January 2012 Archives

Road Still Foggy after Supreme Court's GPS Tracking Case

January 30, 2012

There's been much written about the Supreme Court's recent 4th Amendment case on GPS tracking devices. Unfortunately, neither U.S. v. Jones nor all that's been written about it gives us a clear roadway of understanding in this yet developed area of law. If you believe the media, the Supreme Court ruled that officers now need a search warrant to attach and monitor a GPS tracking device. Wrong . . . the Court did not so rule.

What the Court did rule was that attaching a GPS tracking device to a car and monitoring its every move now constitutes a "search" for purposes of the 4th Amendment. The question of whether that requires a search warrant, however, has been left for another day.

Don't get me wrong; I'm not complaining. There are several good takeaways from Jones. For one, it reminds us that there are several ways to approach 4th Amendment analysis. On any given search issue, we often tend to think only in terms of a person's reasonable expectation of privacy. In Jones, however, several other theories of analyses were applied.

  • "Trespass": The majority rested on a "trespass" analysis, finding it unnecessary to analyze whether there was an expectation of privacy. In short, the majority held that attaching and monitoring a GPS tracker was a "search" because it involved a trespass on the driver's "effect" and was done "for the purpose of obtaining information."

  • Mosaic: Several Justices appeared to rely on what one commentator has called a "mosaic" 4th Amendment analysis. Here, whether there was a 4th Amendment "search" did not rest on any one law enforcement act, but rather became obvious after a mosaic of the collective sum of acts of surveillance and monitoring over time.

  • Breadth of Investigation: And even the "expectation of privacy" analysis was interpreted by Justices in an interesting way. One Justice inferred that the determination of a person's reasonable expectation of privacy may be impacted by the length of the surveillance (i.e., short or long term) and/or the nature of the crime being investigated (i.e., the type of crime impacting whether a warrant is required).

  • As complex, and perhaps confusing, as Jones is, it does push us to consider broadening our arguments in district courts where possible. Clearly, even though the law remains unsettled, Supreme Court Justices make one thing crystal clear: they are willing to consider alternative theories of analysis when confronting the government's intrusion into people's lives.

    Jones left open many questions in the area of electronic surveillance (an excellent source for the many articles on Jones is found at www.scotusblog.com). For example, it leaves open whether the 4th Amendment is invoked when the police decides to monitor your travel using cell phone signals where no physical trespass occurs. As we saw in Jones, the government tried hard to convince the Court that it should be left free to electronically monitor every move of any vehicle it chooses. It argued that 4th Amendment analysis was unnecessary, because monitoring a vehicle's movement across open roadways did not impinge on anyone's reasonable expectation of privacy. As Justice Breyer observed, however, this degree of government oversight ominously "sounds like 1984." At least for now, Big Brother was checked.

    Don't Give up on Rough Notes!!

    January 16, 2012

    1351643_clip_notes.jpgDefense attorneys are not used to seeing the investigating officers' rough notes, and in many cases no one asks to see them. In an 8-1 decision this past week, however, the U.S. Supreme Court underlined the importance that rough notes could carry in a trial, giving renewed life to Brady and Giglio. Message to defense attorneys: Don't Give Up On Rough Notes!!

    In Smith v. Cain, several inherent problems in current exculpatory/impeachment law became obvious:

    • Materiality Determination: Under current law, the prosecutor is charged with determining whether a document or information is "material" to the defense and thus should be produced. Despite glaring contradictions from a key witness, the prosecutor in Smith determined the earlier statement was not "material" and thus did not disclose it to the defense.

    • Reliability of Typed Reports: The officer's typed report inadequately characterized the witness' statements; plus, the typed report minimized the scope of statements noted in the officer's own rough notes from the interview. Thus, a prosecutor's review of typed reports for exculpatory/impeachment information still begs the question of whether exculpatory/impeachment information truly exists.

    Until we revisit these problems in a meaningful way through rule and/or court intervention, it is likely that exculpatory and/or impeachment information will continue to lay hidden from the defense.

    Continue reading "Don't Give up on Rough Notes!! " »

    "Automatic" Importation Sentencing Increase in Routine Distribution Cases???

    January 13, 2012

    The Fifth Circuit may have opened the door for automatic sentencing increases in routine "non-importation" drug cases. In U.S. v. Rodriguez, No. 11-10171, Melody Rodriguez pled guilty for possession with intent to distribute over 50 grams of methamphetamine. She was a lower-level dealer who bought 8 ounces of meth from a mid-level dealer. She had nothing to do with the meth's importation nor dealt with the person above her supplier. All-in-all, a typical street distribution case. Yet, the trial court hiked her sentence because her offense "involved importation." By affirming, has the Fifth Circuit opened the door for more of these "importation" adjustments in routine "distribution" cases?

    The facts are fairly simple and routine: meth is smuggled from Mexico to Dallas and stashed there by a guy named Hernandez. Hernandez sells portions to Vasquez, who then re-sells to defendant Melody Rodriguez. Melody buys from supplier Vasquez about 6 to 10 times over the course of 3 months. Though Hernandez accompanied Vasquez on a couple of deliveries to Melody's house, there is no evidence Melody knew where Vasquez got his drugs nor knew anything about Hernandez' role or acts vis-à-vis the drugs being stashed or imported.

    The district court imposed a 2-level upward adjustment under USSG 2D1.1(b)(4), finding the offense "involved the importation" of methamphetamine. Remarkably, the Fifth Circuit found persuasive that "possessing methamphetamine in Dallas may involve its importation to the Dallas area." In short: drug possession is "involved" with drug importation from Mexico. But isn't that always true?? The court did not elaborate on the fact that virtually all drugs possessed in any Texas city (and indeed all distribution cases) "may involve" the drug's importation to that city.

    Melody argued there was no evidence she knew from where or when the drugs were obtained by Vasquez or anyone else. Instead, the court found Melody "knew" the drugs were imported because


    1. Melody and her husband bought from Vasquez for 9 months (even though no evidence they knew where Vasquez obtained his drugs, or that Vasquez knew it was imported directly from Mexico to Dallas);

    2. Hernandez accompanied Vasquez on some deliveries (though no indication why Hernandez' presence with Vasquez would enlighten Melody about whether, where or when drugs were imported); and

    3. Melody's husband knew Hernandez' nickname was "Primo," thus enough to establish that husband "was sufficiently familiar" with Hernandez's role (even if true as to Melody's husband (which is a stretch) there was no evidence Melody knew her husband knew Hernandez' nickname, nor if so, how he came to know it).

    Continue reading ""Automatic" Importation Sentencing Increase in Routine Distribution Cases???" »