Case o' The Week: Cop "Opens the Door". . . to Suppression - Ngumezi and Cop-Entry into Cars without P.C.

Fourth alive and well, at S.F. Shell . . .

United States v. Ngumezi, 2020 WL 6814674 (9th Cir. Nov. 21, 2020), decision available here.

Players: Decision by Judge Miller, joined by Judge Hunsaker and visiting D.J. Schlitz.

  Big win for ND Cal Appellate AFPD Steven Koeninger, with briefing help from (former) AFPD Jon Abel (now a U.C. Hastings Associate Prof).

 Facts: Ngumezi was legally parked, getting gas, at a San Francisco station )(pictured above). Id. at *1. [Ed. Note: Malik Ngumezi is a young black man].

  S.F. Police Officer Kolby Willmes saw the car had no plates, and decided to investigate. Id. In reality, Mr. Ngumezi had recently purchased the car and had a bill of sale affixed to the windshield. Id. [At that time, a lawful alternative to paper plates].

  Ngumezi declared that Officer Willmes opened the passenger side door without permission and asked Ngumezi for his license and vehicle registration. Id.

  Officer Willmes [who conspicuously did not activate his body camera] said he “did not remember” if he opened the door. Id.

  The officer learned Ngumezi did not have a driver’s license: an inventory search then produced a gun inside the car. Id.

   Ngumezi was charged with being a felon in possession of a firearm. The district court denied the suppression motion, and refused to conduct the requested evidentiary hearing.

  (Because this was the Northern District of California), the defense went through a stip facts trial to preserve the issue for appeal. Id. at *2.

 Issue(s): “On appeal, Ngumezi challenges only the denial of the motion to suppress . . . . His principal argument is that whether or not Officer Willmes had reasonable suspicion at the time he opened the door, opening the door and leaning inside constituted a search that violated the Fourth Amendment because it was not authorized by any exception to the warrant requirement.” Id.

  “The key facts are not disputed: Ngumezi says that Willmes opened the car door and leaned into the car, and Willmes does not specifically deny that that is what he did. We therefore must consider whether police officers who have reasonable suspicion sufficient to justify a traffic stop – but who lack probable cause or any other particularized justification, such as a reasonable belief that the driver poses a danger – may open the door to a vehicle and lean inside.” Id.

 Held: “We conclude they may not.” Id.

   “[We do not] see how courts could administer a test that would require them to distinguish between Willmes leaning into the passenger-side area of Ngumezi’s car and, say, an officer crawling into the back of a car to look under the seats. Instead, we apply a bright-line rule that opening a door and entering the interior space of a vehicle constitutes a Fourth Amendment search.” Id. at *3.

  “Nothing about this case calls for a remedy other than the typical remedy for a Fourth Amendment violation, which is the exclusion of evidence discovered as a result of that violation from criminal proceedings against the defendant.” Id. at *5 (internal citations and quotations omitted). 

Of Note: To the Ninth’s frustration, the government put all of its Fourth Amendment eggs in one appellate basket. The government complained that the Court should not “apply the exclusionary rule because the benefits of deterrence do not outweigh the social costs of suppression.” Id. at *5. 

The Hon. Judge Miller

Judge Miller makes short work of this pitch, explaining that the “flagrancy of the government’s conduct” is only relevant to the attenuation doctrine, but is not a free-standing basis for avoiding suppression. See also United States v. Garcia, 974 F.3d 1071, 1076-82 (9th Cir. 2020).

   Use Ngumezi to knock down the government’s boilerplate “flagrancy” argument when next it arises.

 

How to Use: [Ed. Note: the author of this memo litigated the suppression motion in district court]. While the Ngumezi Appellate AFPDs did a remarkable job, the government also helped to deliver this win. 

  Turn to this opinion for Judge Miller’s intellectually-honest (albeit exasperated) refusals to do the government’s work for it (on “forfeiture” of defense arguments, and on (non-asserted) theories of attenuation).                                            

For Further Reading: Mr. Malik Ngumezi filed a complaint against SF Police Officer Kolby Willmes, Star 1216, alleging that this was a race-based stop, charging failure to comply with the San Francisco Police Department body camera policies, and Fourth Amendment violations.

  The San Francisco Public Defender recently made public an important service that helps track these cop complaints. See “Copwatch” web page here. 

