Drug prosecutions in the Trump Administration

At one of this week’s White House press briefings, Sean Spicer spent considerable time (clearly more than he wished) discussing the President’s approach to federal drug policy.  This is one of the areas that I had previously flagged as representing a potentially meaningful departure from Obama Administration policy at the Justice Department.  Spicer’s briefing appeared to signal that this Administration would take a more aggressive approach to drug crime than its predecessor.  But that remains unclear.

Indeed, Spicer’s briefing may have created more new questions than it answered, which has become a rather predictable consequence of his briefings.  Notably, Spicer discussed an obscure appropriations rider (which I previously discussed here) that defunds federal prosecutions for drug offenses in states with liberal medicinal marijuana laws.  He distinguished — on no fewer than three occasions — recreational use from medicinal use, saying, with respect to federal drug enforcement relating to recreational use, “I do think you’ll see greater enforcement of it.”  Presumably, in context, he means greater enforcement of the Controlled Substances Act where the use is recreational.  Strangely, he subsequently tried to walk that statement back, instead referring the issue to the DOJ.

But the question now arises: will the Sessions DOJ more aggressively prosecute CSA offenses?  Will the Sessions DOJ reverse the Holder Memo from August 2013 that directed federal prosecutors not to allege drug quantities that trigger mandatory minimums if certain criteria are met?  That was a major pronouncement from Main Justice, and will have a meaningful effect on the way federal prosecutors treat drug crimes.  Yet the Administration has thus far been silent, and Spicer’s briefing did not help to clarify that matter.

Moreover, the rider to which he alluded does not cover every jurisdiction, because not every jurisdiction has liberal medical marijuana laws.  And it only applies where the defendant is in compliance with all of the State’s marijuana use laws.  This means that, potentially, a defendant who is in violation of the CSA, but who is using the marijuana for medicinal purposes in a state that is not covered by the rider (say, for example, West Virginia), could still be subject to prosecution.  Spicer did not seem to appreciate this scenario, and it raises the question: will the Administration prosecute those defendants?  If so, does that not obliterate the distinction between medicinal use and recreational use that Spicer had drawn?  Also, the rider is of limited duration; Congress could change it at any time.  What will the Administration’s position be on continuing the policy adopted by the rider?  Spicer did not say, but his distinction between recreational use and medicinal use would suggest that the Administration wants the rider to exist indefinitely.  Does Jeff Sessions?

Finally, Spicer was asked repeatedly about the Administration’s decision to reverse the Obama Administration’s interpretation of Title IX with respect to transgender bathroom access.  Spicer referred to this as a “states’ rights” issue (it is not, though that is a subject for another day), and said “we are a state’s rights party.”  I have said before that the use of the term “states’ rights” is constitutionally unsound, in my view, and that conservatives should not use it (“federalism” is a far better term, and is more accurate).  But if Spicer is correct that the Administration is committed to federalism, what, then, does that mean for federal drug law generally?  Of course, the CSA was upheld against a Commerce Clause challenge in Gonzales v. Raich, but two notable conservatives – Chief Justice Rehnquist and Justice Thomas – dissented in that case, as did Justice O’Connor (a notable defender of federalism and of state interests).  Why is drug law not a “states’ rights issue,” too?  By making the transgender bathroom issue one of federalism, Spicer has opened the door to questions about whether the Trump Administration is committed to federalism across subject matter, or whether its approach to Title IX is a kind of fair-weather federalism.

Sure, the appropriations rider is a federalism-protection measure.  But reference to the rider alone tells us nothing about the Administration’s view more broadly concerning the role of the federal government in making and enforcing criminal drug laws.  Perhaps more notably, Spicer’s responses raised this question: if federalism demands respecting the states that have chosen to make medicinal use legal, why does federalism not demand respecting those states that have chosen to make recreational use legal?  In other words, even if we grant the difference between recreational and medicinal use, does a true commitment to federalism require respect for state decisions as to both?

