by Jill Paperno, Esq., author of Representing the Accused:A Practical Guide to Criminal Defense and Brian Shiffrin, Esq., Easton Thompson Kasperek Shiffrin LLP

On December 15, 2014, in Heien v. North Carolina, the United States Supreme Court found that a police officer's mistaken belief that the law required two working brake lights, when it only required one, which led to a stop and consent search of a vehicle, was reasonable, and as such, the product of the search would not be suppressed. Sadly, a defendant not trained in the law as a police officer is, who had the mistaken belief that only one light was necessary instead of two, would not be treated as kindly by the courts. The dissent and concurrence discuss whether this will encourage ignorance on the part of the officers. Remember that if you are in a situation in which federal law is bad, argue that New York State's constitution is more protective of rights and make a state constitutional argument.

The good news is that, as pointed out by Jamie Hobbs of the Monroe County Public Defender's Office, the current New York state case law is the opposite from the decision reached by the Supreme Court. (e.g., People v Smith, 67 AD3d 1392, 1392 [4th Dept 2009] ("Where the officer's belief is based on an erroneous interpretation of law, the stop is illegal at the outset and any further actions by the police as a direct result of the stop are illegal"). Thus, New York attorneys shoud continue to argue that pursuant to the New York Constitution, an officer's mistaken belief is not justification for a bad search.

New York attorneys should remember that, as explained  by the New York Court of Appeals, although the language of the State and Federal constitutional privacy guarantees (US Const 4th Amend; NY Const, art 1, Sec 12) are identical, this Court of Appeals has repeatedly demonstrated a willingness to adopt more protective standards under the State Constitution, 

"when doing so best promotes 'predictability and precision in judicial review of search and seizure cases and the protection of the individual rights of our citizens.' " People v. P. J. Video, 68 N.Y.2d 296, 304, 508 N.Y.S.2d 907, 501 N.E.2d 556 [on remand], quoting People v. Johnson, 66 N.Y.2d 398, 407, 497 N.Y.S.2d 618, 488 N.E.2d 439). Accordingly, we have in recent years carved out an independent body of principles to govern citizen-police encounters in a number of specific areas (see, e.g., People v. P. J. Video, supra [warrant application requirements in obscenity cases]; People v. Bigelow, 66 N.Y.2d 417, 497 N.Y.S.2d 630, 488 N.E.2d 451 [declining to follow "good faith" test outlined in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 and Massachusetts v. Sheppard, 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737]; People v. Johnson, 66 N.Y.2d 398, 497 N.Y.S.2d 618, 488 N.E.2d 439, supra [declining to apply "totality of circumstances" test outlined in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 to warrantless arrests]; People v. Class, 67 N.Y.2d 431, 503 N.Y.S.2d 313, 494 N.E.2d 444 [on remand] [search for vehicle identification number in connection with traffic stop]; People v. Gokey, 60 N.Y.2d 309, 469 N.Y.S.2d 618, 457 N.E.2d 723 [warrantless search incident to arrest]; People v. Belton, 55 N.Y.2d 49, 447 N.Y.S.2d 873, 432 N.E.2d 745, supra [search of personal effects within automobile]; People v. Landy, 59 N.Y.2d 369, 465 N.Y.S.2d 857, 452 N.E.2d 1185, [reiterating Elwell rule]; People v. Elwell, 50 N.Y.2d 231, 428 N.Y.S.2d 655, 406 N.E.2d 471, supra [probable cause predicated on informant's tip]; see also, People v. Stith, 69 N.Y.2d 313, 316, n. 514 N.Y.S.2d 201, 506 N.E.2d 911, [exclusionary rule as it pertains to inevitable discovery doctrine] ).  

People v. Torres, 74 NY2d 224, 228, 543 NE2d 61, 63–64 [1989].

 

by Jill Paperno, Esq., author of Representing the Accused:A Practical Guide to Criminal Defense and Brian Shiffrin, Esq., Easton Thompson Kasperek Shiffrin LLP

On December 15, 2014, in Heien v. North Carolina, the United States Supreme Court found that a police officer's mistaken belief that the law required two working brake lights, when it only required one, which led to a stop and consent search of a vehicle, was reasonable, and as such, the product of the search would not be suppressed. Sadly, a defendant not trained in the law as a police officer is, who had the mistaken belief that only one light was necessary instead of two, would not be treated as kindly by the courts. The dissent and concurrence discuss whether this will encourage ignorance on the part of the officers. Remember that if you are in a situation in which federal law is bad, argue that New York State's constitution is more protective of rights and make a state constitutional argument.

The good news is that, as pointed out by Jamie Hobbs of the Monroe County Public Defender's Office, the current New York state case law is the opposite from the decision reached by the Supreme Court. (e.g., People v Smith, 67 AD3d 1392, 1392 [4th Dept 2009] ("Where the officer's belief is based on an erroneous interpretation of law, the stop is illegal at the outset and any further actions by the police as a direct result of the stop are illegal"). Thus, New York attorneys shoud continue to argue that pursuant to the New York Constitution, an officer's mistaken belief is not justification for a bad search.

