We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
SUPREMES EXPAND RIGHT TO SUE LOCAL COPS UNDER 42 U.S.C. § 1983
Larry Thompson was charged with resisting arrest when he tried to stop police from entering his apartment in response to a false child abuse complaint. A New York court later dismissed the case on motion of the prosecution “in the interest of justice,” which is code for “no way we can win this dog of a case.”
When Larry later sued under 42 U.S.C. § 1983, alleging that the police violated his 4th Amendment right to be free of unreasonable search or seizure), his case was thrown out. Existing New York law held the plaintiff had to show the underlying criminal case had been initiated without probable cause, initiated for a purpose other than bringing the defendant to justice, and terminated in favor of the defendant. A “favorable termination” was one where the plaintiff had been found to be not guilty.
Larry’s problem was that the criminal case against him was so specious that it didn’t make it to trial. He never enjoyed a “favorable termination” because the prosecution gave up before trial.
You can see the problem in this approach: the sketchier the criminal case, the more likely it is that the matter will never make it to trial. That means the greater the outrage visited on a hapless defendant, the less likely he or she will be found “not guilty” after a trial, because the lower the likelihood that there will even be a trial. The “favorable termination” rule thus punishes the people who have been most aggrieved.
Last week, the Supreme Court greatly expanded a former defendant’s ability to bring a 42 U.S.C. § 1983 claim, holding that “terminated in favor” means only that the “prosecution ended without a conviction” and not “with some affirmative indication of innocence.”
Justice Brett Kavanaugh wrote for a six-justice majority:
The question of whether a criminal defendant was wrongly charged does not logically depend on whether the prosecutor or court explained why the prosecution was dismissed. And the individual’s ability to seek redress for a wrongful prosecution cannot reasonably turn on the fortuity of whether the prosecutor or court happened to explain why the charges were dismissed. In addition, requiring the plaintiff to show that his prosecution ended with an affirmative indication of innocence would paradoxically foreclose a §1983 claim when the government’s case was weaker and dismissed without explanation before trial, but allow a claim when the government’s evidence was substantial enough to proceed to trial. That would make little sense. Finally, requiring a plaintiff to show that his prosecution ended with an affirmative indication of innocence is not necessary to protect officers from unwarranted civil suits—among other things, officers are still protected by the requirement that the plaintiff show the absence of probable cause and by qualified immunity.
Thompson v. Clark, Case No. 20-659, __ S.Ct. __, 2022 WL 994329, 2022 U.S. LEXIS 1885 (April 4, 2022)
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
A PAIR OF DECISIONS, GOOD AND BAD, ON SUPERVISED RELEASE
Worrying about supervised release may seem a waste of time for inmates more concerned with getting released from federal prison, but virtually everyone with a sentence of less than life will be on federal supervised release sooner or later. A full one-third of those people will have their probation officers seek to revoke their terms (and send them back to prison) before their supervised release term ends.
Supervised release is a term of years, something like parole, imposed after imprisonment. During this period, the released prisoner is subject to a series of conditions – such as holding a job, paying restitution, refraining from new criminal conduct – and reports regularly to a U.S. Probation Officer.
Anthony Foley was on federal supervised release when he was charged with a couple of state drug cases. He neglected to tell his probation officer about them, and – when he was found out – Tony was violated for the failure to report the matter. Tony faced 7-13 months under the supervised release Guidelines. He argued for seven months; the government asked for 13.
The district judge gave him 24 months, saying that Tony’s “criminal history category of five — and his willful failure to notify the probation office within 72 hours of arrest, and I believe, based upon these pending — just pending charges, he’s a continued threat to the community. I believe an upward variance is appropriate.”
Last week, the 5th Circuit reversed. The appellate court held that “a district court errs when it relies on a bare allegation of a new law violation contained in a revocation petition unless the allegation is supported by evidence adduced at the revocation hearing or contains other indicia of reliability, such as the factual underpinnings of the conduct giving rise to the arrest.” Where, as here, “the revocation petition included only bare allegations of new violations of law, and the allegations were not supported by evidence at the revocation hearing and do not have other indicia of reliability,” they were impermissible factors for the district court to consider.”
