5th Circuit

I love technology - from tablet computers to smartphones to flat-screen televisions.  If it's shiny and new and guaranteed to make me the envy of my friends and family, I'll buy it (to the dismay of my wife).  One of the recent (in the last 5 years) technological advancements that has made its way into just about every home in America is GPS.  Whether it be a Garmin running watch, a TomTom navigational device, or a GPS location broadcaster on your cell phone, most people use some sort of GPS device every day.  Aside from the fact that we've lost the capability to drive somewhere without turn-by-turn directions, GPS is great.

Jose Juan Hernandez, however, might not agree that GPS is so great.  In a recent 5th Circuit Court of Appeals Case (United States v. Hernandez), Hernandez challenged the GPS search that the DEA had surreptitiously (and without a warrant) performed on his brother's truck to track its movements.  Hernandez was arrested while driving his brother's truck to California on a drug run.  The police seized 20 pounds of meth from the truck.  At trial, Hernandez moved to suppress the drugs, arguing that the discovery was the result of an unlawful search (as a result of the GPS tracking).  The trial court denied the request.

The 5th Circuit held that Hernandez had standing to challenge the use of the GPS search device placed on his brother's vehicle by FBI agents because he drove the vehicle with consent, but he lacked standing to challenge its placement because the vehicle was not registered to him.  The Court also held that the DEA agents' use of the surreptitious GPS search device to track Hernandez was not a search within the meaning of the Fourth Amendment, explaining that it was more akin to the old beepers that police used to place on vehicles in the 80's and 90's.  Accordingly, the Court upheld the trial court's denial of the motion to suppress. The Court did not decide whether a GPS search device that continuously and precisely monitors location would constitute a search.

The Second Amendment to the United States Constitution provides:

...the right of the people to keep and bear Arms, shall not be infringed.

But who are "the people?"  Does that include everyone, even illegal aliens?  Nope, says the 5th Circuit.

In a recent case, the Appellant argued that his conviction for being an illegal alien in possession of a firearm, in violation of 18 U.S.C. § 922(g)(5) violated the Second Amendment. The court held that “the people” referenced in the Second Amendment does not include aliens illegally in the United States. The court noted that the Constitution does not prohibit Congress from making laws that distinguish between citizens and aliens, and between lawful and illegal aliens, and as a result 18 U.S.C. § 922(g)(5) is constitutional under the Second Amendment.

U.S. v. Portillo-Munoz, (5th Circuit) decided June 13, 2011.  See the full opinion in United States v. Portillo-Munoz.

Read about a different case (with a different conclusion) in Breitbart's article.

While the 5th Circuit case linked below has nothing to do with criminal law and procedure, it has everything to do with ridiculous Texas shenanigans.  Volokh linked it first.  I found it too good not to note.  Read the case for yourself.  Don't pass up the footnotes.  It is utter greatness.

Samantha Sanches v. Carrollton-Farmers Branch ISD (5th Circuit - Civil)

Here a teaser:

Samantha Sanches appeals summary judgment on her claims of sex discrimination and retaliation under 20 U.S.C. § 1681(a) (“title IX”) and 42 U.S.C. § 1983. Reduced to its essentials, this is nothing more than a dispute, fueled by a disgruntled cheerleader mom, over whether her daughter should have made the squad. It is a petty squabble, masquerading as a civil rights matter, that has no place in federal court or any other court.

And it only gets better from there.

Driver cannot give consent to search a passenger's private bag.

is an interesting case with 4th and 5th Amendment issues coming out the Fifth Circuit. Of course, it’s an unpublished opinion, so it has no precedential value, but it’s a good case on federal criminal procedure.

The Fifth Circuit Court of Appeals (Federal) held that an officer’s warrantless search of Appellant’s handbags, during a traffic stop, violated the Fourth Amendment. Although the driver consented to search of the vehicle, he had neither the actual nor the apparent authority to consent to a search of his passenger’s property. The officer had no authority to search inside Appellant’s closed bags without her consent, which he neither sought nor obtained, and he knew the bags he was searching belonged to her.

After Appellant’s arrest, while being transported to jail, she made incriminating statements to the officer, without having been properly Mirandized. Approximately 4.5 hours later, DEA agents met with Appellant, Mirandized her, obtained a valid waiver and obtained a written confession from her.

The court held that the DEA interrogation and resulting confession were not tainted by the arresting officer’s earlier Miranda violation while transporting Appellant to the jail. There was little continuity between the two interrogations. The arresting officer asked his questions in his patrol car, while different personnel working for a different agency conducted the later DEA interview in a different location. There was a 4.5-hour break between the two interrogations and the DEA agents, in their interview, did not exploit or refer back to Appellant’s earlier statements.

Additionally, the court refused to suppress Appellant’s written confession to the DEA agents based on the arresting officer’s illegal search of her bags. The court held that the illegality of the search was clear however, the connection between the evidence it produced and Appellant’s confession to the DEA agents was weak. There was nothing to indicate that the discovery of a small amount of marijuana in the bags compelled Appellant to confess to possession of a large quantity of cocaine later found hidden in the vehicle. Further, Appellant was provided Miranda warnings, interviewed by different officers from a different agency and approximately seven hours had passed between the search of Cantu’s purse and the receipt of her written confession.

