stover exited his vehicle and made his way to the front of his car.  He completely ignored the officers’ ordering him to stop and return to his vehicle.  Stover tossed a loaded nine millimeter handgun into the grass in front of his vehicle.  One officer proceeded along the right side of Stover’s vehicle and confronted him with his gun drawn, believing that Stover was preparing to run.  At that point Stover silently complied with the officers’ orders and returned to his vehicle.

At trial in the District Court for the District of Maryland, Stover motioned to suppress the handgun on the theory that it was the product of an illegal seizure under the Fourth Amendment.  The District Court found that Stover had not submitted to police authority until after abandoning the firearm, and thus the protections Fourth Amendment did not apply.  The firearm was entered into evidence, and Stover was convicted by a jury and sentenced to 57 months in prison.  Stover filed a timely appeal.

The Fourth Amendment’s Protections Against Illegal Seizure

As the Fourth Circuit explained, the moment that Stover was seized is vital to determine whether or not the firearm should have been suppressed.  If the officers had reasonable suspicion to stop Stover, the Fourth Amendment is not implicated and the weapon was properly entered.  If there was not reasonable suspicion to stop the defendant, however, the Circuit Court explained that the exact circumstances of the stop are important to determine whether an illegal seizure has occurred.  The Fourth Circuit applied a two-part test outlined in California v. Hodari D..

First, the Circuit Court asked whether the Fourth Amendment was implemented due to a show of authority by the officers.  In order to determine whether a show of authority had occurred, the Supreme Court has explained that you must consider whether “in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.”  As applied here, the Fourth Circuit held that blocking in Stover’s car with a marked police car, activating the emergency lights, using their spotlight, and approaching Stover’s vehicle in uniform all clearly indicated that a show of force had been made, and thus the Fourth Amendment protects against unreasonable seizures.

The second part of the two-part test in order to determine whether the firearm could be admitted into evidence asks precisely when the defendant was seized.  The Fourth Circuit explained that after submitting to police authority, the Fourth Amendment protects against unreasonable seizure.  If the defendant has not capitulated to the police’s orders, however, there has been at most an “attempted seizure,” and the protections of the Fourth Amendment are not applicable until after the defendant has submitted.  The Fourth Circuit explained that if a defendant is fleeing from the police, he has not submitted and thus anything he tosses to the side as he runs is not subject to the protections of the Fourth Amendment.  If, however, the defendant has submitted (by being tackled, by stopping voluntarily, or any other submission), the Fourth Amendment applies to anything found on his person.

Stover Did Not Submit to the Officers until After Abandoning His Firearm

In this case, the Fourth Circuit held that Stover had not submitted to the officers until after abandoning the firearm, and thus the Fourth Amendment was not applicable.  The Court relied on the fact that Stover exited his vehicle despite the flashing emergency lights and direct orders to remain in his vehicle.  He then proceeded toward the front of his car, directly away from the officers, and did not indicate that he heard them or intended to comply.  Only after abandoning his firearm and being confronted by the armed officer did Stover submit to their authority and follow their commands.  Thus, because Stover was not seized until after he threw the handgun into the grass, he simply abandoned it and it was not seized by the police.

One Circuit Judge dissented in this case, arguing that Stover acquiesced to the officers’ orders by remaining on the scene and simply attempted to abandon his firearm while remaining under police control.  If this were the case, the legality of the seizure would have been determined by whether or not the officers had reasonable suspicion to stop Stover.  The majority, however, held that ignoring verbal orders and proceeding away from officers is not consistent with submitting to the police, and thus no seizure had yet occurred.

The Fourth Circuit Affirmed Stover’s Conviction

Because the evidence indicated that Stover had not submitted to the police and may have been attempting to flee when he abandoned the handgun, the Fourth Circuit affirmed that he had not been seized and thus his firearm was not the product of an illegal search or seizure.  Because the handgun was properly admitted as evidence, therefore, the Circuit affirmed Stover’s conviction.

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14Oct

Fourth Amendment Protections Weakened in Deportation Proceedings

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By Eric Jones

On June 16, 2015, the Fourth Circuit issued a published opinion in the civil removal case Yanez-Marquez v. Lynch.  Maria Yanez-Marquez (Yanez) was petitioning to the Fourth Circuit for review of a Board of Immigration Appeals (BIA) decision dismissing her appeal from an order for her removal from the United States.  The Circuit Court held that the violations of Yanez’s Fourth Amendment rights were not egregious, and thus denied her petition for review.

