The Matlock Blog

No suppression for Knock-and-Announce Violation...again.

In United States v. Bruno, 05-41763 (5th Cir. May 18, 2007), the Fifth Circuit agreed with three other circuits that suppression is not an appropriate remedy for violations of the federal knock-and-announce statute. The defendants (there are actually two, Bruno and Caldwell) filed a motion to suppress in the trial court asking the court to suppress the evidence seized when D.E.A. agents and members of the League City S.W.A.T. team executed a search warrant at Caldwells's home. After the evidence was seized, the defendants were charged with various drug and gun charges. The trial court granted the suppression motion on the grounds the knock-and-announce violated the 4th Amendment as well as 18 U.S.C. Section 3109, the federal knock-and-announce statute.
After the ruling, the Supreme Court decided the case of Hudson v. Michigan, 126 S.Ct. 2159 (2006). In Hudson, the Court decided exclusion is not a remedy for a 4th Amendment knock-and-announce violation.
In Bruno, the defendants argued Hudson only decided the issue with respect to the reasonableness aspect of the 4th Amendment, and not Section 3109. The Fifth Circuit disagreed, citing three other circuits that hold the reasoning applied in Hudson is equally persuasive in the statutory context. As the D.C. Circuit explained, the reasons Hudson gave for not applying the exclusionary rule to knock-and-announce violations of the 4th Amendment apply just as well to the violations of Section 3109. United States v. Southerland, 466 F.3d 1083 (D.C. Cir. 2006), cert. denied, 127 S.Ct. 1361 (2007).
The defendants in Bruno argued the cases of Miller v. United States, 357 U.S. 301 (1958) and Sabbath v. United States, 391 U.S. 585 (1968) still required suppression because they were not explicitly overruled by Hudson. Again, the Fifth Circuit disagreed. The court decided Miller and Sabbath are not direct precedents, and therefore do not require suppression under Section 3109. The court concluded that Hudson compels the conclusion that suppression is not the remedy for a violation of Section 3109, and Miller and Sabbath do not prevent it. So once again, no exclusion for a violation.

Fifth Circuit reverses conviction for illegal stop

In United States v. Juan Angel Martinez, No. 05-20330 (5th Cir. May 15, 2007), the Fifth Circuit reversed the 922(g)(1) conviction because the stop and subsequent search of the defendant and his home were done so illegally. Law Enforcement in Houston received a tip that a man named "Angel" might have witnessed a quadruple homicide and be in possession of the weapons used therein in his girlfriend's home and gave the address. Additionally, the tipster indicated the man would attempt to transport the weapons to Mexico. A day later, based on this tip, officers set up surveillance. After orchestrating a rouse to get the defendant and his girlfriend out of the home, the couple was stopped by police a few blocks away. The defendant was immediately placed in the back of a police car and taken to the police station for questioning, while the girlfriend was asked for consent to search the home. Consent was granted, and the police discovered three guns. However, contrary to the tipster's information, neither the defendant nor the guns had anything to do with the quadruple homicide. The defendant filed a motion to suppress both his subsequent statements to police as well as the guns prior to his bench trial on the 922(g)(1) and 922(g)(5)(A) charges. The motion was granted for the statements, but denied with respect to the guns.
The Fifth Circuit reversed the conviction saying the police had no reasonable suspicion to justify the investigatory stop of the defendant. The Court first dealt with the issue of the characterization of the tipster. The government argued the tip came from a confidential informant, while the defendant argues it was no more than an anonymous tip. Because the characterization would impact the credibility given to the information, the Court analyzed the tipster's status and concluded it was little more than an anonymous tip. This is because there was no evidence in the record to suggest the "informant" was credible. Because the government has the burden of proving the credibility and reliability of the informant, and they failed to do so, the Court concluded it would not assume the very thing the government is required to prove. Because the tipster was characterized as an anonymous tipster, the Court analyzed and compared the present case to Florida v. J.L., 529 U.S. 266 (2000).
In J.L., the Supreme Court concluded an anonymous tip advising of the location and physical description of a person was insufficient to provide law enforcement with reasonable suspicion to stop the person. The Court went on to say "[t]he reasonable suspicion hear at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person." J.L., 529 U.S. at 272.
The Court concluded the present case is virtually idential to J.L., as well as U.S. v. Roch, 5 F.3d 894 (5th Cir. 1993). Because the only information provided by the anonymous tipster was that of basic identification information, without any credidble information of illegality, the stop was illegal because the police did not have reasonable suspicion.
The Fifth Circuit the addressed the issue of whether there was sufficient attenuation of the taint of the illegal stop to justify admission of the guns into evidence. The Court concluded there was not. In using one the factors set out in U.S. v. Chavez-Villareal, 3 F.3d 124 (5th Cir. 1993), the Court determined the causal chain was not broken in the present case. It pointed out that immediately after being stopped, the defendant was taken to the police station for questioning. Furthermore, immediately after the stop, the girlfriend was asked for consent to search the home for the weapons the police were looking for. There was clearly not attenuation because "the purpose of the stop was to solicit their cooperation in 'invstigating the quadruple homicide.'" Martinez at 19-20.
Cosnequently, the conviction for the defendant's 922(g)(1) conviction was reversed and the remanded to the trial court.

