Wednesday, November 25, 2015

Extraction of contraband from arrestee’s sensitive area deemed unconstitutional for failure to involve trained medical personnel

Olushola Akinmboni v. United States (decided November 19, 2015).

Players: Associate Judges Glickman, Blackburne-Rigsby, and McLeese.  Opinion by Judge McLeese.  Vincent A. Jankoski for Mr. Akinmboni.  Trial Judge: Ronna L. Beck.

Facts:  MPD arrested Mr. Akinmboni and transported him to a Superior Court cellblock, where the deputy marshal on duty searched him for weapons and contraband.  When the deputy felt a (foreign) object in Mr. Akinmboni’s groin area, the deputy took Mr. Akinmboni to a private area to conduct a strip search.  The deputy confiscated a baggie of marijuana from near Mr. Akinmboni’s groin.  In addition, a plastic baggie, later found to contain marijuana, was protruding from Mr. Akinmboni’s anus.  When Mr. Akinmboni removed the baggie, it revealed yet another baggie that the deputy directed him to remove.  When he did so, a third baggie appeared.  In total, Mr. Akinmboni removed five baggies from his anus, each containing contraband.  At no point during the extractions did the deputy seek the involvement of trained medical personnel.  Mr. Akinmboni was later charged with and convicted for possessing the various baggies of contraband.

Issue: Whether the deputy violated the Fourth Amendment by requiring Mr. Akinmboni to extract baggies from his anus without the involvement of trained medical personnel.

Holding: Yes. The government bears the burden to show that searches and seizures are reasonable both in scope and execution.  Determining whether the manner of search or seizure is reasonable requires balancing the government’s needs against the invasiveness of the intrusion.  Where a search or seizure involves removing items from a sensitive area, the reasonableness of the method depends in part on hygiene, training, emotional and physical trauma, and the availability of alternate methods.  Here, as in United States v. Fowlkes, No. 11-50273, 2015 WL 5667555 (9th Cir. Sept. 28, 2015), State v. Barnes, 159 P.22d 589 (Ariz. Ct. App. 2007), and United States ex rel. Guy, v. McCauley, 385 F. Supp. 193 (E.D. Wis. 1974), the Government has not shown that the extraction of baggies from Mr. Akinmboni’s anus was reasonable without medical personnel, in light of known risks to his health and safety. 

Of Note:

  • This case may be cited as general authority for the proposition that the government bears the burden of establishing the reasonableness of its searches and seizures.  The Court was unwilling to infer reasonableness from a number of circumstances identified by the government, going as far as to question whether the U.S. Marshals Service’s policy authorizing the deputy’s behavior adequately accounted for the prisoner safety concerns at issue.  See Op. at 15 (“[T]he United States presented no information about the rationale or basis for the policy in question.”).

  • MPD already requires that body cavity searches be conducted by medical professionals.  See General Order 502-01, “Transportation and Searches of Prisoners,” at 9, available at (last accessed, Nov. 19, 2015).

  • Finally, while this case focused on the  constitutionality of the deputy’s orders in light of the fact that no medical professional was present, the Court made clear that such presence is neither necessary nor sufficient in all cases for a sensitive cavity extraction to be deemed constitutional.  Op. at 14-15.  WC

Thursday, November 19, 2015

Police interrogation tactics threatening prison rape and requiring a confession before granting access to an attorney render confession involuntary

 Jalonte Little v. United States (decided November 12, 2015).

Players:  Associate Judges Blackburne-Rigsby and Beckwith, Senior Judge Belson.  Opinion by Judge Beckwith.  Debra Soltis and Paul Kiyonaga for Mr. Little.  Trial Judge: Ronna L. Beck.

Facts: Police arrested eighteen-year-old Jalonta Little in connection with an attempted carjacking and brought him to the stationhouse for questioning.  Detective Joe Crespo read Mr. Little his rights, which Mr. Little voluntarily waived.  For the next two hours, Det. Crespo used a number of coercive interrogation tactics in an attempt to elicit a confession from Mr. Little.  He falsely told Mr. Little that several witnesses identified him as the perpetrator, falsely told Mr. Little that police recovered his fingerprints from the vehicle, and offered illusory promises of leniency if the eighteen-year-old confessed to the crime.  Mr. Little steadfastly denied involvement.  Det. Crespo upped the pressure, informing Mr. Little that he risked sexual assault should he go to prison, that he would be incarcerated in a faraway prison while his girlfriend forgot about him and moved on to someone new, and that his son would never visit him.  Still, Mr. Little did not confess.  Det. Crespo had one last trick up his sleeve.  He told Mr. Little that he would arrange a meeting with his at-this-point hypothetical attorney before seeking an arrest warrant, to which Mr. Little asked, “So where my attorney at?”  Crespo responded that Mr. Little would not see an attorney until after arraignment, and before he could set up the meeting Mr. Little had to tell him what happened—he had “to have some meat to put on the table.”  Mr. Little confessed two minutes later.

