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January 31, 2005
The Caballes Decision: Part I How Far Did the Supreme Court Go?
In Illinois v. Caballes the Supreme Court considered whether the sniff of a drug dog was a search. The defendant in Caballes was stopped for a traffic violation. During the time it took to write the ticket, an officer directed his drug dog around the outside of the vehicle. The dog alerted to the trunk. When the trunk was opened, a cache of drugs was located. The Supreme Court held that the drug dog’s actions did not infringe upon the occupant’s right to privacy.
The court’s characterization of its holding is not without qualification: “the use of a well-trained narcotics-detection dog–one that “does not expose noncontraband items that otherwise would remain hidden from public view”...during a lawful traffic stop, generally does not implicate legitimate privacy interests. In this case, the dog sniff was performed on the exterior of respondent’s car while he was lawfully seized for a traffic violation.” (emphasis added)
The Caballes decision should not be read as permitting law enforcement to extend the period of detention in order to “bring in the dogs.” The court was careful to explain that the dog sniff was conducted during the time it took the officer to issue the traffic citation. Whether this will pose much limitation in practice is questionable. It is easy for officers to come up with reasons to extend detentions, and it is tricky for defense counsel to challenge those justifications. Defense counsel will have to be alert to cases where the police expand the scope of their inquiry from a mere traffic ticket to a narcotics investigation.
Another limitation of the Caballes decision is alluded-to in the language quoted above: the holding only applies to the “well-trained narcotics-detection dog.” Counsel handling dog sniff cases will need to put the dog on trial. Documentation of the dog’s training and performance history should be discovered or subpoenaed. One concern is that Caballes will encourage the widespread use of poorly trained, “hack” dogs. Are there minimum standards that a dog must achieve to qualify as a “well-trained” dog as required by Caballes? It will be up to the courts of appeal to answer this and other questions.
The dog’s abilities and, ipso facto, accuracy, also have bearing upon whether the dog’s alert constitutes probable cause to search a trunk, or reasonable suspicion to expand a traffic stop into a narcotics investigation. This issue was not raised in the Caballes case, the record containing no evidence whatsoever concerning the dog’s error rate. It would be incorrect to read Caballes as sanctioning the search of a car trunk upon a mere alert absent evidence imparting significance to the dog’s behavior.
Defense counsel should stress that the Caballes holding applies only to a dog sniffing the outside of a car. It should be argued that to permit a dog inside the vehicle, or to subject persons not within the confines of a vehicle to the intrusion of a dog nose would constitute a dramatic interference with privacy concerns.
Finally, the decision only applies where the dog sniff is preceded by “lawful” traffic stop. Thus, the first step of analysis for defense counsel is whether the officer had a sufficient basis to effect a traffic stop.
In Part II of my analysis of Caballes I will discuss the dissents written by Justices Souter and Ginsberg, and what I believe is the subtext to this and other recent fourth amendment decisions.
Posted by Tim Warriner at 09:22 PM
January 25, 2005
A Slew of Booker Cert Grants
Yesterday, the Supreme Court granted certiorari in approximately 300 cases, remanding them for reconsideration in light of Booker. A case of mine, Camacho v. United States, was among the many. What lies ahead for these cases? while it is difficult to predict how the various Courts of Appeal will react, in my opinion, federal attorneys will be handling a lot of resentencings in upcoming months.
Posted by Tim Warriner at 07:29 AM
January 22, 2005
The Application of Booker in United States v. Ranum
United States v. Ranum stands in contrast to the Wilson opinion (see earlier post). Mr. Ranum was a bank officer convicted of misapplying bank funds. Under the guidelines, the defendant was looking at a minimum of 37 months imprisonment. The court correctly applied Booker, noting that “courts may no longer uncritically apply the guidelines.” Taking a direct shot at the Wilson opinion, Ranum states “the approach espoused in Wilson is inconsistent with the holdings of the merits majority in Booker.” The court considered many factors that would have, under the previous mandatory guideline system, been irrelevant. One factor of importance was that the defendant received no monetary benefit at all due to his misapplication of bank funds. Ultimately, the court determined that a sentence of a year and a day was appropriate.
Ranum is a well-written opinion. It is nice to see such a prompt challenge to the approach taken in Wilson. You can download Ranum file here.
Posted by Tim Warriner at 08:18 AM
January 18, 2005
United States v. Wilson...Off to a Flawed Start
A day after Booker/Fanfan came down, Judge Cassell of the United States District Court for the District of Utah filed an opinion in United States v. Wilson. The opinion is one judge’s analysis of the newly-minted “advisory” guidelines. While Judge Cassell deserves great credit for taking on such a difficult task, the opinion contains several flaws.