I’m no fan of more liberal drug laws.  There must be a robust drug policy regime that takes a variety of approaches — including, but not limited to, prosecutorial ones — to the range of drug problems in this country.  Spicer, of course, cannot be expected to answer at one briefing every question regarding the President’s views on these various problems.  But this Administration needs a coherent approach to both drug policy and constitutional federalism. And right now it has neither.

 

“Send in the Feds”? Don’t bother, they’re here.

Keeping up with President Trump’s Twitter activity is a full-time job, and I don’t have that kind of time.  So I rarely find it useful to comment on any of his Tweets.  I could not, however, resist responding to one from late last night, in which he makes a statement about the violence plaguing Chicago: “If Chicago doesn’t fix the horrible ‘carnage’ going on . . . I will send in the Feds!”

What does that even mean?

Chicago – a great American city by any definition – is home to a busy United States Attorneys Office, and field offices for the FBI, DEA, and ATF, among others.  Federal prosecutors and other law enforcement personnel in Chicagoland – among the brightest and most talented in the Nation – routinely work on violent criminal cases within federal jurisdiction.  Even a cursory look at the press releases for these federal offices shows that they have been busy using federal resources to fight Chicago’s dire crime problem (which seems connected in substantial part to a drug trafficking and gang problem).  See, e.g., here, and here, and here, and here, and here, and here.

In other words, what kind of federal role in Chicago does President Trump envision that does not already exist there?

One possibility is that he is not talking about policing and prosecution at all, but rather is talking about using National Guard troops.  That would raise serious legal issues, if the troops are called upon to engage in civilian law enforcement.  The image of uniformed military and even of military weaponry constantly patrolling Chicago’s streets is not an image of America becoming great again.  Another possibility is that he is talking about sending more federal money or other resources to Chicago to help combat the problem.  That would be welcome news to city and state officials in Chicago, I imagine (see a Chicago Tribune piece here).  But that is not typically what one would think of when hearing “send in the Feds,” a phrase that suggests a substantial physical presence by federal officials.  Perhaps even more agents and AUSAs could be placed there; perhaps federal drug and gang task forces there could be enhanced and better funded.  I would favor that move.  But let’s be clear: that’s not sending in the feds – that’s sending in more Feds.

Finally, while there is certainly a robust federal law enforcement role where the violent criminal activity involves guns, gangs, and/or drugs, does the President believe that the federal government should supplant the role of city and state officials in ordinary law enforcement involving street crime merely because the city and state are failing to curb the crime rate?  It is true that federal criminal law offers an expansive role for the Feds in this regard, but a more expensive role for the federal government is not something that conservatives and Republicans have typically defended, preferring instead that most criminal law enforcement be done at the state and local levels.  I can’t imagine intellectually honest conservatives going along with the idea of a wholesale federalization of criminal law enforcement in a major American city.

So if the President simply means ensuring a federal role in cooperation with the city and state role, then I must ask again: how is that different from the existing situation?

The President’s Tweet therefore raise two distinct questions.  First, is he even aware of, or does he understand, the rather extensive law enforcement role of the federal government in Chicago already?  And second, how does he envision the federal role there – or in other cities – in the scheme of constitutional federalism?

Unlike others who have been critical of the President’s focus on crime, I applaud the President for tackling this issue at a time when “criminal justice reform” rhetoric has often obscured a discussion of the need for aggressive approaches to criminal violence (including gun violence and drug trafficking, two things that often go together and that are plaguing Chicago).  And there is no question that the federal criminal law provides legal mechanisms for an aggressive federal approach to the kinds of violent crime that Chicago has been experiencing.  But those mechanisms are already at work in Chicago.  Maybe they should be even more robust.  But perhaps the President could be clearer about his federal prosecutorial priorities and his understanding of the Constitution’s limits on enforcing them.

Does asset forfeiture apply to drug prosecution defendant who did not directly benefit from the criminal conspiracy?

