US v. Karen Kimble (4th Cir, filed 5/2/17): Search and Seizure Issue– Agents Empowered to Take Cash If Reasonable Agent Would Have Thought It Covered by the Warrant (and even when the Agents thought it related to crime beyond the scope of the warrant).

This is a really interesting search issue, in my opinion, and confirms that hard cases sometimes make for bad law. I don’t think I agree with this decision, frankly, although it’s easy to see how the Court would not be inclined to suppress the fruits of this search.

Kimble was convicted after a bench trial during which the Government proved that she committed a number of schemes involving tax and visa application fraud, and aggravated identity theft.  Here’s how the series of events unfolded:  In 2007, Kimble participated in an immigration scheme with Tamim Mamah, a native of Ghana.  Mamah earlier attempted to get a green card by way of a fraudulent marriage.  When that didn’t work, Kimble filed, under the former wife’s name, for a divorce from Mamah. Then Kimble submitted a new green card application on Mamah’s behalf, using a marriage certificate listing herself as Mamah’s wife. During that same time frame, she also committed perjury when Mamah’s brother was charged in connection with heroin distribution.  She took the stand in that trial and essentially testified to facts she claimed she witnessed while in Africa. Only, she was not in Africa during that relevant time frame.  Then, Kimble offered herself as a tax preparer. She prepared taxes, but she inflated numbers, gave her clients different returns, and pocketed the difference to the total of $222,000 of skimmed monies. Very naughty behavior.

In July 2011, the Department of Homeland Security obtained a search warrant in connection with its investigation into Kimble’s marriage and immigration fraud and perjury.  In its affidavit, it asserted probable cause to believe her home contained evidence of perjury, marriage and immigration fraud, and false statements.  An attachment to that warrant stated that the search would enable the government to seize “[a]ny and all records and documents relating to the travel of [Defendant] to Ghana in 2006 including but not limited to… documents, correspondence, notes, statements, receipts or other records that reference or indicate fraudulent activity and items evidencing the obtaining, secretly, transferring, concealment and or expenditure illegal proceeds and currency to include cash.”

The agents executed a search warrant on July 29, 2011. At the beginning of the search, the agents asked Kimbel if she had any valuables in the house. She told him that she had some cash in a laundry basket. The agents searched the basket and found $41,000. When the agents asked her about the source of the funds, she told them that the money did not belong to her and that she had received the money from a stranger about a week earlier and that she was holding it for her husband. The officers were aware that her husband had been detained on a narcotics distribution charge, and so they took the money on suspicion that it derived from illegal drug activity.

Several months later Kimbel filed a claim to recover the seized funds. This time she told the officers that the money was proceeds of an insurance claim she filed after her home was damaged in a fire. Based on her changing account of the source of the funds, investigators subpoenaed her bank records in an attempt to confirm the source of the seized funds.  Once they reviewed those records, they found the numerous deposits from the IRS which they later figured out were the inflated refunds from her tax scheme.  In other words, they discovered her tax fraud, about which, until then, they had been unaware.

Kimbel was then indicted. She motioned the Court to suppress all the evidence obtained from the search of her house. Specifically, she argued that the government exceeded the scope of the warrant when it seized money it believed was related to drugs when the warrant itself only pertained to the perjury and immigration charges. Campbell argued that because the cash was improperly seized, any evidence obtained as a result of her efforts to reclaim that money amounted to the fruit of the illegal seizure and therefore was subject to exclusion at trial.

In this appeal, the Court assessed whether the government agents exceeded the scope of the search warrant. The court reviews the district courts legal conclusions regarding the scope of the warrant de novo and a factual findings underlying the conclusions for clear error.  United States v. Phillips, 588 F.3d 218, 223 (4th Cir. 2009).

The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” and provides that “no Warrants shall issue, but upon probable cause, supported by Oath or  affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”  U.S. Const. amend. IV. The particularity requirement protects against a general, exploratory rummaging in a person’s belongings to the extent that a valid warrant leaves nothing to the discretion of the officers performing the search.  See United States v. Robinson, 275 F.3d 371 (4th Cir. 2001).

