Tuesday, October 18, 2016

Keep it out! Know the factors that make a hearsay statement testimonial

Andrew Wills v. United States (decided October 13, 2016).

Players: Associate Judges Beckwith and McLeese, Senior Judge Reid.  Opinion by Judge Beckwith.  Christine Pembroke for Mr. Willis.  Trial judge: Rhonda Reid Winston.

Facts: MPD Sergeant Brett Parson responded to a report of an assault in progress at a gas station and saw a man and woman next to a yellow Mustang.  Sergeant Parson motioned for the woman to come over to him and asked whether she was okay.  The woman said she was, and told Sergeant Parson that the man had her keys.  Sergeant Parson asked how she got the keys, and she responded, “He snatched them from me.”  At Mr. Wills' trial on second-degree theft and assault charges, Sergeant Parson identified Mr. Wills as the man at the gas station.  The woman did not testify at trial.

Issue: Whether the introduction of the woman’s statement that Mr. Wills “snatched [the keys] from me” violated the Confrontation Clause.

Holding:  Yes.  This out-of-court statement by a witness who did not testify at trial was “testimonial” and therefore inadmissible.  See Davis v. Washington and Hammon v. Indiana, 547 U.S. 813 (2006).
Of note: The Court analyzed the following factors in determining that there was no ongoing emergency and that the primary purpose of the interrogation was “to establish or prove past events potentially relevant to later criminal prosecution,” making the statement testimonial:

  • When Sergeant Parson arrived, the incident was over, and the scene was not volatile or chaotic; people coming and going from the gas station “didn’t pay much of a mind” to what was happening.

  • Sergeant Parson had the support of at least two other officers. 

  • The woman was immediately separated from Mr. Wills. 

  • There was no evidence that Sergeant Parson saw any weapons. 

  • Mr. Wills and the woman were not fighting or arguing.

  • The woman was crying and breathing heavily but she had no apparent injuries.

  • Mr. Wills was still on the scene during the interview and the woman looked back at him as she walked over to Sergeant Parson but Sergeant Parson separated her by merely motioned for the woman to come over to him, rather than by drawing his gun or ordering Mr. Wills to the ground.

  • The woman immediately assured Sergeant Parson that she was okay.

  • By the time Sergeant Parson asked the woman how Mr. Wills came to possess her keys, another officer was with Mr. Wills and there was no reason for Sergeant Parson to think that the woman was still in danger. 

  • The woman did not appear to be seeking physical protection or medical assistance when she was responding to police questions.  Rather, she was describing the circumstances of the earlier incident.  NG

Friday, October 14, 2016

Conviction Affirmed Based on Proof of Motive and Discredited Defendant Testimony

Dominique Bassil v. United States (decided October 6, 2016).

Players: Chief Judge Washington, Associate Judge Glickman, and Senior Judge Belson.  Opinion by Judge Glickman.  PDS for Ms. Bassil.  Trial Judge Robert E. Morin.

Facts: Ms. Bassil was tried and convicted for second-degree murder after stabbing her boyfriend, Vance Harris, in the kitchen of their apartment sometime after 2 A.M. on August 13, 2011. Three weeks before the homicide, Ms. Bassil had threatened to evict Mr. Harris for spending money on a trip to Miami instead of contributing to the rent. Later, she texted that she would “fuck [Mr. Harris] up if [he didn’t] stop playing with [her].” On August 12, at a wedding reception, Ms. Bassil became agitated when Mr. Harris ignored and ridiculed her and danced with other women. Ms. Bassil yelled, hit Mr. Harris, and called him names. Police later encountered Ms. Bassil sitting outside of Mr. Harris’s truck in Capitol Heights, MD, on the couple’s way home from the wedding. Ms. Bassil later told homicide detectives that Mr. Harris had physically abused her but recanted this allegation at trial.

Early the next morning, Ms. Bassil left the apartment and told building security to call an ambulance or police because she had stabbed her boyfriend.  When police came, she said Mr. Harris had come into their bedroom, hit her in the face and neck, dragged her out of bed, and cornered her in the kitchen, where she stabbed him to escape. She said she had to stab Mr. Harris because he was pushing and choking her. Her later statements to police and the jury differed as to how the incident began and ended and were undermined by Mr. Harris’s stature, injuries, and level of intoxication, testimony about the lack of injury to Ms. Bassil, and testimony about the scene.

Issue: Whether the evidence was sufficient to prove that Ms. Bassil did not act in self-defense.

Holding: Yes. Even crediting Ms. Bassil’s testimony, she never claimed her life was in danger from Mr. Harris and given her failure to flee during the purported attack, the jury could have found that she did not fear for her life or that any such fear was objectively unreasonable. Evidence of Mr. Harris’s size, intoxication, and injuries, the lack of injury to Ms. Bassil, and the crime scene, as well as direct evidence of motive (e.g., text messages and public outbursts) supported the government’s position that Ms. Bassil attacked Mr. Harris in the bedroom out of pent-up rage and that she later ambushed him in the kitchen for the same reason.  The jury could have found that Ms. Bassil’s statements about the stabbing and the events leading up to it were false in a way that implied consciousness of guilt. 

