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Since COVID-19 began to spread across the United States, federal grand juries in districts around the country have stopped meeting, but prosecutors have continued to issue grand jury subpoenas, including in high-profile investigations. Without sitting grand juries, however, do prosecutors still retain the subpoena power? The answer is unclear, and anyone who receives a subpoena these days should take a close look at its validity.

Going back to basics, a typical federal grand jury subpoena for documents commands its recipient to appear in front of the grand jury on a specific date and timethe return dateand to bring with him or her certain specified documents. Notwithstanding that command, however, subpoenas often state that a personal appearance is not required if the requested records are delivered to a particular government agent any time before the return date.

Although subpoenas are issued under the authority of the grand jury, it is the United States Attorneys Office that plays the leadership role in grand jury investigations. As Judge Weinstein explained in an opinion summarizing the role of the grand jury, [i]t is the United States Attorney who gathers the evidence for later presentation to the grand jury. He calls and examines witnesses, presents documents, explains the law, sums up the evidence and requests an indictment.

Consistent with the United States Attorneys leadership role in investigations, grand juries play virtually no role in the preparation and issuance of subpoenas. Rather, Rule 17 of the Federal Rules of Criminal Procedure says that the court clerk is required to give prosecutors a signed and sealed subpoena that is otherwise blank so that prosecutors can fill it in with the necessary information, such as the name and address of the recipient and the appearance date and time.

Most recipients of grand jury document subpoenas never even see the grand jury. For the most part, recipients provide documents ahead of time to the assigned government agents. Against this background, it comes as no surprise that even without grand juries meeting regularly (or even meeting at all), federal prosecutors have felt comfortable sending out subpoenas, collecting records, and moving their investigations forward.

And yet, even despite the control that federal prosecutors exercise over the grand jury process, a quick look at the standard language that appears on subpoenas leaves no doubt about the importance the grand jury retains. For example, a pre-COVID-19 subpoena to the University of Kansas in the recent case involving allegedly corrupt recruiting within NCAA basketball states, in standard language, with capital letters for emphasis: GREETINGS: WE COMMAND YOU that all and singular business and excuses being laid aside, you appear and attend before the GRAND JURY of the people of the United States for the Southern District of New York. The subpoena gives the address of the courthouse and the date and time of the required appearance, and also identifies the alleged violations being investigated. The subpoena further provides that the recipient is not to depart the Grand Jury without leave thereof, or of the United States Attorney, and that [f]ailure to attend and produce any items hereby demanded will constitute contempt of court and will subject you to civil sanctions and criminal penalties, in addition to other penalties of the Law.

Even if recipients of subpoenas never see the grand jury, the subpoena form thus uses the existence of the grand jury to highlight for the recipient the seriousness of the matter, the necessity of compliance (WE COMMAND YOU, in capital letters), the importance of the GRAND JURY (again in capital letters), and the consequences of non-compliance (contempt, civil sanctions, criminal penalties, and more). The grand jurys existence and ability to sit (with a quorum) on a particular date, in the language of the standard subpoena, is thereby an instrumental part of the power of the subpoena to obtain compliance from its recipient.

What happens, then, when a federal prosecutor issues a subpoena listing a return date when the prosecutor knows or should know that no grand jury will be available, as appears to have happened on a regular basis over the past few months? In all likelihood, the recipient of such a subpoena simply produces the records in advance of the return date. But is such a subpoena valid in the first place? To the extent the subpoena misrepresents to the recipient that a grand jury will be available and standing by at a particular date and time, waiting to receive records, does that misrepresentation invalidate the request? If the recipient produces records anyway, should those records be suppressed and excluded from future cases?

There are no clear answers to these questions, but the existing case law suggests there may be more of an issue here than the Department of Justices business-as-usual approach in recent months otherwise signals. Going back to Judge Weinstein, his opinion in United States v. Kleen Laundry & Cleaners, Inc. addressed the question of whether evidence should be suppressed where no grand jury was sitting at the time the prosecutor issued the subpoena that led to the production of the materials at issue. Judge Weinstein found that suppression was not warranted, because the absence of a sitting grand jury at the time of issuance is not disturbing since the return date was set for a day when the jurors were normally in session. (Emphasis added.)