New York attorneys should remember that, as explained  by the New York Court of Appeals, although the language of the State and Federal constitutional privacy guarantees (US Const 4th Amend; NY Const, art 1, Sec 12) are identical, this Court of Appeals has repeatedly demonstrated a willingness to adopt more protective standards under the State Constitution, 

"when doing so best promotes 'predictability and precision in judicial review of search and seizure cases and the protection of the individual rights of our citizens.' " People v. P. J. Video, 68 N.Y.2d 296, 304, 508 N.Y.S.2d 907, 501 N.E.2d 556 [on remand], quoting People v. Johnson, 66 N.Y.2d 398, 407, 497 N.Y.S.2d 618, 488 N.E.2d 439). Accordingly, we have in recent years carved out an independent body of principles to govern citizen-police encounters in a number of specific areas (see, e.g., People v. P. J. Video, supra [warrant application requirements in obscenity cases]; People v. Bigelow, 66 N.Y.2d 417, 497 N.Y.S.2d 630, 488 N.E.2d 451 [declining to follow "good faith" test outlined in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 and Massachusetts v. Sheppard, 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737]; People v. Johnson, 66 N.Y.2d 398, 497 N.Y.S.2d 618, 488 N.E.2d 439, supra [declining to apply "totality of circumstances" test outlined in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 to warrantless arrests]; People v. Class, 67 N.Y.2d 431, 503 N.Y.S.2d 313, 494 N.E.2d 444 [on remand] [search for vehicle identification number in connection with traffic stop]; People v. Gokey, 60 N.Y.2d 309, 469 N.Y.S.2d 618, 457 N.E.2d 723 [warrantless search incident to arrest]; People v. Belton, 55 N.Y.2d 49, 447 N.Y.S.2d 873, 432 N.E.2d 745, supra [search of personal effects within automobile]; People v. Landy, 59 N.Y.2d 369, 465 N.Y.S.2d 857, 452 N.E.2d 1185, [reiterating Elwell rule]; People v. Elwell, 50 N.Y.2d 231, 428 N.Y.S.2d 655, 406 N.E.2d 471, supra [probable cause predicated on informant's tip]; see also, People v. Stith, 69 N.Y.2d 313, 316, n. 514 N.Y.S.2d 201, 506 N.E.2d 911, [exclusionary rule as it pertains to inevitable discovery doctrine] ).  

People v. Torres, 74 NY2d 224, 228, 543 NE2d 61, 63–64 [1989].

 

Which Came First, the Chicken, the Egg, the Search or the Arrest?

by Jill Paperno, Esq., author of Representing the Accused:A Practical Guide to Criminal Defense

When you are handling probable cause hearings in which you are seeking to suppress evidence obtained as a result of a search, you must be acutely aware of the claimed (or potentially claimed) reason for any search, the timing of the arrest and the timing of the search.  If a search is justified as "incident to arrest" you should attempt to elicit testimony from the arresting officer that the arrest had not yet occurred at the time of the search.  If this may be an issue, be really strategic in planning your questions and cross.  Cops don't like to admit that people were under arrest too early in the investigation because they know that there may not have been probable cause at that stage.  

In People v. Graham Reid (2014 NY Slip Op 08759 [NY 12/14/14]), defendant was stopped for traffic violations and the officer's observations led him to believe defendant might have committed a DWI. The officer conducts a search and finds a switchblade knife, for which the defendant is then charged. When questioned by defense counsel about whether defendant was going to be arrested at the stage that the search was being conducted, the officer stated he was not (perhaps because the DWI observations resulted in a test, which resulted in a .0 BAC. and the cop knew that at the time of the hearing). The Court noted it was undisputed that there was PC to arrest for DWI, but the officer had testified he was not arresting for DWI at the time of the search. The search which produced the switchblade was justified by the prosecution as a search incident to arrest, but as the defendant had not yet been arrested, that didn't actually fly. Like chickens.

"THE COURT: At that point, were you going to arrest him?

"THE WITNESS: No.

"THE COURT: You weren't?

"THE WITNESS: No."

***

"THE COURT: So it's only because you ultimately found the switchblade that you arrested him?

"THE WITNESS: Yes, ma'am.

On this record the Court held that the search of a driver could not be justified as "incident" to the driver's arrest:"although probable cause to arrest the driver existed before the search, the driver would not have been arrested if the search had not produced evidence of a crime."

Which Came First, the Chicken, the Egg, the Search or the Arrest?

by Jill Paperno, Esq., author of Representing the Accused:A Practical Guide to Criminal Defense

When you are handling probable cause hearings in which you are seeking to suppress evidence obtained as a result of a search, you must be acutely aware of the claimed (or potentially claimed) reason for any search, the timing of the arrest and the timing of the search.  If a search is justified as "incident to arrest" you should attempt to elicit testimony from the arresting officer that the arrest had not yet occurred at the time of the search.  If this may be an issue, be really strategic in planning your questions and cross.  Cops don't like to admit that people were under arrest too early in the investigation because they know that there may not have been probable cause at that stage.  

In People v. Graham Reid (2014 NY Slip Op 08759 [NY 12/14/14]), defendant was stopped for traffic violations and the officer's observations led him to believe defendant might have committed a DWI. The officer conducts a search and finds a switchblade knife, for which the defendant is then charged. When questioned by defense counsel about whether defendant was going to be arrested at the stage that the search was being conducted, the officer stated he was not (perhaps because the DWI observations resulted in a test, which resulted in a .0 BAC. and the cop knew that at the time of the hearing). The Court noted it was undisputed that there was PC to arrest for DWI, but the officer had testified he was not arresting for DWI at the time of the search. The search which produced the switchblade was justified by the prosecution as a search incident to arrest, but as the defendant had not yet been arrested, that didn't actually fly. Like chickens.

"THE COURT: At that point, were you going to arrest him?

"THE WITNESS: No.

"THE COURT: You weren't?

"THE WITNESS: No."

***

"THE COURT: So it's only because you ultimately found the switchblade that you arrested him?

"THE WITNESS: Yes, ma'am.

