Criminal Law Blog

CRIMINAL LAW: The Extent of Judicial Power in Sentencing Pursuant to a Federal Plea Agreement

sbailey@nlrg.com (Suzanne L. Bailey) — Fri, 15 Dec 2023 20:08:59 GMT

CRIMINAL LAW: The Extent of Judicial Power in Sentencing Pursuant to a Federal Plea Agreement

A recent decision from the U.S. Court of Appeals for the Fourth Circuit, United States v. Toebbe, 85 F.4th 190 (4th Cir. 2023), illustrates both the binding nature of plea agreements entered into pursuant to Rule 11 of the Federal Rules of Criminal Procedure and the ultimate authority of the judge in sentencing. Diana Toebbe, a high school humanities teacher with a Ph.D., and her husband, Jonathan Toebbe, a nuclear engineer assigned to the Reactor Engineering Division of the Naval Nuclear Propulsion program and possessing both an active Top Secret security clearance through the Department of Defense and an active “Q clearance” through the Department of Energy, decided to supplement their income by selling Restricted Data of the U.S. Navy relating to Virginia-class-nuclear-powered submarines to a foreign government. Unfortunately for the Toebbes, the foreign government alerted the FBI to the couple’s proposed scheme, and all of the “dead drops” of information Jonathan thought he was making to the foreign government—with Diana acting as look-out—were actually left for an FBI undercover investigation team. Both Toebbes were indicted and charged with “one count of conspiracy to communicate Restricted Data, in violation of 42 U.S.C. § 2274(a), and two counts of aiding and abetting the communication of Restricted Data, in violation of § 2274(a) and 18 U.S.C. § 2," 2023 U.S. App. LEXIS 28366, at *7-8, and both faced a potential sentence of life in prison.

Diana entered into a written plea agreement under Rule 11(c)(1)(C) agreeing to plead guilty to the conspiracy charge in exchange for a sentence of up to 36 months. Under the terms of the agreement, she could withdraw her plea of guilty if the court did not accept the sentence. She also waived her right to appeal, except for ineffective assistance of counsel or prosecutorial misconduct. The district court rejected the sentence, finding it was too lenient given the harm caused to the Navy, its service members, the United States, and the world, and pointing out that even with a 3-level reduction for acceptance of responsibility, the Sentencing Guidelines’ range was for imprisonment for a term of between 151 and 188 months. Therefore, Diana withdrew her plea as permitted by the plea agreement and renegotiated another plea agreement with the Government.

The second plea agreement also called for Diana to plead guilty to conspiracy. However, rather than proffer a specific sentence, the new agreement required the court to impose a sentence of not more than the low end of the applicable Guidelines’ range, as calculated by the court. The Government agreed to request a 3-level downward departure from the Guidelines’ range for cooperation and to recommend a 3-level reduction for timely acceptance of responsibility. If the court agreed with the Government’s recommendations, the Guidelines’ sentence would fall within a range of 108 to 135 months in prison. Again, Diana was bound by the agreement, but she could withdraw her plea if the court would not agree to impose a sentence at the low end of the sentencing range. Again, she waived her appeal rights.

As promised, the Government made a motion for a 3-level downward departure for cooperation, but the court denied the motion following a hearing, concluding that Diana generally provided only information already available to the Government. In the course of preparing the presentence investigation report, the probation officer learned from jail staff that one and two months prior to her first plea of guilty, Diana had attempted to send two letters to Jonathan—which were intercepted by jail staff—in which she attempted to induce him to tell the authorities that she was ignorant of the scheme so that she would receive a lesser sentence and be able to care for their children. The probation officer interviewed Jonathan, who confirmed that prior to their arrests, he and Diana had concocted a cover story in order to shield her from the consequences of the conspiracy. Accordingly, while recommending a 3-level downward adjustment for timely acceptance of responsibility, the probation officer also recommended a 2-level upward adjustment for obstruction of justice. The district court agreed with the probation officer’s recommendations and, after rejecting Diana’s argument—made with the full support of the Government—that her sentence should fall in a range of 3 to 4.9 years, the court sentenced Diana to 262 months’ imprisonment and Jonathan to 232 months’ imprisonment. Diana’s sentence was at the low end of the Sentencing Range, based on the court’s calculations.