In recent months, however, COVID-19 has flipped Kleen Laundrys scenario on its head, as federal prosecutors have issued subpoenas in which the return dates are set for days when the grand jurors are not going to be sitting.

Few authorities address this precise scenario. Starting with the Department of Justice Manual for federal prosecutors, Section 9-11.142 states, for financial record subpoenas (which have some unique rules), that [s]ound grand jury practice requires that, among other things, "[t]he subpoena be returnable on a date when the grand jury is in session. This statement of sound practice mirrors the standard at one time adopted by the ABA, stating, [a] subpoena should be returnable only when the grand jury is sitting. There is some question of whether a grand jury could be said to be in session when grand jurors have been summoned and empaneled, but do not physically appear for their duty because of some emergency (such as a global pandemic). But even if a grand jury is technically in session under such circumstances, and is simply unable to muster a quorum, the problem is still the prosecutors representation on the face of the subpoena that a grand jury will be available on the return date when the prosecutor knows or should know that is not true.

Turning to the case law, the Justice Manual cites United States v. Hilton, 534 F.2d 556 (3d Cir. 1976), which stated, in the somewhat different context of a forthwith subpoena (meaning a subpoena demanding immediate compliance), that it was improper for the prosecutor to make the subpoena returnable at a time when no grand jury was in session, because [i]rrespective of the motivation of the prosecutor, the hard fact is that a misrepresentation was made: the subpoena commanded a forthwith presentation to the grand jury of materials at a time when the United States Attorney's office may or should have known that the grand jury would not be in session to receive the documents forthwith. The Third Circuit explained that [u]nder these circumstances, the grand jury subpoena is no substitute for a proper application before a judicial officer for a search warrant, and that the conduct of the government represented an egregious circumvention of Fourth Amendment procedures.

The Third Circuit was not even the highest court to review this issue in 1976. That same year, in an opinion by Justice Powell, the Supreme Court famously decided in United States v. Miller, 425 U.S. 435 (1976), that depositors do not have a valid Fourth Amendment interest in personal account information held by banks of other financial institutionsthe so-called third-party doctrine. Somewhat less famously, though, Miller also raised but declined to address the issue raised in this column: Whether an ordinary document subpoena that was returnable on a date when the grand jury is not in session is defective and requires suppression of the evidence obtained.

In the Fifth Circuits underlying opinion in Miller, which the Supreme Court reversed on Fourth Amendment grounds, the Fifth Circuit had held that a grand jury subpoena issued by the United States Attorneys office, for a date when no grand jury was in session, . . . does not constitute sufficient legal process within the meaning of applicable Supreme Court precedent, such that the defendant in the case was entitled to a new trial at which the improperly obtained records would be precluded. The Supreme Court in Miller, however, expressly declined to address the question of whether the subpoenas at issue were defective, finding that that because Miller had no Fourth Amendment interest in records held by a third party, there was no basis for suppression.

Justice Powells papers, which are preserved in a manuscript collection at Washington & Lee University, reflect some uncertainty in his chambers on the question of the subpoenas validity. In a preliminary memo describing the Fifth Circuits holding, both Justice Powell and a law clerk appear to have made margin notes reflecting their initial approval of the Fifth Circuits holding that the subpoenas were defective in various respects, with the clerk writing [t]hat certainly sounds correct to me, and Justice Powell writing that it [d]oes make sense. In a subsequent bench memorandum, however, a different law clerk included a footnote stating that a survey of the case law suggested there was nothing to the Fifth Circuits holding that the subpoena was defective, and Justice Powell at that point appeared to agree, although the focus of the concern for the later law clerk, at least, appeared to be the fact that the United States Attorneys Office, rather than the grand jury itself, had issued the subpoena (which is a non-issue). In any case, by expressly declining to decide the issue, and by resolving the case on Fourth Amendment grounds alone, the Supreme Court arguably left in place the Fifth Circuits holding that there was a defect in the subpoena.

