Fifth Circuit Update Dale F. Ogden, Assistant Federal Public Defender Del Rio Division, TXWD August 21, 2020
Outline 4 th Amendment ■ 5 th Amendment ■ 6 th Amendment & Confrontation ■ ■ Pereira & 1326(d) ■ Competency ■ Guilt Issues ■ Sentencing & Guideline Issues ■ Appeals ■ Post-Conviction ■ Categorical Approach ■ Trends
4 th Amendment The right of the people to be secure in your papers or Your papers please ….
4 th Amendment United States v. Reyes (June 5, 2020) original link, substituted opinion ■ Traffic Stop, where the Fifth (2 to 1) held that the following amounted to reasonable suspicion: – Driving on I-20, a known drug-trafficking corridor, from Dallas, a known drug source; – Driving a truck registered to someone else with a temporary plate for another state; – Reyes refused to get out of the truck but when she did, she locked it behind her; – Implausible and inconsistent stories; – A prior conviction for possession of meth; – Reyes was unemployed and therefore had a motive to participate in illegal activity; – She showed surprise when asked if there were drugs in the truck. ■ The majority held that, under the totality of the circumstances, these articulable facts along with the officer’s training and experience provided reasonable suspicion.
4 th Amendment United States v. Reyes (June 5, 2020) original link, substituted opinion ■ Judge Graves original dissenting opinion ■ Judge Graves disagreed with facts the majority relied upon. These are his primary issues with the original opinion – Reyes locked her truck even though the police car was right behind it. The majority viewed this as her “protectiveness of the vehicle.” ■ But “the mere fact that a person refuses to consent to search cannot be used as evidence in support of reasonable suspicion.” ■ Additionally Locking the car is an automatic behavior – The majority’s reliance on Reyes’s smile turning to a concerned daze when asked about drugs in the truck. ■ Judge Graves noted that a person having a visible reaction when accused of illegal activity is not like evasive or nervous behavior. – Finally, the fact relied upon by the majority that was the most problematic was Reyes’s unemployed status and that this provided her a motive to be involved in illegal activity. The majority cited no case law for giving this analytic weight, and “I am deeply concerned about the precedent we set by doing so.”
4 th Amendment United States v. Reyes (June 5, 2020) original link, substituted opinion ■ Petition for review en banc, and a substituted opinion ■ What was deleted between the opinions as reasonable suspicion? – When Reyes exited the truck, she locked it, even though an officer was immediately behind it in a marked patrol vehicle – Reyes was unemployed, which Trooper figured provided her a motive to participate in illegal activity
4 th Amendment United States v. Smith (March 12, 2020) ■ The Fifth holds that an officer had reasonable suspicion to stop and detain Smith and his car, and that the officer did not unreasonably extend the detention. ■ The car was stopped because the officer believed that the license plate was improperly displayed. It was not. – Officer knew this after approaching the vehicle up close ■ After stopping the car, the officer questioned Smith about his travel plans and then questioned his passengers as well. He also ran the drivers licenses of all three men. One had a warrant for a parole violation. – Although the officer extended the detention to search for drugs, there weren’t any. Instead he found social security cards, many of them blank, fake IDs, a printer etc… ■ The court held that the officer had reasonable suspicion to continue the detention based on – the passenger’s parole warrant, – the car traveling on an interstate that was known for drug smuggling, and – the differences in the mens’ descriptions of the travel plans—this was especially true where, as here, the officer drew on his experience to make inferences and deductions.
4 th Amendment United States v. Beverly (Nov. 14, 2019) ■ District Court grants a suppression motion and the Fifth Circuit reverses ■ The Fifth Circuit holds that the decision in Carpenter v. United States , did not apply to “toll records and subscriber information” obtained through a subpoena for historical Cell Site Location Information (CSLI). ■ In this case, the FBI had obtained CSLI and other information based upon a subpoena under the Stored Communications Act. Before trial, the Supreme Court decided Carpenter . In response, the FBI obtained a search warrant for the information that they had already obtained through the subpoena. – The Court held that CSLI obtained by subpoena prior to the Carpenter decision was admissible based on the the good-faith exception to the exclusionary rule applied when the search relied upon a statute that was subsequently held to be unconstitutional.
