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Opinions – U.S. 4th Circuit Court of Appeals: 12/12/11

Criminal Procedure

Search & seizure

BOTTOM LINE: Police officer acted diligently in placing call to Immigration and Customs Enforcement (ICE) to verify validity of defendant’s identification during traffic stop for possible impairment of driver of vehicle in which defendant was a passenger, even though call extended duration of stop after officer learned there were no outstanding warrants for any names provided by those in vehicle, where defendant voluntarily handed identification to officer, call to ICE was similar to running a driver’s license and registration to check validity, time to call ICE was very brief, and officer was still investigating whether driver was impaired.

CASE: United States v. Guijon-Ortiz, No. 10-4518 (decided Nov. 10, 2011) (Judges Gregory, DAVIS & Keith). RecordFax No. 11-1110-61, 23 pages.

COUNSEL: Jonathan Byrne, Office of the Federal Public Defender, Charleston, West Virginia, for Appellant. Erik Goes, Office of the United States Attorney, Charleston, West Virginia, for Appellee.

FACTS: Defendant, Saul Guijon-Ortiz, was a back-seat passenger in a pickup truck during a routine traffic stop by the police. On April 29, 2009, police officer Fred Flowers pulled over a passing Dodge pickup truck because there were indications that the driver was driving while impaired or was engaged in that other suspicious activity. There were three people in the truck: Guijon-Ortiz, the driver, Juan Lopez-Villafuerte, and the front-seat passenger, Juan’s brother, Noe Lopez-Villafuerte.

Officer Flowers asked Juan for his driver’s license, registration, and proof of insurance. He also asked for identification from the passengers. Although the two men in the front seat complied, Guijon-Ortiz did not. Flowers then asked Juan if Guijon-Ortiz spoke English. Juan replied that he did not. Flowers asked Juan to repeat the request in Spanish, which he did. At that point, Guijon-Ortiz, who appeared very nervous and was shaking, handed Flowers a Lawful Permanent Resident Card (“LPR card” or “green card”) in the name of Daniel Gaitan (the “Gaitan ID”).

Flowers returned to his patrol car and checked the driver’s license and registration, which both came back as valid. He contacted his headquarters and asked for a search for outstanding arrest warrants for Juan, Noe and “Daniel Gaitan.” Within 30 seconds, Flowers was informed that there were none. Flowers then decided to call Immigration and Customs Enforcement (“ICE”) to verify the status of the permanent resident card. Special Agent Gary Hilton ran two searches of the ICE database and informed Flowers that the information on the Gaitan ID did not match that in the ICE database, and that he believed that the Gaitan ID was invalid.

Hilton asked Flowers to put Guijon-Ortiz on the phone, to verify his name and determine whether he was in the country legally. Guijon-Ortiz admitted to another agent that he did not have a green card or other papers authorizing him to be in the United States.

From these admissions, the agent concluded that there was probable cause to believe Guijon-Ortiz was illegally in the United States. This conversation lasted less than five minutes, following which the agent explained to Hilton that Guijon-Ortiz had admitted being in the country illegally. Hilton then asked Flowers to bring Guijon-Ortiz to the ICE office.

Guijon-Ortiz was subsequently indicted for illegal reentry. He moved to suppress all evidence obtained as a result of the traffic stop, and the district court denied the motion. He thereafter pled guilty.

Guijon-Ortiz appealed to the 4th U.S. Circuit Court of Appeals, which affirmed the judgment of the U.S. District Court.

LAW: On appeal, Guijon-Ortiz argued that the district court erred in refusing to suppress evidence of his identity and immigration status. Specifically, he argued that once Flowers learned there were no outstanding warrants for the three individuals, the Fourth Amendment required that Flowers either conclude the traffic stop or issue a citation for the traffic violation he had observed, and that taking the time to call ICE required either the driver’s consent or reasonable suspicion that illegal activity was afoot, neither of which Flowers had.