In a lengthy opinion, the appeals court dismissed the appeal on the ground that Diana had waived her right to appeal in the plea agreement. Diana did not argue that the Government engaged in prosecutorial misconduct or that her counsel was ineffective or that the district court miscalculated the Guidelines’ range. The Fourth Circuit rejected Diana’s argument that based on her negotiations with the Government regarding a three-year cap on her sentence, she could not possibly have anticipated a sentence of over 21 years and the sentence was attributable to bias by the court. The appellate court pointed out that it was not inappropriate for the court to conclude that Diana was “driving the bus,” based on the two letters she attempted to send her husband. 2023 U.S. App. LEXIS 28366, at *33. While the Government was compelled by the plea agreement to ask for a 3-level reduction for acceptance of responsibility, the district court was not required to grant the request. Moreover, even if Diana had not waived her right to appeal the sentence, the appeals court would not find that the sentence was disproportionate to her offense. Finally, the Fourth Circuit rejected the notion that the Government violated the plea agreement by arguing in opposition to the appeal. The Government’s obligations under the agreement addressed matters prior to sentencing; indeed, the plea agreement specifically provided that the Government was authorized to advance in support of the sentence on appeal. In the end, although more than seven times the length of the sentence Diana was hoping to receive, she had no right to challenge the sentence on appeal, because the Government complied with the plea agreement and the court imposed a sentence permitted by the plea agreement.

CIVIL RIGHTS: SCOTUS: Use of Un-Mirandized Statement Does Not Serve as Basis for § 1983 Claim

jholder@nlrg.com (Jason Holder) — Mon, 01 May 2023 18:36:43 GMT

Jason Holder, Senior Attorney, National Legal Research Group, Inc.

Accused of sexually assaulting a patient while working as a certified nursing assistant, Terence Tekoh was interrogated “at length” by a Los Angeles County Sheriff’s Department Deputy. Vega v. Tekoh, 142 S. Ct. 2095, 2099, 213 L. Ed. 2d 479, 485 (2022). While the Deputy ultimately secured a written statement from Tekoh apologizing for inappropriate touching of a patient, the Deputy had failed to inform Tekoh of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Vega, 142 S. Ct. at 2099-2100. Following a mistrial, Tekoh was acquitted at the conclusion of his second trial. Id. at 2100. In both criminal trials, judges refused to suppress the un-Mirandized statement. Id.

Following his acquittal, Tekoh brought suit against the Deputy and other defendants pursuant to 42 U.S.C. § 1983, alleging violation of his Fifth Amendment right against self-incrimination. Id. An improper jury instruction led to a second trial in the civil action at which Tekoh requested the jury be instructed that it was “required to find that Vega violated the Fifth Amendment right against compelled self-incrimination if it determined that he took a statement from Tekoh in violation of Miranda and that the statement was then improperly used against Tekoh at his criminal trial.” Id. The trial court refused the request, holding that Miranda establishes a mere prophylactic rule that could not, standing alone, provide a ground for § 1983 liability. Id. A panel of the Ninth Circuit reversed, holding that “Dickerson [v. United States, 530 U.S. 428, 120 S. Ct. 2326, 147 L. Ed. 2d 405 (2000)] made clear that the right of a criminal defendant against having an un-Mirandized statement introduced in the prosecution's case in chief is indeed a right secured by the Constitution.” Tekoh v. County of Los Angeles, 985 F.3d 713, 720 (9th Cir. 2021).

Writing for a 6-3 majority, Justice Alito reversed, holding that the rules set out by Miranda and its progeny are “‘constitutionally based,’ Dickerson, 530 U.S. at 440, 120 S. Ct. 2326, 147 L. Ed. 2d 405, but they are prophylactic rules nonetheless.” Vega, 142 S. Ct. at 2101; see also id. at 2102 (collecting cases describing Miranda rules as “prophylactic”). Citing a series of cases in which the Court weighed "the benefits and costs of any clarification of the rules’ scope,” id. at 2103-04, Justice Alito noted multiple cases in which un-Mirandized statements or its “fruits” were nevertheless admitted at trial. Id. (citing Harris v. New York, 401 U.S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971) (statement obtained in violation of Miranda could be used to impeach testimony of defendant); Michigan v. Tucker, 417 U.S. 433, 94 S. Ct. 2357, 41 L. Ed. 2d 182 (1974) (“fruits” of un-Mirandized statement can be admitted); New York v. Quarles, 467 U.S. 649, 104 S. Ct. 2626, 81 L. Ed. 2d 550 (1984) (statements obtained in violation of Miranda need not be suppressed when questioning is conducted to address ongoing “public safety” concern); Oregon v. Elstad, 470 U.S. 298, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985) (fruit-of-the-poisonous-tree rule that applies to constitutional violations does not apply to violations of Miranda)). If a violation of Miranda constituted a per se violation of the Fifth Amendment, the majority reasoned, “[i]t is hard to see how these decisions could stand[.]” Id. at 2104. Moreover, even those cases which expanded the protections of Miranda, “acknowledged the prophylactic nature of the Miranda rules and engaged in cost-benefit analysis to define the scope of these prophylactic rules.” Id. at 2105.