Issue: Was Mr. Little’s confession voluntary?

Holding:  Looking at the totality of the circumstances, the Court determined it was not.  Two aspects of the interrogation stood out as “most coercive.”  First, the Court found Det. Crespo’s comments urging Mr. Little to confess in order to avoid sexual assault in prison “offensive to a civilized system of justice.”  The comments were similar to those that rendered a confession involuntary in Arizona v. Fulminate, 499 U.S. 279, 287 (1991) (where police told Mr. Fulminate they would protect him from fellow inmates only if he confessed).  Second, the Court found that Det. Crespo’s comments to Mr. Little that he would not have access to an attorney until after arraignment and that he had to “put some meat on the table,” i.e. confess, before an attorney would be provided were “unquestionably coercive.”  At that point, “any assumption of continued voluntariness that stemmed from Mr. Little’s signing of the Miranda rights form faded.”  These two tactics, coupled with the other coercive tactics employed by the police, such as lying to Mr. Little about the evidence against him and threatening prosecution for crimes they openly thought he did not commit, proved Mr. Little’s confession involuntary. 

Of Note

  • In footnote 9, the Court notes that it need not decide whether Mr. Little’s question, “So where my attorney at?” was an invocation of his right to counsel.  The Court did note, however, that this statement “conveyed essentially the same message as the statement the Supreme Court assumed was an invocation of rights in Edwards v. Arizona, 451 U.S. 477, 479 (1981).” 

  • In footnote 16, the Court held that while the harmless error rule applies to erroneously admitted confessions, “a confession is like no other evidence” and “the risk that the coerced confession is unreliable, coupled with the profound impact that the confession has on the jury, requires a reviewing court to exercise extreme caution before determining that the admission of the confession at trial was harmless.”  Thus, the government “sensibly” did not argue that the admission of the involuntary confession was harmless.  DH

Tuesday, November 10, 2015

For Malicious Destruction of Property, Defendant Had to Be Aware of a Plain and Strong Likelihood That He Would Damage a Door When He Tried to Break It Open

Lawrence N. Harris v. United States (decided October 29, 2015)

Players: Associate Judges Glickman and Easterly, Senior Judge Ruiz. Opinion by Judge Ruiz. Dissent by Judge Glickman. Jeffrey L. Light for Mr. Harris. Trial judge: Marisa J. Demeo.

Facts: In the wee hours of the morning, Mr. Harris’s mother, with whom he lived, repeatedly called police to report Mr. Harris was “acting out” and under the influence of PCP. Police ultimately escorted Mr. Harris from the house. He returned and hid behind the bed in his basement room, but was discovered by his mother and made to leave again. The next time he returned, he found the front door locked and repeatedly kicked it, causing damage to the door panel, hinges and metal door frame. The damage was only visible from the inside. The trial court convicted Mr. Harris of malicious destruction of property, finding that he either “[1] intended to damage or destroy the property or [2] was aware that his conduct created a substantial risk of harm to that property, but engaged in that conduct, nonetheless.”

Issue: Was there sufficient evidence that Mr. Harris acted “maliciously” in kicking and damaging the door?

Holding: No. “To support a conviction for malicious destruction of property, the trial court must find that the defendant either intended to cause the harm to the property or acted willfully and wantonly, with the awareness of the ‘plain and strong’ likelihood of that harm.” First, there was insufficient evidence to support the trial court’s finding of guilt on grounds that Mr. Harris intended to damage the door, because the court also expressly found that the evidence equally supported the possibility that Mr. Harris did not intend damage, but only to get back in. Where the evidence was in such “equipoise,” it is insufficient for conviction beyond a reasonable doubt. Second, while Mr. Harris committed a “wanton and willful act” by repeatedly kicking the door in a way that he should have known would damage it, more than mere negligence is required. Because Mr. Harris could not see that the interior side of the door was being damaged by his kicks, there was insufficient evidence to find that he “acted with awareness of a plain and strong likelihood” that the kicking “may result” in damage.

Dissent: Judge Glickman dissented, relying on an earlier case that upheld a malicious destruction of property conviction for kicking a door in a manner that caused substantial damage. The majority distinguished the case on grounds that it had undertaken no consideration of the issue in this case: whether the door-kicking was done with “malice.”

Of note: Both the majority and dissenting opinions left open the question of whether a co-tenant whose name is on the lease is privileged to use reasonable force to gain entry to his own home. FT

Monday, November 9, 2015

Breaking: DCCA goes en banc to consider right to jury trial for deportable misdemeanors

The DCCA granted rehearing en banc this past Friday in Bado v. United States.  Bado held that the defendant in a misdemeanor case had a right to a jury trial where a conviction would be deemed an "aggravated felony" under federal immigration law and render the defendant deportable.  We first blogged about Bado here.  Given that Bado managed to produce four different opinions (from only three judges), perhaps rehearing en banc is not too surprising.  The panel opinion has now been vacated, so for now defense counsel should be requesting jury trials (assuming a jury trial is in your client's interest) in any misdemeanor case in which deportation is a possible outcome.