On this record the Court held that the search of a driver could not be justified as "incident" to the driver's arrest:"although probable cause to arrest the driver existed before the search, the driver would not have been arrested if the search had not produced evidence of a crime."

Commencement of Counsel Upon Requests on Behalf of Indigents Being Questioned by Police

by 

Jill Paperno, Esq., 

author of  

Representing the Accused: A Practical Guide to Criminal Defense

And justice for all!

During a week when many of us are questioning the criminal justice system's handling of cases, I wanted to share one case reflecting that our continued struggle to eliminate disparities in how defendants are treated can pay off.

In People v. Rankin, a case in which Judge John DeMarco presided in Monroe County Court, Rochester New York, the question of whether an indigent defendant had the same right to counsel as one who could afford to retain was answered.  The decision, which can be found here - http://www.nycourts.gov/reporter/3dseries/2014/2014_24363.htm - though focusing largely on New York law, addressed principles applicable to indigent defense throughout the country.

(Full disclosure - I am a public defender employed by the office originally involved in this case. Mr. Rankin was successfully represented on this issue by Lawrence Kasperek, of Easton Thompson Kasperek Shiffrin LLP., whose arguments persuaded the court).

There are times that the Public Defender's office is contacted by friends or family members seeking representation for a loved one who has just been arrested and taken for questioning.  Sometimes individuals under investigation walk into the office seeking assistance.  While the County Law of New York provides guidance for how attorneys are appointed to indigent defendants once charges are filed, the pre-charge process is somewhat murkier.  So individual judges assigned to the court part that handles bail review, warrants and other criminal matters not assigned to a particular judge are often involved in appointing counsel in these cases. Some immediately appoint, while others may require affidavits and orders, all during those critical minutes and hours of interrogation.  Some judges, perhaps on the bench or otherwise unavailable, when in this part, may be difficult to reach as the clock ticks away.

Recognizing the importance of representation at those critical early stages, Judge DeMarco held that:

Effective assistance of counsel for indigent individuals demands the absence of suspect distinctions regarding the obtainment of counsel. Indeed, the American Bar Association (ABA) recommends that counsel be provided as soon as practicably possible after someone is taken into custody (see ABA Standards for Criminal Justice, Providing Defense Services, standard 5-6.1 [3d ed 1992], available at http://www.americanbar.org/publications/criminal_justice_section _archive/crimjust_standards_defsvcs_blk.html). Similarly, the New York State Bar Association (NYSBA) recommends that indigent individuals be afforded "early entry of representation" whenever counsel is requested for an indigent party under investigation or in custody (see NYSBA Revised Standards for Providing Mandated Representation, standard B-1 at 5 [2010], available at https://www.ils.ny.gov/files/Revised%20Standards%20For%20Providing%20 Mandated%20Representation.pdf). While the NYSBA states that the initial eligibility determinations shall be decided by the court (see id. standard C-3 at 6), they also declare that the "[p]rovision of counsel shall not be delayed while a person's eligibility...is being determined or verified" (id. standard C-5). These standards, applicable to all attorneys tasked with representing indigent individuals, demonstrate, objectively, that effective representation for indigent individuals entails representation without delay pending the judge's eligibility determination. The Court is not maintaining that a judge's order of appointment is without purpose or a practice that should be dispensed with. The Court is simply saying that there is no scenario under which indigent individuals would not be afforded an impaired quality of representation where the Public Defender's function as counsel is effectively disabled pending receipt of a judge's order of appointment. An overtechnical application of this measure, as urged by the People, would sanction the sort of "mechanical" requirement eschewed by the Court of Appeals in Grice, supra, in subversion of the right to counsel (see Grice, 100 NY2d at 323).

Commencement of Counsel Upon Requests on Behalf of Indigents Being Questioned by Police

by 

Jill Paperno, Esq., 

author of  

Representing the Accused: A Practical Guide to Criminal Defense

And justice for all!

During a week when many of us are questioning the criminal justice system's handling of cases, I wanted to share one case reflecting that our continued struggle to eliminate disparities in how defendants are treated can pay off.

In People v. Rankin, a case in which Judge John DeMarco presided in Monroe County Court, Rochester New York, the question of whether an indigent defendant had the same right to counsel as one who could afford to retain was answered.  The decision, which can be found here - http://www.nycourts.gov/reporter/3dseries/2014/2014_24363.htm - though focusing largely on New York law, addressed principles applicable to indigent defense throughout the country.

(Full disclosure - I am a public defender employed by the office originally involved in this case. Mr. Rankin was successfully represented on this issue by Lawrence Kasperek, of Easton Thompson Kasperek Shiffrin LLP., whose arguments persuaded the court).

There are times that the Public Defender's office is contacted by friends or family members seeking representation for a loved one who has just been arrested and taken for questioning.  Sometimes individuals under investigation walk into the office seeking assistance.  While the County Law of New York provides guidance for how attorneys are appointed to indigent defendants once charges are filed, the pre-charge process is somewhat murkier.  So individual judges assigned to the court part that handles bail review, warrants and other criminal matters not assigned to a particular judge are often involved in appointing counsel in these cases. Some immediately appoint, while others may require affidavits and orders, all during those critical minutes and hours of interrogation.  Some judges, perhaps on the bench or otherwise unavailable, when in this part, may be difficult to reach as the clock ticks away.