Finally, the majority declined to adopt the argument that “the Miranda rules constitute federal ‘law’ and that an abridgment of those rules can therefore provide the ground for a § 1983 claim.” Id. at 2106. Concluding that while “the benefits of permitting the assertion of Miranda claims under § 1983 would be slight, the costs would be substantial,” id. at 2107, with the Court particularly concerned with the potential for re-litigating factual questions (e.g., whether the plaintiff was in custody) which were already decided by a state court. Id. Aside from the potential friction between state and federal court determinations, the Court also highlighted a number of procedural issues which could arise, including deference to a trial court’s factual findings, forfeiture and plain error rules carrying over from the criminal trial, whether harmless-error rules apply, and whether civil damages would be available where un-Mirandized statement had no impact on the outcome of the criminal case. Id.

Writing for the dissent, Justice Kagan accused the majority of “strip[ping] individuals of the ability to seek a remedy for violations of the right recognized in Miranda.” Id. at 2111. While conceding that a criminal defendant can seek to suppress un-Mirandized statements at trial, “sometimes, such a statement will not be suppressed. . . [and] defendant will be wrongly convicted and spend years in prison.” Id. Even if the conviction is overturned on appeal or in a habeas proceeding, Justice Kagan questioned “what remedy does he have for all the harm he has suffered? The point of § 1983 is to provide such redress—because a remedy ‘is a vital component of any scheme for vindicating cherished constitutional guarantees.’” Id. (quoting Gomez v. Toledo, 446 U.S. 635, 639, 100 S. Ct. 1920, 64 L. Ed. 2d 572 (1980)). By denying the remedy, “[t]he majority here, as elsewhere, injures the right[.]” Id

In Pursuit of Fleeing Misdemeanants: SCOTUS Rejects Categorical Rule of Exigency

jholder@nlrg.com (Jason Holder) — Wed, 23 Mar 2022 14:42:00 GMT

Jason Holder—Senior Attorney, National Legal Research Group

Arthur Lange (“Lange”) drove past a highway patrol officer with his windows down, music blaring, and repeatedly honking on his horn; in short, Lange “was asking for attention.” Lange v. California, 141 S. Ct. 2011, 2016 (2021). The officer followed Lange a short distance before turning on his overhead light and attempting to pull Lange over. Id. Lange was seconds away from his home, however, and chose to continue to his driveway and pull into his garage. Id. The officer continued his pursuit and confronted Lange with the subsequent investigation revealing, perhaps unsurprisingly, that Lange was under the influence of alcohol. See id. (blood test revealed Lange was more than three times the legal limit).

Upon being charged with driving under the influence as well as a noise infraction, Lange moved to suppress all the evidence obtained by the officer’s warrantless entry into the garage. Id. In response, the prosecution argued that “the pursuit of a suspected misdemeanant always qualifies as an exigent circumstance authorizing a warrantless home entry.” Id. (emphasis added). The state courts accepted this argument and the U.S. Supreme Court granted review to resolve the conflict between the various state/federal courts regarding a categorical rule of exigency when in pursuit of a fleeing suspect. Id. at 2017.

The Court began its analysis by noting that the exigency exception to the warrant requirement permits officers to handle emergency situations when “the delay required to obtain a warrant would bring about some real immediate and serious consequences—and so the absence of a warrant is excused.” Id. at 2017–18 (internal quotation marks omitted). This exception, however, is generally applied on a case-by-case basis. Id. at 2018. Refusing to take the case of a fleeing misdemeanant outside of this case-by-case approach, the Court noted that it is naturally hesitant to expand any warrant exception to home entry. Id. at 2018–19. Equally compelling to the Court is the fact that while misdemeanors “vary widely, . . . they may be (in a word) ‘minor.’” Id. at 2020.