On the state side (where somewhat different rules govern), the First Department of the New York Appellate Division, in Rodrigues v. City of New York, held that prosecutors were not entitled to absolute immunity with respect to the claim of abuse of process based on the prosecutors unauthorized issuance of grand jury subpoenas at a time when no grand jury had been convened to hear evidence against plaintiffs. In strong language, the First Department explained, [s]ince no Grand Jury was convened, it is clear that the prosecutor defendants stepped outside the scope of their authority in using the device of a Grand Jury subpoena to conduct their own investigation. Thus, insofar as the issuance of the subpoenas is concerned, these defendants acted in the absence of authority and are therefore not entitled to absolute immunity.

From this muddle of authorities, it seems plain that the best practice is for prosecutors to make subpoenas returnable at a time when an actual grand jury is sitting and when the grand jurors are expected to be present, rather than making subpoenas returnable on dates when they know grand jurors will not be present in the grand jury room. To the extent prosecutors need to obtain evidence sooner than such an approach would allow due the current global pandemic, prosecutors retain a number of tools to achieve their goals, including judicially authorized search warrants. Thus, for purposes of subpoena practice, during the period in which grand juries are not meeting due to COVID-19, return dates should be set for dates when the prosecutors have some good-faith basis for thinking the grand jury will be back in the courthouse.

Finally, to the extent prosecutors have already issued arguably defective subpoenas over the past few months, what is the remedy? In ongoing investigations, it may be difficult for defendants ultimately to seek suppression, particularly where prosecutors can represent that the records would inevitably have been obtained at some later date with a corrected subpoena, and also in light of the fact that compliance with the subpoena arguably constitutes a waiver of any objection to defects the subpoena may contain. To the extent recipients of subpoenas have not yet produced records, however, there may be a basis, in appropriate cases, to question any too-soon return date, and to insist on a return date when grand jurors will actually assemble.

To read more from Brian A. Jacobs, please visit http://www.maglaw.com.

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Quorum-tine: How COVID-19 Affects the Validity of Federal Grand Jury Document Subpoenas - Forbes

The novel coronavirus is giving rise to novel surveillance tools. While they can help contain the sweep of COVID-19, the monitoring and categorization of citizens could survive the pandemic with undue invasions of privacy. Legal safeguards are necessary to make sure that doesnt happen.

Innovative hardware and software, rushed into production by profiteers, are aimed at recording and storing peoples physiological functions, locations, and immunity levels. As with any new technology, error rates are high, and the consequences of mistakes will be magnified if used to exclude non-immune people from jobs, housing, courthouses, and public transportation. And unless information is automatically erased or sequestered, medical records could be compiled into databases of personal files that are accessible to law enforcement and immigration authorities.

The virtue of monitoring is self-evident during the crisis; less obvious are the longer-term dangers of doing so. With no treatment or vaccine, self-quarantine, and social distance are primary means of curtailing the spread. If people dont know theyre sickand neither do their fellow workers, diners, shoppers, passengers, theatergoers, sunbathers, gym users, and the likethe disease cannot be contained as public spaces reopen.

This is a matter of security. As seen after 9/11, public acceptance of extraordinary measures soars in the moment, then persists long after the need abates. The Patriot Act, which Congress passed hastily in 2001, created exceptions to legal protections that had been enacted in the 1970s. Government agencies had been violating the Fourth Amendment by spying on antiwar campaigners, civil rights leaders, and other political activists. But its been nearly two decades since the 9/11 attacks, and Congress has applied only minor patches to the holes the Patriot Act tore in the fabric of civil liberties.

The same thing could happen now. The COVID-19 pandemic has spurred particular interest in three areas of data collection: temperature-taking before admitting people to certain places, testing them for the virus, and tracing their contacts and testing them for antibodies to issue immunity passports, a prospect raised by officials in the U.S., Germany, and the U.K.

There are pluses and minuses in each of these areas, according to a series of carefully drawn white papers by the American Civil Liberties Union. They are sensibly balanced and worth summarizing. (Full disclosure: I donate to the ACLU.)

One,temperature checks as a price of admission might pick up infected individuals, but also generate false positives and false negatives. Many with the virus dont have a fever, and many who do, dont have the virus. As Jay Stanley of the ACLU observes, skin temperature can be elevated by sunburn, exercise, menopause, cancer, and other non-COVID conditions. And readings from the skin are less accurate than core body temperature taken by oral, anal, or ear thermometers.