Recognizing the importance of representation at those critical early stages, Judge DeMarco held that:

Effective assistance of counsel for indigent individuals demands the absence of suspect distinctions regarding the obtainment of counsel. Indeed, the American Bar Association (ABA) recommends that counsel be provided as soon as practicably possible after someone is taken into custody (see ABA Standards for Criminal Justice, Providing Defense Services, standard 5-6.1 [3d ed 1992], available at http://www.americanbar.org/publications/criminal_justice_section _archive/crimjust_standards_defsvcs_blk.html). Similarly, the New York State Bar Association (NYSBA) recommends that indigent individuals be afforded "early entry of representation" whenever counsel is requested for an indigent party under investigation or in custody (see NYSBA Revised Standards for Providing Mandated Representation, standard B-1 at 5 [2010], available at https://www.ils.ny.gov/files/Revised%20Standards%20For%20Providing%20 Mandated%20Representation.pdf). While the NYSBA states that the initial eligibility determinations shall be decided by the court (see id. standard C-3 at 6), they also declare that the "[p]rovision of counsel shall not be delayed while a person's eligibility...is being determined or verified" (id. standard C-5). These standards, applicable to all attorneys tasked with representing indigent individuals, demonstrate, objectively, that effective representation for indigent individuals entails representation without delay pending the judge's eligibility determination. The Court is not maintaining that a judge's order of appointment is without purpose or a practice that should be dispensed with. The Court is simply saying that there is no scenario under which indigent individuals would not be afforded an impaired quality of representation where the Public Defender's function as counsel is effectively disabled pending receipt of a judge's order of appointment. An overtechnical application of this measure, as urged by the People, would sanction the sort of "mechanical" requirement eschewed by the Court of Appeals in Grice, supra, in subversion of the right to counsel (see Grice, 100 NY2d at 323).

It happens occasionally. The U.S. Second Circuit Court of Appeals issues a Summary Order affirming the judgment of conviction and remanding the matter for re-sentencing only. In the USA v. Dawn White, 13-1041-cr, the Circuit provided the following, REMAND for re-sentencing only, “with directions to the District Court either to make specific findings to support the enhancement under U.S.S.G§2B1.1(b)(11)(C)(I) or to sentence White without regard to that enhancement.” What’s the analysis? 

First, when there is no vacatur of a count of conviction that has altered the “factual mosaic related to” the remaining counts which would compel the sentencing court to reconsider the imposed sentence on the count or counts affected by the vacatur as well as the aggregated sentence the proceeding is not de novo. See, United States v. Quintieri, 396 F3d 1217, 1227-28 (2d Cir. (2002); see also, United States v. Rigas, 585 F3d 108, 118-119 (2d Cir. 2009). The proper procedure was addressed in United States v. Malki, 718 F3d 178 (2d Cir. 2013) as provided below. 

When we overturn a sentence without vacating one or more underlying convictions and remand for re-sentencing, the “default rule” is that the remand is for limited, and not de novo, re-sentencing. United States v. Quintieri, 306 F3d 1217, 1228-29 n. 6 (2d Cir 2002). When  our remand is limited, the mandate rule generally forecloses re-litigation of issues previously waived by the parties or decided by the appellate court. See id., at 1225. Similarly, it “also precludes re-litigation of issues impliedly resolved by the appellate court’s mandate.” Yick Man Mui v. United States, 614 F3d 50, 53 (2d Cir 2010). 

Although a mandate may, of course, call for de novo re-sentencing, thereby allowing parties to reargue issues previously waived or abandoned, a mandate should not be so interpreted unless it clearly says so or our intent that re-sentencing be de novo is evident from “the broader ‘spirit of the mandate.’” United States v. Ben Zvi, 242 F3d 89, 95 (2d Cir 2001)(citations omitted). 

Id., at 182.

What then is a de novo re-sentencing? “[W]hen a (complete) sentence has been vacated, the defendant is placed in the same position as if he had never been sentenced.” See, United States v. Maldonado, 996 F.2d 598, 599 (2d Cir.1993); see also, United States v. Barnes, 948 F.2d 325, 330 (7th Cir.1991); United States v. Schoenhoff, 919 F.2d 936, 938 (5th Cir.1990). This requires, among other things, that the defendant be afforded a right of allocution, viz. that the defendant be permitted “to speak or present any information to mitigate the sentence.” Fed.R.Crim.P. 32(i)(4)(A)(ii); see also, United States v. Margiotti, 85 F.3d 100, 103 (2d Cir.1996). In, U.S. v. Johnson, 387 Fed.Appx. 105 C.A.2 (N.Y.),2010 the Defendant was convicted of murder in the course of a robbery in violation of 18 U.S.C. § 924(j)(1), among other offenses. In 2008, a panel of the Court of Appeals vacated defendant's life sentence and remanded for re-sentencing. See, United States v. Johnson, 273 Fed. Appx. 95, 101 (2d Cir.2008). On remand, the district court declined to conduct a new sentencing hearing and instead issued a new sentencing opinion once again sentencing defendant to life. In spite of defendant's protests, the district court did not allow defendant to be heard prior to imposing sentence. This was reversible error according to the Court of Appeals. Id. at 107. See, United States v. Gonzalez, 529 F.3d 94, 97 (2d Cir.2008); see also, United States v. Muhammad, 478 F.3d 247, 250-51 (4th Cir.2007).

Ah but you say, what of post-sentencing rehabilitation? Surely United States v. Pepper, 131 S.Ct. 1229 must be considered. In Pepper, the Supreme Court held that the District Court at re-sentencing may consider post-sentencing rehabilitation to support a non-guideline sentence. However, regarding limited remand orders, the Supreme Court provided the following in footnote 17:

Of course, we do not mean to imply that a district court must reduce a defendant’s sentence upon any showing of postsentencing rehabilitation. Nor do we mean to preclude courts of appeals from issuing limited remand orders, in appropriate cases, that may render evidence of postsentencing rehabilitation irrelevant in light of the narrow purposes of the remand proceeding. See, e.g., United States v. Bernardo Sanchez, 569 F.3d 995, 1000 (9th Cir. 2009).