The Fourth Amendment guarantees the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. United States Const. amend. IV. The temporary detention of individuals during the stop of an automobile by police, even if only for a brief period and for a limited purpose, constitutes a “seizure” of persons within the meaning of the Fourth Amendment. Whren v. United States, 517 U.S. 806, 809-10 (1996). An ordinary traffic stop is a limited seizure more like an investigative detention than a custodial arrest. As such, the appropriate method of analysis was that used in Terry v. Ohio, to determine the limits of police conduct in routine traffic stops. Terry v. Ohio, 392 U.S. 1 (1968); see also United States v. Rusher, 966 F.2d 868, 875 (4th Cir.1992).

Under Terry’s “dual inquiry,” after asking whether the officer’s action was justified at its inception, it is necessary to ask whether the continued stop was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure. Florida v. Royer, 460 U.S. 491, 500 (1983). With regard to scope, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time. Id. With regard to duration, although the reasonable duration of a traffic stop cannot be stated with mathematical precision, a stop may become unlawful if it is prolonged beyond the time reasonably required to complete its mission. Illinois v. Caballes, 543 U.S. 405, 407 (2005).

Here, although the arresting officer’s call to ICE was unrelated to the justification for the stop and extended the time during which the officer kept the vehicle at the side of the highway, the methods employed by Flowers were the least intrusive means reasonably available to verify or dispel his suspicion in a short period of time, and the stop was not prolonged beyond the time reasonably required.

Thus, the totality of the circumstances demonstrated that Flowers diligently pursued the investigation of the justification for the stop and was not otherwise dilatory in his investigation. Therefore, it was unnecessary to decide whether the officer had reasonable suspicion to believe illegal activity was afoot at the time he called ICE.

Accordingly, the U.S. District Court’s order denying Guijon-Ortiz’s motion to suppress was affirmed.

Criminal Procedure

Search & seizure

BOTTOM LINE: During a routine traffic stop by police officers, where defendant, a passenger, was entirely amicable and cooperative with police, the “caution data” obtained by officers regarding defendant’s prior arrest for armed robbery and defendant’s purportedly deliberate misrepresentation as to the status of his driver’s license were insufficient to establish reasonable suspicion on the part of police that defendant was armed and dangerous, and police officer’s subsequent patdown of defendant was therefore impermissible under the Fourth Amendment.

CASE: United States v. Powell, No. 08-4696 (decided Nov. 14, 2011) (Judges King, SHEDD & Floyd). RecordFax No. 11-1114-60, 19 pages.

COUNSEL: Daniel Stiller, Federal Defender Services of Wisconsin, Incorporated, Milwaukee, Wisconsin, for Appellant. Jonathan Su, Office of the United States Attorney, Greenbelt, Maryland, for Appellee.

FACTS: On November 21, 2006, while on routine patrol, police officer Catrina Davis observed a 1997 Buick occupied by three individuals pull out from a parking lot in Seat Pleasant, Maryland. Obie Powell was a passenger in the backseat of the Buick. Officer Davis stopped the vehicle because it had a burned-out headlight. The stop occurred without incident, and Officer Davis made contact with the driver, Jermaine Mitchell, and obtained his driver’s license and registration. At the same time, Corporal Leroy Patterson, who was on patrol with Officer Davis, approached the passenger side. As Officer Davis returned to her patrol car to process Mitchell’s traffic citation, Corporal Patterson engaged in an amicable conversation with Powell. During this conversation, Officer Christopher Shelby arrived to provide back-up assistance and joined Corporal Patterson at the passenger side of the Buick.

At some point, Powell indicated that he needed to pick up a child, and asked how long the traffic stop would last. Corporal Patterson responded that he could not be certain about the expected duration of the stop and told Powell that he was free to leave if he so desired. Powell declined the offer and remained in the car.