Meanwhile, in the 11th Circuit, Jeffrey Hill likewise caught a state drug case while on supervised release. During his revocation proceeding, he filed a motion to suppress evidence he said resulted from an illegal search. The district court ruled that suppression of evidence because of a 4th Amendment violation – the exclusionary rule – does not apply to supervised release revocations.
Last week, the 11th Circuit agreed. Because suppression of evidence imposes “substantial social costs,” including “its toll on ‘the truthfinding process, its incompatibility with the traditionally flexible, administrative procedures of parole revocation, and its frequent necessity for extensive litigation to determine whether particular evidence must be excluded,” the Supreme Court has held the exclusionary rule does not apply in state parole hearings. The Circuit said in light of that, it could see no reason why the exclusionary rule should not apply to supervised release revocation hearings.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
THE BIRD IS THE WORD
“Fits of rudeness or lack of gratitude may violate the Golden Rule,” the 6th Circuit observed last week. “But that doesn’t make them illegal or for that matter… grounds for a seizure.”
A Taylor, Michigan, cop pulled over Debra Cruise-Gulyas for speeding, but ended up just giving her a ticket for a non-moving violation, saving her both money and points in her license. Deb was unhappy over even the lesser ticket, so she flipped him off as she drove away.
The cop was offended by the one-finger salute, so he chased her down. He changed the ticket to one for a speeding offense.
Deb sued the cop for violating her 4th Amendment rights, and last week the 6th Circuit agreed. Because Debbie Digit “did not break any law that would justify the second stop and at most was exercising her free speech rights,” the Court said, the cop violated her 4th Amendment right to be free from an unreasonable seizure by stopping her a second time. “Any authority to seize [Debbie] in connection with that infraction ended when the first stop concluded. When someone extends “her middle fingers at officers and walks away, her gesture was crude, not criminal,” and gave the officer no legal basis to order her to stop. “This ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity.”
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
The more basic question is whether personal information collected by third parties (often without one’s consent or even knowledge) remains private to the extent that the 4th Amendment requires a search warrant before the government swoops in to commandeer it.
Cellphones send signals to the nearest cell towers as long as the phone is on, even when no call is being made. Cellphone companies store records of the tower to which a cellphone is linked for up to 18 months. By stringing together 18 months of cell tower records, one can easily build a historical record of just about everywhere one was for the past year and a half. Scary.
For robbery suspect Tim Carpenter, the data obtained by the government without a warrant showed he was in the vicinity of several Radio Shack locations right at the time those stores were being robbed (of smartphones, ironically enough). We call that location data “circumstantial evidence,” but – contrary to popular belief – circumstantial evidence is perfectly good evidence, and in Tim’s case, it was good enough to convict. Tim got sentenced to a mere 116 years.
At oral argument, the Supreme Court seemed sympathetic with the idea that information in the hands of a third party may nevertheless be so personal that a search warrant is required before it is retrieved. At the same time, the Court was puzzled as to how to frame a rule to cover the situation. As Justice Stephen Breyer put it at one point, “This is an open box. We know not where we go.”
Even if the Court does hold that cellphone location records required a search warrant to obtain, the holding probably would not help people who have already been convicted. The decision would be a new constitutional rule of criminal procedure, but in all likelihood it would not be a “watershed” rule that would be retroactive for convictions that were already final.
... except when it’s not.
What’s more, even if the location data is held to be protected by the 4th Amendment, incarcerated people who will someday be on supervised release should recognize that their cellphones – which now more than ever contain the user’s entire life story – are not private. In a decision last week affirming Valentino Johnson’s felon-in-possession conviction, the 9th Circuit held that a warrantless search of his cellphone was permissible because he was on parole.