In March of this year, I posted about an interesting Sixth Circuit case, United States v. Honeycutt.  There, two brothers – Terry and Tony Honeycutt – ran an Army surplus store in Chattanooga, out of which they sold a legal product called Polar Pure.  That product is a water purifier that contains iodine, and although it has other lawful uses, it is often used in making methamphetamine.  According to the court’s opinion, this store was the only one locally that sold Polar Pure, it was kept behind the counter, and it eventually became the store’s highest grossing-item.  After the store closed in the wake of an investigation, red phosphorous meth labs became “rare” and “fairly non-extent” in the region, according to a DEA agent.

Terry went to trial and was convicted on the ground that he knew, or had reasonable cause to believe, that he was selling Polar Pure to customers who were using it to manufacture meth.  The Sixth Circuit upheld the conviction on this ground.  Tony had earlier pleaded guilty.

Today, the Supreme Court granted certiorari in the Terry Honeycutt case.  The Court has agreed to review an issue distinct from the sufficiency of the evidence issue that I discussed in March.  The district court had declined to order forfeiture under 21 U.S.C. 853(a).  The Sixth Circuit reversed, applying joint and several liability under 853(a) and relying upon circuit precedent that interprets drug forfeiture and RICO forfeiture statutes co-extensively.  The lower court thus agreed with a number of other circuits which hold that forfeiture in the drug context is not limited to property that the defendant acquired by himself.  Rather, as the Fourth Circuit put it, and as the Sixth Circuit approved, forfeiture under section 853(a) applies even to property derived indirectly from other co-conspirators or those who acted in concert with the defendant.  See United States v. McHan, 101 F.3d 1027 (4th Cir. 1996).

Tony’s guilty plea resulted in his forfeiture of $200,000 in proceeds.  Terry’s case involves the remaining $70,000.

The Supreme Court will now consider whether the Sixth Circuit was correct, that joint and several liability applies to forfeiture through the drug crime statutes.  SCOTUSBlog’s page is here, with the cert petition and brief in opp.

 

Can medical marijuana card holders buy or possess guns?

Following up on my last post – which dealt with the Ninth Circuit’s decision on the Justice Department’s power to proceed with criminal prosecutions under the Controlled Substances Act, in light of an appropriations rider defunding some such prosecutions – the Ninth Circuit yesterday issued another important decision on federal criminal laws related to drugs, this time in the context of federal gun law.  The decision in Wilson v. Lynch is here.

It is a federal crime for an unlawful drug user or addict to possess a firearm.  18 U.S.C. 922(g)(3).  It is also a federal crime to sell a firearm to a person with knowledge, or reasonable cause to believe, that the person is an unlawful drug user or addict.  18 U.S.C. 922(d)(3).  It is further unlawful to manufacture, distribute, dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance (like marijuana).  21 U.S.C. 841(a).

According to the court, Rowan Wilson was issued a Nevada marijuana registry card under Nevada state law.  But when she went to purchase a gun from a gun dealer in Nevada, the sale was denied on the ground that she was an unlawful user, or reasonably believed to be, of a controlled substance.  The seller was aware of the ATF’s Open Letter of September 21, 2011, which instructs firearms licensees that they cannot sell a gun to someone who is an unlawful user, even if state law allows use of medical marijuana.  Wilson filed suit against the Attorney General of the United States and the ATF, challenging the constitutionality of sections 922(g)(3) and 922(d)(3), as well as the Open Letter and the ATF’s implementing regulations (27 C.F.R. 478.11).

The Ninth Circuit held that she lacked standing to challenge section 922(g)(3) because she does not allege that she is an unlawful user or an addict, nor does she allege that she received or possessed a firearm, for which she would be subject to prosecution.  But the Ninth Circuit held that she had standing to challenge section 922(d)(3), because the legal standard under that statute prevented her from purchasing a firearm (and thus she was injured).  So the court proceeded to consider her constitutional claims on the merits.

