Object to both the facts and the legal conclusions set forth in the presentence report. Remember that "[a]t sentencing, the court . . . may accept any undisputed portion of the presentence report as a finding of fact." Fed. R. Crim. P. 32(i)(3)(A). If a defendant properly disputes a fact in the PSR, the government must prove that fact at sentencing.

Be timely. Objections must be provided, in writing, to the probation officer within 14 days after receiving the presentence report. Fed. R. Crim. P. 32(f).

Be specific in your objections, and include alternate objections.

  • Not specific enough: In United States v. McDonald, 43 F.4th 1090 (10th Cir. Aug. 9, 2022), counsel objected that the source of facts contained in the PSR was not credible or reliable, but did not object that the facts were untrue. On appeal, the Tenth Circuit held that this was "insufficient to raise a proper objection and trigger the district court's Rule 32 fact finding obligation." Counsel must make "specific allegations of factual inaccuracy" and say why the facts are untrue. "In other words, the defendant must assert that the facts alleged in the PSR are false." The Tenth Circuit aligned itself with the Fourth Circuit in requiring an assertion of falsity. Other circuits hold that an assertion of unreliability is enough. Try to satisfy McDonald, but if you only have grounds to assert unreliability (as opposed to affirmative falsity), make that objection as detailed as possible. Invoke Rule 32 (set up that circuit split for cert), but consider also invoking your client's constitutional right to be sentenced on accurate evidence. See United States v. Tucker, 404 U.S. 443 (1972). The district court can only determine accuracy by testing reliability, so make sure the court understands why the PSR facts are unreliable.
  • Specific enough: The Tenth Circuit reversed a drug sentence and remanded for a new drug-quantity calculation and resentencing in United States v. Williams, ___ F.4th ___, 2022 WL 4102823 (10th Cir. Sept. 8, 2022). Counsel preserved the drug-quantity issue there by making specific objections to the presentence report, disputing both whether packages delivered to Mr. Williams's home contained methamphetamine and, if they did, whether the PSR incorrectly determined the weights of the drugs in those packages by failing to account for packaging material. Counsel also objected to the PSR's ACCA determination, another issue decided in Mr. Williams's favor on appeal.

Check the PSR addendum to see how the PSR writer recorded any unresolved objections per Rule 32(g). Does it accurately and completely state your objections? Or is it a poorly summarized account that you need to clean up with a request for an amended PSR or in a sentencing memorandum? Be cautious about relying on the addendum alone to preserve your objection.

Follow your court's rules and conventions when filing a sentencing memorandum to restate or expand on your PSR objections. Does your court have deadlines for sentencing memoranda? Page limits? Rules requiring separate filings for PSR objections and motions for variance/departure? Other preferences that only regular practioners know about? Find out and follow those preferences.

Object again. You are a dog with a bone. Good dog! Don't let go of that bone! GrowGrowling dogl if they try to take it away from you. Pick it up again if you accidentally drop it. It's yours. Don't give it up. Ever. See United States v. Godinez-Perez, 737 Fed. Appx. 894, 900 (10th Cir. 2018) (defendant abandoned argument made in sentencing memorandum by responding in the negative to district court's query whether there were any other arguments).

Tragic laws do not prevent tragic events. But Congress can't stop itself from trying, especially when it comes to passing new gun laws in the wake of mass shootings.

Effective October 1, 2022, persons with prior municipal convictions for misdemeanor domestic-violence crimes will be prohibited by federal law from possessing firearms or ammunition under 18 U.S.C. §§ 921(a)(32)(A)(i) (defining misdemeanor crime of domestic violence) and 922(g)(9) (prohibiting persons with such convictions from shipping, transporting, possessing, or receiving firearms and ammunition). In other words, Congress has abrogated United States v. Pauler, 857 F.3d 1073 (10th Cir. 2017).

