Gant exception is not swallowing the rule

In 2009, TCDLA published an article of mine dealing with inventory searches that I wrote after the Supreme Court's decision in Arizona v. Gant, 129 S.Ct. 1710 (2009)

In Gant, the Supreme Court said that police could no longer automatically search a vehicle whenever they had arrested an occupant of that vehicle. The theory that had been used to justify these blanket searches was that even if the arrestee was arrested and secured in the police car, that person could somehow magically escape to their own car and find a weapon to use against the police.  The Gant court recognized that despite the protestations of police, offier safety is really not compromised by disallowing these "searches incident to arrest," and that there was really no valid justification for the blanket rule.

Some commentators wrote that it was unclear how much the Gant ruling would actuallly change police behavior in a way that would help criminal defendants, for two reasons. First, inventory searches are still permitted providing the police follow the proper protocols.  Second, because Gant contains an internal exception: when it is reasonable to believe that evidence related to the offense for which the arrest was made might be found in the vehicle." 

This exception only makes sense–essentially, if the cops have probable cause to arrest, that same probable cause extends to a reasonable belief that there might be evidence relating to the arrest in the arrestee's immediate vicinity.  So, if a person is being arrested for failing to wear a seat belt, the police have no justification for searching the vehicle.  But if a person is being arrested for some other offense, the police might be able to justify a search to look for evidence of that crime. 

The Eastland court of appeals recently wrote on this issue in an amusing case styled Daves v. StateThanks to B.W. Barnett's Liberty and Justice for Y'all blog for finding this case.  In Daves, the driver was pulled over for running a stop sign, and due to the odor of alcohol on his breath the officer asked him to perform sobriety tests.  Then the hilarity ensued:

During the ensuing field sobriety tests, the driver, Cody Large, decided to prove to Officer Welch that he was not intoxicated, and he devised his own field sobriety test: he tried to walk on his hands. As Large was attempting to perform that task, various items began to fall from his pockets. One of those items was a purple marihuana pipe.

The Eastland court agreed with the trial court that the paraphernalia possession provided sufficient probable cause to search the vehicle including passenger's purse which contained various controlled substances.  I would argue that this is a pretty thin basis for PC to search the whole vehicle, but PC itself is a pretty weak standard.

Fortunately, thus far, the Gant exception does not seem to be an exception that has swallowed the rule. 

Calls for retroactive crack sentencing relief

I have long felt that to a great extent we in this country have wasted the potential of a generation of motivated, entrepreneurial black males through the overcriminalization of crack cocaine.  I represented young black men in the mid '90's who could have sold ice to eskimos (can I say that?), but who were caught up in the federal crack cocaine dragnet and were sent to federal prison for over a decade as a result.  Instead of redirecting these young men with great potential and enabling them to give back to our country, we sent them to waste their youthful energy and creativity on a taxpayer sponsored $35,000.00 per year vacation.

Now that there is a possibility of some of these young men being resentenced, I would love to say that I see a wave of popular support for retroactive application of the new "crack" cocaine sentencing guidelines.  I am not sure I see that wave yet, but I am hearing a growing chorus of cries for relief.  Here is a sampling of articles calling for retroactive reform.  Feel free to add more links in comments.

Time magazine asks Will Crack-Cocaine Sentencing Reform Help Current Cons? by Theo Emery, August 7th, 2009.

From the Huffington Post article by Julie Stewart, president of Families against Mandatory Minimums, August 3rd, 2010:

When a manufacturer issues a defective product, they don't just fix the problem going forward; they do a total recall. Recalling the defective 100-to-1 disparity for everyone will bring relief to thousands of families and increase respect for the justice system. 

The Sentencing Project wrote a letter to the United States Sentencing Commission urging that they use their power to make the amendments retroactive:

Despite sensationalized warnings of administrative burden and increases in crime, these concerns have not been borne out. This success should encourage the Commission to continue on its path towards increased sentencing fairness by applying the Fair Sentencing Act to persons sentenced before its enactment.

Austin Chronicle write Jordan Smith urged the USSC to make the amendments retroactive on August 20th, 2010:

 The next step? Get Congress to make the new crack sentencing law retroactive, as the USSC did with the guidelines.

Blogger and Attorney Chad VanCleave in Cameron, Texas  and Dallas lawyer and blogger Cint Broden discuss possible remedies for any retroactive crack cocaine sentences on August 25th, 2010.