Eventually, an incoming radio communication advised Officer Davis, who was in her patrol car, that Mitchell’s license was suspended. Officer Shelby heard this communication on his personal radio, and he asked Powell and the other passenger in the car if either of them had a valid driver’s license. Officer Shelby’s reason for asking was to ascertain if either passenger could lawfully drive the vehicle away after the stop.

Powell gave his license to Officer Shelby, who checked its status via radio. A responsive radio communication indicated that the license was suspended and that Powell had “priors” for armed robbery. At the time the caution data was broadcast, neither Powell nor the other occupants of the Buick had appeared suspicious or presented any threat or problem to the officers.

Nonetheless, based solely on the caution data, Officer Shelby ordered Powell from the Buick and began to perform a patdown on him. During the patdown, Powell became nervous, and unsuccessfully attempted to run from the officers, but the officers quickly regained control over him and placed him in handcuffs. At that time, Powell was not under arrest.

Once the officers secured Powell, Corporal Patterson removed a backpack from the Buick near where Powell had been sitting. After finding a handgun in the backpack, the officers arrested Powell. During a search incident to the arrest, the officers found crack cocaine. At the conclusion of the traffic stop, Mitchell was cited for the traffic violation, and he and the other passenger were permitted to leave. The Buick was left parked on the street.

Based on the evidence obtained by police after the patdown, a federal grand jury indicted Powell for possession with intent to distribute crack cocaine, possession of a firearm by a convicted felon, and possession of a firearm in furtherance of a drug trafficking crime.

Before trial, Powell moved to suppress this evidence, arguing that the officers obtained it in violation of the Fourth Amendment. The U.S. District Court denied the motion, holding that the officers had reasonable suspicion that Powell was armed and dangerous and were thus entitled to frisk him.

Thereafter, a jury convicted Powell of the lesser-included offense of simple possession of crack cocaine and acquitted him of the other charges, and the court sentenced him to a 63-month term of imprisonment.

Powell appealed to the 4th U.S. Circuit Court of Appeals, which vacated the district court judgment.

LAW: Powell’s argument on appeal was grounded generally in the basic rule that, barring certain limited exceptions, searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment, and that, therefore, before an officer places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so. Arizona v. Gant, 556 U.S. 33 (2009); Sibron v. N.Y., 392 U.S. 40, 64 (1968). Specifically, Powell’s argument was based on the holding in Arizona v. Johnson, in which the United States Supreme Court extended the “stop and frisk” rule announced in Terry v. Ohio to passengers in a routine traffic stop. See Terry v. Ohio, 392 U.S. 1 (1968); Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 784 (2009).

The Johnson Court held that to justify a patdown of the driver or a passenger during a traffic stop, the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous. Id. Here, as Powell noted, at the time that Officer Shelby began the patdown, Powell’s interaction with the police officers had been entirely amicable, and he (like the driver and other passenger) had been cooperative. Thus, in Powell’s view, the officers lacked reasonable suspicion that he was armed and dangerous.

The standards governing our determination of reasonable suspicion are well-defined. In the context of this case, reasonable suspicion is a particularized and objective basis for suspecting that the person to be frisked is armed and dangerous. Ornelas v. United States, 517 U.S. 690, 696 (1996). The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. Terry, 392 U.S. at 27.

The determination of reasonable suspicion must be based on common-sense judgments and inferences about human behavior, and it is measured by the totality of the circumstances. Illinois v. Wardlow, 528 U.S. 119, 125 (2000); United States v. Arvizu, 534 U.S. 266, 273 (2002).

Because the reasonable suspicion standard is an objective one, a court must examine the facts within the knowledge of the officers to determine the presence or nonexistence of reasonable suspicion. United States v. Digiovanni, 650 F.3d 498, 511 (4th Cir.2011). The government bears the burden of articulating facts sufficient to establish reasonable suspicion. United States v. Burton, 228 F.3d 524, 528 (4th Cir. 2000). Although the standard of proof is obviously less demanding than that for probable cause, the government must be able to articulate something more than an inchoate and unparticularized suspicion or hunch. United States v. Sokolow, 490 U.S. 1, 7 (1989). The traffic stop should also be viewed in its overall context. See United States v. Branch, 537 F.3d 328, 338 (4th Cir.2008).