Here, Kimbel argued that the seizure of the cash violated the Fourth Amendment because the warrant permitted the agents to seize evidence relating only to her travel to Ghana, the subject of her perjured testimony. In support of this argument, she pointed to the language of Attachment B to the warrant which included the phrase “any and all records and documents relating to the travel of defendant to Ghana and 2006.”   She argued that the money, which the agents initially believed was linked to unrelated drug activity, exceeded the scope of the warrant because it could not have been related to her alleged perjury. The Court disagreed.   According to the Court, the scope of the search conducted pursuant to a warrant is defined objectively by the terms of the warrant in the oven and sought, not by the subjective motivations of an officer.  See United States v. Srivastava, 540 F.3d 277, 287 (4th Cir. 2008) (“In analyzing the constitutionality of a search warrant execution, we must conduct an objective assessment of the executing officers’ actions in light of the facts and circumstances confronting him at the time, rather than make a subjective a valuation of the officers’ actual state of mind at the time the challenged action was taken”).  In upholding the constitutionality of this search and seizure, the Court concluded that a reasonable officer could have found that the $41,000 could have constituted potential evidence of the marriage fraud, false statements, unlawful procurement of citizenship, or perjury charges.  In other words, it didn’t matter that the officers actually intended to exceed the scope of the warrant, so long as a reasonable agent would have thought these additional items were relevant to the search.  Therefore, the seizure did not exceed the scope of the warrant, and the district court correctly denied Kimbel’s motion to suppress.

The Court also addressed a sufficiency of the evidence claim relating to the tax and wire fraud charges.  The Court rejected those arguments as well.  Not a good outcome for Ms. Kimble, nor anyone else challenging the scope of a search warrant.  But here, some artwork from Nanart Agyemang, a Ghanian artist:

 

Cockrow

 

 

 

United States v. Cortez Fisher, 711 F.3d 460 (4th Cir. 2013) a/k/a Oh, Wow, Do Cops Actually DO THIS?

This is not really a new case, but it’s a good one to keep in mind for a couple of reasons—1) it reminds us that guilty pleas do not sanitize government misconduct, and 2) in federal cases, the 2255 can be a powerful remedy for undoing injustice.

Marta Kahn, of Baltimore, Maryland was the Outstanding Lawyer for this defendant.

The opinion starts off with a BANG:

In this extraordinary case, the law-enforcement officer responsible for the investigation that led to the defendant’s arrest and guilty plea himself later pled guilty to having defrauded the justice system in connection with his duties as an officer. Regarding this case specifically, the officer admitted to having lied in his sworn affidavit that underpinned the search warrant for the defendant’s residence and vehicle, where evidence forming the basis of the charge to which the defendant pled guilty was found. We hold that the officer’s affirmative misrepresentation, which informed the defendant’s decision to plead guilty and tinged the entire proceeding, rendered the defendant’s plea involuntary and violated his due process rights.

Mark Lunsford, the Dirty Cop in this case, was a Baltimore City Drug Enforcement Agency Task Force Officer.  He applied for the search warrant for Fisher’s house and car.  In the application, he made the following claims:

  • He targeted Defendant after a CI told him Fisher distributed drugs, and that the CI told him Fisher had a gun in the house.
  • Described his CI as “reliable” and had helped with “numerous arrests.”
  • CI provided physical description of Fisher, the house and Fisher’s car
  • The CI identified Fisher through the use of a photograph.

All of that, it turns out, were lies.  A year after Fisher went to prison for 10 years, Dirty Cop was charged with various fraud and theft offenses in connection with his duties as a DEA officer, including falsely attributing information to a CI with whom he was splitting reward money.  As part of Dirty Cop’s cooperation with the FBI, he admitted that the CI in this case had “no connection to the case” and that another individual was “the real informant.”

Holy shit.

The district court judge denied Fisher’s motion to withdraw his plea that he brought by way of a 2255 motion.  Marta Kahn was appointed on motion by the Federal Public Defenders Office, and she appealed the case to the Fourth Circuit.

Fisher (through Kahn) made the following arguments:

The district court erred in finding Fisher’s guilty plea was knowing, intelligent, and voluntary because he did not know at the time he entered his plea that Dirty Cop lied in his search warrant affidavit.  The plea is constitutionally infirm because 1) Dirty Cop’s underlying pre-plea misconduct rendered his plea involuntary under Brady v. United States, 397 U.S. 742 (1970); and 2) the government failed to meet its evidentiary disclosure obligations under Brady v. Maryland, 373 U.S. 83 (1963).