Effective now (as of June 25, 2022), more gun-related activies are federal crimes, and penalties for gun crimes have been increased as follows:

  • Violations of 18 U.S.C. §§ 922(d) and (g) are now punishable by 15 years of imprisonment, up from 10. See new 18 U.S.C. § 924(a)(8), §12004(d) of the Bipartisan Safer Communities Act.
  • Section 12002 expanded existing offenses and created new offenses. For example, “persons engaged” in the business of “importing, manufacturing, or dealing” in firearms. 18 U.S.C. § 921(a)(21)(C) now includes: "a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business to predominantly earn a profit through the repetitive purchase and resale of firearms. . ." Previously, “engaged in the business” had a narrower definition: "a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms. . ."
  • Section 12004(e) expanded the scope of 18 U.S.C. § 924(h), and added receipt of a firearm or ammunition to the prohibition against transferring a firearm or ammunition or attempts or conspiracies to receive or transfer a firearm or ammunition to any person, knowing or having reasonable cause to know to know the firearm or ammunition will be used to commit certain criminal offenses.
  • Section 12004(f) significantly revised and expanded 18 U.S.C. § 924(k), which proscribes certain firearms importation and smuggling offenses.
  • Section 12004(a)(1) created two new offenses. 18 U.S.C. § 932(b) prohibits the straw purchases of firearms and is punishable by a maximum of 15 or 25 years. 18 U.S.C. § 933 prohibits the trafficking in firearms and is punishable by a maximum of 15 years.
  • Sections 12001 and 12004(d) revised and expanded 18 U.S.C. § 922(d), which prohibits the sale or disposition of a firearm or ammunition to certain prohibited persons. First, § 12001 Section 12001 expanded the universe of persons to whom it is illegal to sell or transfer a firearm to include persons whose disabling event occurred when they were a juvenile: "(d) It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person including as a juvenile. . . ." Second, § 922(d)(4) now prohibits transfer of a firearm to a person “who has been adjudicated as a mental defective or has been committed to any mental institution at 16 years of age or older.” Third, two additional classes of prohibited persons were added to § 922(d). Subsection (d)(10) now prohibits transfer of a firearm arm or ammunition to any person who “intends to sell or otherwise dispose of the firearm or ammunition in furtherance of a felony, a Federal crime of terrorism, or a drug trafficking offense (as such terms are defined in section 932(a)). Subsection (d)(11) now prohibits transfer of a firearm or ammunition to any person who “intends to sell or otherwise dispose of the firearm or ammunition to a person described in any of paragraphs (1) through (10)” of 922(d).
  • Section 12005 expanded the scope of relationships included in a misdemeanor crime of domestic violence for purposes of § 922(g)(9) to include persons with a “current or recent former dating relationship with the victim.” A newly added section, 921(a)(37)(A), defines a “dating relationship” as “a relationship between individuals who have or have recently had a continuing serious relationship of a romantic or intimate nature.” The remainder subsections of 921(a)(37) provide further guidance on what constitutes a dating relationship” See 18 U.S.C. § 921(a)(37)(B) & (C).

But hey, don't worry, Congress included a very tiny escape hatch for those misdemeanor-crime-of-domestic-violence priors. Section 12005 includes limited restoration of firearms rights provisions, but only for first time MCDV offenders who were in a dating relationship with the victim and who can otherwise lawfully possess firearms. First, firearms rights can be restored if the person had their MCDV conviction expunged, provided expungement does not expressly provide the person cannot ship, transport, possess or receive firearms. Second, firearms right are restored 5 years after the later of “the judgment of conviction or the completion of the person’s custodial or supervisory sentence, if any,” if the person has not subsequently been convicted of another MCDV, a misdemeanor under Federal, State, Tribal, or local law which has, as an element, the use or attempted use of physical force or the threatened use of a deadly weapon (this need not be an MVDV), or any other offense that would disqualify the person under § 922(g). See new § 921(a)(33)(C). 

These restoration provisions are limited to persons with a single conviction for an MCDV against an individual in a dating relationship. They do not apply to a conviction where the person was “a current or former spouse, parent, or guardian of the victim, a person with whom the victim shares a child in common, a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or a person similarly situated to a spouse, parent, or guardian of the victim.” 18 U.S.C. § 921(a)(33)(C).

A big thanks to AFPD David Freund for these summaries.

We've all heard some version of this detective's testimony before:Smelly Car

Q. What happened after the window went down?

A. I could smell an odor of burning marijuana coming from within. It immediately hits you once that window's down.

* * *

Q. You indicated you immediately smelled the marijuana. Would you indicate whether it was a weak, strong odor, somewhere in the middle?

A. It was---it wasn't low. It was a pretty heavy smell from---like I said, once you roll that window down, it kind of just hits you in the face.

But how often do we get a credibility ruling like this one?

[A]fter having observed Detective McGee's demeanor and manner while testifying, and thoroughly considering the totality of his testimony, the Court is unable to credit his testimony concerning the odor of marijuana coming from Defendant's vehicle.

