Tuesday, December 16, 2014

The good faith exception doesn’t help the police when tainted evidence is the sole basis for an arrest warrant

Kim E. Smith v. United States, Nos. 12-CM-1742 and 12-CM-1743 (decided December 4, 2014).

Players:  Associate Judges Blackburne-Rigsby and Beckwith, Senior Judge King.  Opinion by Associate Judge Blackburne-Rigsby.  Cynthia Nordone for Mr. Smith.  Trial Judge Marisa Demeo.

Facts:  Officer Cartwright stopped Mr. Smith’s car due to the officer’s mistaken belief that the frame around Mr. Smith’s license plate violated D.C. law because it obstructed the “Taxation Without Representation” portion of the license plate.  (Under the DCCA’s recent opinion in Whitfield v. United States, 99 A.3d 650, 652 (D.C. 2014), a license plate frame that covers some portion of the plate but that does not obstruct critical identifying information such as the license plate number does not violate D.C. traffic regulations.)  During the stop, Officer Cartwright learned that Mr. Smith was driving without a license.  Officers then retrieved marijuana from Mr. Smith and from his car.  Police officers obtained an arrest warrant for Mr. Smith.  When they saw Mr. Smith in the neighborhood about a month later, they arrested him and found additional marijuana on him.

Issue: Whether the exclusionary rule applies to evidence obtained pursuant to a search warrant that is based on evidence from an illegal stop.

Holding:  Yes.  The government argued that the Leon good faith exception applies to this situation, as the police officers reasonably relied on a valid arrest warrant.  The DCCA rejected that argument, as the exclusionary rule prohibits the introduction of derivative evidence, i.e., evidence that is acquired as an indirect result of an unlawful search.  Here, evidence obtained from the illegal traffic stop of Mr. Smith was the sole basis for the arrest warrant, and no evidence demonstrated that the police would have discovered the marijuana on Mr. Smith’s person at the time of his arrest in the absence of the illegal traffic stop.  Therefore, it should have been suppressed.  NG

Wednesday, December 3, 2014

Statistical analysis showing underrepresentation of African Americans in Superior Court jury venires fails to convince the DCCA that the Sixth Amendment has been violated

Players:  Associate Judge Thompson, Chief Judge Washington, and Senior Judge Pryor.  Opinion by Judge Thompson.  Jonathan S. Zucker for Mr. Israel.  Quin M. Sorenson for Mr. Cheadle.  Trial Judge Frederick H. Weisberg.

Of note:  These appeals from the appellants' seven-week triple homicide and obstruction of justice trials raised several issues.  The most interesting is the Court’s guidance on using statistical analysis to challenge the composition of a client’s jury:

  • Under Gause v. United States, 6 A.3d 1247 (D.C. 2010) (en banc), defendants are entitled to discovery on the District’s jury selection procedures to support a claim that those procedures systematically underrepresent African Americans in jury venires.  This appeal was originally remanded in 2012 because the trial court erred by summarily denying Mr. Cheadle’s discovery motion.  On remand, Mr. Cheadle obtained discovery that is the subject of this appeal.

  •  According to a statistician retained by Mr. Cheadle, data from the Superior Court Juror Office revealed that during the four months preceding Mr. Cheadle’s trial, African Americans were underrepresented on jury venires by 10 to 15.6 percentage points. 

  • According to a statistician retained by the government, data from the Juror Office showed that during the same time period, African Americans were overrepresented among individuals on the Master Jury Wheel (i.e., the list from which the Juror Office draws prospective jurors) who were sent summonses for jury duty. 

  • The Court held that a constitutionally significant underrepresentation of a distinct group in either the Master Jury Wheel or the venires during a specific time period would satisfy the requirement for appellants to show representation that is not “fair and reasonable in relations to the number of such persons in the community.”  Slip op. at 16 (quoting Duren v. Missouri, 439 U.S. 357, 364 (1979)). 

  • The Court rejected the appellants’ argument that the Juror Office violated the Sixth Amendment by failing to take corrective action in response to the disproportionately high rate at which African Americans apparently failed to respond to jury summonses and were overrepresented among those whose summonses were returned as undeliverable to the Juror Office.  According to the Court, “[t]he underrepresentation of African Americans appears to be attributable to external factors – undeliverable mail or the choices of individual prospective jurors to respond to their summonses or not appear for service – not to systematic exclusion existing in the jury-selection process.”  Slip op. at 20. 

  • The Court indicated that its analysis would have been different if the appellants had presented evidence that “the Juror Office’s policies and practices . . . encouraged African Americans to avoid or to be absent from jury service.” Slip op. at 21.  NG

Monday, November 24, 2014

Creative, DC-specific legal challenges founder on the shoals of plain error review.

(except, of course, in DC, where everything is more complicated)

Melvin Barnes v. United StatesNo. 13-CT-103 (decided via unpublished opinion on October 8, 2014; published on November 20, 2014)

Players: Associate Judges Glickman & Easterly, Senior Judge Pryor. Opinion by Judge Glickman. Jeffrey L. Light for Mr. Barnes. Trial Judge: Marisa J. Demeo.

Facts: Mr. Barnes was arrested for DUI on November 7, 2012. The DUI statute in effect at the time was the second emergency act relating to DUI passed by the DC Council while a permanent act, covering the same subject matter, went through the later stages of the statutory approval process prescribed by the Home rule Act. The Council passed the first emergency act on July 10, 2012, and the second on October 2. The second act went into effect on October 26, but was not published in the DC Register until November 9 — two days after Mr. Barnes’s arrest. Meanwhile, the Council approved the permanent act on its first reading on July 10, and again approved it on the second reading on September 19. The permanent act was signed by the Mayor and transmitted to Congress on January 10, 2013, and went into effect in April.