Florida burglary conviction not a crime of violence; enhancement held improper by Fifth Circuit

In U.S. v. Gomez-Guerra, No. 05-41789 (April 23, 2007), the Fifth Circuit concluded a 1997 Florida conviction for Burglary did not constitute a "crime of violence" for purposes of an enhancement under USSG Section 2L1.2(b)(1)(A)(ii). In August of 2005, Gomez-Guerra pleaded guilty to illegal re-entry in violation of 8 U.S.C. Section 1326(b). The district court sentenced him to 72 months based on a guideline range that included a 16-level enhancement under2L1.2. The Fifth Circuit determined the enhancement was improper because the burglary conviction did not meet the definition of crime of violence.
The application notes of 2L1.2 define crime of violence as being one of two things: "(1) it has the use, attempted use, or threatened use of physical force against the person of another as an element of the offense, or (2) it qualifies as one of several specifically enumerated offenses." USSG Section 2L1.2 cmt. n.1(B)(iii). The Government's argument was simply that the prior conviction was one of the enumerated offenses, namely burglary of a dwelling.
The Court looked at the actual statute to which Gomez-Guerra pleaded nolo contendre to which included entry into a dwelling's curtilage. See Fla. Stat. Section 810.02(3) (stating a "dwelling" includes a building together with the curtilage thereof." The Court contrasted several Florida decisions that held the curtilage must be applied to the burglary statute with its own opinion in U.S. v. Garcia-Mendez, 420 F.3d 454 (5th Cir. 2005). In that case, the Court was asked to determine if the Texas statute of burglary of a habitation constituted a crime of violence. The Court held the ordinary, contemporary, common meaning of burglary of a dwelling does not extend to the grounds around the dwelling, but actually requires unlawful or unprivileged entry into, or remaining in, the dwelling itself. Because the Florida statute is broader in scope than the enumerated offenses in the Guidelines, the Court concluded the enhancement was improper.

Fifth Circuit holds illegal entry was not relevant conduct, but rather prior sentence, justifying increase in criminal history

In U.S. v. Yerena-Magana, 478 F.3d 683 (5th Cir. 2007), the Fifth Circuit affirmed the District Court's determination the defendant's previous conviction for illegal entry qualified him for a two point increase in his criminal history score on his subsequent drug conviction. On May, 24, 2004, the defendant illegally entered the U.S. Federal agents subsequently discovered him in possession of more than 900 kilograms of marijuana on June 24, 2004. On that day, he was arrested and charged with illegal entry, but not the drug possession. The defendant pled guilty to the illegal entry charge, and was sentenced to 60 days in jail. During his 60 day sentence, he was charged with conspiracy and possession of marijuana with intent to distribute. He subsequenly pled guilty.
The presentence report concluded the illegal entry was part of the ongoing drug offense, and therefore did not assess criminal history points for that conviction. However, the District Court disagreed and concluded the previous illegal entry conviction should result in two additional criminal history points pursuant to Section 4A1.2(a)(1) of the Guidelines. As a result, the defendant was no longer eligible for the safety valve in 18 U.S.C. Section 3553(f).
The Fifth Circuit upheld the sentence, including the assessment of two criminal history points, because there was no evidence the defendant intended to commit the drug offense at the time he illegally entered the U.S. The court declined to infer he illegally entered the country "in preparation for" the drug offense. The court concluded the nexus between the illegal entry and the drug case being one month later was too attenuated for the illegal entry to be considered preparation for the drug case.

This just in -- If you don't object to your client going to trial in jail clothes, you've waived the error. Shocking!