Furthermore, heat emanating from skin cant be reliably determined unless the measuring device is repeatedly calibrated and held close to a person who stays still. Stand-off sensors and drones, which are being advertised as unobtrusive means of checking heart and breathing rates as well as temperature, do not work well when surveying groups of moving individuals, Stanley says. He notes that the Transportation Security Administration (TSA) considered, then suspended, a plan called Project Hostile Intent designed to identify potential terrorists by checking temperatures, heart rates, eye movement, and facial movements. Something of the kind could be revived under the guise of COVID screening, which risks being what Stanley calls public health theater.

Two, contact tracing by real human beings can work, but automated systems use cell phone locations that are imprecise. They also threaten privacy if their location logs are kept in a central database, according to Neema Singh Guliani, the ACLUs senior legislative counsel. She urges that any such tools be voluntary and their use transparent. The information, already collected by some companies, can reveal where a person goes to church, shops, works, attends meetings, visits medical facilities, or has late-night visits with someone outside the home. The results can be so extensive that the Supreme Court ruled in 2018 that under the Fourth Amendment, police need a warrant first. But the Fourth Amendment generally applies only to government, not private, companies.

Since the CDC recommends at least six-foot distances from someone who might be infected, most phone data are inadequate. Connections with cell towers can determine an area or a direction of movement, but not a precise location. A phones GPS receiver can fix a position within six feet only with strong signals from multiple satellites; a more common margin of error is fifteen to fifty feet. Nor can signals usually be picked up inside, so its no good for contact tracing if youre in a store, office, or theater.

China has begun using QR codes that citizens must scan with their phones to get into buses, taxis, subways and some buildings. That tells authorities when someone enters but not who is close by unless combined with Wi-Fi and Bluetooth connections.

The most promising method so far appears to be the Exposure Notification API (application programming interface) developed by Apple and Google to allow state health authorities to offer people an app that would tell them if they came close to an infected person. Use is purely voluntary, according to Jason Cross, writing in Macworld. You would request the states app and could disable it at will. People testing positive would take the initiative to register through the app, but with no identifying information.

If youre not ill and you sign up, and you get close to a virus carrier whos also in the system, your Bluetooth connections will trigger a text giving the date and length of your encounter, but not its location. Cross reports that the information is anonymizedonly a phones Bluetooth code, which changes every several minutes, would be uploaded to a database, with no personal identification. Once a person tests positive, she could authorize the disclosure of her proximity information from the previous fourteen days. Again, no names and no locations. Cross writes that three states so farAlabama, South Carolina, and North Dakotahave decided to try the system. Others might prefer one that identifies participants so health authorities can follow up.

One flaw, the ACLU notes, is that safe contact might be flagged. Guliani reports that in Israel, where security services have used location data to enforce quarantines, a woman who merely waved at her infected boyfriend from the street was told to stay home. If Bluetooth penetrated walls, neighbors in an apartment building might be falsely alerted. So might drivers near pedestrians, although the Apple-Google system would report the durations brevity.

This would work only with widespread enrollment. Yet about 40 percent of Americans over 65 and 30 percent of those earning under $30,000 a year do not have smartphones, Guliani says. And reliance on voluntary cooperation is both bad and good: bad because most people probably wont participate, good because coercive health tactics often backfire, she notes. Individualistic, anti-government impulses run strongly through American society. Witness those protesting stay-at-home orders.

Nevertheless, what seems voluntary can easily become required if landlords, employers, or government officials demand testing or enrollment before renting, hiring, or granting benefits. Current laws probably dont prevent such compulsion.

Three, immunity passports would also be highly problematic for similar reasons. Esha Bhandari, an ACLU senior staff attorney, argues that since antibodies true level of protection from COVID-19 is not yet known, relying on positive tests could produce complacency, endangering both individuals and institutions.

Requiring an immunity certification for work might divide populations between the haves and have-notsthose with antibodies and those without. It could exacerbate racial disparities, Bhandari says, since low-wage employees in jobs that cant be done at home are disproportionately black and Latino. The non-immune might never be eligible for a given job short of contracting and surviving COVID-19 if an immune worker is available to take the slot.