That was the W.D. Pa. District Court, in an order concluding that Detective McGee unlawfully seized Mr. Martin when he ordered him out of his parked car without reasonable suspicion. United States v. Martin, No. 20-CR-00376, 2022 WL 3028580 (W.D. Pa. Aug. 2, 2022). The district court cited the detective's inability to recall other details about the encounter and the lack of any evidence (besides the alleged odor) of recently smoked marijuana:

  • The detective testified numerous times throughout the hearing that he couldn't recall certain matters, and his "inability to accurately recollect the matters at hand detracts from his credibility to some degree"
  • The detective saw no smoke coming from the window
  • The detective did not observe the defendant discard any butts out the window
  • The detective found a package of blunt wrappers in the car, but could not remember whether the package was open
  • No marijuana was found in the car

The district court also string-cited other cases in which an officer's testimony about smelling marijuana was not credited. Add this one to the list. And keep challenging those incredible marijuana-sniffing officers.

In United States v. Adams, No. 21-3043 (10th Cir. July 20, 2022), the Tenth Circuit ruled recently that the Kansas offense of aggravated battery is not a “crime of violence,” as the term is defined by USSG § 4B1.1(a)(1). The court agreed with the FPD argument that Kansas aggravated battery is categorically broader than the guidelines definition of crime of violence in USSG § 4B1.2(a)(1) because the Kansas offense could be committed against a fetus (under KSA 21-5419(c)).

After Adams, no Kansas aggravated battery conviction will be a crime of violence under USSG § 4B1.2(a)(1). The Adams opinion noted that this same categorical argument may even apply to Kansas homicide offenses.

The court explained that the guidelines define a crime of violence as “any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that . . . has as an element the use, attempted use, or threatened use of physical force against the person of another.” USSG § 4B1.2(a)(1) (emphasis added). The court held: “[u]nder this guideline definition, we conclude that the term person refers only to individuals born alive; fetuses aren't included. So some aggravated batteries in Kansas would fall outside the federal sentencing guidelines’ definition of a crime of violence.” The court rested its holding on the definition of “person” from the Dictionary Act, which defines “person” to “include . . . every infant member of the species homo sapiens who is born alive.” 1 U.S.C. § 8(a).

Thus, because some Kansas aggravated batteries can be committed against a fetus, this offense falls outside the guidelines’ definition of a crime of violence in USSG § 4B1.2(a)(1). And no Kansas aggravated battery conviction can meet the guidelines definition of crime of violence.

This opinion has already had a major impact on sentences under USSG § 2K2.1. And it should serve as a reminder to engage in this categorical analysis of statutes to determine whether the statutory elements are broader than the guidelines definition of a particular enhancement (whether it be crime of violence, controlled substance offense, or the like). 

It's an all-too-familiar conundrum. Our client is charged with serious offenses. The prosecutor offers a deal. It's not great, and it would obligate our client to waive not only trial rights but also appeal and postconviction rights. But if our client doesn't take the deal the prosecutor may pile on additional charges. And if we go to trial and lose, our client is going to face much higher penalties, which may include one or more statutory mandatory minimum prison sentences.

What's a client to do? Cave to the pressure to plead guilty? Or go to trial and risk an exorbitant trial penalty?

It's a calculus unduly weighted against going to trial. But the newly introduced, bipartisan Right to Trial Act could change that calculus. The Act, introduced by U.S. Rep. Victoria Spartz (IN) and several others, would require sentencing judges to consider (1) the need to protect the constitutional right to trial; (2) plea agreements offered to codefendants and other similarly situated defendants; and (3) whether imposing a statutory mandatory minimum sentence would constitute a trial penalty (these would all become 3553(a) sentencing factors). And the Act would authorize sentencing judges to impose sentences below the statutory mandatory minimum in order to protect the constitutional right to trial.

Until that bill or some other measures become law, our clients are likely to be stuck with their statutory mandatory minimums when they lose at trial. But the considerations underlying the Right to Trial Act may still be invoked in support of a variance from the sentencing guidelines for a client whose trial penalty is guildelines-driven.