In this case, the officers’ interaction with Powell began as part of a routine traffic stop on a public road, and there was no evidence in the record that the stop occurred in either a high-crime area or at a similarly unsafe location. For much of the traffic stop, the four officers on the scene outnumbered the three occupants of the Buick. Before Officer Shelby began the patdown, Powell and the other occupants of the vehicle were entirely amicable and cooperative with the officers, they did not engage in any threatening or evasive conduct, and they did not display any of the tell-tale signs typically associated with illegal or dangerous activity.

Particularly telling was the fact that Corporal Patterson told Powell during the traffic stop that he was free to leave if he wished, an implicit acknowledgement that he did not consider Powell to be armed and dangerous. Standing alone, this context clearly provided no basis for the officers to reasonably suspect that Powell might be armed and dangerous.

Thus, until Powell was removed from the Buick, the traffic stop itself could be considered remarkable, if at all, only because of its amicable, cooperative, and relatively safe nature. One factor the Government articulated to support its reasonable suspicion argument was Powell’s purported deliberate misrepresentation regarding his driver’s license. However, while false statements can be considered in establishing reasonable suspicion, a false statement, without more, is typically insufficient. See, e.g ., United States v. Wilson, 953 F.2d 116, 125 (4th Cir.1991). Powell’s purported misrepresentation (the suspiciousness of which was arguable) did not remotely tend to suggest that he was armed and dangerous, and was clearly insufficient establish reasonable suspicion that he was armed and dangerous. Given the glaring weakness of the factors articulated by the Government, a reasonably prudent officer in these circumstances would not be warranted in the suspicion that Powell was armed and dangerous on the night of the traffic stop.

Accordingly, the patdown was not permissible under the Fourth Amendment, and the district court should have suppressed the evidence that was seized during the traffic stop. As such, the judgment of the district court was vacated and the case remanded for trial.

Criminal Procedure

Voir dire

BOTTOM LINE: District court’s for-cause striking of three Spanish-speaking prospective jurors during voir dire in drug trial, on ground that interpreters would be used during trial, that case had to decided on translation presented to everybody in courtroom, and that prospective jurors had perceived inability to accept interpreter as final arbiter of what was said or written, did not violate defendant’s Fourteenth Amendment equal protection rights or his Sixth Amendment right to trial by an impartial jury.

CASE: United States v. Cabrera-Beltran, No. 10-4084 (decided Nov. 10, 2011) (Judges TRAXLER, Wilkinson & Niemeyer). RecordFax No. 11-1110-60, 21 pages.

COUNSEL: Lionel Pena, Edinburg, Texas, for Appellant. Jeffrey Bender, Office of the United States Attorney, Alexandria, Virginia, for Appellee.

FACTS: Leopoldo Cabrera-Beltran, was charged with conspiracy to import and distribute cocaine and heroin. The defendant was tried by jury in U.S. District Court. During voir dire, the U.S. District Court judge asked the prospective jurors whether any of them were “fluent in the Spanish language.” The judge then explained her reason for asking the question, stating that the jurors were required to decide the case based on the translation provided by interpreters to everybody in the courtroom.

When three of the prospective jurors indicated some ability to understand the Spanish language, the judge asked each of them a follow-up question concerning their ability to accept English translations of the Spanish language.

The three prospective jurors expressed an inability to do so, telling the judge that they would have difficulty accepting a translation that they did not agree with. Based on the jurors’ responses, the court, sua sponte, struck each of these prospective jurors for cause. Of the three, only one was excused based solely on his inability to accept English translations. The other two were excused based on this inability and other factors.

At the conclusion of trial, the defendant was convicted of conspiracy to import and distribute cocaine and heroin.