 

The Execution of the Search Warrant

In June of 2008, agents from Immigration and Customs Enforcement (ICE) were granted a search warrant for 402 Harbor Drive, Annapolis, Maryland, because it was suspected that the landlord was harboring illegal aliens.  The warrant was to be executed between 6:00 a.m. and 10:00 p.m., and described the residence as a “single-family home.”  The warrant was broad and authorized agents to seize “illegal aliens, travel documents, financial records, and photographs of harbored aliens.”  At approximately 5:00 a.m. on June 30, ICE agents knocked on the door of the residence and entered to begin the search.  According to Yanez, the agents burst into the bedroom where she and her partner were sleeping, and pointed guns at them while demanding that they “don’t move” in both English and Spanish.  Upon being informed that Yanez was pregnant, the agents called a female agent to assist and reassure her.  Yanez was never handcuffed or led outside of the dwelling, but was questioned for 5-10 minutes about her identity.  As a result of the search, the agents arrested Yanez’s partner, and had her sign several forms indicating that Yanez had been illegally present in the United States since April of 2007.  The agents also seized Yanez’s pay stubs, tax returns, and photo albums as they left at 9:15 a.m.  The ICE contested Yanez’s statements regarding the timing of the search as well as the force used during the search.

 

The Removal Proceedings

Yanez was issued a notice to appear before an Immigration Judge (IJ) for removal proceedings.  On February 10, 2010, the Department of Homeland Security (DHS) filed a submission of intended evidence, including the forms Yanez signed during the search, the warrant itself, and the affidavit supporting the warrant.  Yanez filed a motion to suppress the evidence, arguing that during the search, the agents “egregiously violated” her Fourth Amendment rights.  The IJ found that, accepting Yanez’s claims as true, her rights had not been “egregiously violated.”  Although the execution of a search warrant prior to the time it was granted would constitute a violation of Yanez’s Fourth Amendment rights, the IJ reasoned that being early by a single hour “does not amount to conduct that ‘shocks the conscience,’” and thus was not an egregious violation.  As to the force used, the IJ found that Yanez had made no showing of excessive force, noting that agents executing a search warrant are reasonably cautious about dangerous situations.  The IJ found that the agents had acted reasonably, had not brandished their guns for longer than necessary to assure their safety, and had gotten a female agent to aid and comfort Yanez as soon as was reasonable.  For these reasons, the IJ denied the motion to suppress the evidence.  On December 13, 2010, the IJ found that the DHS had satisfied their burden, and ordered that Yanez be removed from the United States and returned to El Salvador.

On appeal to the BIA, the BIA held that the exclusionary rule, which operates to exclude evidence obtained in violation of the defendant’s Fourth Amendment rights, does not apply in civil removal proceedings unless the violations were egregious.  The BIA then, relying on the reasoning of the IJ, held that the violations had not been egregious, and thus affirmed the IJ’s order.

 

The Applicability of the Fourth Amendment in Civil Removal Cases in the Fourth Circuit

Initially, the Fourth Circuit noted that the question of the applicability of the Fourth Amendment exclusionary principle was a matter of first impression for the Circuit.  The Court began by analyzing the Supreme Court of the United States’ ruling in INS v. Lopez-Mendoza, 468 U.S. 1032 (1984).  In Lopez-Mendoza, the Supreme Court held that the ordinary Fourth Amendment exclusion, which barred all evidence obtained through any violation of the Fourth Amendment, was inapplicable to civil removal proceedings because the costs of exclusionary principle, including dramatically increased complexity to the streamlined process of removal, outweighed the benefits of the exclusionary principle.  Additionally, because civil removal proceedings are not criminal and do not punish but merely prevent continued illegal activity, the Court reasoned that the Fourth Amendment protections were not as critical.  Four Justices in Lopez-Mendoza vigorously dissented, and the majority opinion opined in dicta that “egregious violations” and “widespread” violations by officers may nevertheless render the exclusionary principle applicable in some instances.