The Honorable District Court Judge William Kuntz put it well in a recent sentencing order:

Our Constitution and laws set forth the fair range of punishments upon proof of guilt beyond a reasonable doubt, whether guilt is established by way of a guilty plea in the early dawn of a case or by way of a guilty jury verdict at the end of a case. While this Court is aware some believe "the first one to the table gets lunch, the last one to the table is lunch," our Constitution and laws wisely refute that concept: to impose the so called "trial penalty" is to invite the cannibalization of our right to trial. This Court declines to dine at that table. Guilty pleas and prosecutorial efficiency play important roles as servants in the administration of justice; but guilty pleas and prosecutorial efficiency must never be allowed to assume the dominant role of masters in the administration of justice.

United States v. Kasimov, No. 15-cr-95, 2022 WL 1984059, at *7 (E.D.N.Y. June 6, 2022).

The Federal Public Defender for the District of Kansas has two open positions!

At the Kansas FPD, we work to keep people out of prison through holistic representation, collaboration, and education. Our clients are people accused of federal crimes who cannot afford private lawyers. We protect our clients' rights and center their humanity at every stage of the criminal case and beyond. We value hard work, teamwork, creativity, flexibility, and fairness.

We are looking for a full-time Assistant Federal Public Defender for our Topeka office. AFPDs carry full district court caseloads. We are also searching for a full-time Mitigation Specialist (social worker) for either our Wichita office, our Topeka office, or our Kansas City office. Mitigation Specialists work closely with clients to help them share their life experiences and connect them with needed services. This work is crucial to pretrial release plans, negotiations, trial strategy, sentencing outcomes, and reentry plans.

The Kansas FPD is proud to be an equal opportunity employer. Diversity and dignity are central to our work. We hire without regard to race, creed, color, ethnicity, national origin, religion, sex, sexual orientation, gender identity or expression, age, height, weight, veteran status, military obligations, or marital or parental status. We do not tolerate any form of discrimination or harassment in any personnel decisions or employee interactions.

Here are links to the full descriptions of the attorney position and the social worker position, including detailed information about salary and benefits.

For years, persons convicted of certain drug crimes (including convictions from federal court) have had to register under the Kansas Offender Registration Act— if they live, work, or go to school in Kansas. Under K.S.A. 22-4905, the registration period is for 15 years.

Earlier this year, Kansas law changed to allow for these persons (registered “drug offenders”) to petition for removal from the drug offender registry after five years. See K.S.A. 22-4908. The petition is filed in state court. For drug offenders convicted in federal court, “such petition shall be filed in the district court of any county where the offender is currently required to register.” K.S.A. 22-4908(d)(1).

Kansas Legal Services is also offering to help. KLS has created a page to share information and forms for removal from the drug registry. The resource page is available here: https://www.kansaslegalservices.org/node/2530/kansas-drug-offenders-have-way-out-drug-registry

The site includes information about the new law (SB 366) and forms created by the Kansas Judicial Council. For Kansas state convictions, KLS is developing a combined expungement and removal packet, which should be available to self-represented litigants soon (July 10 tentative date).

KLS will also be adding FAQs and other tips for self-represented litigants. They will also take some cases, so do not hesitate to refer clients/former client to KLS for these petitions. 

You probably heard or read about Chicago Mayor Lori Lightfoot’s statement earlier this week that only guilty people are charged with crimes: "When those charges are brought, these people [dramatic pause; strong eye contact] are guilty." She quickly added that "of course [dropping eye contact] they're entitled to a presumption of innocence." But she did not herself grant that presumption in her speech.

When prominent politicians give short shrift to the presumption, how can we expect jurors to embrace it? By insisting on timely and clearly worded jury instructions.

By "timely," we mean not only with the preliminary instructions, but also with the final instructions. The Tenth Circuit's Criminal Pattern Jury Instructions do not include a presumption-of-innocence instruction in the standard final instructions. Pattern Instruction 1.05 is titled "presumption of innocence---burden of proof---reasonable doubt." But the body of the instruction does not mention the presumption.

By "clearly worded," we mean instructions advising the jury that the presumption of innocence (1) remains with [the accused] throughout every stage of the trial, including, most importantly, the jury's deliberations; and (2) is extinguished only if all twelve jurors unanimously find that the government has proved [the accused's] guilt beyond a reasonable doubt. Tenth Circuit Pattern Instruction 1.01 includes the presumption of innocence with the "preliminary instructions before trial." But that instruction states only that the accused "is presumed innocent." It does not make clear that the presumption remains in place throughout the trial and into deliberations and is not extinguished unless or until the jurors find the accused guilty unanimously and beyond a reasonable doubt.