 

 

 

Image of SF Shell Station from https://gregology.net/2019/05/san-francisco-day-trip/

 Image of the Honorable Judge Miller from https://www.washingtonpost.com/politics/2019/02/27/dangerous-first-conservative-judge-installed-after-vetting-by-only-two-senators/ 

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

 

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Case o' The Week: A Grand is "Substantial" (in the Ninth) - George and "Substantial financial hardship" guideline enhancement

The Hon. Judge Eric D. Miller

“‘I stole only from those who were already poor’ is not often advanced as an argument in mitigation, and we find it unpersuasive.”

   (Guess how the remaining sentencing issues panned out).

United States v. George, 2020 WL 547383, *4 (9th Cir. Feb. 4, 2020), decision available here.

Players: Decision by Judge Miller, joined by Judges Owens and Ryan Nelson. Hard-fought appeal by former AFD Ben Coleman.  

Facts: Christopher George was found guilty of fraud offenses after trial. His companies “defrauded nearly 5,000 homeowners out of millions of dollars.” Id. at *1. George’s original twenty-year sentence was reversed by Judges Reinhardt, W. Fletcher and Owens. 713 Fed.Appx. 704 (9th Cir. 2018). 

  On remand the district court and government agreed that newer (2015) guidelines should be used. Id. The court then reduced George’s sentence “by just five months, to 235 months.” Id. George appealed again: the case went to the new panel of Judges Miller, Owens and Ryan Nelson. Id.

Issue(s): “[George] focuses on the district court’s application of section 2B1.1(b) (2)(C) of the Guidelines, which provides for a six-level enhancement if the offense ‘resulted in substantial financial hardship to 25 or more victims.” U.S.S.G. § 2B1.1(b)(2)(C)(2016).’” Id. “George argues that the district court erred in finding that 25 or more victims suffered substantial financial hardship. Addressing that argument requires us to examine the meaning of ‘substantial financial hardship,’ a term we have not previously interpreted.” Id. at *2.

Held: “We conclude that section 2B1.1(b)(2) requires the sentencing court to determine whether the victims suffered a loss that was significant in light of their individual financial circumstances.” Id. at *2.

  “The notes reinforce the conclusion that our inquiry must consider how the loss affects the victim. For some victims, a loss of, say, $10,000 might not have any of the listed effects. For others, a much smaller loss might have such effects. The provision thus requires a focus on the victims’ individual circumstances, a focus that is consistent with the Sentencing Commission’s goal in amending section 2B1.1 in 2015 to ‘place greater emphasis on the extent of harm that particular victims suffer.’” Id. (internal quotations and citation omitted).

Of Note: Relying on the Ninth’s 1999 Merino decision (where a $32,000 cleanup was not substantial), George argued on appeal that the $1,000 to $3,000 fees lost by most victims was not “substantial” here. Judge Miller is unpersuaded. The district court found that these victims were on the brink of losing their homes because of mortgage non-payments. For these specific victims, a couple of thousand in fees paid to George’s (fraudulent) loan-modification company was “substantial” -- the district court did not clearly err. Id. at *3.

   Note that this is a whopping +6 offense level bump – a worrisome and expansive reading of “substantial” for fraud cases.    

How to Use: One has to squint hard to see the silver lining in this dark guideline cloud, but there’s a brief tort-ish analysis of interest towards the end of the opinion. The government argued that this enhancement did not require foreseeability – that is, the government argued that there was no requirement that the defendant could foresee that his actions would cause the victim’s “substantial” loss. 

  Judge Miller rejects the government's “but-for causation” argument, and presumes that the Commission meant to include the (higher) proximate cause requirement. Id. at *4. This is a useful interpretation for when the government stretches that causal link to the breaking point.

  (Unfortunately for Mr. George, the Ninth finds that both "but-for" causation and proximate cause were met here: his 19 ½-year sentence stands).

                                               

For Further Reading: Last week Mr. Roger Stone was sentenced to forty months in custody. His sentencing sparked two stories. First, DOJ’s dueling mitigation-memo revealed how much political meddling has undermined the independence of federal prosecutors. 

  The Stone sentencing also, however, illustrated just how unfairly punitive the sentencing guidelines are for all federal defendants. DOJ was right, to recommend a lower sentence than the whopping 7-9 years urged by the line AUSAs. Notably, Judge Amy Berman Jackson agreed with DOJ that the guidelines were too high -- even for this colorful defendant -- in a thoughtful and underreported sentencing decision. The Stone sentencing was a victory for judicial independence in sentencing, and yet another black eye for the increasingly irrelevant sentencing guidelines. 

   Who better to give us insights on both "Stone stories" than a former criminal-division AUSA, who is now a proud, hard-fighting member of a CJA panel?