Explaining that when faced with a minor offense, officers do not usually face the kind of emergency that can justify a warrantless home entry, the Court reasoned that when a misdemeanant’s flight is added, the equation certainly changes, but not enough to justify a categorical rule. Id. at 2021. This conclusion was further supported by the common law, which provides that an officer could enter a home to pursue a felon, id. at 2023, but does not traditionally permit the same action for all misdemeanor offenses. In light of this historical context, the Lange Court concluded that “[t]he flight of a suspected misdemeanant does not always justify a warrantless entry into a home.” Id. at 2024. Instead, an officer must “consider all the circumstances in a pursuit case to determine whether there is a law enforcement emergency.” Id.

Despite this holding, the Court noted that “[o]n many occasions, the officer will have good reason to enter—to prevent imminent harms of violence, destruction of evidence, or escape from the home.” Id. In a separate opinion, concurring in the judgment, Chief Justice Roberts argued that by refusing a categorical rule, but recognizing the possibility of exigency, the majority requires an officer pursuing a fleeing suspect to (1) stop and consider whether the suspect will be charged with a misdemeanor or a felony, (2) tally up the “‘exigencies’ that might be present or arise” and (3) decide “whether he can complete the arrest or must instead seek a warrant.” Id. at 2028. Instead, the Chief Justice concluded that “hot pursuit is not merely a setting in which other exigent circumstances justifying warrantless entry might emerge. It is itself an exigent circumstance.” Id. Such an approach would still have limits, id. at 2033–34 (entry itself must be reasonable, search must be limited to those spaces where the person can be found, arrest cannot be conducted in a manner “unusually harmful to an individual’s privacy or even physical interests”). Nevertheless, the initial pursuit of the fleeing suspect would be appropriate. Given that the state courts’ categorical rule did not consider such factors, the Chief Justice would still “vacate the decision below to allow consideration of whether the circumstances at issue in this case fall within an exception to the general rule.” Id. at 2034.

Despite the apparent disconnect between the Chief Justice and the majority, Justice Kavanaugh noted that “there is almost no daylight in practice” between the approaches. Id. at 2025 (Kavanaugh J., concurring). This practicality stems from the fact that “cases of fleeing misdemeanants will almost always also involve a recognized exigent circumstance—such as a risk of escape, destruction of evidence, or harm to others—that will still justify warrantless entry into a home.” Id. It remains to be seen if this observation proves prophetic and if the Court has merely adopted a not quite categorical rule permitting pursuit of fleeing misdemeanants.

Sex Offender Registration Requirement

mrieber@nlrg.com (Mark Rieber) — Wed, 15 Dec 2021 17:15:01 GMT

Mark Rieber—Senior Attorney, National Legal Research Group

In Doe v. Wasden, No. 1:20-CV-00452-BLW, 2021 WL 4129144 (D. Idaho Sept. 8, 2021), appeal filed (9th Cir. Oct. 1, 2021), the court granted the two offenders' (John Doe and Randall Menges) motion for preliminary injunction challenging the requirement of their registration for the Idaho Sex Offender Registry because of Doe's conviction under a Crime Against Nature statute and Menges's conviction under Idaho's Crime Against Nature statute for engaging in consensual oral or anal sex. The court held that both offenders were likely to prevail on their claims that Idaho was violating their constitutional rights, which included a substantive due process claim, a procedural due process claim, and an equal protection claim. The court found that Idaho could have no legitimate interest in requiring offenders to register as sex offenders for engaging in private, consensual sexual acts and that the offenders had a protected liberty interest in both engaging in private consensual sexual activity and being free from the burdens of sex offender registration. Both offenses at issue occurred before the ruling in Lawrence v. Texas, 539 U.S. 558 (2003). After discussing the principles applicable to the constitutional challenge, the court found that the offenders had demonstrated a likelihood of success on the merits based on Idaho's reliance on the offenders' pre-Lawrence crimes against nature convictions as a basis to require them to register as sex offenders. Both were required to register as sex offenders for life under the Idaho statute.