For authority on both of these points, check out United States v. Starks, ___ F.4th ___, 2022 WL 1699184 (10th Cir. May 27, 2022), decided by the Tenth Circuit last month. In Starks, a prosecutor told the jurors during closing argument that the presumption of innocence the judge told them about at the beginning of the case "is no longer true"---that it had "been changed" based on the government's evidence. This was an uncorrected misstatement of law that, in combination with other errors, led the Court to reverse Mr. Starks's drug convictions. Three important takeaways from Starks:

  1. The judge's preliminary instruction on the presumption (before the presentation of evidence) was not timely enough to cure the prosecutor's misstatement (two days later, after the presentation of evidence). 2022 WL 1699184 at *14. Delivering such an instruction before, but not after, the presentation of evidence can be problematic "because of concerns regarding the jury's capacity to remember important legal principles before they deliberate." Id.; see also id. at *15 n.7 (discussing "recency effect" of statements made in close proximity to deliberations).
  2. The judge's preliminary instruction that the presumption remains with the accused "throughout the trial" was also not clear enough to cure the prosecutor's misstatement. Absent a definition of what procedural events are included in the term "trial,"  "a reasonable juror could have erroneously concluded . . . that the 'trial' ended with the close of evidence." Id. at *13.
  3. Lastly, "it is difficult to overstate the importance of the presumption of innocence to the fairness and integrity of our criminal justice system. The presumption of innocence is a bedrock axiomatic and elementary principle whose enforcement lies at the foundation of the administration of our criminal law. . . . [T]he presumption of innocence cautions the jury to put away from their minds all the suspicion that arises from the arrest, the indictment, and the arraignment, and to reach their conclusion solely from the legal evidence adduced.” Id. at *23 (marks & citations omitted).

Mayor Lightfoot may not be able to put away from her mind all the suspicion that arises from a criminal charge, but let's hope that, with the right instructions, our jurors can and will.

In a recent examination of hundreds of wrongful convictions, “[m]ore than half of those exonerated by post-conviction DNA testing had been wrongly convicted based on flawed forensic science,” according to Brandon Garrett, Duke University professor who wrote Autopsy of a Crime Lab. This is likely because, as one former trial judge described his experience, “when forensics experts testified, the jury hung on their every word.”

Think about how our cases rest on forensic science: DNA, fingerprints, computer analyses, firearms, toolmarks, and the list goes on. The government relies on forensic evidence to lend credibility to lay witnesses who may be compromised by inconsistent statements or bought off by cooperator deals. Yet all too often that evidence is seriously flawed and, at the same time, unchallenged by the defense.  

Barbara Bradley Hagerty of The Atlantic surveyed the phenomena of corrupted forensic analysts and systemic flaws in crime labs in her May 12, 2022 article, Did James Parsons Kill His Wife? Hagerty’s focus is on Ohio Bureau of Criminal Investigation forensic analyst, G. Michelle Yezzo, later discredited when the Innocence Project obtained her lengthy (400+ pages) personnel file.

Yezzo’s biases came to light because of her personal and personnel problems. But as Hagerty points out, her career was not that unusual:

It highlights how tenuous many forensic findings can be; how easy it is for prosecutors to make them appear solid to a jury; how closely some analysts work with law-enforcement colleagues, to the point of alignment; how rarely an analyst’s skills are called into question in court; and how seldom the performance of crime labs is subjected to any true oversight. All of this combines to create a dangerous prosecutorial weapon.

The article also reviews other now familiar forensic lab debacles, including within the FBI, Harris County, and Massachusetts, where the government dismissed convictions in more than 20,000 cases because chemist Annie Dookhan falsified reports and “dry labbed.” (Dry labbing is reporting without actually conducting the tests.) From this review, Hagerty identifies three primary flaws in criminal forensic science:

  1. Some common forensic methods “have not been rigorously evaluated.”
  2. Most labs are not independent but “tucked into police departments” or law enforcement agencies.
  3. The quality of the work done in crime labs is almost never audited.

The first point falls squarely within the realm of the defense. This is why we have Daubert, Rule 16, FRE 702, 703, and 704. We have the tools to demand rigorous evaluation if we will use them. The second point also belongs to the defense because it is classic impeachment—identifiable biases such as the source of funding or pressure from law enforcement to secure convictions. And the possibility of cognitive bias is rich for examination. For example, “forensic examiners analyzing a DNA mixture in a gang-rape case were far more likely to discern a possible link to a specific individual if they had already been told that the individual was a suspect.” The third point is ours as well, because it goes to our duty to investigate, to demand discovery, and to independently question laboratory accreditation, protocol, and methodology.