The defendant appealed to the United States Court of Appeals for the Fourth Circuit, arguing that his rights under the Sixth and Fourteenth Amendments were violated when the U.S. District Court during voir dire struck the three Spanish-speaking prospective jurors who expressed an inability to accept English translations of Spanish testimony and documents.

The 4th Circuit held that the U.S. District Court did not abuse its discretion in dismissing the jurors, and therefore affirmed the judgment of the district court.

LAW: On appeal, Cabrera-Beltran argued that the striking of the three Spanish-speaking prospective jurors violated his right to Equal Protection under the Fourteenth Amendment.

The factually similar case of Hernandez v. New York involved a Batson challenge to the striking of two prospective Latino jurors. Hernandez v. New York, 500 U.S. 352 (1991). In Hernandez, the prosecutor explained that his decision to peremptorily strike certain potential jurors was based on his “uncertainty as to whether they could accept the interpreter as the final arbiter of what was said by each of the witnesses, especially where there were going to be Spanish-speaking witnesses.” Id. at 356.

A majority of the United States Supreme Court concluded that the prosecutor’s rationale was a race-neutral basis for striking the jurors that did not contravene the Equal Protection clause. See id. at 372.

Although Hernandez involved a Batson challenge rather than a for-cause challenge as in the instant case, seven of the Supreme Court justices in Hernandez took the opportunity to note that a juror’s inability to accept a translator’s interpretation would support a valid for-cause challenge. In the four-justice plurality opinion, the Court acknowledged that a juror’s inability to accept a translation would be a valid for-cause challenge. Id. at 362-63. Similarly, the three dissenting justices collectively espoused the same opinion. See id. at 379. In consideration of Hernandez, the for-cause striking of prospective jurors based on their perceived inability to accept an interpreter as the final arbiter of what was said or written did not violate the Equal Protection Clause of the Fourteenth Amendment.

Cabrera-Beltran also argued that the striking of the prospective jurors violated his rights under the Sixth Amendment, which entitles a defendant to a trial by an impartial jury. United States Const. amend. VI. It is integral to the promise of a fair trial that all jurors in a particular case base their decision on the same evidence. See Sheppard v. Maxwell, 384 U.S. 333, 351 (1966).

The trial court’s right to control the evidence may include requiring the jury to accept, as evidence, in-court translations by court-certified translators. Here, the fact that the prospective jurors only anticipated the possibility that they would be unable to accept court-approved translations was sufficient to support the U.S. District Court in light of the considerable discretion it is afforded in this area. As a result, the district court’s decision to strike the prospective jurors was not a manifest abuse of its discretion and did not contravene the Sixth Amendment.

Accordingly, the U.S. District Court’s judgment was affirmed.

Evidence

Hearsay exception for co-conspirator’s statements

BOTTOM LINE: Where record contained overwhelming evidence of former sheriff’s participation in and operation of an illegal gambling conspiracy, it was unnecessary for appellate court to determine whether U.S. District Court erred in admitting into evidence a recording of a meeting pursuant to an exception to the hearsay rule, because such evidence could not reasonably be said to have substantially swayed the jury’s judgment, and any error by district court in admitting the recording was therefore harmless error.

CASE: United States v. Medford, No. 08-5030 (decided Nov. 7, 2011) (Judges Traxler, KEENAN & Hamilton). RecordFax No. 11-1107-60, 16 pages.

COUNSEL: William Terpening, Anderson Terpening, PLLC, Charlotte, North Carolina, for Appellant. Amy Ray, Office of the United States Attorney, Asheville, North Carolina, for Appellee.

FACTS: Bobby Medford served as the Sheriff of Buncombe County, North Carolina, from 1994 through 2006, when he lost his bid for re-election. Under a state law enacted in 2000, Medford was required, among his other duties as Sheriff, to enforce North Carolina’s newly-enacted regulations governing video poker machines.