Ineffective Assistance—Death Penalty

mrieber@nlrg.com (Mark V. Rieber) — Thu, 23 Sep 2021 16:03:23 GMT

Mark Rieber—Senior Attorney, National Legal Research Group

In Andrus v. Texas, 140 S. Ct. 1875 (2020), the Supreme Court vacated the opinion of the Texas Court of Criminal Appeals denying habeas relief to the petitioner challenging his death sentence and claiming that his counsel was ineffective in failing to investigate and present mitigating evidence at the penalty phase of trial. At the guilty phase of defendant's capital murder trial, defense counsel essentially conceded guilt and indicated he would "be fighting" at the punishment phase. Counsel, however, presented limited evidence at sentencing and failed to investigate and overlooked "vast tranches of mitigating evidence." Id. at 1881. Counsel also failed to investigate the State's aggravating evidence. At the habeas hearing, counsel offered no tactical rationale for such failure, which was "all the more alarming given that counsel's purported strategy was to concede guilt and focus on mitigation." Id. at 1883. The Court easily found that counsel was ineffective at the penalty phase, despite the Texas state court's summary dismissal of such claim.

The Court, however, remanded the case for the state court to address the prejudice prong of Strickland v. Washington, 466 U.S. 668 (1984). The state court had found no prejudice, but the Supreme Court found that the state court did not appear to adequately address or analyze whether the prejudice prong had been met and that the state court may have concluded simply that Andrus failed to demonstrate the deficient performance under the first prong of Strickland without even reaching the prejudice prong.

On remand, the Texas Court of Criminal Appeals held that counsel's deficient performance, as found by the Supreme Court, did not prejudice Andrus, and criticized the Supreme Court's opinion. Ex parte Andrus, 622 S.W.3d 892 (Tex. Crim. App. 2021).

Insanity Defense

mrieber@nlrg.com (Mark V. Rieber) — Wed, 17 Feb 2021 15:58:03 GMT

Mark Rieber—Senior Attorney, National Legal Research Group

In Kahler v. Kansas, 140 S. Ct. 1021 (2020), the U.S. Supreme Court recently held that the Due Process Clause of the U.S. Constitution does not require a state to adopt a particular formulation of the insanity defense. The ruling came in a case out of Kansas where the state had adopted the "cognitive incapacity" test, which examines whether a defendant was able to understand what he was doing when he committed the crime. The Kansas statute does not incorporate the "moral incapacity" test, which is the inquiry into whether a defendant could not distinguish right from wrong when committing the crime. The defendant contended that the state's failure to allow a defendant to raise a defense based on "moral incapacity" violated due process. The Court rejected such argument, holding that a state's insanity rule was substantially open to state choice. In so holding, the Court cited to Clark v. Arizona, 548 U.S. 735 (2006), where it had catalogued the diverse strains of the insanity defense that states have adopted to absolve mentally ill defendants of criminal responsibility. The dissent agreed that states were free to provide different definitions and standards related to the insanity defense but found that Kansas did not simply redefine the insanity defense; rather, it eliminated the core of a defense that has existed for centuries.

Fourth Circuit Panel Rules That Probable Cause Is a Mere Click Away

jholder@nlrg.com (Jason Holder) — Fri, 21 Feb 2020 17:25:04 GMT

Jason Holder-Senior Attorney, National Legal Research Group

On what the court in United States v. Bosyk, 933 F.3d 319 (4th Cir. 2019), described as a "secretive online message board," id. at 322, a link appeared with a message explaining that the link would lead to multiple videos of child pornography. On the same day that this link appeared, an IP address associated with Bosyk's house accessed the link to view the advertised materials. Id. Armed with these facts, and a brief description regarding the characteristics of individuals who possess and access child pornography, investigators were able to obtain a search warrant for Bosyk's residence authorizing the seizure of "computers, digital devices, storage media, and related evidence." Id. at 323.

The search of Bosyk's house uncovered thousands of incriminating images and videos, including the very video described in the search warrant affidavit as being found by clicking on the original link. Id. Bosyk was indicted on a number of child pornography charges, and he moved to suppress the evidence obtained through the search warrant. Id. at 324. The district court denied the motion, and Bosyk pleaded guilty to one count of receiving child pornography while reserving his right to appeal. Id.