N.D. Cal. CJA Panel Member Jeffrey Bornstein

 For a very thoughtful op-ed on both stories that weave through the Stone brouhaha, see “Trump’s Meddling is Wrong, but so are Overlong Sentences,” by stalwart NorCal CJA member Jeffrey Bornstein, available here. 

Image of the Honorable Judge Eric D. Miller from https://www.youtube.com/watch?v=nHQYcZ9Kr98

Image of Mr. Jeffrey Borstein from https://rbgg.com/attorneys/partners/jeffrey-l-bornstein/

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: Miller Sure of Ped-i-Cure - Ped, Conditions of Supervised Release, and Limitations of Appellate Review

The Honorable Judge Eric Miller

  Ninth nixes appellate fixes.

United States v. Ped, 2019 WL 6042813 (9th Cir. Nov. 15, 2019), decision available here.

Players: Decision by Judge Eric Miller, joined by Judges Owens and Ryan D. Nelson. 

  Supervised release win for AFPD Gia Kim, Central District of California.  

Facts: After a parole search for his brother produced guns at his house, felon Ped plead guilty, with a conditional plea agreement. The agreement allowed Ped to challenge the denial of a motion to suppress. Id. at *2.

  The district court imposed (old) standard conditions of supervised release: 1) that Ped “support his . . . . dependents and meet other family responsibilities,” that he 2) “work regularly at a lawful occupation,” and 3) that he “notify third parties of risks that may be occasioned by [his] criminal record or personal history or characteristics.” Id. at *4.

  In United States v. Evans, 883 F.3d 1154 (9th Cir. 2018), the Ninth had held that these conditions were unconstitutionally vague. Id. Ped asked these conditions be corrected on appeal.

Issue(s): The government declined to assert the appeal waiver, and agreed that the conditions were unconstitutional. On appeal, “the government suggested that we rewrite the conditions and affirm the judgment as modified.” Id. at *4.

Held: “Upon further consideration, the government changed its position and argued that a remand is appropriate. We agree.” Id.

Of Note: The key aspect of the supervised release beef in Ped is not whether the conditions of supervised release are constitutional: they aren’t.

  Instead, Judge Miller spills a fair amount of ink explaining why the appellate court cannot cobble together a fix, and instead must vacate the contested conditions and remand for resentencing. Id. at *5.

  Judge Miller is a new Ninthjurist, and Ped may offer an interesting insight into his views of the limited roles of an appellate court. That worked well for the defense here – but we may be less keen on this district-court deference when we’re attacking a decision under an “abuse of discretion” standard.

How to Use: Ped won this S/R battle, but lost the parole-search war at the heart of this case. Id. at *1. 

  The cops in this case learned that Ped’s brother, who was on “post-release community supervision” (like parole), lived in a house where Ped also resided. Id. at *1. Three months later (and after the Probation Officer was given a new and updated address for the brother) the cops searched the brother’s old original residence without a warrant. Id. at *2. The cops discovered Ped, meth pipe in hand, and went on to extract Ped’s confession to the guns found at the house. Id.

  The suppression issue was whether these sloppy cops had probable cause to believe the brother still lived at Ped’s house, when they relied upon three-month old residence info and when they didn’t bother to learn the new and correct address given to the P.O. Id. at *3.

  “Meh - good enough for government work,” is the gist of the disappointing Fourth Amendment holding: “To be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials.” Id. at *3.

  Ped, unfortunately, is an important – albeit fact-bound – decision on probable cause and parole searches of third-party residences. It merits a close read for parole-search cases.

                                               

For Further Reading: We defense attorneys review our clients’ priors. Turns out we should be checking cops’ priors as well. In a fascinating piece, the East Bay Times reveals the number of cops with “dubious backgrounds” in the McFarland Police Department. See article here.

  Want to see if a cop in your case has a conviction? This article has a link to a convicted-cop database, that you can use to run hundreds of current and former California law enforcement officers who were convicted of a crime since 2008. 

  With our Federal courthouse transforming into the Northern branch office of San Francisco’s Hall of Justice, see article here, this convicted-cop database is of particular interest to the NorCal federal defense bar.

Image of the Honorable Judge Eric Miller from https://www.youtube.com/watch?v=nHQYcZ9Kr98

Image of the Hall of Justice seal from https://www.kqed.org/news/11722940/san-francisco-investigator-disciplined-for-issuing-subpoena-under-false-pretenses 

Steven Kalar, Federal Public Defender, N.D. Cal. Website at www.ndcalfpd.org

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