In 2001, Medford delegated the primary responsibility for registering video poker machines to Lieutenant John Harrison. Medford assigned Guy Penland to assist Harrison. When Harrison retired in May 2005, Lieutenant Ronnie Davis took over the duty of registering the video poker machines, and continued doing so until Medford lost his bid for re-election and left office in December 2006.

As Sheriff, Medford, with the assistance of Harrison, Penland, and Davis, accepted cash payments from the operators of video poker machines and owners of establishments in which the video poker machines were located. In exchange for these cash payments, Medford allowed certain of the video poker machines to be registered and operated in ways that violated the 2000 legislation.

Henderson Amusement, Inc., a video poker machine operator based in South Carolina, registered 122 video poker machines in Buncombe County and numerous machines in other North Carolina counties. Henderson Amusement was a frequent provider of cash bribes to Medford and his co-conspirators.

Medford, Harrison, Penland and Davis were subsequently indicted by a grand jury on charges of conspiracy to commit extortion under color of official right, conspiracy to commit mail fraud, mail fraud, aiding and abetting mail fraud, conspiracy to commit money laundering, conspiracy to obstruct the enforcement of criminal laws with the intent to facilitate an illegal gambling business, and conspiracy to conduct an illegal gambling business. Over their objection, the charges against Medford and Penland were tried together. The jury returned a verdict of guilty against Medford and Penland on all counts.

Medford appealed to the U.S. Court of Appeals for the Fourth Circuit, which affirmed the convictions.

LAW: On appeal, Medford argued that that the district court erred in admitting into evidence a recording of a December 19, 2006, meeting attended by Jamie Henderson, a co-owner of Henderson Amusement, Jeff Childers, an employee of Henderson Amusement, John Parker, a former deputy sheriff in neighboring Rutherford County, and Jack Conner, the newly-elected Sheriff of Rutherford County.

Neither Medford nor any of the co-conspirators named in Medford’s indictment attended the December 19 meeting, which was recorded by Parker and Conner in cooperation with the Federal Bureau of Investigation. The meeting occurred more than two weeks after Medford had left his position as Sheriff.

During the meeting, Henderson informed Conner that Henderson Amusement had placed video poker machines in 12 counties in North Carolina, including about 150 machines located in Buncombe County.

The U.S. District Court found that Medford was a part of a conspiracy with Henderson Amusement and that, therefore, the recording made at the December 19 meeting was admissible under Federal Rule of Evidence 801(d)(2)(E) as containing statements made by co-conspirators in furtherance of that conspiracy. Medford argued that this recording should not have been admitted into evidence because the recording related to a separate conspiracy in Rutherford County to which Medford was not a party, and occurred after Medford already had left office following his loss in the 2006 election.

As such, Medford contended, the recording did not qualify for admission under the hearsay exclusion provided by Rule 801 for statements made by co-conspirators during the course and in furtherance of a conspiracy.

Based on the record, however, it was unnecessary to resolve the question of whether the trial court erred in holding that the recording at issue was admissible under Rule 801(d)(2)(E), because any such error was harmless.

Under Rule 52 of the Federal Rules of Criminal Procedure, any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded. In order for an error to have a substantial and injurious effect or influence, it must have affected the verdict. Thus, if the evidence is not merely sufficient, but so powerful, overwhelming, or cumulative that the error simply could not reasonably be said to have substantially swayed the jury’s judgment, then the error is not harmful.

Here, even apart from Jamie Henderson’s statements at the December 19 meeting, there was overwhelming evidence concerning Medford’s agreement and participation with Henderson Amusement in operating an illegal gambling conspiracy. In light of this overwhelming evidence supporting the jury’s verdict, the U.S. District Court’s admission of the December 19 recording could not reasonably be said to have substantially swayed the jury’s judgment. Thus, even if the U.S. District Court had erred in admitting into evidence the recording of the December 19 meeting, such error was harmless.

Accordingly, the district court’s order was affirmed.

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