From Jeralyn Merritt at Talk Left: Crack Retroactivity: Don't Look to Obama for Help, discussion of the unlikeliness of blanket presidential clemency action to reduce pre-reform crack sentences from President Obama on September 12th, 2010.
From The Crime Report writer Justin Smith, September 22nd, 2010:

While the new act has returned some element of fairness to an issue  that had been clouded by the rush to punishment fueled by the “law and order”  anxieties of the 1980s, the injustice arguably continues.

From the National Law Journal opinion piece by Harlan Protass and Mark D. Harris, September 28th, 2010:

…permit thousands of men and women who were sentenced long ago for crimes involving crack to benefit from lawmakers' new and enlightened perspectives about punishment for those types of offenses. Basic fairness requires no less.

A close brush with Anders

This week I had a close brush with the Anders standard.  An Anders brief is a "no-merit" brief in which the appellate lawyer informs the court of appeals that he cannot find any meritorious issue in the case to support an appeal.

My friend Jamie Spencer recently wrote an interesting post about a case in which a Texas lawyer wrote a very sloppy Anders brief.  In  preparation for the posting, Jamie actually went and read the Anders case (RTFM?), which has a happy ending–Appellant Anders actually had meritorious issues in his case that his original counsel had missed, and his case was reversed and remanded.  A rare win on appeal for the defense.

No Appellate lawyer or Appellate court wants to deal with an Anders brief.  This is because a correctly-drafted Anders brief requires the Appellate lawyer to brief any conceivable error and explain why that error has no merit.  As an illustration of the tedium of an Anders brief, See the 5th Circuit's 7-page single-spaced outline of the minimum things a proper Anders brief must contain.  (RTFM)
So I was working away on a brief to the US 5th Circuit Court of appeals in an appointed appeal of a guilty plea.  I had not handled the case at the trial court level, but I had noticed that the Appellant had filed his own notice of appeal from jail.  An appellant's filing his own NOA is rather unusual because most of the time the attorney will prepare and file the notice of appeal, especially since Appellant had hired the out-of-town lawyer to handle his case.  Unfortunately the NOA was not filed on time but it was mailed on time from jail which is close enough (see this article concerning the "mailbox rule").  

I had visited with the trial counsel and he had told me of the one possibly meritorious sentencing issue which I had duly briefed and was writing about.  I didn't recall any mention from him of any particular problems with filing an appeal.  Then I noticed the big problem–Appellant had plead guilty with a plea agreement in which he waived his right to appeal.  Whenever I had dealt with this situation in the past, the Government had always chosen to enforce the appeal waiver. And I had never had any strong argument about why they shouldn't.  But in this case I really felt like my client had gotten the short end of the stick.  

What to do?  There is no manual for this situation.  So I did some instant research–I called my friend Stan Schweiger who is an excellent appellate lawyer.  Stan suggested that I call up the head of the US Attorney's office appellate section.  Stan assured me that he was a reasonable guy who might just choose not to enforce the appeal waiver.

Anders averted: I spoke with AUSA Joseph Gay, head of the appellate section, and he turned out to be an eminently reasonable guy.  He said that the Government would actually read my brief and take a look at the merits of my case before deciding whether to exercise the appeal waiver provision of the plea agreement. 

I must say that I was somewhat surprised and very impressed.  In the past I have never had a prosecutor tell me that they might just overlook the appeal waiver if they agree that the client got a raw deal.  It is too easy for a prosecutor to lose track of the fact that their goal is not to rack up wins but to see that justice is done.  Which is exactly what not enforcing the appeal waiver in this situation would do.

Will I win this appeal?  I don't know, but at least I have a shot at making an argument for my client.  And as an added bonus, I didn't have to write the dreaded and detestable Anders brief.

Crack Sentencing Reductions–another piece of the puzzle

Earlier this month I wrote about the United States Sentencing Commission taking "emergency" action to translate the new "Fair Sentencing Act" into workable sentencing rules for folks charged with federal crack cocaine offenses.  So now we have the United States' Legislative and Judicial branches working toward decreasing the grossly excessive sentences that have been imposed for federal crack cocaine cases.

Last I checked, though, we have three branches to our federal government.  And last I checked with a federal prosecutor they had received no guidance on how to deal with crack cocaine cases.  Which means that without the bosses at DOJ telling them to advocate in favor of the new legislation or proposed USSG amendments they'll largely carry on as before until the new Guidelines are finally adopted.  

