Gustavo Carrillo-Lopez was charged with illegally reentering the United States after being deported, in violation of 8 U.S.C. § 1326. Last week, a Nevada district court dismissed his case, ruling that § 1326 is unconstitutional because its passage was motivated, in part, by racial prejudice and it therefore violates the Fifth's Amendment guarantee of equal protection of the law.

The court applied the equal protection standard set forth in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977). That prong of equal protection law is meant to ferret out facially neutral laws that are nonetheless enacted with a discriminatory purpose and which disparately impact a specific minority group. Notably, the court rejected the argument that either the criminal context or the federal government’s immigration authority justified a more deferential standard.

The defense called on academic experts to present a detailed and troubling history of the illegal-reentry law. One history professor testified about the 1929 Congress's reliance on eugenics and detailed openly racist remarks directed at Mexican immigrants during the debates on the law. The history of the 1929 law was so racist that the government conceded its racial intent. 

Even though § 1326 was revised and reenacted in 1952, the district court found that the original racist intent, paired with circumstantial evidence surrounding the reenactment, showed that  discriminatory intent was also a motivating factor in the reenactment. The court discussed a number of factors surrounding the 1952 revision, including the lack of discussion about making the provision more punitive, explicit use of slurs by supporters of the legislation, Congress failing to revise the law despite a veto statement describing its racist elements, congressional knowledge of the law’s disparate impact, and passage of another racist law criminalizing Mexican immigrant laborers by the same congress.

The Nevada court recognized that other district courts have considered and rejected similar challenges to § 1326. An appeal seems likely, and either way more litigation in other courts is certain to follow. 

The quote in the heading of this post is from Judge Calabresi's "sad but respectful" dissent this week in the Second Circuit case United States v. Weaver. His point? That a lack of empathy by those on the bench with people who bear the burden of searches & seizures has led to a "disastrous" Fourth Amendment jurisprudence: 

We are not the ones who are stopped and made to spread eagle. The price for what we believe to be greater public safety will be borne disproportionately by “them,” whoever “they” may be. As a result, we are only willing to say, “stop,” in those situations in which the challenged police practices are ones that might make us the subjects of police actions.

  * * * 

The failure to appreciate a burden because it falls only on others is so universally human that it can only be controlled structurally. . . . Unlike the framers, we have established structural norms that, as to the issues in the case before us and in many other similar areas, make it infinitely easier to let the burdens that accompany possibly desirable actions fall only on “them.” The result is injustice.

In Weaver, the Second Circuit, sitting en banc, reversed a panel decision that an officer's pat-down of Mr. Weaver was unreasonable. Two judges concurred ("reluctantly"), and three dissented (separately, though they each joined the others' dissents).

Read Judge Lohier's concurrence for a deep dive into the problems with the "high crime area" concept (and what evidence falls short of establishing a relevant "high crime area"), as well as for his explanation why "Whren should be reconsidered."

Read Judge Pooler's dissent for a discussion of Whren's "tragic ramifications." 

Read Judge Calabresi's dissent to learn "how . . . we got to such a state in the law," and for the wise observation that an officer's subjective race-based motivation, even if not relevant to the ultimate Fourth Amendment question (per Whren), may nonetheless be relevant to whether or not the officer is a reliable witness with respect to the historical facts of a stop.

Read Judge Chin's dissent for an explanation how, "even taking the law as it exists," the police violated Mr. Weaver's rights.

And then get to work.

Have you ever wondered whether and how a person wrongfully convicted of a federal crime can be compensated for that ordeal? Federal law states that the United States Court of Federal Claims "shall have jurisdiction to render judgment upon any claim for damages by any person unjustly convicted of an offense against the United States and imprisoned." 28 U.S.C. § 1495. So far so good. But ay, there's a rub: a person seeking such damages must first obtain a certificate of innocence that satisfies 28 U.S.C. § 2513. The person must affirmatively establish innocence; a court determination that the evidence was insufficient to sustain the verdict isn't enough.

Federal courts have interpreted this requirement so strictly that, of 118 federal exonerees listed in the National Registry of Exonerations, only two have received compensation under the federal statute. Jeffrey S. Gutman, Are Federal Exonerees Paid?: Lessons for the Drafting and Interpretation of Wrongful Conviction Compensation Statutes, 69 Clev. St. L. Rev. 219 (2021).