Therefore, in cases where the mandate is a limited remand having a very narrow purpose (ie., determining if specific facts support a minimal enhancement) it appears the District Court is not required to consider post-sentence rehabilitation. But try anyway. 

Good Hunting.  

It happens occasionally. The U.S. Second Circuit Court of Appeals issues a Summary Order affirming the judgment of conviction and remanding the matter for re-sentencing only. In the USA v. Dawn White, 13-1041-cr, the Circuit provided the following, REMAND for re-sentencing only, “with directions to the District Court either to make specific findings to support the enhancement under U.S.S.G§2B1.1(b)(11)(C)(I) or to sentence White without regard to that enhancement.” What’s the analysis? 

First, when there is no vacatur of a count of conviction that has altered the “factual mosaic related to” the remaining counts which would compel the sentencing court to reconsider the imposed sentence on the count or counts affected by the vacatur as well as the aggregated sentence the proceeding is not de novo. See, United States v. Quintieri, 396 F3d 1217, 1227-28 (2d Cir. (2002); see also, United States v. Rigas, 585 F3d 108, 118-119 (2d Cir. 2009). The proper procedure was addressed in United States v. Malki, 718 F3d 178 (2d Cir. 2013) as provided below. 

When we overturn a sentence without vacating one or more underlying convictions and remand for re-sentencing, the “default rule” is that the remand is for limited, and not de novo, re-sentencing. United States v. Quintieri, 306 F3d 1217, 1228-29 n. 6 (2d Cir 2002). When  our remand is limited, the mandate rule generally forecloses re-litigation of issues previously waived by the parties or decided by the appellate court. See id., at 1225. Similarly, it “also precludes re-litigation of issues impliedly resolved by the appellate court’s mandate.” Yick Man Mui v. United States, 614 F3d 50, 53 (2d Cir 2010). 

Although a mandate may, of course, call for de novo re-sentencing, thereby allowing parties to reargue issues previously waived or abandoned, a mandate should not be so interpreted unless it clearly says so or our intent that re-sentencing be de novo is evident from “the broader ‘spirit of the mandate.’” United States v. Ben Zvi, 242 F3d 89, 95 (2d Cir 2001)(citations omitted). 

Id., at 182.

What then is a de novo re-sentencing? “[W]hen a (complete) sentence has been vacated, the defendant is placed in the same position as if he had never been sentenced.” See, United States v. Maldonado, 996 F.2d 598, 599 (2d Cir.1993); see also, United States v. Barnes, 948 F.2d 325, 330 (7th Cir.1991); United States v. Schoenhoff, 919 F.2d 936, 938 (5th Cir.1990). This requires, among other things, that the defendant be afforded a right of allocution, viz. that the defendant be permitted “to speak or present any information to mitigate the sentence.” Fed.R.Crim.P. 32(i)(4)(A)(ii); see also, United States v. Margiotti, 85 F.3d 100, 103 (2d Cir.1996). In, U.S. v. Johnson, 387 Fed.Appx. 105 C.A.2 (N.Y.),2010 the Defendant was convicted of murder in the course of a robbery in violation of 18 U.S.C. § 924(j)(1), among other offenses. In 2008, a panel of the Court of Appeals vacated defendant's life sentence and remanded for re-sentencing. See, United States v. Johnson, 273 Fed. Appx. 95, 101 (2d Cir.2008). On remand, the district court declined to conduct a new sentencing hearing and instead issued a new sentencing opinion once again sentencing defendant to life. In spite of defendant's protests, the district court did not allow defendant to be heard prior to imposing sentence. This was reversible error according to the Court of Appeals. Id. at 107. See, United States v. Gonzalez, 529 F.3d 94, 97 (2d Cir.2008); see also, United States v. Muhammad, 478 F.3d 247, 250-51 (4th Cir.2007).

Ah but you say, what of post-sentencing rehabilitation? Surely United States v. Pepper, 131 S.Ct. 1229 must be considered. In Pepper, the Supreme Court held that the District Court at re-sentencing may consider post-sentencing rehabilitation to support a non-guideline sentence. However, regarding limited remand orders, the Supreme Court provided the following in footnote 17:

Of course, we do not mean to imply that a district court must reduce a defendant’s sentence upon any showing of postsentencing rehabilitation. Nor do we mean to preclude courts of appeals from issuing limited remand orders, in appropriate cases, that may render evidence of postsentencing rehabilitation irrelevant in light of the narrow purposes of the remand proceeding. See, e.g., United States v. Bernardo Sanchez, 569 F.3d 995, 1000 (9th Cir. 2009).

Therefore, in cases where the mandate is a limited remand having a very narrow purpose (ie., determining if specific facts support a minimal enhancement) it appears the District Court is not required to consider post-sentence rehabilitation. But try anyway. 

Good Hunting.  

by
James Eckert, Esq.
Assistant Monroe County Public Defender

In People v Argryris ( _NY3d_, 2014 NY Slip Op 08220, 2014 WL 6633480 [11/25/14]), the Court of Appeals rendered a simple four-judge Memorandum decision on the issue of what constitutes reasonable suspicion in the context of an anonymous tip. Unfortunately, the memorandum fails to answer the question.