The leading issue was whether the laws violated her Second Amendment rights.  The Court said it did not.  Binding precedent in the Ninth Circuit holds that the Second Amendment does not protect unlawful drug users.  See United States v. Dugan, 657 F.3d 998 (9th Cir. 2011).  However, the court took it as true that Wilson was not actually an unlawful drug user (she said that although she has a card, she has chosen not to use medical marijuana).  So the court could not apply its precedent as applied to someone like Wilson.

Instead, applying another circuit precedent, United States v. Chovan, 735 F.3d 1127 (9th Cir. 2013),  that adopts intermediate scrutiny under the Second Amendment, the court said that the federal laws at issue did not severely burden the exercise of her right to possess a firearm; they merely prohibited the sale of a firearm to her.  The court further explained that recent research showed a “significant link” between drug use (including marijuana use) and violence, conclusions supported by the legislative branch, as well.  “It is beyond dispute,” the court said, “that illegal drug users, including marijuana users, are likely as a consequence of that use to experience altered or impaired mental states that affect their judgment and that can lead to irrational or unpredictable behavior.”  The court also said that such users are more likely to have “negative interactions with law enforcement officers” and to be connected to “black market sources who themselves frequently resort to violence.”

So, despite the fact that registry cardholders and unlawful users are not necessarily the same, there is at least a reasonable fit between the federal laws here and the Government’s interest in reducing gun violence.  Even assuming that such laws could lead to some burden on Second Amendment rights, those burdens are minimal, the court held.

The Court also denied Wilson’s challenges based on the First Amendment, the Due Process Clause and the implied equal protection component of the Fifth Amendment, and the Administrative Procedures Act.

One key to understanding the significance of the issues in this case is the court’s assessment of the links between marijuana use and violence.  Although this assessment could have been more comprehensive in the opinion, it is worthy of serious consideration, and undermines many of the arguments made by advocates of more liberal marijuana laws.  Another key, though, is the holding that Wilson did not have standing to challenge section 922(g)(3).  In holding that the challenged laws – 922(d)(3), the regs, and the Open Letter – did not severely burden her core Second Amendment rights, the court relied upon the fact that she could have amassed guns before getting her registry card, and that she could have surrendered her registry card later in order to buy a gun.  See Slip op. at 14-15.  But the point of her challenge was to say that, as long as she is a registry card holder, she now cannot lawfully possess a gun for purposes of self-defense because of section 922(g)(3).  Is it, then, illusory to say that the sale provisions do not severely burden her rights, when she could not lawfully possess a gun anyway?  In other words, Wilson might say, while the sale ban in federal law might not have severely burdened her rights, the possession ban does.  Hence the importance of the finding that she did not have standing to challenge the possession statute.

Although the result may turn out to be the same – particularly if based on the link between drug use and violence and the reasonableness of the Government’s interests in forbidding gun possession by drug users – this question would at least be far trickier for federal courts if it is brought by someone with standing to challenge the possession ban of section 922(g)(3).

Ninth Circuit: Feds cannot prosecute CSA violators in medical marijuana States, sort of, for now

The United States Court of Appeals for the Ninth Circuit issued a significant ruling on the criminal enforcement of federal drug law yesterday.  In United States v. McIntosh (here), the court held that, where a defendant is fully compliant with the laws of a designated medical marijuana state, the Justice Department cannot engage in a federal prosecution of that defendant under the Controlled Substances Act.  The key limitation on the ruling for marijuana growers and dispensers, however, is that they must be in compliance with state law.

The case involves the consolidation of multiple federal prosecutions under the CSA.  According to the Ninth Circuit, in one case (McIntosh), the co-defendants were accused of running businesses in Los Angeles that dispense marijuana.  The Government also accused them of managing indoor grow sites in L.A. and San Francisco.  In another California-based prosecution (Lovan), federal and county law enforcement agents allegedly found more than 30,000 marijuana plants while executing a federal search warrant.  In a third prosecution (Kynaston), the Government alleged that, in the course of executing a warrant under Washington state law, investigators found over 1,100 marijuana plants (some growing, some, the court observed, with “root structures of suspected harvested marijuana plants”).  In each case, the defendants were indicted on federal criminal charges under the CSA.  The Kynaston case also involved charges under federal gun laws.