The Circuit said parole is different from probation, because it is akin to actual imprisonment. “On the ‘continuum’ of state-imposed punishments,” the Court said, “parolees appear to hold the most limited privacy interests among people convicted of a crime but are not actually imprisoned.” Although the case relates to state parole, its analysis would apply equally to supervised release.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
SUPREME COURT DECIDES TWO FORFEITURE ISSUES, GRANTS CERT ON CELLPHONE DATA QUESTION
Terry Honeycutt was just a clerk, not an owner – but the Court of Appeals tried to stick him for the illegal profits.
The Supreme Court was busy yesterday – as it will be all this month – deciding two cases that relate directly or indirectly to the monetary side of sentencing and granting certiorari in a Detroit robbery case on a cutting-edge cellphone data issue.
In Honeycutt v. United States, a 6th Circuit case, the Court held that forfeiture under the Comprehensive Forfeiture Act of 1984, 21 USC § 853(a)(1), which requires forfeiture of any property “constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of” some drug crimes, is limited to property that the defendant himself actually obtained as the result of the crime.
This means that the statute cannot require forfeiture by Terry Honeycutt, the petitioner in the case, who was a clerk at his brother’s grain and feed store. Terry and his brother sold large quantities of an iodine-based water purification product that they knew could be used to manufacture methamphetamine. Terry had no ownership interest in his brother’s store and did not personally benefit from the illegal sales. Despite this, the government asked the district court to hold Terry jointly and severally liable for the profits from the illegal sales and sought a judgment of $69,751.98, the profits from the conspiracy. The district court refused, holding that Terry was a salaried employee who had not received any profits from the sales.
The 6th Circuit reversed, holding that the brothers, as co-conspirators, were jointly and severally liable for any conspiracy proceeds.
Yesterday, the Supreme Court said that because forfeiture under 21 USC § 853(a)(1) is limited to property the defendant himself actually acquired as the result of the crime, a court cannot order forfeiture from Terry Honeycutt, who had no ownership interest in his brother’s store and made nothing from the sales.
The Securities and Exchange Commission has authority to investigate violations of federal securities laws and to bring enforcement actions in district court if its defendant “disgorge” illegal profits and pay civil fines.
In 2009, the SEC brought an enforcement action against Charles Kokesh, arguing he has violated securities laws by concealing $34.9 million he had unlawfully pocketed from four business- development companies from 1995 to 2009. The Commission asked for civil penalties and disgorgement.
A jury found for the SEC, but the district court held that a 5-year limitations period in 28 USC § 2462 applied to the monetary civil penalties but not the disgorgement. The 10th Circuit agreed, holding that disgorgement was neither a penalty nor a forfeiture.
Yesterday, the Supreme Court reversed the 10th Circuit, concluding that SEC disgorgement operates as a penalty under the terms of 28 USC § 2462. Therefore, any claim for disgorgement in an SEC enforcement action must be commenced within five years of the date the claim arose. Because a lot of what Kokesh did was older than 5 years when the suit was brought, those sums will have to be carved out of the district court award.
The decision could have favorable implications for some forfeiture and restitution issues in federal criminal cases.
Finally, the Court granted certiorari and agreed to review a 6th Circuit decision in which Timothy Carpenter was convicted of multiple counts of aiding and abetting the use of a gun in a series of cellphone store robberies. Tim was the lookout man/getaway driver, and did not carry a gun himself.
Tim was convicted on six counts of robbery after police combed through a month’s worth of location points collected by cell towers and placed him near storefronts where armed robberies occurred. Relying on the Stored Communications Act, which allows phone companies to disclose records when the government provides “specific and articulable facts showing that there are reasonable grounds to believe” that records at issue “are relevant and material to an ongoing criminal investigation,” the government got an order to obtain phone records for 16 phone numbers, including Tim’s cellphone. The several months’ worth of historical cell-site records received showed which cell towers were linked to which cellphone while it was in use. The records allowed the government to determine that, over a five-month span in 2010 and 2011, Tim’s cellphone connected with cell towers in the vicinity of the robberies.