Therefore, immunity passports could also create perverse incentives to contract COVID-19 for people who are the most economically insecure, Bhandari argues. This is not as fanciful as it sounds. It happened in New Orleans during a yellow fever epidemic in 1847. Without immunity to yellow fever, newcomers would have difficulty finding a place to live, a job, a bank loan, and a wife, writes Sarah Zhang in theAtlantic, Employers were loath to train an employee who might succumb to an outbreak. Fathers were hesitant to marry their daughters to husbands who might die. Slaves who had acquired immunity were worth 25 percent more, she says.

Finally, the ACLU worriesas it always doesthat personal information collected in a good cause will be aggregated by corporations and government, in this case forming what Bhandari calls a health surveillance infrastructure that endangers privacy rights. Existing laws probably dont prevent data sharing by private firms, so opportunities are legion for intense discrimination in work, housing, travel, immigration applications, and other areas.

A good deal of legislation is needed to channel data and set limits. Otherwise, once the pandemic passes, Jay Stanley argues, routine and suspicionless collection could make physiological surveillance the norm. We dont want to wake up to a post-COVID world where companies and government agencies think they can gather temperature or other health data about people whenever they want.

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Protecting Public Health and Civil Liberties During a Pandemic - Washington Monthly

(The Conversation is an independent and nonprofit source of news, analysis and commentary from academic experts.)

Seth W. Stoughton, University of South Carolina

(THE CONVERSATION) The killing of an unarmed black jogger by white residents who assumed he was up to no good is shocking, but it should come as no surprise.

If anything, Ahmaud Arberys death in Georgia on Feb. 23 was predictable: the latest tragic example of the fatal consequences that can occur when private citizens seek to take the law into their own hands.

As a law professor and former police officer, what concerns me is not just that the men who killed Arbery may have thought that their attempted apprehension was legally sanctioned, but that they they would have had good reason to believe that. Most states still retain outdated laws that protect would-be vigilantes.

Vigilant snorers

So-called citizens arrest laws, which allow private individuals to apprehend an alleged wrongdoer, have been around for centuries. Such laws protect people from civil or criminal liability in the event they arrest someone.

In theory, that makes sense. Public safety is everyones responsibility, after all. In practice, however, citizens arrest doctrines have set the stage for tragic, unnecessary and avoidable confrontations and deaths.

Modern citizens arrest rules can be traced back to 1285, when Englands Statute of Winchester directed that citizens not spare any nor conceal any felonies and commanded that citizens bring fresh suit prosecute whenever they see robberies and felonies committed.

Back then, there was no law enforcement as we understand it today no cops, no prosecutors. It was largely left to private citizens to apprehend and prosecute felons.

Prior to the development of professionalized police agencies in the mid- to late-1800s, there was no particular legal distinction between arrests made by private citizens and those made by public officials.

In English cities and larger towns, able-bodied men were expected to take generally unpaid shifts patrolling as night watchmen. Watchmen were often conscripted, and citizens of means could hire someone to serve on their behalf, resulting in a dubious dedication to duty.

This practice extended beyond England to its colonies. An account published in the New York Gazette in the mid-18th century described night watchmen as a parcel of idle, drinking, vigilant Snorers, who never quelled any nocturnal Tumult in their Lives.

In the mid-1600s, the slave codes of the colonial American South declared that controlling the enslaved population was a matter of public responsibility the public here being exclusively white men. Paid and volunteer militiamen were tasked with, as the author Kristian Williams has noted, making regular patrols to catch runaways, prevent slave gatherings, search slave quarters and generally intimidate the black population.

These militiamen did little or nothing to address crime by whites, especially crimes against enslaved or free blacks.

Shopkeepers and security

Today more than 18,000 local, state and federal agencies provide police services in the U.S. But citizens arrest lives on in the form of a patchwork of statutes and common law doctrines.

Most states have shopkeepers privilege laws that provide a defense for business owners and employees who arrest someone for theft so long as they have probable cause. Resisting such an arrest is a crime in some states. Private security guards, similarly, may be authorized to make arrests, at least on the property they are hired to protect. And when bounty hunters capture someone who has jumped bail, the Supreme Court has said the arrest is likened to the rearrest by the sheriff of an escaping prisoner.