Friday, November 6, 2015

Contents of Police File from Decedent’s Prior Conviction Not Material for Brady Purposes

Ellsworth S. Colbert v. United States (decided October 22, 2015)

Players: Associate Judges Thompson and Beckwith, Senior Judge Newman. Opinion by Judge Thompson. Dissenting opinion by Judge Beckwith. Jenifer Wicks for Mr. Colbert. Trial judge: Herbert B. Dixon, Jr.

Facts: Ellsworth Colbert got into a fight with another man and the other man died of stab wounds. Colbert argued that he acted in self-defense, but he was convicted of manslaughter while armed, ADW, and CDW. The decedent had a prior conviction for ADW in North Carolina. Mid-trial, the prosecution informed the judge and defense counsel that it had received a police investigative file from that case. When the judge asked the defense what information it wanted to know about the North Carolina conviction, other than the nature and date of the offense, defense counsel asked only about the type of weapon used. The defense did not specifically request access to the file or request more time to investigate. The judge never ruled on whether the government had to disclose the North Carolina file, and the parties ultimately stipulated to the prior conviction and the fact that the decedent had used a gun.

During deliberations, the jury asked whether all of the elements of the respective homicide offenses charged must “be true at the same point in time,” or whether “all elements [could] be true at some point in time, though not necessarily at the same point in time?” The judge directed the jury to the elements of the offenses and instructed it to pay attention to any language referring to timing.

Issue 1: Did the government violate Brady by failing to turn over the police investigative file relating to the decedent’s prior conviction?

Holding 1: No. Colbert failed to demonstrate that the contents of the file were material, where the jury heard evidence from three witnesses about prior violence on the part of the decedent, where evidence about the North Carolina conviction was admitted pursuant to stipulation, and where the defense was able “to argue extensively in closing that the decedent had a violent disposition.”

Issue 2: Was it plain error for the trial court to respond to the jury’s note by referring the jury back to the instructions on the elements of the offenses, rather than instructing that with regard to manslaughter, “all elements must be true at the same time”?

Holding 2: No. Even assuming Colbert did not waive the challenge to the instruction, the trial court’s response to the jury note was not plainly erroneous, because “there was no indication in the jury note that the jury was misinterpreting the court’s instructions or was misconstruing the elements of a crime.” Nor could the Court “discern how appellant’s substantial rights were adversely affected” by failure to give the instruction he requested on appeal.

Of Note:
  • Judge Beckwith dissented from the Court’s Brady holding, arguing that the “materiality determination . . . is genuinely hampered by the fact that the trial court did not review the evidence as potential Brady material and that we do not know what that evidence is.” She would have remanded to the trial court “with instructions that it place the North Carolina file in the record and assess the file’s materiality under Brady,” permitting the Court of Appeals “to conduct a de novo review of the trial court’s appraisal of the Brady information with the benefit of the actual evidence.”
  • The dissent observed that the defense could not “have waived his right to challenge the government’s failure to disclose a file when he did not know what the government knew,” and noted that the government’s Brady obligation to disclose information favorable to the defense “exists with or without a request by the defendant.”  MW

Thursday, November 5, 2015

Judge Can't Wear Two Different Hats -- A Judge Ruling on a Motion To Withdraw a Guilty Plea Cannot Resolve a Factual Dispute Based on His Own Recollection of What Happened at the Plea Hearing

Jose Zalmeron v. United States (decided October 29, 2015)

Players: Associate Judges Thompson and Beckwith, Senior Judge Belson. Opinion by Judge Beckwith. PDS for Mr. Zalmeron. Trial judge: Lee Satterfield.

Facts: Mr. Zalmeron pleaded guilty before Judge Satterfield back in 1994 in a drug case. Twenty years later, he moved to withdraw his plea on the ground that he had not been advised that his conviction could cause him to be deported. Transcripts from the 1994 plea were unavailable. Without hearing from the government, Judge Satterfield denied the motion to withdraw, stating "[u]pon review of the chambers file the Court recalls" that it did advise Mr. Zalmeron of the potential immigration consequences of his plea. Mr. Zalmeron than moved for disclosure of the chambers file, both because he asserted a right to review the evidence on which the ruling was based and to allow for appellate review of the ruling. The government then chimed in, suggesting that disclosure of the chambers file was unnecessary because the court's ruling was based on the judge's own "recollection," which “exists separate and apart from the documents in the chambers file."  Judge Satterfield agreed with the government and denied the request to disclose the chambers file.  Mr. Zalmeron then moved to vacate the order and for an evidentiary hearing before an independent judicial officer, asserting that Judge Satterfield could not serve as both witness and factfinder.  And, because Judge Satterfield was now Chief Judge of the Superior Court, Mr. Zalmeron argued that all of the Superior Court judges were subject to recusal, and the hearing should be in front of a DCCA judge sitting by designation.  Judge Satterfield did not do any of that, and Mr. Zalmeron appealed.