As to the Brady v. United States argument:

The United States Supreme Court has outlined the following standard as to the voluntariness of guilty pleas:

A plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutors business (e.g. bribes).

Brady at 755.

Therefore, in order to set aside a plea as involuntary, the defendant who is fully aware of the direct consequences of the plea must show that (1) “some egregiously impermissible conduct (say, threats, blatant misrepresentations, or untoward blandishments by government agents) antedated the entry of his plea” and (2) “misconduct influenced his decision to plead guilty or, put another way, that it was material to that choice.”  Ferrara v. United States, 456 F.3d 278, 290 (1st Cir. 2006).

The Court had no difficulty finding this happened in this case.  As the majority holds, Brady v. United States does not limit government misrepresentations to prosecutorial promises designed to elicit a guilty plea.  The government cannot make “plain and inexcusable misrepresentations not anchored to any permissible litigation strategy.”  Ferrara, 456 F.3d at 293.

Additionally, it did not matter to the Court that neither the prosecution nor defense counsel knew of the misstatements at the time that Fisher entered his guilty plea.  “Neither the timing, nor the prosecution’s good faith, however, negates the undisputed fact that the evidence the prosecution presented to Defendant and his counsel during deliberations as to whether Defendant should plead guilty was obtained under a search warrant issued solely on the basis of an untruthful law enforcement affidavit.”

The Court found that, under the totality of the circumstances—a law enforcement officer intentionally lying in an affidavit that formed the basis for a search, where evidence forming the basis of the charge to which he pled guilty was found—Defendant’s plea was involuntary and violated his due process rights.   Also, allowing a guilty plea to stand under these circumstances undermines public trust in the judicial system.

Because the Court rendered its opinion in the basis of the Brady v. United States claim, it declined to address the Brady v. Maryland claim.

While this is a great case for Justice, bear in mind that Judge Agee wrote a thoughtful and lengthy dissent that argues, essentially, that the Brady v. Maryland right is a TRIAL right.  This is the same argument that the West Virginia State Supreme Court recently rejected (Buffey v Ballard, No. 14-0642, September 2015).  As for the Brady v. United States claim, Judge Agee appears to commit to the position that the misrepresentations are problematic only to the extent they were made for purposes of inducing the guilty plea (here, he contrasts the facts in this situation—“tangentially related to the plea process, like a warrant application months in advance of the defendant’s guilty plea . . .”).

Excellent outcome for an outrageous example of law enforcement misconduct!

DEA

 

 

 

Armed, but not “Dangerous,” Reasonable Suspicion in a State Where Anyone Can Carry a Gun, United States v. Robinson, No. 14-4902 (filed February 23, 2016).

This is a fascinating case, and one that will reverberate throughout our Circuit.  The take away is quite simple—in a state where it is legal to carry a gun in public, or carry a concealed weapon with a permit, and where permits are relatively easy to obtain, being armed does not mean “being dangerous” for purposes of a Terry frisk.

In this case, an anonymous caller informed law enforcement and reported that a black male was observed placing a gun into his pocket close to a “high-crime area.”  Based on this, law enforcement chose to follow the car the subject was in.  Observing a seatbelt violation, law enforcement pulled over the car.  The male subject was the passenger.  Law enforcement had him exited the car and then conducted a “pat-down search.”  Pat down searches are legal if, and only if, an officer has a reasonable and articulable suspicion that the person is “armed and presently dangerous to the officer or to others.”  United States v. Holmes, 376 F.3d 270, 275 (4th Cir. 2004).  Here, there was no question that the defendant was armed, the pertinent legal issue was whether the officer had a reasonable and objective basis, considering the totality of the circumstances, to believe he was also “dangerous.”   The court notes that public possession and display of firearms has become lawful under more circumstances and that the Fourth Amendment must therefore adapt.  The court pointed to such recent United States Supreme Court cases, McDonald v. City of Chicago, 561 U.S. 742 (2010), and District of Columbia v. Heller, 554 U.S. 570 (2008) to illustrate the expanding right to carry guns in public.  Based on this, merely carrying a firearm does not necessarily entail that a police officer has a reasonable basis to think that a person is dangerous:

[W]e conclude that in states like West Virginia, which broadly allow public possession of firearms, reasonable suspicion that a person is armed does not by itself give rise to reasonable suspicion that the person is dangerous for Terry purposes.  Where the state legislature has decided that its citizens may be entrusted to carry firearms on public streets, we may not make the contrary assumption that those firearms inherently pose a danger justifying their seizure by law enforcement officers without consent.