4 th Amendment United States v. Glenn (July 26, 2019) ■ Does a rental car driver, who is not authorized to drive the vehicle, have standing to challenge the search of the vehicle? ■ Circuit precedent says the driver of a rental vehicle who was not authorized under the rental agreement did not have a reasonable expectation of privacy in the vehicle. See United States v. Riazco , 91 F.3d 752, 754 (5th Cir. 1996) ■ But SCOTUS recently said that “someone in otherwise lawful possession and control of a rental car has a reasonable expectation of privacy in it even if the rental agreement does not list him or her as an authorized driver.” Byrd v. United States , 138 S. Ct. 1518 (2018)
4 th Amendment United States v. Tello (May 21, 2019) ■ Alien Smuggling (8 U.S.C. § 1324) suppression motion from a fixed checkpoint ■ Tello goes through a fixed checkpoint, agents asked Tello if he was a citizen – Tello answered that he was naturalized, the agent was satisfied and did not ask for documentation. – Because the agent wanted to give the dog more time to sniff the tractor trailer truck, he asked the defendant what he was hauling and whether he had made any stops. At that point, the dog handler sent the truck to secondary. ■ The defendant argued that the agents had impermissibly extended the immigration checkpoint stop beyond its limited immigration purpose. The Fifth Circuit disagreed. – the permissible duration of the stop includes the time necessary to inquire about citizenship status, ascertain the number and identity of occupants, request documentation, and seek consent to extend the detention. BP agents may conduct a dog sniff to search for drugs or concealed aliens at immigration checkpoints as long as the sniff does not lengthen the stop beyond the time necessary to verify immigration status.
4 th Amendment United States v. Tello (May 21, 2019) continued… ■ The defendant also argued that the 5th Circuit case law, especially Machuca- Barrera , focusing on the length of the detention rather than the questions asked, did not survive the Supreme Court’s Rodriguez decision. – In Rodriguez, the Supreme Court rejected the position that a “de minimus” extension of a detention did not violate the 4th Amendment. – But the 5th Circuit disagreed that Rodriguez overruled Machuca-Barrera. It noted that Rodriguez was a traffic stop while Machuca-Barrera was an immigration checkpoint stop.
4 th Amendment takeaways ■ Still work to be done on these “totality of the circumstances stops” – Including impermissible factors ■ Always look to the extension of any stop, and exactly when the stop should have ended ■ Think about Carpenter , and the impacts of technology on privacy (what reveals the “intimate details of life”) ■ Do you have a right to privacy? SCOTUS has been expanding (eg rental cars)
5 th Amendment
5 th Amendment United States v. Glenn (Aug. 15, 2019) ■ The Dallas police obtained a search warrant for the defendant’s residence, based on some inaccurate dates. At the residence, the defendant agreed to speak with law enforcement. He admitted that he uploaded and downloaded CP and that his username was TexPerv. Meanwhile an agent had located the defendant’s laptop and recovered many images of CP. Later, in the lab, when the agent attempted to image the hard drive, the computer tried to start up Windows, triggering updates. The updates destroyed some of the data. ■ Before trial, the defendant moved to dismiss the indictment based on prosecutorial misconduct b/c of the computer running the update at the lab. The district court denied the motion. ■ On appeal, the 5th Circuit held that the defendant had failed to prove a violation of Brady v. Maryland . That was because the overwritten data was not material. The defendant could not show that if he had access to the overwritten data the outcome of the trial would have been different. ■ The 5th Circuit also held that the defendant failed to prove a violation of Arizona v. Youngblood , because he could not show bad faith on the part of the government. The agent’s actions in allowing the Windows update to install were at most negligent. The 5th Circuit also rejected the defendant’s challenge to the denial of his request for a spoliation instruction because he could not show bad faith.
6th Amendment & Confrontation
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