Although many States have moved in the direction of liberalizing their own drug laws, the federal government has not.  It remains a federal crime to manufacture, distribute, dispense, or possess with intent to manufacture, distribute, or dispense a controlled substance – among them, marijuana (still a Schedule I controlled substance).  See 21 U.S.C. 841(a).  But in 2014, and again during the appropriations battles in 2015, Congress passed an appropriations provision which says that in certain states (including California and Washington), the Justice Department may not spend any funds to prevent these states from implementing their own laws respecting medical marijuana.  See Section 542 of the Consolidated Appropriations Act of 2016.  So, the defendants in these cases sought to dismiss their indictments and obtain mandamus relief from the Ninth Circuit, alleging that the DOJ’s prosecution of them violated section 542 and that any effort by the DOJ to spend funds on such a federal prosecution would violate the separation of powers (by violating the Appropriations Clause, i.e., the executive spending money not appropriated by Congress).

The court agreed.  But the decision was not as sweeping as it might have been (or as some might think that it is).  This decision does not categorically forbid federal drug prosecutions involving marijuana.  Rather, the court interpreted section 542 to forbid DOJ from preventing the implementation of specific state law rules regarding the “use, distribution, possession, or cultivation of medical marijuana.”  But DOJ has the power to prosecute private individuals who violate the CSA and who are engaged in conduct not authorized by state law.

Moreover, as the court explained, not only is the text of the legislation subject to a limited interpretation, the rider itself has a temporal limit.  The court rightly noted that Congress could alter the existing rider by repealing it and appropriating funds to the DOJ.  Or, as the court said, Congress could enact a similar rider in future appropriations legislation (this legislation is good only for FY 2016, so it expires at the end of September – unless renewed, DOJ could then proceed with any prosecution not otherwise barred by law or the statute of limitations).  Moreover, the text of the rider applies only to States with respect to medical marijuana.  The legislation does nothing to prevent the DOJ from prosecuting those persons who violate the CSA in states that are not among those listed (say, West Virginia or North Carolina or South Dakota).

Still, there is an interesting separation of powers argument here that was not included in the court’s discussion, and perhaps was not even raised by DOJ: can Congress use its spending and appropriations powers in a way that interferes with the authority of the executive branch to carry out its constitutional function of taking care that the laws be faithfully executed?

To be sure, the spending power is among Congress’s most important weapons for setting national policy and forcing State compliance with Congress’s will.  But this law is different than a garden-variety conditional spending bill: it actually protects the states against another branch of the federal government, the executive.   One of the recognized limits on the spending power is that Congress cannot condition spending in way that compels states to violate some other constitutional provision (i.e., an independent constitutional bar, see South Dakota v. Dole).  But again, the instant legislation is different: the issue is whether the “independent constitutional bar” limitation includes the constitutional powers given exclusively to another branch of the federal government.

Congress was not saying here that the CSA was no longer a “law” that the executive has a duty to enforce.  Nor did Congress say that the CSA was unconstitutional, and we know that the Supreme Court has upheld Congress’s power to enact the CSA and permit its enforcement even in states with more liberal state drug laws.  See Gonzales v. Raich.  Congress simply said that, in these states, the executive cannot spend funds in a way that prevents these States from implementing their laws (which, practically, forbids federal prosecution).  And Congress has appropriated money for criminal prosecutions generally, just not for these.  So is the executive’s power to enforce the law a constitutional bar to Congress’s use of the spending power to prevent the use of federal funds for a particular kind of prosecution?  In other words, can Congress use the spending power to limit prosecutorial discretion?

I suspect most would say that the spending power extends to this kind of limit on executive power; in other words, this kind of law is a valid exercise of Article I power.  But I detect a separation of powers issue here that might be worth exploring further.