Doug Berman's excellent blog Sentencing Law and Policy is a fantastic source for news and analysis of developments in many areas of sentencing law.   Doug found some promising comments made by AG Eric Holder on September 21st, which seem to suggest that the Executive branch may take action sooner rather than later:

Over the past year, we have also been reevaluating federal sentencing and corrections policies to ensure that the proper balance is struck in promoting public safety, punishing criminals, avoiding unwarranted sentencing disparities, and reducing recidivism.  Recommendations are currently in development and will be released later this year, but we were – and we all should be – heartened by the recent passage of the Fair Sentencing Act.  The crack/powder sentencing disparity was a symbol of unfairness in our system and, though there’s more work to be done, its reduction is an encouraging step forward.

My concern is that these "recommendations" the AG refers to may not be any executive-branch-DOJ guidance, but that he might simply be referring to the prospective emergency amendments to the USSG's.  I wish that Eric Holder would take a firm stand and urge that his prosecutors actively advocate for sentencing judges to use the new/proposed crack cocaine guidelines, rather than waiting until their final adoption.  

If Holder is sincere about the crack/powder disparity being a "symbol of unfairness in our system," then allowing his prosecutors to stand silent on this matter is a tacit adoption of that unfairness.  Rather than relying on individual defense attorneys advocating with individual prosecutors on individual cases before individual judges, AG Holder needs to instruct all federal prosecutors to advocate in favor of the proposed guidelines in all courts for all cases.

Sting or Entrapment?

Here's a new ploy from law enforcement–do you  think this passes the smell test?

  • Use confidential informants to "recruit" prospective robbers of drug dealers
  • This keeps the undercover informants' handlers hands clean
  • Once "recruited" by the CI, the undercover agent spins a yarn about being a disgruntled employee of the drug cartels
  • Yarn: I know a dope dealer we can rob, he's got kilos and kilos of cocaine–all we have to do is take it.
  • Agent's proposal:  I give you the lead, you bring the manpower and the hardware, and we will split the proceeds
  • Recruitee shows up  with some personnel to "rob" the "dope dealer"
  • Gotcha!  Police have busted a bunch of "robbers" who can now be charged with conspiring to possess kilos and kilos of cocaine.
  • Here's the catch–there was no cocaine, no dope dealer, no nothing.  Only a plan to do something impossible to someone nonexistent in order to possess something unpossessable.

In a recent story in the Austin American Statesman, local reporter Steven Kreytak spoke to several attorneys and the prosecutor of two separate but similar federal "stings" of this type in Austin which resulted in the arrest and indictment of at least 13 individuals in August.  From Steven's story:





"It just smells funny," said defense lawyer Russ Hunt Jr., who is representing [a defendant] charged in the more recent case. "There is no dope dealer. There is no dope.

"It seems kind of unfair, but the fact is that everybody showed up to do some kind of crime," Hunt said.

Prosecutor Mark Lane declined to comment, and Michael Reyes, resident agent in charge of the Austin ATF field office, would only say, "In general terms, we are always looking for ways to approach gun-related crime."

Defense lawyer Stephen Toland, who is representing [a second defendant] said Jaimes thought he would be repossessing cars for a used-car lot.

Toland said [his client] was recruited by a confidential informant who was not mentioned in the affidavit. Toland said the informant was intricately involved in setting up the case and at one point gave [his client] and the others ID cards that showed they were his employees.

Toland also said Facebook updates posted by the informant, whom he did not identify, appear to show that he profited from his cooperation. One update near the time of the arrests said, "Crime is up. Crime pays," Toland said.

Assistant Federal Public Defender Jose Gonzalez-Falla, who is representing defendants in both cases, . . .  said that the work of the informant will be scrutinized to determine whether he committed entrapment.

"If we can show that the confidential informant entrapped my client," Gonzalez-Falla said, "that's as good as if the government agent did it."

Here's the real difficulty for the defense attorneys trying to argue entrapment: entrapment requires government inducement on the one hand, and a lack of predisposition to commit the offense but for the inducement on the other.  This means that a person with some history of drug possession or robbery will have a much harder time arguing that the government overreached than someone with no criminal history.

Look for more commentary as the case develops.  In the meantime let me know what you think.