The Memorandum simply says that because (in the first two of the three consolidated appeals) there is record support for the findings of the suppression court, which was affirmed by the Appellate Division, the limited jurisdiction of the Court of Appeals ends there and does not permit further review of the facts. In the third case, which all seven judges agreed must be reversed, the memorandum said that under either of the proposed tests for determining reasonable suspicion, a conclusory anonymous call saying that someone’s driving demonstrated that they were either sick or intoxicated was insufficient to establish reasonable suspicion that the driver was DWI (and the deputy was outside of his jurisdiction when he observed the minor traffic infraction). The first two cases, involving co-defendants, are what I discuss from here on out.

Which brings us to the important and still unrsolved question: when the police receive an anonymous tip, and when they require reasonable suspicion for the actions under review by the suppression court, is the test Aguilar-Spinelli (A-S) (i.e. did the information from the caller establish a basis of knowledge and sufficient indicia of the caller's reliability?), or is the test Totality of the Circumstances ("does it feel right" aka "anonymous tips rock!"). Also unclear is what is the A-S rule in the context of reasonable suspicion determinations and what will it be going forward? Is A-S rendered meaningless by finding that accuracy as to mundane facts not indicative of knowledge of a crime (such as a man in a blue suit is crossing Main Street) proves the reliability and knowledge of the caller as to the important facts (he’s got a gun!).

Before I give an inevitably too brief explanation of the substance of the various opinions, let's play Judicial Sudoku

  Aguilar-Spinelli(Strong)          Aguilar-Spinelli(Weak)       Totality of the Circumstances

Defendant Loses                Abdus-Salaam                        Pigott

                                   Graffeo                                Smith

Defendant Wins                      Rivera                                Read?

                                                              Lippman

Judge Read joined in the dissent, implying that she does not regard the Aguilar-Spinelli test as quite as weak as Judges Abdus-Salaam and Graffeo, but she did not join in Judge Rivera's dissent. So I do not put her in the strong A-S category, either.

It seems to me that a five judge majority of the Court believes that Aguilar-Spinelli does apply to anonymous tips and the question of Reasonable Suspicion. Only Judges Smith and Pigott held that totality of the circumstances was the test.

On whether Aguilar-Spinelli should retain a strong test as to probable cause determinations, perhaps Judges Smith and Pigott would join Judges Rivera and Lippman in preserving the strong test.  Remember that whether A-S should be strong or weak when it comes to Probable Cause was not the issue in this case, so at worst some judges signalled a willingness to weaken A-S further in the context of Probable Cause. They didn't formally decide to do so here.

Now we get to the hard part. What is this A-S people keep talking about?

Someone who calls the police, yet gives them no way to determine their identity, has deliberately eliminated the checks which normally provide us with a reason to trust them. A face-to-face informant can theoretically be arrested for lying (of course, in theory she could also win an Olympic Gold Medal in Synchronized Spitting, but that’s not important right now). An anonymous tipster can bring down a SWAT team on someone whose political views she doesn’t like, or have an enemy harassed on the street, or ruin someone's day just for fun. So the issue on anonymous tips has always been, what is the tipster’s basis of knowledge, and why should we trust her? There is also the temptation to conclude that the person is trustworthy and knowledgeable simply by verifying things anyone could have seen.  A call comes in that a man in a blue suit is crossing Main Street and that he has a gun.  If police see a man in a blue suit cross main street, does that mean he has a gun? Verification of innocent facts is not a reliable basis upon which to confirm guilty facts.  This concern is the difference between weak A-S and strong A-S. If the police can confirm the validity of an anonymous tip by seeing something mundane, then as Judge Smith says:

“To the extent that such evidence -- which does not directly prove either the basis of the informant's knowledge or his truthfulness -- may satisfy either prong, the two prongs tend to merge, and the Aguilar-Spinelli rule begins to resemble the totality-of-the-circumstances test.”

What prompted the Court’s review of Aguilar-Spinelli in the context of reasonable suspicion is the recent 5-4 Supreme Court decision in Navarette v California (__ US __, 134 SCt 1683 [2014]).  In that case, a call came in from someone on the highway that a specifically described vehicle had just run the caller off of the road and was headed southbound on the named highway. What confirmed the police in trusting the person was that the vehicle was observed on the highway in question going in the direction claimed and at approximately the position it should have been in. The police pulled over the vehicle, smelled marijuana, and recovered 30lbs of it. The Supreme Court held that this was enough, since the caller was obviously an eyewitness to what she claimed. Now, the Supreme Court treated this nominally as an anonymous tip, but relied on someone hesitating before using a traceable cell phone to make such a report. The dissent’s retort was, “The claim to ‘eyewitness knowledge’ of being run off the road supports not at all its veracity; nor does the amazing, mystifying prediction (so far short of what existed in White) that the petitioners’ truck would be heading south on Highway 1" (Scalia, J.). 

This weak-to-the-point-of-being-worthless A-S rule is what two judges (Abdus-Salaam and Graffeo) relied upon:

“By claiming personal knowledge, the tipster puts his or her own credibility on the line rather than seeking to hide behind a secondhand hearsay source; the tipster knows that, if the police arrive on the scene and see that the situation is not as described, they will discredit the tip completely rather than assume that the error resulted from the miscommunication of only a few details by another individual who transmitted the information to the tipster.  Furthermore, from the claim of eyewitness information and the other contents of the tip, the police may discern whether it is plausible for someone to have personally seen the activities alleged under the circumstances in which they have purportedly occurred.”

Thus, these judges approved a stop based on a tip that someone just saw someone put a gun into a Mustang and head down 28th street. Details supported the tipster: a big white guy had the gun, the gun itself was big, and it was in the back of the car.