Issue 1: Applying plain-error review, did the D.C. Council run afoul of the Home Rule Act by enacting a second emergency act rather than “proceed[ing] with appropriate dispatch [so that] the Permanent Act could have been approved and taken effect before the First Emergency Act expired?

Holding: No. Although the Council may not use emergency legislation to “circumvent congressional review,” the record does not suggest that this is what happened here. The permanent act was approved on its second reading — paving the way for the Mayor’s signature and Congressional review — before passage of the second emergency act. And the somewhat-delayed second reading of the permanent act made sense given that the Council went on summer recess shortly after the first reading.

Issue 2: Applying plain-error review, did Mr. Barnes receive inadequate notice of the statute for which he was arrested, in violation of the Ex Post Facto and Due Process Clauses?

Holding: No. First, although the second emergency act was not published in the DC Register until two days after Mr. Barnes’s arrest, the act had gone into effect prior to his arrest. Second, a resolution announcing the Council’s passage of the emergency act had been published about two weeks before his arrest, arguably providing the requisite notice.  JM.

Friday, November 21, 2014

When is mouthing off to police an APO?

Edwin Cheek v. United StatesNo. 12-CM-1213 (decided November 20, 2014)

Players: Associate Judges Thompson & Easterly, Senior Judge Nebeker. Opinion by Judge Nebeker. James E. Drew for Mr. Cheek. Trial Judge: Yvonne Williams.

Facts: Two police officers observed two girls fighting in the street near a “disorderly crowd” of 20-30 people who were watching the fight. When the officers approached, one of the girls tried to run, but Officer Blier handcuffed and began to question her. As he did so, another female moved in his direction and began yelling. Officer Blier told her to get off the street, and she complied. Mr. Cheek then came “within ten feet” of Officer Blier, staggering as though “extremely intoxicated,” yelled at him about how he’d treated the woman, and ignored his order to back up. Another citizen led Mr. Cheek away from the scene, but he returned several minutes later, at which point he continued screaming at Officer Blier about why he’d slammed the girl to the ground, and again disobeyed the officer’s commands to back up.

·         Was the evidence sufficient to convict Mr. Cheek of assault on a police officer (“APO”) for “interfering” with Officer Blier’s investigation under D.C. Code § 22-405(b)?

·         Did the trial court plainly err under the First Amendment by convicting Mr. Cheek of APO based on mere speech?

Holding: Mr. Cheek was properly convicted of APO. The sufficiency and First Amendment analyses in this context turn on substantially the same question: whether Mr. Cheek’s conduct went “beyond speech and mere passive resistance” and “cross[ed] the line into active confrontation” that impeded Officer Blier’s investigation. Op. at 4, 7. The Court concluded that the totality of the circumstances as described above satisfied this test, without placing special emphasis on any particular subset of facts.

Practice notes:

·         This case should be fairly easy to distinguish, given that the Court’s legal analysis substantially repeats the facts without making clear which ones matter most. JM.

Tuesday, November 18, 2014

Assaulting a police officer during an illegal stop lets the government use the evidence it finds

Thurman N. Wilson v. United States, No. 13-CM-564 (decided November 6, 2014). 

Players:  Associate Judges Fisher & Beckwith, Senior Judge Nebeker.  Opinion by Judge Fisher.  Bryan P. MacAvoy for Mr. Wilson.  Trial Judge:  Harold L. Cushenberry, Jr.

Facts:   Officers observed Mr. Wilson engage in what they believed was a hand-to-hand drug transaction.  As officers approached to stop him, Mr. Wilson ran away but was eventually caught.  While Mr. Wilson was detained, he pulled out of the officers’ grasp, refused to stand up, and flailed and kicked.  The officers arrested him for assault on a police officer (APO).  At the station, a search incident to arrest revealed cocaine and $140 cash.  He was convicted of both APO and possession of cocaine.

Issue:  Assuming the police lacked probable cause to believe the defendant had committed a drug offense when they initially detained him, did the defendant’s assaultive conduct during the detention purge the taint of the Fourth Amendment violation and allow the government to use subsequently discovered evidence of the drug offense?

Held:  Yes.  Absent unforeseen exceptional circumstances, where Mr. Wilson commits a separate and distinct crime while unlawfully in police custody, evidence uncovered by a search incident to the later, lawful arrest is not suppressible as the fruit of the poisonous tree.  It does not matter that the evidence related to the crime for which the defendant was initially stopped, rather than the separate and distinct crime he committed after.  Because the APO statute criminalizes resistance even to unlawful police conduct, the defendant’s conduct constituted APO and the police therefore had probable cause to arrest him for that offense and conduct a search incident to arrest.  DG.

Monday, November 17, 2014

A genuine but unreasonable belief that property is abandoned is a defense to theft

Cerron H. Hawkins v. United States, No. 13-CM-476 (decided November 13, 2014).

Players:  Chief Judge Washington, Associate Judge Fisher, Senior Judge Farrell.  Per curiam opinion.  Sean J. Farrelly for Mr. Hawkins.  Trial Judge: Yvonne Williams. 

Facts:   Mr. Hawkins took a “bait-bike” that police officers had left outside a Metro station and was charged with second-degree theft of a bicycle.  The defense was that he believed the bicycle was abandoned.  In a bench trial, the judge credited his belief that the bicycle was abandoned but held this belief was unreasonable under the circumstances and thus found Mr. Hawkins guilty.

Issue:  Is a genuine but unreasonable belief that property is abandoned a defense to theft?

Held:  Yes.  Because theft is a specific intent crime, a defendant need not show his belief that the property was abandoned was reasonable (as the government conceded on appeal).  DG