In April, May and June the Third Circuit vacated convictions in three cases. The first, United States v. Lopez, addresses prosecutorial misconduct (Doyle error); the second, United States v. Vasquez-Algarin, addresses law enforcement misconduct (Fourth Amendment/forced entry); the third, United States v. Dennis, addresses trial court error (failure to give an entrapment instruction) in the larger context of reverse-sting stash house operations. Each opinion touches on policy concerns raised by the legal issues; the majority and Judge Ambro’s concurrence in Dennis are particularly worth reading for anyone litigating stash house cases. The three cases were decided by three non-overlapping panels of judges.
The United States government thought that Lonnell Glover was a drug dealer. They tapped his phone, but he spoke in code so they couldn’t get any evidence on him that way.
The government knew that Mr. Glover liked to talk in his truck, as so many Americans do. So they decided to get authorization from a judge to put a bug – a little microphone – in his truck.
The bug was authorized by a federal judge in Washington, D.C. The truck, at the time, was at Baltimore Washington International Airport (or, more accurately, Thurgood Marshall Baltimore Washington International Airport).
Someone told the police that Chunon Bailey sold drugs. Worse, he sold drugs and had a gun at his house at 103 Lake Drive in Wyandanch, New York.
That someone was a confidential informant.
The police took that tip and got a search warrant for 103 Lake Drive.
The Supreme Court has said that you can never suppress the body of a person accused of a crime – the person’s identity is not able to be kept out of evidence, even if that identity is the result of an unlawful arrest or search.
This is a huge issue in illegal reentry cases. If a person is deported then returns to this crime, that’s illegal reentry. If the person is deported after having been convicted of certain kinds of felonies – whoa buddy, that’s illegal reentry after having been convicted of an aggravated felony.
In light of the Supreme Court’s rule about how you can’t suppress the body of the person accused, many people who handle illegal reentry cases find them massively depressing. If you can’t suppress the person’s identity, even if the knowledge comes from an unlawful search, then you’ve gutted the Fourth Amendment for people accused of illegal reentry.
In a criminal case, most lawyers need to figure out what motions to file. A big part of this is to sit down with the government’s evidence and try to figure out what parts of the government’s case came from something that violated the constitution.
It’s frustrating when some part of the evidence came from a search warrant – challenges to search warrants are tricky, because a judge already signed off on the warrant. It’s not to say it can’t be done, it’s just different than challenging, say, if the FBI ran into a client’s office and took a bunch of stuff without a warrant.
Sometimes you can challenge a warrant if the affidavit in support of the warrant clearly didn’t establish probable cause to think there was going to be evidence where the cops searched.
There’s little judicial attention paid to folks who have their stuff taken by the police executing a search warrant – and who want it back later.
Thankfully, just in time for Christmas, the Eighth Circuit breaks out with United States v. Bailey.
Not George Bailey And Perhaps Not A Wonderful Life
No one likes a liar.
Well, almost no one. Chief Judge Kozinski seems to like liars, at least some of the time.
But, generally, lying leaves a bad taste in our societal mouth. This is true even when the police do the lying.
It must be hard for the police to be hot on a chase, then have to slow down to get a warrant.
But, even though the police are excited from being on the trail of a suspected drug mule, the Eighth Circuit held, in United States v. Ramirez, that just because the police are hurrying to get their man, they still have to get a warrant to search his room.
The Great Omaha Goose Chase
I’ve long thought the punishment for failing to turn off your high beams when you drive past another car at night should be much more draconian. Part of me is encouraged to see that the police of Massillon, Ohio apparently agree.
Excessive Use of High Beams
Two men were driving in Massillon, Ohio after midnight on the Fourth of July. The driver declined to dim his high beams as he drove past a car coming toward him. As it happened, the other car was a police car.