In this case, the Fourth Circuit held that the exclusionary principle must apply to all egregious violations of the Fourth Amendment because “[t]o hold otherwise would give no effect to the language used by the Supreme Court in Lopez–Mendoza expressing concern over fundamentally unfair methods of obtaining evidence.”  The Circuit Court further held that refusing to apply the exclusion “would ignore the fact that eight justices in Lopez–Mendoza seem to have agreed that the exclusionary rule applies in removal proceedings in some form.”  Thus, in the Fourth Circuit, an petitioner in a civil removal case must show not only that her Fourth Amendment rights were violated, but also that those violations were “egregious.”

 

The Standard for “Egregiousness” of a Fourth Amendment Violation

The Lopez-Mendoza Court stated “egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained” might be reason to apply the exclusion. Despite the use of “and” by the Supreme Court, the Fourth Circuit held that a petitioner can succeed if she can show either (1) egregious violation or (2) a violation that undermines the probative value of the evidence.  To hold otherwise, the Circuit explained, would dramatically reduce the application of the rule because nearly all evidence obtained through egregious violations is physical evidence, which has the same probative value regardless of the manner of acquisition.  Examples given by the Circuit of egregious violations included “a stop based on Hispanic appearance alone,” “repeatedly ignor[ing a] detainee’s request for counsel,” and “a nighttime warrantless entry into the aliens’ residence.”

The Fourth Circuit rejected the Ninth Circuit’s standard for egregiousness, which focuses on the “bad faith” of the agents, and embraced the “totality of the circumstances” test used by the Second, Third, and Eighth Circuits.

 

Yanez’s Alleged Fourth Amendment Violations

Yanez’s first allegation of egregious violation of her Fourth Amendment rights was that the warrant listed her residence as a “single-family home,” when it was in fact a multi-unit dwelling.  The Fourth Circuit explained that the warrant is sufficiently tailored when an agent executing it can “reasonably ascertain and identify the intended place to be searched.”  In holding that the warrant used to search Yanez’s home was adequate, the Circuit emphasized that the premises had been under ICE surveillance and agents had no reason to believe multiple families dwelled there, it was a small single-story home, and the premises had just one mailbox.  Thus, because the outward appearance is reasonably identified by a description of a “single-family home,” the Fourth Circuit rejected Yanez’s first argument.

Yanez next argued that, upon entry, the agents should have known it was a multi-family dwelling because “the bedroom door was locked,” which transforms it into a separate dwelling.  However, because it is not unusual for a bedroom door to be locked and there was no other indication in the home that it was a multi-unit dwelling, the Circuit held that the ICE agents had not made any mistake in proceeding with the warrant, and even if they had, it was an innocent and reasonable mistake.

Yanez’s final argument was that entering the home at 5:00 a.m. constituted a “nighttime search,” which fell outside of the warrant and implicates higher scrutiny because of the heightened intrusion.  The Fourth Circuit agreed that because a daytime search is defined as between 6:00 a.m. and 10:00 p.m., the search of Yanez’s residence was by definition a nighttime search.  The Fourth Circuit went on to hold that nighttime execution of a daytime warrant is a violation of the Fourth Amendment, absent consent or exigent circumstances.  Thus, because there was no consent given by either Yanez or the judge who issued the warrant, nor were there any additional facts which may have constituted exigent circumstances justifying a nighttime search, the Fourth Circuit held that the ICE had violated Yanez’s Fourth Amendment rights by executing the search.  However, when considering the totality of the circumstances, the Circuit held that this violation was not egregious.

Facts to support a finding of egregiousness included the fact that it was a nighttime search and the fact that the search was of Yanez’s home, where her privacy interests are strong.  Supporting the non-egregiousness of the search included the fact that no ICE agents threatened, coerced, or physically abused Yanez, nor did they offer or promise her anything in exchange for cooperation.  Additionally, Yanez was not handcuffed, nor was she removed from the home.  Furthermore, there was no evidence of diminished capacity, the questioning was not particularly lengthy, and there is no evidence that the agents were motivated by racial considerations.  Finally, the Circuit explained that presence of a valid search warrant for the premises reduces the harm of the intrusion, and the agents executing the warrant did not use force beyond that necessary to secure their safety.  The Fourth Circuit thus held that the nighttime search, while a violation, was nevertheless not an egregious violation of Yanez’s Fourth Amendment Rights.

 

The Fourth Circuit Denied Yanez’s Petition for Review

Because the alleged violations of Yanez’s Fourth Amendment rights were all either not violations at all or not egregious, the Fourth Circuit denied Yanez’s petition for review of the IJ’s order for her removal from the United States.

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