Just talking to the judge about your client sitting next to you before trial with only his jail jumpsuit to wear in front of the jury doesn't preserve the issue for appeal. In U.S. v. Pryor, (No. 05-20307 5th Cir. Mar. 29, 2007), the Fifth Circuit acknowedged the presence of the presumption of innocence (that's a start, right?). The court made it clear that the presumption is violated in constitutional fashion when a defendant is compelled "to stand trial before a jury while dressed in indentifiable prison garb." Id. at 4 (quoting United States v. Birdsell, 775 F.2d 645, 652 (5th Cir. 1985). But, despite the patently obvious negative and prejudicial effect this would have on a defendant, the court reiterates the what should now be obvious for all criminal defense practitioners; if you don't like it, object to it.
The defendant argued he was compelled to appear before the jury in only his jail jumpsuit, thus preventing him from receiving a fair trial. However, as the court noted, "'[b]ecause there was no objection, the requisite element of compulsion did not exist and no violation occured.'" Slip op. at 4 (quoting Birdsell, 775 F.2d at 652).

The Fives refuse to adhere to Supreme Court's prohibition on using result-oriented analysis to determine aggravated felony in 18 USC 1101(a)(43)

In 2004, the U.S. Supreme Court decided the case of Leocal v. Ashcroft, 543 U.S. 1, which involved the question of whether the Florida statute of Driving Under the Influence causing serious bodily injury constituted a crime of violence under 18 U.S.C. Section 16. The Court concluded that Section 16(b) does not include all offenses that could possibly have a forceful result, rather the issue is whether the offense exhibits the substantial risk of a forceful act.
The Leocal decision came five years after the Fifth Circuit decided U.S. v. Galvan-Rodriguez, 169 F.3d 217 (5th Cir. 1999), which concluded the Texas statute of Unauthorized Use of a Vehicle (Texas Penal Code Section 31.07) constituted a crime of violence for purposes of Section 1101(a)(43) aggravated felony. The Texas statute requires "intententionally or knowingly" operating another's vehicle without consent. The Fifth Circuit determined the Texas statute fell into the aggravated felony category because of the inherrent risk of damage to property or people. However, following the Leocal decision, it seemed clear that this result-oriented interpretation of Section 16(b) for purposes of UUV was no longer valid. But then came Brieva-Perez v. U.S., No. 05-60639 (5th cir. Mar. 19, 2007).
In Brieva-Perez, the court held "Leocal is is fully consistent with this court's construction of the Texas UUV Statute in Galvan-Rodriguez." Slip op. at 7. It concluded the the interpretation of 16(b) by Leocal requiring substantial risk of intentional force "does not mean that a statute must have an element of intent to cause harm to another's person or property to be considereda crime of violence under Section 16. Id.
It seems clear the court has missed the point when it comes to this issue. The Fifth Circuit seems to fail to understand the question is not whether there is an element of intent in the crime. The true issue is whether therre is a substantial risk of a forceful act, not a result. The court is basing its decision on the same results-oriented analysis the Supreme Court said wasn't acceptable in the Leocal decision.

Fifth Circuit holds fake drugs can't be used in drug quantity calculation

In U.S. v. Davis, the Fifth Circuit held the trial court could not use an amount of fake drugs found in the defendant's car in its drug quantity calculations. The district court determined the defendant had agreed to sell 85.05 grams of cocaine to a confidential informant. The police arrested the defendant before he could make the sale. In his car, the police discovered 81 grams of fake cocaine the defendant intended to use to "rip-off" the informant.

Section 2D1.1 Note 12 says that in an offense involving an agreement to sell a contolled substance, the agreed-upon quantity is to be used unless "the defendant establishes the [he] did not intend to provide or purchase, or was not reasonbly capable of providing or purchasing, the agreed-upon quantity." The Fifth Circuit determined that the disjunctive language if it shown the defendant did not intend to deliver the amount or was not capable of providing the agreed-upon amount, it should be excluded from the drug quantity calculation. Given the defendant never intended to provide the agreed-upon amount because what he had was fake, the amount should be excluded from the calculation. U.S. v. Davis, __ F.3d __, (5th Cir. Jan. 31, 2007) No. 05-10754.

Fifth Circuit rejects sufficiency argument to 924(c) conviction

Smith was convicted of possession with intent to distribute methamphetamine and possession of a firearm in furtherance of a drug-trafficking crime. He raised several issues on appeal, particularly the sufficiency of the evidence for the Section 924(c) carrying a gun in a drug-trafficking crime conviction.

The basis for the conviction was a gun found beneath the passenger seat of the car the Appellant was driving at the time of the drug transaction. He argued the gun must have been both transported in the vehicle and readily accessible to sufficiently constitute the "carry" liability. The court disagreed here, concluding the "carry" liability can be based on either transportation or accessibility during and in relation to a drug crime. The court went further by saying that even if accessibility was required for conviction, the gun in Smith's case was at least as accessible as in other cases the court had sustained carry liability. United States v. Smith, No. 06-40809 (5th Cir. Mar. 9, 2007).