UnicornThe D.C. Circuit may have just opened the door for one more person to join that select pair. In United States v. Gaskins, the D.C. Circuit reversed a district court's denial of a certificate of innocence and remanded the case for further proceedings.

Read Gaskins if you need to advise a client whose conviction was vacated on insufficiency grounds about the procedure for seeking damages. And read Professor Gutman's article if you want to understand why those damages may be elusive.

The police may not impound a car "simply as an excuse to look inside for evidence of a crime." But how do we know when an impoundment is pretextual? The Tenth Circuit offered a roadmap for this inquiry last month in United States v. Woodard, holding that a pretextual impoundment violated the Fourth Amendment.tow

As the Court explained in Woodard, if a car is parked on private property, impoundment will only pass Fourth Amendment muster if:

(1) the car is blocking traffic, 
(2) the car is posing an imminent threat to public safety, or 
(3) the impoundment is justified by a standardized policy and a reasonable, non-pretextual rationale of community caretaking.

Mr. Woodard's car was about to be stranded in a QuikTrip parking lot upon his arrest on an outstanding misdemeanor warrant. The police impounded the car absent any proper justification. The Tenth Circuit concluded that the impoundment both fell outside the local impoundment policy and was pretextual. On this latter point, the Court considered several factors, and found that every one pointed to pretext:

First, the car was on private property.

Second, the officers did not consult the property owner.

Third, Mr. Woodard asked if he could call someone to pick up the car, and the police refused.

Fourth, the car was not itself evidence of a crime.

Fifth, Mr. Woodard did not consent to impoundment.

Finally, the Court considered the acts and statements of the police that were captured on their body cameras. These included comments from one officer that he thought Mr. Woodard was "fighting a huge drug case" and from another officer that he was going to search the car and “friggin’ light [Mr. Woodard] up with whatever we can.”

Are you challenging an impoundment? Watch those body-cam videos and be sure to read Woodard.

A drug dealer sends his supplier to pick up a box of cash from the dealer's wife. Can we assume without more that the dealer was his wife's "manager or supervisor," U.S.S.G. § 3B1.1(b), or that he "used . . . affection" to involve her in his drug crimes, U.S.S.G. § 2D1.1(b)(16)(A)?

Of course not. This is the twenty-first century. C'mon people.

See United States v. Sampel, 2021 WL 2793548 (2d Cir. July 6, 2021) ("Evidence that Sampel told a person to pick up money from his wife does not establish that Sampel “exercised [any] degree of control” over her . . . or that he in any way directed her involvement in the drug business. Likewise, this evidence does not support the conclusion that Sampel used affection to involve his wife in the crimes at issue. Simply put, more is needed.") (reversing and remanding for resentencing).

See also State v. Donkers, 867 N.E.2d 903, 939 (Ohio App. 2007) ("In today's society, regardless of what individual couples believe and practice, the law does not recognize the husband as the 'one public voice' or as the automatic head of household with supreme authority over his nonresponsible feme covert."); United States v. De Quilfeldt, 5 F. 276, 278 (C.C.W.D. Tenn. 1881) ("It is almost an absurdity in this day to pretend that husbands can or do coerce their wives into the commission of crimes . . . ; but to hold it to be presumed as a fact, in all cases where the husband is present, is the relic of a belief in the ignorance and pusillanimity of women which is not, and perhaps never was, well founded, and does them no credit."); but see Gray v. State, 527 P.2d 338 (Okla. Crim. App. 1674 1974) (noting "general rule that a wife committing a crime is presumed to have acted under her husband's coercion" if the husband is physically present at the time of the crime).

Accessing stored data from Baltimore's experimental panopticon-like aerial surveillance program is a search for Fourth Amendment purposes, and can't be done without a warrant. So said the en banc Fourth Circuit in Leaders of a Beautiful Struggle v. Baltimore Police Department.

Read Leaders of a Beautiful Struggle for a full description of Baltimore's now-abandoned "citywide prolonged surveillance campaign," which captured massive amounts of data in the form of aerial images that could be magnified to a point where people and cars were visible (only as blurred dots and blobs, but trackable nonetheless). Adding to the Big Brother factor, this data could be integrated with other data (license plate readers, gunshot detectors, etc.) to identify those dots and blogs and glean insight into the whole of an individual's movements.