Today, the defense carries an even heavier burden to question and challenge government forensic evidence, because the trial court may be the first and last opportunity to do so. The Supreme Court just decided Shinn v. Martinez, a “devastating outcome,” as Justice Sotomayor describes in her dissent, that gutted much of collateral review of state prosecutions by federal courts under AEDPA. Evidence of flawed forensic science, if revealed too late, has little consequence in our criminal legal system.

Other reading:

Report to the President, Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods, (PCAST September 2016).

Sandra Guerra Thompson, Cops In Lab Coats: Curbing Wrongful Convictions Through Independent Forensic Laboratories (Carolina Academic Press 2015).

It's been a while since we've checked in with the Tenth Circuit. We'll start by catching up with a couple of recent Fourth Amendment cases.

Unduly prolonged traffic stop

"[E]ach minute" that an officer spends trying to arrange a dog sniff is time diverted from citation-related tasks. Such actions "necessarily prolong[ ]" a traffic stop and must be supported by reasonable suspicion. So said the Tenth Circuit in United States v. Frazier, 30 F.4th 1165 (10th Cir. 2022).

No reasonable suspicion was present in Frazier:

  • duffle bag "the presence of a bag in a vehicle adds nothing to the reasonable suspicion calculus"
  • air freshener "no [reasonable suspicion] inference can be drawn from the presence of an air freshener bottle that does not appear to have been in use" (noting trooper's testimony that he never smelled any deoderizer)
  • 4-inch window-opening "we do not think that a reasonable officer would have viewed the partially unrolled window as an effort to conceal the smell of contraband"
  • "evasive" responses "at bottom, the trooper's suspicion was based on nothing more than his own subjective interpretation of Mr. Frazier's behavior, which was entirely consistent with that of a driver who, though distracted and mildly annoyed by an arguably invasive question, had absolutely nothing to hide. In other words, the trooper merely had a hunch. As such, his belief that Mr. Frazier's responses were indicative of criminal conduct was not entitled to the deference it received from the district court."
  • double IDs "Rather than tie the IDs to some particularized indicia of wrongdoing, the government merely cites the IDs as an 'odd fact' that 'could' have caused the trooper to suspect that something was 'amiss' when considered together with his other observations. . . . This reasoning is far too flimsy to be afforded any weight."
  • missing rental agreement "Because Trooper Gibbs diverted from the stop's initial mission to arrange for a dog sniff rather than to establish Mr. Frazier's authority to drive the vehicle, Mr. Frazier's inability to lay hands on the agreement can play no role in our reasonable suspicion analysis."
  • rental car "Generally, the fact that a vehicle has been rented, standing alone, does not add to reasonable suspicion unless there are specific facts that make the rental relevant or unusual."
  • travel "absent other facts suggestive of criminal wrongdoing, we give no weight to the fact that Mr. Frazier was returning from a trip to the West Coast."

"Reasonable suspicion is a low bar, but it is not that low. Consequently, because the trooper lacked reasonable suspicion to extend the stop by several minutes to arrange for the dog sniff, Mr. Frazier's seizure violated the Fourth Amendment."

Two additional points from Frazier. The government argued that reasonable suspicion could be supplied by the trooper's post-dog-sniff-request search for Mr. Frazier's criminal history. The Tenth Circuit rejected this argument for two reasons. First, "the government does not explain how the information the trooper obtained could have any bearing on our reasonable suspicion analysis as it regards an earlier investigative detour." Second, "the government has failed to show that search was not itself an investigative detour that added time to the traffic stop."

Probable cause

"Probable cause must exist not only for the issuance of a search warrant, but also when it is executed. . . . Probable cause may dissipate simply from the passage of time as evidence becomes stale. . . . But new information can also undermine what had been probable cause." United States v. Topete-Madrueno, 2022 WL 1321765 (10th Cir. May 3, 2022).

TFreshen Uphe Tenth Circuit reaffirmed these basic principles in Topeta-Madruno. But it also affirmed the denial of suppression in that case despite evidence that the target drug-dealer had moved out of the target stash-house before the warrrant was executed. The task force had "freshen[ed] up" their (months-old) probable cause via surveillance days before obtaining the warrant, and the district court credited the warrant-drafting officer's later testimony that he did not know before he executed the warrant that the target had moved.