Issue 1:  Is Mr. Zalmeron entitled to a reversal or a remand on his claim that he should be allowed to withdraw his plea?

Holding 1:  After some concessions by the government, he is entitled to a remand, but not an outright reversal.  The government did not argue that Judge Satterfield's claimed "recollection" was sufficient to support the denial of the motion to withdraw in the face of a statutory presumption that the required immigration warnings were not given.  A remand rather than a reversal was warranted, however, because the government did not waive its right to present additional evidence that Mr. Zalmeron received the required warnings.  The sequence of events in the Superior Court did not clearly put the government on notice that the failure to adduce additional evidence at that time would amount to a waiver.

If the government seeks to rely on Judge Satterfield's recollection, however, then binding precedent dictates that the hearing must be in front of a different judge because Judge Satterfield cannot be both witness and factfinder.  Apparently agreeing with Mr. Zalmeron that all the Superior Court judges would be recused given the powers the Chief Judge has over their assignments and working conditions, the DCCA would leave it up to the Superior Court to determine whether a new judge should be drawn from either the DCCA or the federal district court.

Issue 2;  Did the twenty year delay in Mr. Zalmeron seeking to withdraw his plea warrant denial of his motion?

Holding 2:  No, but any unexcused delay is a factor that the court can take into account in ruling on the motion.  The text of the statute authorizing withdrawal of guilty pleas in these circumstances, D.C. Code section 16-713, does not contain a time limitation, and it would be improper for the court to read such a limitation into the text.  Any period of unexplained delay, however, may be taken into account when the factfinder considers the credibility of Mr. Zalmeron's claim. DG

Read full opinion here.

Wednesday, November 4, 2015

DCCA to MPD: If you’re going to handcuff a suspect, you’d better issue Miranda warnings before you start asking questions.

Fredrick E. Morton v. United States (decided October 29, 2015).

Players: Chief Judge Washington, Associate Judge Blackburne-Rigsby, Senior Judge Ferren.  Opinion for Chief Judge Washington.  Concurrence by Senior Judge Ferren.  PDS for Mr. Morton.  Trial Judge: Lynn Leibovitz.

Facts: Fredrick Morton was chased, detained, and handcuffed on suspicion of engaging in a drug transaction.  He tossed a wallet along the way, which police picked up.  The investigating officers told him that he was not under arrest but stated, “We need to know why you ran.  Why would you run if you didn’t do anything?”  The officers later asked, “What was up with the wallet?” “I saw you throw a wallet.  What’s up with the wallet?”    Client said he found it on the Metro.  He was then formally arrested.

Issue: Whether Mr. Morton was in custody for Fifth Amendment purposes, when (1) he was restrained with handcuffs after being chased by police, and (2) police confronted him with evidence that was sufficient to establish at least probable cause that he had committed a crime, but (3) police told him that he was not under arrest before he was questioned, and (4) the questioning was brief and (5) took place on a public street where (6) the investigating officers did not brandish weapons.

Holding: Yes.  “Mr. Morton’s detention by use of handcuffs, although not strictly dispositive on this issue, strongly militates toward a finding of Miranda custody.”  Slip op. at 13.

Of Note

  • The Court offers a handy review of the factors that are relevant to determining whether an individual is in custody for Fifth Amendment purposes: the degree to which the police physically restrain the suspect (including whether the police use handcuffs); what the police say to the suspect (especially whether police tell the suspect that he is not under arrest and may decline to answer questions); whether interrogation occurs in public or in a “secluded area;” the length of the detention and questioning; whether the police questioning is “inquisitorial” or “accusatory;” the show of force or brandishing of weapons by the police; whether the suspect is confronted with obvious evidence of his guilt; and whether the police already have sufficient cause to arrest, and the suspect knows this.  Slip op. at 11-12.

  • The government argued that Mr. Morton was not in custody because police told him that he was not under arrest.  The Court found this argument unconvincing, reasoning that this statement by police is not worth much if police do not also inform the suspect that he is free to leave or that he may decline to answer questions. 

  • The Court declined to rule on whether, in the Fifth Amendment context, the “reasonable person” test presupposes a “reasonable innocent person,” as opposed to simply a “reasonable person” in the defendant’s position.  Read Senior Judge Ferren’s concurrence for a thorough discussion of why, for Fifth Amendment purposes, the detainee’s state of mind is that of a reasonable person in the detainee’s position.  NG