The full circumstances of the DEA interrogation served to purge the taint of the earlier illegal search.

Warrantless Search of Cell Phone | Fort Worth Criminal Defense Attorneys

Can an arresting officer search a person’s text messages as a “search incident to arrest?” The U.S. Court of Appeals for the 5th Circuit said YES in U.S. v. Curtis, but caveats that the search in the case occurred prior to the Supreme Court holding in Arizona v. Gant, 129 S.Ct. 1710 (2009).

United States v. Curtis - In July 2007, officers obtained an arrest warrant for Appellant after he made a false statement on a credit application he submitted to a car dealership. (Seriously?) When the officers arrested Appellant he was driving his vehicle and talking on his cell phone. After he pulled over, Appellant placed the cell phone on the car’s center console. An officer took the phone out of the car and began looking at the text messages on it. Later, while Appellant was being processed at the jail the officer resumed looking at the text messages on the cell phone.

The 5th Circuit held that the search of the cell phone was constitutional since it took place incident to a lawful arrest and it was within Appellant’s reaching distance when the officers arrested him. The court followed U.S. v. Finley, 477 F.3d 250 (5th Cir.), which held that the police could search the contents of an arrestee’s cell phone incident to a valid arrest when it is recovered from the area within an arrestee’s immediate control.

Appellant argued that the officer’s search of the cell phone was unlawful in light of the Supreme Court’s holding in Gant, decided in 2009, which held in part that the police may “search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of arrest.”

The court refused to apply the rule announced by Gant to a search incident to arrest that occurred before Gant was decided. Additionally, the court stated that even if it had ruled the search of the cell phone was unlawful, it would have refused to suppress the text messages under the good-faith exception to the exclusionary rule. The court noted that the good-faith exception applies to searches that were legal at the time they were conducted, but later determined to be unconstitutional by a subsequent change in the law.

My question is: Why did the officer feel he needed to search Appellant’s text messages? I’m pretty sure the iPhone does not have an app that turns the phone into a dangerous weapon. There should be no reason that the officer needed to conduct such a warrantless search. Luckily, however, this holding is narrow in that it appears that it does not apply to searches conducted after the Supreme Court decision in Gant.

UPDATE: Warrantless searches of cell phones are now unreasonable. 

It Takes Two to Tango | Can a Person be convicted for Conspiring With a Government Informant?

United States v. Delgado, U.S. Courts of Appeals for the 5th Circuit (Federal)

In this U.S. v. Delgado, the Defendant-Appellant, Maria Aide Delgado, was convicted of

1. possession of marijuana with the intent to distribute and
2. conspiracy to commit the same offense.

She was sentenced to a concurrent term of 100 months imprisonment for each conviction. Delgado appealed, complaining that she shouldn't be convicted for Conspiracy if she was Conspiring With a Government Informant.

The Federal 5th Circuit Court of Appeals dismissed a conspiracy charge in the indictment because the government failed to introduce sufficient evidence to establish that the Appellant entered into a conspiracy with anyone other than a government informant. While it takes at least two people to form a conspiracy, an agreement must exist among co-conspirators who actually intend to carry out the agreed upon criminal plan. A defendant cannot be criminally liable for conspiring solely with an undercover government agent or a government informant, therefore, evidence of any agreement Delgado had with the government informant cannot support a conspiracy conviction.

The U.S. Court of Appeals for the 5th Circuit (Federal) issued a housekeeping ruling today (United States v. Garland) targeting counsel that wish to withdraw from a case by filing an Anders brief. The Court admonished counsel that they must not simply file a conclusory brief without any “meaningful discussion of the district court proceedings or any potential issues for appeal.” Reciting the Supreme Court’s holding in Anders v. California, 386 U.S. 738, 744 (1967), the court reminded counsel:

Rather than simply filing a brief that is little more than a no-merits letter, ‘counsel should, and can with honor and without conflict, be or more assistance to his client and to the court. His role as advocate requires that he support his client’s appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal.’

To assist future counsel that wish to withdraw and file an Anders brief, the Court directs them to its website, on which it has posted guidelines and a checklist for counsel to follow.

The Fifth Circuit’s website provides a detailed checklist and outline for Anders briefs for guilty pleas and for bench or jury trials. See http://www.ca5.uscourts.gov. The guidelines and checklist are under the ‘Attorney Information Section.'  This checklist is designed to assist counsel in preparing a brief that will satisfy the standards of Anders in this circuit.

The Court goes on to state that “if counsel submits a brief meeting this standard, we will no longer independently scour the record looking for nonfrivolous issues.” There you have it. Use the court’s template and you can’t go wrong. Appellate attorneys might also find the checklist helpful in filing Anders briefs to the state courts of appeals.