Read Leaders of a Beautiful Struggle as well for the majority's discussion of the disparate impact of large-scale surveillance on vulnerable communities:

Baltimore is a thoroughly surveilled city. See generally J. Cavanaugh Simpson & Ron Cassie, Under Watch, Balt. Mag., Mar. 2021, at 96 (discussing cell site simulators, helicopters, security cameras, police access to residential cameras, police body cameras, and facial recognition software). “[Mass surveillance] touches everyone, but its hand is heaviest in communities already disadvantaged by their poverty, race, religion, ethnicity, and immigration status.” Barton Gellman & Sam Adler-Bell, Century Found., The Disparate Impact of Surveillance 2 (2017). While technology “allow[s] government watchers to remain unobtrusive,” the impact of surveillance “[is] conspicuous in the lives of those least empowered to object.” Id. Because those communities are over-surveilled, they tend to be over-policed, resulting in inflated arrest rates and increased exposure to incidents of police violence.

That is not to express our opposition to innovation in policing or the use of technology to advance public safety. It is only to emphasize that the role of the warrant requirement remains unchanged as new search capabilities arise. . . . The Fourth Amendment must remain a bastion of liberty in a digitizing world.

Finally, read the concurring and dissenting opinions in Leaders of a Beautiful Struggle for a fascinating debate about who gets to speak for "the community";  how Baltimore is both overpoliced and underpoliced; and whether more policing is the answer to violence.

bedBefore you get up in the morning, do you ask yourself whether doing so is worth the risk? More specifically, do you question whether it is safe beyond a reasonable doubt to get out of bed? When you eat a meal, do you first assure yourself, beyond a reasonable doubt, that the food on your plate will not make you sick? Do you evaluate the risks of driving every time you get behind the wheel of your car?

Surely not. And that is because our decisions to engage in everyday tasks "rest on the fallacious comfort that because these activities did not result in chaos yesterday, they will not today." This fallacy is necessary to navigate the world. But it is not a fallacy we want jurors to indulge when they decide whether a person has committed a crime.

And that is why last month the Ninth Circuit reversed two drug-importation convictions in United States v. Velazquez. During closing arguments in Velazquez, the prosecutor assured the jurors that reasonable doubt is "something you use every single day in your life," offering as examples getting up, eating a meal, and driving a car, even though it's possible that you might get sick or have an accident. But, as the Ninth Circuit explained, "[s]uch decisions involve a kind of casual judgment that is so ordinary and so mundane that it hardly matches our demand for 'near certitude' of guilt before attaching criminal culpability."

The prosecutor's argument was inappropriate, misleading, and reduced the government's burden of proof. "The process of adjudicating guilt is a major and meticulous undertaking. People do not, 'every single day,' bear the solemn task of examining evidence and determining an accused's guilt. The comparison—to reflexive, quotidian decisions like 'getting up,' 'having a meal,' and 'travel[ing] to ... court'—is flagrant and seriously distorts the standard." 

Going to trial any time soon? Listen carefully to how the government talks about reasonable doubt. Object. Ask for a curative instruction. The reasonable-doubt standard is indispensable. Don't let the government dilute it.

Unfortunately, some people make regular payments on their restitution judgment while serving their federal prison sentence, only to get released and find that they still owe tens of thousands of dollars more than was originally imposed. The reason? Interest.

When a judge imposes restitution of more than $2,500, interest is automatically imposed by statute18 U.S.C. § 3612(f). Interest is calculated according to a formula set in the statute. 

But! The court can waive interest. "If the court determines that the defendant does not have the ability to pay interest" the court can "waive the requirement for interest" (or limit the interest). 18 U.S.C. § 3612(f)(3).

There likely is already a box on the judgment form for the court to check to waive the interest on restitution (or a fine). 

Judges may often waive interest on their own when they impose restitution. But keep an ear open. If the judge imposes restitution on your indigent client and doesn’t say anything about waiving interest, ask that it be waived at the sentencing hearing. The court need only say that the interest is waived and check the box on the judgment. Easy. And it might save your client thousands of dollars later on. 

A geofence (or "geo-fence") is a virtual perimeter around an actual area. A geofence warrant is a court order authorizing the government to collect digital location-history data from private companies (such as Google) for a particular geographic area over a particular time frame. This data will (presumably) identify (nearly) every person who carried a cellphone (whether walking or driving or cartwheeling) through or past the area during the designated time frame.