Those who are not a shopkeeper, security guard or bounty hunter may still be able to effect an arrest under more generic citizens arrest rules.

In many states, for example, an officer can make arrests for offenses classified as misdemeanors minor crimes typically punishable by up to a year in jail but a private citizen cannot. In other states, including Georgia, a private citizen may make an arrest only if they witness or have firsthand knowledge of an offense. And in some states, an individual may only be able to invoke citizens arrest as a defense to civil or criminal liability if the person they arrested actually committed an offense, while officers are protected if they had probable cause.

But in some ways, private actors have even more leeway to make arrests and use force than law officers because the constitutional rules that regulate searches, seizures, and interrogations do not apply when a private party commits the offending act.

Citizens may have more authority to use force than law officers, too, depending on state law.

In South Carolina, a citizen can use deadly force to effect the nighttime arrest of someone who has US$1 of stolen property in their possession or who flees when he is hailed if the circumstances raise just suspicion of his design to steal.

If an officer in South Carolina did the same, he would likely run afoul of state law or the Fourth Amendment, which the Supreme Court has held requires probable cause that the suspect poses a significant threat of death or serious physical injury.

Race and status

No one knows how many citizens arrests occur in the U.S. every year because the police are usually called and an officer processes the arrest, leaving little evidence of private involvement.

We do know, however, that private arrest authority is too often badly misused by those who believe their higher social status gives them authority over someone they perceive as having lower status. Frequently, this falls along racial lines, as seen in the detention of immigrants by militias at the U.S. border, the attitude of nightwatchmen in gated communities, and in situations like the Ahmaud Arbery case.

Gregory and Travis McMichael say they chased Arbery because they believed he was behind neighborhood burglaries. Arbery, of course, had committed no crime. He was just jogging.

And even if he had committed a burglary, the death would have still been the result of an unjustified act of vigilantism. As the Supreme Court has said, It is not better that all felony suspects die than that they escape. Remembering that as the U.S. considers reforming citizens arrest statutes may go a long way in preventing any further unnecessary deaths.

[Youre smart and curious about the world. So are The Conversations authors and editors. You can get our highlights each weekend.]

This article is republished from The Conversation under a Creative Commons license. Read the original article here: https://theconversation.com/ahmaud-arberys-killing-puts-a-spotlight-on-the-blurred-blue-line-of-citizens-arrest-laws-139275.

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Ahmaud Arbery's killing puts a spotlight on the blurred blue line of citizen's arrest laws - Huron Daily Tribune

FORT WAYNE, Ind. (WANE) A lawsuit filed against the Allen County sheriff for pushing a 15-year-old boy will now be heard in federal court.

Allen County Sheriff David Gladieux was charged with misdemeanor battery after an investigation into an altercation involving Gladieux and a teenage boy that took place at the Three Rivers Festival.

The parents of the 15-year-old filed a tort claim notice in August, asking for $300,000 in damages for medical costs, emotional distress, and other damages, according to court documents.

The lawsuit had been pending in Allen Superior Court, but Gladieuxs attorneys filed a notice of removal to U.S. District Court last week. The lawsuit claims that the sheriff violated the teens 4th rights under the Fourth Amendment, which protects citizens from unlawful searches and seizures.

As of this story being published, no hearings or court dates have been set.

Back in September, Gladieux reached a pretrial agreement and was enrolled in the Allen County Prosecutors Office Pretrial Diversion Program. With the agreement, Gladieux was required to pay a $334 fee, complete alcohol and anger management programs, and make a public apology.

According to documents obtained by WANE 15, Gladieux completed 12 hours of a risk management program for alcohol use as recommended. He also completed all requirements of the National Association for Alcoholism and Drug Abuse Counselors, as well as 10 hours of Conflict Resolution for Recovery and Relapse Prevention.

With the completion of the programs, the battery charge will be dismissed. According to Gladieuxs attorney, as long as the sheriff does not get arrested between now and Oct. 18, the charges will be dismissed.