Tim argued in district court and at the 6th Circuit that the records should be suppressed because the government had not obtained a warrant for them. The 6th rejected Tim’s argument that disclosure of his phone records was a search for which the government needed a warrant, holding cellphone companies collect the location data “in the ordinary course of business” for their own purposes. What’s more, the Circuit said, Tim had no reason to think his cellphone records would be kept private, the court explained, because the records only show his cellphone connecting to specific cell towers, without providing any information about the content of his calls.
The U.S. Supreme Court picked the Carpenter case from a thundering herd of similar cert petitions to rule on the question of whether law enforcement is required to obtain a probable-cause court warrant to access such cellular location data.
“Because cell phone location records can reveal countless private details of our lives, police should only be able to access them by getting a warrant based on probable cause,” Nathan Wessler, a staff attorney with the ACLU Speech, Privacy and Technology Project said in a statement. “The time has come for the Supreme Court to make clear that the longstanding protections of the 4th Amendment apply with undiminished force to these kinds of sensitive digital records.”
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
SUPREMES BRING 7TH CIRCUIT INTO LINE WITH EVERYONE ELSE; LEGAL COMMUNITY YAWNS
Earlier this week, the Supreme Court ruled that a man who spent 48 days in jail on charges fabricated by the police could sue under the 4th Amendment for an unreasonable seizure, that being the seven weeks he spent in stir.
Dangerous controlled substance?
Elijah Manuel was riding in a car pulled over for a turn-signal violation. He complained that the Joliet, Illinois, police beat him and called his racial epithets. The police found a vitamin bottle containing pills (amazing thing, that). When field tested, the pills were found to be negative for illegal drugs, but that didn’t stop the officers from claiming the pills were Ecstasy and arresting Elijah anyway.
The pills tested negative again at the station, but the police report falsely said otherwise. A magistrate found probable cause, and kept Elijah locked up. A short while later, a grand jury – relying on the false police reports and testimony – indicted him.
Eventually, the state crime lab report came back reporting the pills were vitamins. Even then, it took a few weeks for the district attorney to dismiss charges and set Elijah free.
The issue before the Supreme Court was whether a claim for malicious prosecution could be brought under the 4th Amendment even after “legal process” – that being the magistrate’s finding of probable cause – issued. The 7th Circuit said it could not be: once legal process issued, such a complaint had to be brought under the 5th Amendment.
In the event readers wonder why we don’t always report on Supreme Court cases like this one, the reason is this: Ten out of 12 federal circuits already held that Elijah’s 4th Amendment claim worked even after legal process issued, and in fact, even after a grand jury indictment, because legal process, like the initial seizure at the time of arrest, is unreasonable if it is based on fabricated evidence. The 8th Circuit had never ruled on the issue, and the 7th Circuit – ruling in Elijah’s case – got it wrong. As far as significance, this case is a yawner.
The decision includes dissents by Alito and Thomas, as well as a number of subsidiary issues orbiting the majority opinion like a legal planetary system. The case only got to where it is today because Elijah waited to the very last minute to file the case, and in fact missed the deadline to sue for false arrest, but not to sue for continued detention. The Justices debate the proper starting point for calculating the statute of limitations, a debate that has a kind of number-of-angels-dancing-on-the-head-of-a-pin quality to it.
At most, Manuel v. Joliet provides a clear basis for an additional constitutional claim – the 4th Amendment – when someone is locked up on bogus charges. It does not, however, really plow much new ground.
Manuel v. Joliet, Case No. 14-9496 (Supreme Court, Mar. 21, 2017)
– Thomas L. Root
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When Larry later sued under 42 U.S.C. § 1983, alleging that the police violated his 4th Amendment right to be free of unreasonable search or seizure), his case was thrown out. Existing New York law held the plaintiff had to show the underlying criminal case had been initiated without probable cause, initiated for a purpose other than bringing the defendant to justice, and terminated in favor of the defendant. A “favorable termination” was one where the plaintiff had been found to be not guilty.
Last week, the Supreme Court greatly expanded a former defendant’s ability to bring a 42 U.S.C. § 1983 claim, holding that “terminated in favor” means only that the “prosecution ended without a conviction” and not “with some affirmative indication of innocence.”