The opinion rejected Justice Scalia’s observation that “logic compels the conclusion that the sentencing judge, after considering the recited factors (including the Guidelines) has full discretion, as full as what he possessed before the Act was passed, to sentence anywhere within the statutory range.” Booker, 2005 WL, at *47. Judge Cassell’s response to Scalia’s point is curious. The judge writes “As a general statement of a sentencing judge’s legal authority, Justice Scalia’s description appears accurate. The wise exercise of that discretionary authority, however, requires a judge to consider how the legal and factual background has changed since the Act was passed.” Wilson, p. 6. Judge Cassell seems to conflate what, in his personal opinion, is a “wise exercise of discretionary authority” with the issue of what limitations (if any) courts now face in imposing sentence. Conspicuous in the Wilson opinion is the absence of any response to Justice Scalia’s observation. Justice Scalia makes a strong argument that courts now will need only pay lip-service to the guidelines. Any rule resembling a requirement that courts follow the advisory sentencing guidelines will make the guidelines mandatory, thereby entitling defendants to a jury trial a la Blakely.
Professor Douglas A. Berman’s sentencing blog (available here) contains other criticism as well as some praise for Judge Cassell’s opinion. Notable is the observation that the Wilson opinion fails to “engage the history and characteristics of the defendant.” True. The opinion seems to obsess over the guidelines and the sentencing commission, but places little emphasis upon the individuality of the defendant.
Judge Cassell, it seems, wants to turn back the clock. If the guidelines are now advisory, then courts can impose whatever sentence is warranted under the circumstances. While courts may have to consider the guidelines, they should not be required to give them the “great weight” Judge Cassell requires. To do so would transform advisory guidelines into mandatory guidelines.
Posted by Tim Warriner at 09:28 PM
January 13, 2005
Booker/Fanfan---an initial reaction
For those with a federal practice, Blakely was the proverbial cliff-hanger. The unanswered question: were trhe federal sentencing guidelines unconstitutional? That question was answered yesterday with the issuance of the Booker/Fanfan opinion. In an interesting twist, the court found that while mandatory guidelines (those a sentencing judge must follow) are unconstitutional, guidelines that are truly just guidelines (ones a sentencing judge may follow if he or she wants to) are valid. Thus, instead of striking down the entire guideline scheme, the court just struck those provisions making the guidelines mandatory.
What are the effects of the decision? Attorneys will no longer need to ask for sentencing departures, which were almost entirely outlawed by Congress. Some defendants, probably those without much criminal history or other extenuating circumstances, will get much lower sentences than they would before Booker/Fanfan. The flip-side, however, is that other defendants, such as so-called "recidivists," may get longer sentences since the top of the guideline range is no longer the maximum.
If Booker/Fanfan was the stone thrown in the pond, then we've got to wait to see the riples that result. One possible result is action by Congress purporting to "remedy" the effect of Booker/Fanfan.
Posted by Tim Warriner at 06:55 AM
January 09, 2005
US Sentencing Guideline Amendments: sex, internet and analogs
In 2003, Congress enacted the PROTECT act, Pub. L. 108-21, which among other things directed the United States Sentencing Commission to review and consider amending the guidelines with respect to GHB to provide for stiffer penalties. The Sentencing Commission answered this call by modifying provisions of USSG 2D1.1, 2D1.11 and 2D1.12.
Modifications to USSG 2D1.1 include a 5 year penalty for possession of 3 gallons, and a 10 year penalty for possession of 30 gallons of GHB. The 3 gallon mark was considered by the DEA to be a quantity associated with a mid-level distributor, while 30 gallons is associated with an upper-level individual. Changes to USSG 2D1.11 increased the penalties for trafficking in GBL, a “precursor,” consistent with the 3 gallon/5 year, 30 gallon/10 year rule.
USSG 2D1.1, 2D1.11 and 2D1.12 are modified to include a 2-level enhancement for “mass marketing” a controlled substance through utilization of an “interactive computer service.” An example given of conduct warranting this enhancement includes operating a website to promote the sale of GHB. Conduct not warranting the enhancement would be utilization of email in furtherance of a conspiracy to distribute GHB.
The Sentencing Commission has commented hat the internet: ”enables drug traffickers to market their illegal products more efficiently and anonymously to a wider audience than through traditional drug trafficking means, while making it more difficult for law enforcement authorities to discover the offense and apprehend the offender.” May 10, 2004 Guideline Amendments, unofficial text, p. 86. Does utilization of a website really allow drug traffickers to “anonymously” market drugs, thereby making it more difficult for the police to “discover the offense and apprehend the offender”? It would seem that if a subject uses a website, he or she is much easier to apprehend. Obtaining a search warrant for the site operator’s information from an ISP would be a piece of cake. Better yet, the police can order drugs directly from the site. The police don’t need to use informants to catch someone selling GHB through a website. It may be true, however, that the internet permits sale of drugs to a wide audience, in fact, an international audience. However, by operating in such an “open and notorious” manner, the offender is inviting arrest and prosecution. This enhancement is really more of a “sophisticated means” provision then one justified by any supposed difficulties imposed upon law enforcement.