Of Note: Particularly in light of this opinion, advocates should be mindful of how client testimony may affect a possible sufficiency argument, when advising them on their right to remain silent or testify at trial.  WC

Read the opinion here.

Friday, October 7, 2016

Inevitable Discovery Based on Ongoing Investigation

Allen J. Logan, Jr. v. United States (decided October 6, 2016).

Players: Chief Judge Washington, Associate Judge Glickman, and Senior Judge Belson.  Opinion by Senior Judge Belson. Richard S. Stolker for Mr. Logan. Trial Judge Rufus G. King, III. Motions Judge Neal E. Kravitz. 

Facts: Mr. Logan was tried and convicted for the murders of Mika Washington and Simona Druyard and the assault of Mika’s father/Simona’s tenant, Mr. Amin Washington, in Mr. Washington’s home in Northeast Washington, D.C.  Evidence showed that on June 14, 2002, after Mr. Washington told Mr. Logan via cell phone that he would not be able to invest long-promised millions into Mr. Logan’s restaurant/nightclub, a friend drove Mr. Logan to Mr. Washington’s house, where Mr. Logan slit the throats of Mr. Washington, his son, and his landlady.

Police arrested Mr. Logan the same day and seized his phone.  The following day, police executed a search warrant on Mr. Logan’s home and seized a bill containing his cell phone number.  Detective Garvey spoke to Mr. Logan’s upstairs neighbors, who reported that he had become irate on the 14th after receiving a 3 p.m. phone call.  Detective Garvey then looked through the contacts and call history on Mr. Logan’s phone without a warrant.  In this way, Detective Garvey identified the friend who drove Mr. Logan to Mr. Washington’s house.  He also identified Mr. Logan’s girlfriend, who attested to Mr. Logan’s rage upon receiving Mr. Washington’s call.  Police did not obtain a subpoena for Mr. Logan’s detailed phone records until June 20, 2002.

Issue: Whether the trial court erred in failing to suppress the testimony of witnesses discovered by means of the illegal, warrantless search of Mr. Logan’s cell phone.

Holding: No. The inevitable discovery doctrine applies.  Police were already investigating Mr. Logan for the murders of Mika Washington and Simona Druyard when Detective Garvey illegally searched Mr. Logan’s phone.  Police had reason to investigate the 3 p.m. phone call that, according to the neighbors, enraged Mr. Logan.  Protocol dictated that police seek a subpoena for phone records in a case like this.  

Of Note: The DCCA has written that “the lawful process which would have ended in the inevitable discovery [must] have . . . commenced before the constitutionally invalid seizure.”  Hicks v. United States, 730 A.2d 657, 659 (D.C. 1999) (quoting Douglas-Bey v. United States, 490 A.2d 1137, 1139 n.6 (D.C. Cir. 1985)) (brackets in original).  Here, the Court holds that while this may be true, the “lawful process” that must have commenced need not be “formal,” Slip Op. 9, and that such a “lawful process” began in this case by virtue of the “substantial concerted investigation of appellant’s conduct,” id. at 13.  But advocates should remember that mere intent to lawfully obtain evidence will not sanitize an illegal search.  See United States v. Eng, 971 F.2d 854, 861 (2d Cir. 1992) (“If the inevitable discovery exception can be applied only on the basis of the [government’s] mere intention to use legal means subsequently.” (quoting United States v. Cherry, 759 F.2d 1196, 1205 n. 10 (5th Cir.1985), cert. denied, 479 U.S. 1056, 107 S.Ct. 932, 93 L.Ed.2d 983 (1987)).  The decisive factor here is that police had not only means and intent, but also duty, to obtain Mr. Logan’s phone records.  Slip. Op. at 12.  WC

Tuesday, October 4, 2016

Gant Reloaded: Search “Incident to” a Subsequent Arrest

 United States v. David D. Lewis (en banc) (decided September 29, 2016)

Players: Chief Judge Washington, Associate Judges Glickman, Fisher, Blackburne-Rigsby, Thompson, Beckwith, Easterly, and McLeese.  Majority opinion by Judge McLeese, joined by Judges Glickman, Fisher, Blackburne-Rigsby, Thompson, and McLeese.  Dissent by Judge Beckwith, joined by Chief Judge Washington and Judge Easterly.  PDS for Mr. Lewis.  Trial Judge: Robert I. Richter.