Judge Read in dissent noted that, had Navarettebeen decided before the Court of Appeals adopted its current rule on anonymous tips, that the Court of Appeals might have decided the issue differently.  However, she would not alter the rule to follow the more relaxed recent Supreme Court decision.

Judges Rivera and Lippman wrote at length and would have both applied Aguilar-Spinelli to reasonable suspicion determinations, and preserved the stronger rule supported by Justice Scalia.  As Judge Rivera described the weaker test: “The People in Argyris and DiSalvo, claim that predictive information is unnecessary because the anonymous informant's alleged personal observations of the claimed criminal activity.  As this argument goes, the informant is reliable because in addition to describing the car and the defendants, the informant said that he saw one of the men put a gun in the back of the car.”  She quoted the Supreme Court dissent “So what?” 

In sum, Judge Rivera said 

“The informant provided descriptive information of the defendants, the car and van and the route they were taking when he last observed them.  This information was readily observable to anyone on the street. The tip lacked predictive information as to the criminal activity alleged because the informant stated only that he had seen one of the men put a gun in the back of the car. Without more, the tip lacked information to establish the reliability of the allegation of gun possession.”

CONCLUSION: When there is no majority, the narrowest basis of the decision is the one that controls.  The narrowest basis for the decision was simply that there was record basis, under either of the tests, to support the decisions below, and therefore the Court of Appeals did not decide the issue of what test is used.  It only decided that it didn't need to decide the question to reach a result under these facts. This is in fact exactly what the Memorandum says. 

As to the future, it may be that on the question of whether an anonymous tip provides sufficient basis to establish reasonable suspicion, we use a weak A-S test which is the functional equivalent of the totality of the circumstances test, and which is in any event not a big improvement over Navarette from the US Supreme Court. This is what the four judges in the majority held in their concurrences. However, five judges explicitly rejected totality of the circumstances test, so it's hard to see that being the formal result of the court's decision.

The other big question is where A-S goes from here as it relates to probable cause. Judge Read would have kept A-S for reasonable suspicion, so I can't see her doing less for probable cause. The other dissenters wanted a strong A-S for all determinations. Judges Smith and Pigott equated the weaker A-S with totality of the circumstances. Maybe that means they want the weaker test in all cases, maybe not.  Judges Abdus-Salaam and Graffeo want a weak Aguilar-Spinelli for reasonable suspicion, and might well be happy with the same test for probable cause. However, PC is a higher standard, so one would expect a higher requirement to clear that hurdle, however it is articulated. 

With Judges Smith and Graffeo soon to be replaced, it is unclear what the test will be in 2015 and beyond.

by
James Eckert, Esq.
Assistant Monroe County Public Defender

In People v Argryris ( _NY3d_, 2014 NY Slip Op 08220, 2014 WL 6633480 [11/25/14]), the Court of Appeals rendered a simple four-judge Memorandum decision on the issue of what constitutes reasonable suspicion in the context of an anonymous tip. Unfortunately, the memorandum fails to answer the question.

The Memorandum simply says that because (in the first two of the three consolidated appeals) there is record support for the findings of the suppression court, which was affirmed by the Appellate Division, the limited jurisdiction of the Court of Appeals ends there and does not permit further review of the facts. In the third case, which all seven judges agreed must be reversed, the memorandum said that under either of the proposed tests for determining reasonable suspicion, a conclusory anonymous call saying that someone’s driving demonstrated that they were either sick or intoxicated was insufficient to establish reasonable suspicion that the driver was DWI (and the deputy was outside of his jurisdiction when he observed the minor traffic infraction). The first two cases, involving co-defendants, are what I discuss from here on out.

Which brings us to the important and still unrsolved question: when the police receive an anonymous tip, and when they require reasonable suspicion for the actions under review by the suppression court, is the test Aguilar-Spinelli (A-S) (i.e. did the information from the caller establish a basis of knowledge and sufficient indicia of the caller's reliability?), or is the test Totality of the Circumstances ("does it feel right" aka "anonymous tips rock!"). Also unclear is what is the A-S rule in the context of reasonable suspicion determinations and what will it be going forward? Is A-S rendered meaningless by finding that accuracy as to mundane facts not indicative of knowledge of a crime (such as a man in a blue suit is crossing Main Street) proves the reliability and knowledge of the caller as to the important facts (he’s got a gun!).

Before I give an inevitably too brief explanation of the substance of the various opinions, let's play Judicial Sudoku

  Aguilar-Spinelli(Strong)          Aguilar-Spinelli(Weak)       Totality of the Circumstances

Defendant Loses                Abdus-Salaam                        Pigott

                                   Graffeo                                Smith

Defendant Wins                      Rivera                                Read?

                                                              Lippman

Judge Read joined in the dissent, implying that she does not regard the Aguilar-Spinelli test as quite as weak as Judges Abdus-Salaam and Graffeo, but she did not join in Judge Rivera's dissent. So I do not put her in the strong A-S category, either.

It seems to me that a five judge majority of the Court believes that Aguilar-Spinelli does apply to anonymous tips and the question of Reasonable Suspicion. Only Judges Smith and Pigott held that totality of the circumstances was the test.

On whether Aguilar-Spinelli should retain a strong test as to probable cause determinations, perhaps Judges Smith and Pigott would join Judges Rivera and Lippman in preserving the strong test.  Remember that whether A-S should be strong or weak when it comes to Probable Cause was not the issue in this case, so at worst some judges signalled a willingness to weaken A-S further in the context of Probable Cause. They didn't formally decide to do so here.

Now we get to the hard part. What is this A-S people keep talking about?