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Lawsuit filed against Allen County sheriff for injuring teen moved to federal court - WANE

Confirmed Judges, Confirmed Fears is a blog series documenting the harmful impact of President Trumps judges on Americans rights and liberties. Cases in the series can be found by issue and by judge at this link.

Trump Sixth Circuit judge Eric Murphy cast the deciding vote to allow the use of evidence taken from a man who was asleep when police began to search him without his consent. The April 2020 case is United States v. Wilson.

Very early one morning in Lansing, Michigan, police officers received a call about a man apparently asleep or passed out and sitting alone in a car in what police had labeled a high-crime area. The officers claimed that when they could not rouse him using a flashlight, they became concerned he could be having a medical problem; they then opened the door and shook his right arm until he responded. They said that when they moved his arm, he suspiciously moved it near his waistband, prompting concern over whether he had a weapon. They asked him to stand with his hands raised. He did so and identified himself as Duke Lantrel Wilson and said he had been visiting a friend in the area. An officer saw an open bottle of what appeared to be alcohol in the car, saw Wilson stumble and sway back and forth, and thought he was intoxicated.

When Wilson got out of the car, an officer asked if he could pat him down in order to make sure our safety is fine. The officer claimed that Wilson nodded yes, and then put his hands behind his back as requested. The pat down revealed a pistol, and Wilson was handcuffed and arrested. The officers learned that he had previously been convicted of a felony and was on supervised release. He was charged in federal court with improper possession of a weapon as well as possession of illegal drugs, which they later found in his pocket.

Wilson moved to suppress the evidence against him, contending that he did not consent to the search and that the officers did not have reasonable suspicion to pat him down. The trial judge rejected Wilsons motion, claiming that the totality of the circumstances indicated that he had consented and that in any event, the officers had reasonable suspicion enough to justify their pat down. In a 2-1 decision with Murphy providing the deciding vote, the Sixth Circuit affirmed.

Judge Karen Nelson Moore vigorously dissented, relying in large measure on revealing body camera footage of the polices conduct that the majority did not dispute. As Moore explained, the footage directly contradicts the officers version of the facts concerning consent. The footage unmistakably reveals, Moore went on, that Wilsons nod occurred before the request to pat him down, and that he did not voluntarily put his hands behind his back, but instead that one of the officers grabs Wilsons left wrist and moves it behind his back, before Wilson has an opportunity to act. The claim that Wilson voluntarily consented, Moore concluded, was utterly discredited by the record, and the court should not rely on such visible fiction.

Moore explained that the video footage also contradicted the assertion that the police officers had reasonable suspicion to think Wilson had a weapon after they first roused him. The footage plainly reveals, she noted, and one of the officers admitted on the stand, that when he shook Wilsons arm, Wilson simply returned the arm to its initial, resting position on his lap, and did not suspiciously relocate to his waistband. The facts revealed that the officers did not have reasonable suspicion to search Wilson, Moore concluded, and at the very least, the case should have been sent back to the lower court.

Finally, Moore explained what was wrong with the backup argument of the district court and the majority that Wilsons firearm would have inevitably been discovered even if the arguably unlawful search had not occurred. The case law makes clear, Moore went on, that in order to invoke the inevitable discovery doctrine, it must be proven that an arrest and later search of Wilson would have happened if the initial search did not. The facts made clear, Moore elaborated, that there was uncertainty as to whether the police would have arrested Wilson in the absence of the initial search, since the police were not investigating a crime, but instead claimed to be concerned about his welfare. The bodycam footage showed that the officers repeatedly assured him that he was not in trouble or under arrest or anything like that. At the very least, she concluded, the Fourth Amendment demands a more robust inquiry than simply accepting one officers later testimony that he would have arrested Wilson anyway.

As a result of Murphys deciding vote, however, the polices apparent violation of Wilsons Fourth Amendment rights was upheld, creating a decision that perpetuates a lack of accountability for law enforcement unwarranted search and seizures practices. Such practices disproportionately harm people of color, and could harm others in the Sixth Circuit.

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Trump Judge's Vote Excuses Police Violation of Fourth Amendment in Unlawful Search and Seizure Case: Confirmed Judges, Confirmed Fears - People For...