 

 

Supreme Court narrows scope of an “official act,” but keeps “misdemeanor crime of domestic violence” broad

While the decision in Whole Woman’s Health will dominate the news today, I note the other two cases of interest that came down today, as well.

In McDonnell v. United States, a unanimous Court – per the Chief Justice – vacated Governor McDonnell’s conviction under federal anti-corruption statutes, including honest services fraud and Hobbs Act extortion.  Though the term “official act” appears in the federal bribery statute but not the honest services statute or Hobbs Act, the parties agreed that this prosecution would use the bribery statute’s understanding of “official act” as the basis for applying the other relevant statutes.  See 18 U.S.C. 201(a).  The Court held that McDonnell’s jury received erroneous instructions on the meaning of an “official act.”   An “official act” is a “decision or action” on a “question, matter, cause, suit, proceeding, or controversy.” But “setting up a meeting, calling another public official, or hosting an event does not, standing alone, qualify as an ‘official act,'” the Court held.  Consequently, because the Court gave a narrowing construction to the statutes, there was no need to invalidate either the honest services statute or the Hobbs Act as unconstitutionally vague.

Rather than say whether McDonnell’s conduct fits the understanding of “official act” that the Court supplied here, the Court remanded the case to the Fourth Circuit to reconsider that question under the new standard.  So McDonnell is not out of the woods yet.  But his case is demonstrably stronger now.  And one wonders whether DOJ might be well-served to let go of this one.

While the Court’s reading of federal law is defensible as a matter of interpretation, I continue to believe this case was decided largely on concerns about the separation of powers, and perhaps even federalism.  This was a point that Justice Breyer articulated during oral argument, and I think the opinion tries to account for those concerns.  As the Court’s opinion explains, there was concern that the broad theory of the case that the Government had posited would have a chilling effect on governmental action in the political branches.  That is, elected officials might be wary of providing some service to, or meeting with, a constituent or citizen for fear of crossing the bounds of a prohibited quid pro quo.  Moreover, the Court explained that it had concerns about applying federal anti-corruption statutes in a way that would impose federal standards of conduct upon state and local officials and potentially displace state and local ethics or criminal laws.  Remember that Virginia did not pursue charges against McDonnell.

The remaining case today was Voisine v. United States.  There the Court held that a conviction for reckless assault on a domestic partner constitutes a “misdemeanor crime of domestic violence” for purposes of 18 U.S.C. 922(g)(9).  Using the definition in 18 U.S.C. 921(a)(33)(A), which requires the “use of . . . physical force,” the Court held that a reckless assault involves the use of physical force just the same as intentional or knowing assault.  Practically speaking, this means that a person with a conviction for a reckless domestic assault is forbidden under federal law from ever owning a firearm.

As sometimes happens in close cases like this, the Court’s opinions turned into a rather abstract debate on the criminal law.  If you like mens rea theory, you’ll love Justice Thomas’s dissent.  But beyond the high-level (and, yes, important) debate over the meaning of various mens rea terms, this case involved the serious matter of domestic violence committed by two men from Maine who also owned guns.  When officials began investigating Voisine for killing a bald eagle, they learned that he had a conviction under Maine law for reckless assault on his girlfriend, and that he owned a rifle.  Armstrong had a similar conviction for assaulting his wife.  Then, when he was the subject of a drug investigation, law enforcement officers found six guns and a large amount of ammunition in his home.  The Court found that these prior convictions were sufficient to bring both men within the ambit of 922(g)(9).

This case is a victory for proponents of tighter restrictions on firearms ownership.  But the Second Amendment implications did not escape Justice Thomas.  In a portion of his dissent in which he wrote only for himself (Justice Sotomayor joined the others parts of his dissent, but not Part III), Justice Thomas lamented that the Court’s broad understanding of the firearms possession disability here was likely unconstitutional.  Thomas clearly indicated this possibility at oral argument, when he broke his ten years of silence by asking the Government a question about the Second Amendment implications (“can you give me another area where a misdemeanor violations suspends a constitutional right?”).