Geofence warrants raise a host of Fourth Amendment questions. Do they authorize "searches" in the Fourth Amendment sense? What kind of probable-cause showing is required to support them? What about particularity? Are all geofence warrants unconstitutional general warrants? Or can they be sufficiently narrowed to satisfy Fourth Amendment requirements?

Few courts have grappled with these questions to date. A Westlaw search of all state and federal databases for "geofence warrant" yields only five results: one state trial court order and four federal district court orders. The most recent of these is an order from a D. Kan. Magistrate Judge denying (without prejudice) the government's application for a geofence warrant targeting the area around a building where a federal crime allegedly occurred. In the Matter of the Search of Information that Is Stored at the Premises Controlled by Google, LLC, 21-mj-5064-ADM, 2021 WL 2401925 (D. Kan. June 4, 2021).

In the order, the magistrate judge notes that "it is easy for a geofence warrant, if cast too broadly, to cross the threshold into unconstitutionality because of a lack of probable cause and particularity, and overbreadth concerns under Fourth Amendment jurisprudence." The magistrate judge then explains how the affidavit submitted in support of this warrant failed on both the probable-cause and particularity fronts.

First, probable cause that a crime was committed at the location is not enough. The government must also show probable cause that evidence of the crime will be found in the location data sought. Second, particularity requirements apply to both the geographic area and the time frame. If the government seeks a full hour of data, for instance, it must explain why. In sum:

The court simply issues this opinion to provide fair notice that geofence warrant applications must sufficiently address the breadth of the proposed geofence and how it relates to the investigation. It is not enough to submit an affidavit stating that probable cause exists for a geofence warrant because, given broad cell phone usage, it is likely the criminal suspect had a cell phone. If this were the standard, a geofence warrant could issue in almost any criminal investigation where a suspect is unidentified. The Fourth Amendment requires more, particularly where the warrant implicates the privacy interests of individuals who have nothing to do with the alleged criminal activity.

Want to read more? Check out this recent Harvard Law Review Note on the subject, and this Electronic Frontier Foundation article. Ask whether a geofence warrant was used in your case; request related discovery; and consider moving to suppress the fruits of the warrant. As the EFF has warned, "[i]ndiscriminate searches like geofence warrants both put innocent people in the government’s crosshairs for no good reason and give law enforcement unlimited discretion that can be deployed arbitrarily and invidiously. But the Framers of the Constitution knew all too well about the dangers of overbroad warrants and they enacted the Fourth Amendment to outlaw them."

It's been a while since we've rounded up Fourth Amendment decisions. Here are a few recent ones you might find useful:

In United States v. Suggs, the Tenth Circuit held that a search warrant lacked particularity and could not be saved by the severability doctrineThe warrant authorized officers to search Mr. Suggs’s home for “[a]ny item identified as being involved in crime.” The absence of any article modifying “crime” (such as “the crime,” which might have referred back to the crime identified in the search warrant affidavit) made this a “general warrant” that licensed exactly “the sort of general rummaging outlawed by the Fourth Amendment.” 

In United States v. Celes, 2021 WL 2292784 (E.D. Cal. June 4, 2021), the E.D. Calif. District Court held that an officer lacked reasonable suspicion to detain Mr. Celes in a driveway. The detention began either when the officer took Mr. Celes's ID and held it, or, at the very latest, 30 seconds later when he told Mr. Celes not to run because "I can run faster," and "[t]here are dogs around the corner in another car, okay?" The government's reliance on high-crime area + suspicious behavior did not add up to reasonable suspicion under the evidence presented here.

In United States v. Hall, the D. Kan. District Court held that, under the totality of circumstances, officers lacked exigent circumstances to excuse their warrantless entry into Mr. Hall's home during a knock-and-talk to investigate a report of shots fired into the air from an outdoor balcony at Mr. Hall's apartment complex.

The lesson in each of these decisions is the same: Train your eagle eye on every word of the warrant, every movement in the video, and every fact in evidence countering the officers' claimed justifications for their conduct. They say that the devil is in the details (that is, a thing that looks simple is actually complicated). But we know better. The more apt saying for our purposes is that God is in the details, meaning simply that details are important, and we must be thorough in our work.