Facts: Officer Michael Alto followed David Lewis’s car to a parking spot in Northwest Washington, D.C., after noting a broken headlight and determining that Mr. Lewis’s license was suspended.  When Mr. Lewis pulled into the spot, Officer Alto pulled up and asked for Mr. Lewis’s license and registration.  Mr. Lewis opened the car door, allowing Officer Alto to see a half-empty bottle of PatrĂ³n tequila in the center console.  Mr. Lewis’s passenger, Brittney Gibbs, said that the bottle was hers.  Ms. Gibbs brought the bottle to Officer Alto at the officer’s request.  Officer Alto then placed Mr. Lewis in handcuffs.  Neither Mr. Lewis nor Ms. Gibbs smelled of alcohol.  

When Officer Brown arrived, Officer Alto instructed her to search the car.  The officers later testified that their purpose was to uncover further proof that an occupant possessed an open container of alcohol and to ensure that the car was contraband- and alcohol-free, in case they let Ms. Gibbs drive it away.  When Officer Brown opened the driver-side door, she smelled marijuana and found a cup containing an alcohol-smelling liquid on the front passenger seat.  Ms. Gibbs said that the cup was hers.  Officer Brown also found a bag in the back seat that contained a loaded handgun and a box of ammunition.  Officer Brown then placed Ms. Gibbs under arrest. 

Ms. Gibbs was charged with possessing the open container of alcohol and the marijuana later found on her person.  Mr. Lewis was charged with carrying a pistol without a license, possession of an unregistered firearm and ammunition, and operating a vehicle with a suspended license.  The trial court suppressed the gun, ammunition, and marijuana, finding the search of Mr. Lewis’s car unreasonable. 

Issue: Whether the search of Mr. Lewis’s car was a lawful search incident to Ms. Gibbs’s arrest, even though the police did not decide to arrest her until after the search was complete.

Holding: Yes. Under Arizona v. Gant, 556 U.S. 332 (2009), the search of a car for evidence is lawful if: (a) the police have probable cause to arrest for an offense; (b) the suspect recently occupied a vehicle; (c) the police have reasonable, articulable suspicion to believe that the vehicle contains evidence of the offense; (d) at the time of the search, the police have not released the suspect or issued the suspect a citation; and (e) the suspect’s formal arrest follows quickly on the heels of the search.

A Gant search may be lawful even if it precedes arrest.  In Rawlings v. Kentucky, the Supreme Court said “[w]here formal arrest follow[s] quickly on the heels of a challenged search of [a supect’s] person, we do not believe it particularly important that the search preceded the arrest rather than vice versa.”  448 U.S. 98, 111 (1980).  Lower courts have applied this statement broadly, and it is now “deeply entrenched in the law.”  Even before Rawlings, D.C. adopted a rule whereby search or seizure could precede arrest, provided the officer already had probable cause to arrest.  See Waters v. United States, 311 A.2d 835, 836 (D.C. 1973) (citing Bailey v. United States, 389 F.2d 305, 207 (1967)).

Mr. Lewis’s proposal to limit Gant and Rawlings to searches conducted when an arrest is already under way is foreclosed by Supreme Court cases that prohibit inquiry into an officer’s subjective intent.  The legality of a Gant search must depend on objective circumstances, not whether an officer subjectively intends to arrest.  Knowles v. Iowa, 525 U.S. 113 (1998) does not contradict this reasoning, as it relied on objective circumstances — (1) the issuance of a pre-search citation and (2) the fact that no further evidence of speeding could have been found in Knowles’s car.

Of Note:
Under the rule announced in this opinion, police wield great discretion to search a car where they have probable cause to believe a recent occupant has committed an arrestable offense.  Advocates should therefore be mindful of codified restrictions on the power to arrest, which can change quickly. See, e.g., D.C. Code 23-581.

While the Court finds that subjective intent cannot be relevant to the validity of a Gant search, see Slip Op. at 16-18, courts have found subjective intent relevant to other Fourth Amendment inquiries—for instance, whether an officer has acted in “flagrant disregard” for the limits of a search warrant; see, e.g., United States v. Heldt, 668 F.2d 1238, 1268 (D.C. Cir. 1981) (per curiam), cert. denied, 456 U.S. 926 (1982); United States v. Rettig, 589 F.2d 418, 423 (9th Cir. 1978) (Kennedy, J.); State v. Valenzuela, 536 A.2d 1252, 1267 (1987) (Souter, J.), cert. denied, 485 U.S. 1008 (1988); and whether a false statement in a warrant affidavit was made intentionally or with reckless disregard for truth under Franks v. Delaware, 438 U.S. 154 (1978); see, e.g., Lombardi v. City of El Cajon, 117 F.3d 1117, 1123 (1997).  As the opinion recognizes, motive to search remains a factor in evaluating the legality of administrative and special needs searches.  See Slip. Op. at 16-17.  Advocates should continue to insist upon the relevance of motive and/or subjective intent in these circumstances.  WC