Judge Niemeyer dissented.  In his view, the majority errs in requiring some evidence of dangerousness distinct from the mere possession of the gun.  In his view, the Supreme Court precedent is that a reasonable officer need have only a suspicion that an individual, lawfully stopped, is armed and thus dangerous. (“The majority achieves this position by dissecting the armed-and-dangerous requirement into two distinct requirements, holding that dangerousness must exists separately and to the a greater extent than the danger created by the person’s possession of a gun during a lawful but forced police encounter”).  Additionally, the dissent points to the policy considerations that underlie the Terry frisk stop in the first place—these kinds of stops are simply generally dangerous.  The dissent also states that, in his view, under the totality of the circumstances, the officer had reasonable suspicion to conduct the frisk.

In any event, with Judge Niemeyer’s dissent, this case may get some traction in the United States Supreme Court.  But for now, practitioners are well-advised to bone up on statutes regulating citizen possession and carrying of legal weapons to raise challenges like the one before this court.

american_gun

United States v. Slocumb, No. 14-4733 (Published Fourth Circuit, October 22, 1015)

An excellent case published by the Fourth Circuit today.  Authored by Judge Gregory, and joined by Judges Agee and Diaz, the Fourth Circuit affirms the right to be free from unreasonable searches and seizures.  Mr. Slocumb was changing out a child’s car seat in a commercial parking lot that officers were also using as a staging area for an ongoing drug investigation into a house across the street.  Mr. Slocumb had received a call from his girlfriend, Lewis, informing him that her car had broken down.  Admittedly, it was late at night and a well-known drug area. An officer approached Slocumb and Lewis as they were moving the baby car seat.  The officer noticed Slocumb “hurrying” Lewis.  Then, even more nefariously, he did not make eye contact!  And he mumbled!  Obviously the officer needed backup which he then called for.  At some point, the officer asked Slocumb for his name.  Slocumb provided a false name. The officer asked Slocumb if he had anything illegal on him; he said no.  The officer asked for consent to search him; he said no.  Minutes later, an officer asked Lewis (who by this time was sitting in the car with her infant) what Slocumb’s name was, and she replied, “Hakeem.”  Well, the officers recognized the name “Hakeem” in connection with one of their drug investigations!  Busted!  Slocumb was then immediately arrested, and searched.  The officers found $6,000 in cash on him.  After a search of the car, the police found drugs.

In assessing the totality of the circumstances, the district court found the officer had reasonable suspicion, and it relied on these factors:  1) Officer’s awareness of the high-crime area; 2) the lateness of the hour; 3) Slocumb’s presence in the parking lot of a business closed for several hours; 4) Slocumb’s conduct vis a vis, hurrying Lewis, mumbling responses, and avoiding eye contact; and 5) the district court’s conclusion that Slocumb’s conduct seemed “inconsistent” with the explanation for his presence.  The district court reasoned that, had Slocumb truly been helping his girlfriend with her broken-down car, he should have gleefully welcomed the police officer with direct eye contact!  Relying on numerous cases, the Court had no problem finding a lack of particularized suspicion in this case.  The Court especially notes that Slocumb did not undertaken any actions to evade the police officers and acknowledges that even innocent encounters with police officers can be anxiety-producing.  In a phrase I love, the Court reiterates that the Government “must do more than simply label a behavior as ‘suspicious’ to make it so.”  United States v. Massenburg, 654 F.3d 480, 491 (4th Cir. 2011).

Another great case coming from the Fourth Circuit.  It is especially deserving of a good read as it takes care to cite a number of Fourth Circuit cases on search issues.  This case is a great contribution to the criminal defense attorney’s arsenal.

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