On appeal, Bosyk argued that the government obtained the warrant "based on a 'single click' of a URL, which, [he argued], cannot support a search of somebody's home." Id. at 325. The court was unpersuaded, however, noting that the timing of the "click" was the "critical fact" in supporting the warrant. See id. ("[T]he very day that someone clicked the link, it appeared on a website whose purpose was to advertise and distribute child pornography to its limited membership."). The court reasoned that because the link was accessed on the same day it appeared on the message board, "it is at least reasonably probable that the user clicked the link having encountered it on that website." Id. This assumption, in turn, allowed several inferences to drop into place to support the magistrate judge's decision to issue the warrant. These inferences included (1) that the user also knew it contained child pornography, and (2) that the same person "typed the password posted on [the message board], downloaded the content, and viewed the video contained at that URL." Id.

In an effort to counter these inferences, Bosyk argued that the affidavit "didn't say whether the link existed elsewhere on the internet, or whether the site linked at the URL contained content other than the illegal videos described in the affidavit." Id. at 327. The court was unpersuaded, however, noting that the Supreme Court has reiterated that probable cause "does not require officers to rule out a suspect's innocent explanation for suspicious facts." Id. (quoting District of Columbia v. Wesby, 138 S. Ct. 577, 588 (2018)). Innocent explanations were also unlikely in the court's view, given that "people who possess and view child pornography often take steps to conceal their contraband material, guard it closely, and sometimes delete it to avoid detection." Id. These characteristics also defeated Bosyk's challenge to the delay in time between the link being accessed (November 2015) and the warrant being issued (April 2016). See id. at 330 (even a substantial delay between download and issuance of warrant does not render the underlying information stale, because "collectors and distributors of child pornography value their sexually explicit materials highly, rarely if ever dispose of such material, and store it for long periods in a secure place, typically in their homes").

An extensive dissent cautioned that courts must "guard against the slow whittling away of constitutional rights, particularly as we apply constitutional rights adopted in an analog era to the new challenges of the digital age." Id. at 334 (Wynn, J., dissenting). In his dissent, Judge Wynn was quick to note that he agrees that "even a 'single click' of an internet link to download child pornography can provide probable cause to support a search warrant." Id. at 339 (footnote omitted). This remains true, the dissent continued, only "if the facts set forth in the warrant application establish that 'the person behind that click plausibly knew about and sought out that content.'" Id. (emphasis added). In the present case, while probable cause was premised on the link having been encountered on the secretive online message board, "the affidavit does not assert that Defendant, or someone likely to be using Defendant's IP address, was a member of [the board]." Id. at 340.

Everyday users encounter URLs in a variety of ways, "including through websites, emails, chats, text messages, comment threads, discussion boards, File Sharing Sites (such as DropBox, Google Drive, or Apple iCloud), tweets, Facebook posts, Instagram captions, Snapchat messages, embedded images or videos, unwanted pop-up windows, any combination thereof, or by any other digital mean." Id. at 343. Moreover, random URLs, link shortening, and link disguising create the possibility that users can "unintentionally navigate to URLs." Id. at 344 (emphasis added). Such practices can be used for innocuous purposes, such as "rickrolling," id. at 345, as well as nefarious ones, id. (seemingly innocuous URLs linked to child pornography for the purposes of extortion). The sheer volume of ways an individual can encounter a URL are overlooked, the dissent argued, by a "majority opinion [that] fails to recognize that this alternative path, by itself, materially undermines its theory of probable cause." Id. at 346.

Ultimately, the dissent concluded that a single click of a URL, "absent any further factual evidence circumscribing the universe of paths through which someone using Defendant's IP address could have encountered and navigated to that URL—nearly all of which have no relation to [the offending message board]-is insufficient to establish probable cause." Id. at 363-64.

Mere Possession of Concealed Firearm Does Not Justify Terry Stop

mrieber@nlrg.com (Mark V. Rieber) — Fri, 02 Aug 2019 15:22:54 GMT

Mark Rieber—Senior Attorney, National Legal Research Group

In Commonwealth v. Hicks, No. 56 MAP 2017, 2019 WL 2305953 (Pa. May 31, 2019), the Pennsylvania Supreme Court overruled precedent from the Pennsylvania Superior Court in Commonwealth v. Robinson, 410 Pa. Super. 614, 600 A.2d 957 (1991), and held that the mere possession of a concealed firearm does not provide reasonable suspicion of criminal activity to justify a stop pursuant to Terry v. Ohio, 392 U.S. 1 (1968). The court explained that the prior holding in Robinson, upholding such stops (the Robinson rule) improperly dispensed with the requirement of individualized suspicion and, in doing so, misapplied the overarching totality of the circumstances test.