Amendments to 2D1.1(e) require application of the vulnerable victim adjustment (3A1.1(b)(1)) if the defendant commits or attempts to commit a “sexual offense” by distributing a controlled substance to an individual, with or without that individual’s knowledge. The Sentencing Commission’s view is that “a defendant who commits a drug-facilitated sexual assault should receive increased punishment whether or not the victim knowingly ingested the controlled substance distributed by the defendant.” However, the commission’s concern is narrower than the actual language of the guideline in that the guideline punishes persons who “attempt” to commit a sexual offense. What about the college kid who meets a girl at a rock concert and gives her an ecstasy pill, at her request, and they go off to his car to fool around? If he gives her the pill, at her request, and the pill will loosen her inhibitions, would his actions be considered an attempted “date rape”? This amendment is troubling if it is to be applied to “willing participants.”
Finally, application note 5 to USSG 2D1.1 was amended to specify that any reference to a controlled substance includes the analogs of that substance. The test for whether something is an analog is copied for 21 U.S.C. 802(32).
Many other guideline amendments are now in effect. These include modification to the level 30 cut-off for defendants who are minor participants. Defendants who are deemed minor participants in an offense will no longer fair so well. Thus, it will be important for counsel to make sure the correct guideline book is being utilized by the probation officer.
These amendments make it important for the practitioner to appropriately limit any Blakely-waiver contained in a plea agreement.
Posted by Tim Warriner at 03:16 PM
January 01, 2005
Rumblings...
Reform of the three-strikes law, as part of a general reform of California’s sentencing practice may be on the Governor’s agenda, even despite his opposition to Proposition 66. Law professors Mike Vitello and Clark Kelso of the McGeorge School of Law, both of whom are connected to the Schwartzenegger administration, are advocating reform. See “’Three Strikes’ battle continues after demise of Prop. 66,” Marjie Lundstrom, Sacramento Bee, November 11, 2004. In their paper titled "A Proposal for a Wholesale Reform of California's Sentencing Practicing and Policy," the professors make their case for reform.
The professors write that “the great weight of empirical studies discount the role of Three Strikes in reducing crime. Instead, it adds to the prison population but, in light of other sentencing provisions, does little to add to social protection.” The authors note the legend surrounding Three Strikes—that the law represents a watershed change from soft on crime to hard on crime, leading to a downward trend in crime rates.
Interesting are the authors’ suggestions that “California’s budget woes provide an opportunity to reexamine policies that have led to dramatic prison increase” and that “the election of Arnold Schwartzenegger creates a mechanism for change in state resentencing policy.” These observations are accurate. The state is several billion dollars in the hole and the prisons, ala California Correctional Peace Officers’ Association (“CCPOA”) account for a large percentage of the budget. The governor has not embraced CCPOA as his predecessor did. His opposition to Prop. 66 may actually be part of a reform strategy to save the state millions. The Gov. will say to CCPOA and the District Attorney’s association: “look, I helped you defeat Prop. 66, now you’ve got to support my reform proposals.” Gray Davis's refusal to parole anyone was a consequence of his fear of looking weak. The governor, on the other hand, doesn’t come with this political baggage. the "soft on crime" label won't stick to the Gov.
I found the authors’ history of California sentencing law, and its overview of the operation of the Three Strikes law, to be extremely informative. The authors characterize the sentencing law as “Bizantine,” and correctly note that the penal provisions are typically in response to a “crime of the day,” or some hyped-up news story. The authors are right-on when they note that the appellate decisions interpreting Three Strikes have upheld its harshness and done nothing to alleviate the laws inequities. All of us who routinely handle Three Strikes cases often feel that the appellate courts have abandoned our clients. That sense is validated by the authors’ survey of Three Strikes authority.
The geriatric inmates inflict the greatest financial cost, while at the same time pose the least danger to society. The authors cite authority estimating the cost of housing these needy, older inmates at $50,000 to $70,000 a year. Releasing these inmates would provide immediate financial relief, and is recommended by the authors. In reality, such policy would shift the cost of care from the State of California to the federal government as the inmates join the rolls of MediCare and MediCal beneficiaries.
It appears the state has begun to dust the cobwebs off its parole machine. One attorney I know has gone to special state funded training for representation of inmates in parole hearings. They offered him enough cases to pay a nice year’s salary. Perhaps this is a sign that the governor is going to try to shove a good portion of the elderly prison population through the parole process. While more parole is a good idea, and a step in the right direction, the administration's actions are a far cry from the needed sentencing reform.
I urge you to review professors Vitello and Kelso’s paper at 38 Loyola of Los Angeles Law Review 101 (2004). It can also be found on the Loyola Law School website, http://www.lls.edu.
Posted by Tim Warriner at 10:52 AM