Someone who calls the police, yet gives them no way to determine their identity, has deliberately eliminated the checks which normally provide us with a reason to trust them. A face-to-face informant can theoretically be arrested for lying (of course, in theory she could also win an Olympic Gold Medal in Synchronized Spitting, but that’s not important right now). An anonymous tipster can bring down a SWAT team on someone whose political views she doesn’t like, or have an enemy harassed on the street, or ruin someone's day just for fun. So the issue on anonymous tips has always been, what is the tipster’s basis of knowledge, and why should we trust her? There is also the temptation to conclude that the person is trustworthy and knowledgeable simply by verifying things anyone could have seen.  A call comes in that a man in a blue suit is crossing Main Street and that he has a gun.  If police see a man in a blue suit cross main street, does that mean he has a gun? Verification of innocent facts is not a reliable basis upon which to confirm guilty facts.  This concern is the difference between weak A-S and strong A-S. If the police can confirm the validity of an anonymous tip by seeing something mundane, then as Judge Smith says:

“To the extent that such evidence -- which does not directly prove either the basis of the informant's knowledge or his truthfulness -- may satisfy either prong, the two prongs tend to merge, and the Aguilar-Spinelli rule begins to resemble the totality-of-the-circumstances test.”

What prompted the Court’s review of Aguilar-Spinelli in the context of reasonable suspicion is the recent 5-4 Supreme Court decision in Navarette v California (__ US __, 134 SCt 1683 [2014]).  In that case, a call came in from someone on the highway that a specifically described vehicle had just run the caller off of the road and was headed southbound on the named highway. What confirmed the police in trusting the person was that the vehicle was observed on the highway in question going in the direction claimed and at approximately the position it should have been in. The police pulled over the vehicle, smelled marijuana, and recovered 30lbs of it. The Supreme Court held that this was enough, since the caller was obviously an eyewitness to what she claimed. Now, the Supreme Court treated this nominally as an anonymous tip, but relied on someone hesitating before using a traceable cell phone to make such a report. The dissent’s retort was, “The claim to ‘eyewitness knowledge’ of being run off the road supports not at all its veracity; nor does the amazing, mystifying prediction (so far short of what existed in White) that the petitioners’ truck would be heading south on Highway 1" (Scalia, J.). 

This weak-to-the-point-of-being-worthless A-S rule is what two judges (Abdus-Salaam and Graffeo) relied upon:

“By claiming personal knowledge, the tipster puts his or her own credibility on the line rather than seeking to hide behind a secondhand hearsay source; the tipster knows that, if the police arrive on the scene and see that the situation is not as described, they will discredit the tip completely rather than assume that the error resulted from the miscommunication of only a few details by another individual who transmitted the information to the tipster.  Furthermore, from the claim of eyewitness information and the other contents of the tip, the police may discern whether it is plausible for someone to have personally seen the activities alleged under the circumstances in which they have purportedly occurred.”

Thus, these judges approved a stop based on a tip that someone just saw someone put a gun into a Mustang and head down 28th street. Details supported the tipster: a big white guy had the gun, the gun itself was big, and it was in the back of the car.

Judge Read in dissent noted that, had Navarettebeen decided before the Court of Appeals adopted its current rule on anonymous tips, that the Court of Appeals might have decided the issue differently.  However, she would not alter the rule to follow the more relaxed recent Supreme Court decision.

Judges Rivera and Lippman wrote at length and would have both applied Aguilar-Spinelli to reasonable suspicion determinations, and preserved the stronger rule supported by Justice Scalia.  As Judge Rivera described the weaker test: “The People in Argyris and DiSalvo, claim that predictive information is unnecessary because the anonymous informant's alleged personal observations of the claimed criminal activity.  As this argument goes, the informant is reliable because in addition to describing the car and the defendants, the informant said that he saw one of the men put a gun in the back of the car.”  She quoted the Supreme Court dissent “So what?” 

In sum, Judge Rivera said 

“The informant provided descriptive information of the defendants, the car and van and the route they were taking when he last observed them.  This information was readily observable to anyone on the street. The tip lacked predictive information as to the criminal activity alleged because the informant stated only that he had seen one of the men put a gun in the back of the car. Without more, the tip lacked information to establish the reliability of the allegation of gun possession.”

CONCLUSION: When there is no majority, the narrowest basis of the decision is the one that controls.  The narrowest basis for the decision was simply that there was record basis, under either of the tests, to support the decisions below, and therefore the Court of Appeals did not decide the issue of what test is used.  It only decided that it didn't need to decide the question to reach a result under these facts. This is in fact exactly what the Memorandum says. 

As to the future, it may be that on the question of whether an anonymous tip provides sufficient basis to establish reasonable suspicion, we use a weak A-S test which is the functional equivalent of the totality of the circumstances test, and which is in any event not a big improvement over Navarette from the US Supreme Court. This is what the four judges in the majority held in their concurrences. However, five judges explicitly rejected totality of the circumstances test, so it's hard to see that being the formal result of the court's decision.

The other big question is where A-S goes from here as it relates to probable cause. Judge Read would have kept A-S for reasonable suspicion, so I can't see her doing less for probable cause. The other dissenters wanted a strong A-S for all determinations. Judges Smith and Pigott equated the weaker A-S with totality of the circumstances. Maybe that means they want the weaker test in all cases, maybe not.  Judges Abdus-Salaam and Graffeo want a weak Aguilar-Spinelli for reasonable suspicion, and might well be happy with the same test for probable cause. However, PC is a higher standard, so one would expect a higher requirement to clear that hurdle, however it is articulated. 

With Judges Smith and Graffeo soon to be replaced, it is unclear what the test will be in 2015 and beyond.