Although the carrying of a concealed firearm is unlawful for a person statutorily prohibited from firearm possession or for a person not licensed to do so, the court stated that there is no way to ascertain an individual's licensing status, or status as a prohibited person, merely by his outward appearance. Accordingly, the court held that unless a police officer has prior knowledge that a specific individual is not permitted to carry a concealed firearm, and absent articulable facts supporting reasonable suspicion that a firearm is being used or intended to be used in a criminal manner, there simply is no justification for the conclusion that the mere possession of a firearm, where it lawfully may be carried, is alone suggestive of criminal activity.

No Constitutional Right to Engage in Bestiality

mrieber@nlrg.com (Mark V. Rieber) — Tue, 05 Feb 2019 16:37:46 GMT

Mark Rieber—Senior Attorney, National Legal Research Group

In an unusual case, and one apparently of first impression, the Virginia Court of Appeals has very recently upheld the constitutionality of the state's statute prohibiting bestiality. Va. Code Ann. § 18.2-361(A); Warren v. Commonwealth, No. 2086-17-3, 2019 WL 189386 (Va. Ct. App. Jan. 15, 2019). The defendant in Warren was convicted of soliciting another person to "carnally know a brute animal or to submit to carnal knowledge with a brute animal" in violation of Va. Code Ann. §§ 18.2-361(A) and 18.2-29 (criminal solicitation). The evidence against the defendant included videos of the prohibited activities. The defendant argued that the bestiality statute was unconstitutional under Lawrence v. Texas, 539 U.S. 558 (2003), because the activities at issue amounted to nothing more than private sexual conduct of consenting adults. The court construed the defendant's claim as a right to engage in bestiality, and rejected such a right finding that bestiality was a crime at common law and has been criminalized in Virginia since at least 1792. The court rejected the attempt to equate private sexual acts among consenting adults with sexual acts between humans and animals. The court further found that the bestiality statute was rationally related to legitimate state interests of prohibiting cruelty to animals and protecting public health and did not intrude upon a fundamental right. Accordingly, the court upheld the constitutionality of the bestiality statute and affirmed the defendant's conviction.

Fourth Amendment Applies to Cell Site Location Information

mrieber@nlrg.com (Mark Rieber) — Mon, 26 Nov 2018 16:26:34 GMT

Mark Rieber, Senior Attorney, National Legal Research Group

Cell-site location information ("CSLI") is location information generated by cellular phone providers that indicates which cell tower a particular phone was communicating with when a communication was made. United States v. Curtis, No. 17-1833, 2018 WL 4042631, at *1 (7th Cir. Aug. 24, 2018). It is capable of pinpointing a phone's location within 50 meters. Id. Because cell phones are in constant communication with the nearest cell site—often affixed to a cell tower—they can collect CSLI as frequently as several times a minute. Id.

In June 2018, in Carpenter v. United States, 138 S. Ct. 2206 (2018), the Supreme Court extended Fourth Amendment protection to CSLI and held that the government conducts a "search" when it accesses historical cell phone records that provide a comprehensive chronicle of the user's past movements. The Court concluded that the government must generally obtain a warrant supported by probable cause before acquiring such records and rejected application of the "third-party doctrine," even though the records at issue were held by a wireless carrier.

The Court declined to say whether there was "a limited period for which the Government may obtain an individual's historical CSLI free from Fourth Amendment scrutiny," deciding only that accessing seven days' or more worth of information was enough. Id. at 2217 n.3. In Carpenter, the prosecutors had obtained court orders under the Stored Communications Act ("SCA"), 18 U.S.C. § 2703, and those court orders purported to authorize the collection of the target's cell phone records. The Court said that SCA compliance did not matter, because the showing required by the SCA "falls well short of the probable cause required for a warrant." Id. at 2221. The Court remanded the case for further proceedings.

It should be noted that although the new rule announced in Carpenter applies retroactively to all cases on direct review or not yet final, this does not necessarily mean that the exclusionary rule applies. United States v. Williams, No. 2:17-cr-20758-VAR-DRG, 2018 WL 369585 (E.D. Mich. Aug. 2, 2018). In Williams, the court held that because the government relied in good faith on the existing law to obtain the CSLI records without a warrant, the exclusionary rule did not apply.