I will have a bit more on the Thomas dissents in Voisine and Whole Woman’s Health in a subsequent post.  I see them as connected.

 

Important Second Circuit decision on executing arrest warrants and the Payton/Steagald dilemma

Last month, I posted on the important Fourth Amendment question regarding the standard for determining whether police have “reason to believe” a suspect is inside a particular residence, for purposes of executing an arrest warrant pursuant to Payton v. New York.  The United States Court of Appeals for the Second Circuit recently issued an important ruling on this and a related question, though in a slightly different factual context.  The opinion in United States v. Bohannon is here.

Law enforcement in Bridgeport, Connecticut had been investigating the Trumbull Gardens Organization (TGO) for narcotics and gun trafficking.  They had an arrest warrant for Jonathan Bohannon, and believed that he was at the home of Shonsai Dickson.  Her home was at 34 Morgan Avenue, though Bohannon lived at 103 Crestview Drive – two miles separated the residences.  FBI Special Agent Zuk made this determination based on several pieces of information provided by other law enforcement sources.

As the court described the information: 1) visual surveillance gave no indication that Bohannon was at his own home; 2) cell-site data from Verizon Wireless showed that his cell phone was used in a location that did not include 103 Crestview Drive; 3) cell-site data showed inactivity after 2:38 a.m., which led Agent Zuk to conclude that Bohannon had retired for the night somewhere other than his home; 4) the cell-site data showed only one address to which Bohannon had been linked, which was the Morgan Avenue home; 5) Dickson was known to the FBI because she was the lessee on an apartment where TGO members sold heroin; 6) visual surveillance showed a car registered to Dickson parked in front of Bohannon’s home only two weeks earlier; and 7) law enforcement saw Dickson’s car parked outside of the Morgan Avenue home on the day of the planned arrest.

Agents had an arrest warrant for Bohannon, but no warrant of any kind for Dickson.  They entered Dickson’s home through an unlocked door, found Bohannon in Dickson’s bedroom, and arrested him.  Later, and eventually with Dickson’s consent, agents seized crack cocaine and cash from under her bed; more crack cocaine, money, and a scale from a dresser; and three firearms and ammunition from a closet.  The court also noted that Bohannon helpfully shouted, “it’s all mine, don’t worry about it.”

Bohannon was indicted on a variety of federal drug and gun charges.  He moved to suppress the evidence seized from Dickson’s home and car.  The district court agreed in part and suppressed the evidence obtained inside the apartment (though not the car, holding that Bohannon had no reasonable expectation of privacy there).

On a pre-trial appeal by the Government, the Second Circuit vacated the suppression order.  The court agreed with the district court that no search warrant was necessary.  Recall that in Payton, the Supreme Court held that an arrest warrant is required to arrest someone in the home, absent exigency or consent, and where there is reason to believe the suspect is within.  A search warrant is not required under those circumstances.  A search warrant is required, however, when police wish to enter the home of a third-party, because the third-party’s interests would not be adequately protected by the arrest warrant for the suspect.  See Steagald v. United States.

Here, the agents violated Dickson’s rights under Steagald.  But Dickson is not the complaining party here; Bohannon is.  And the Supreme Court has never decided whether the subject of the arrest warrant (here, Bohannon) can object under Steagald; if not, then only the third-party (here, Dickson) can do so.  The Second Circuit therefore decided that issue and, consistent with the holdings of eight other federal circuits, held that the subject of the arrest warrant cannot invoke the protections of Steagald.

Having held that Payton, and not Steagald, applies, the court proceeded to determine whether the agents had “reason to believe” that Bohannon was at the Morgan Avenue home.  Recall that in my previous post on this subject, the Third Circuit concluded that “reasonable belief” equates to “probable cause.”  But I also noted that a few circuits had concluded otherwise, saying that the standard is less than probable cause.  The Second Circuit is one of those minority circuits, and here held that on this lesser standard, the agents had sufficient reason to believe that Bohannon was there.  Citing the information available to the FBI, the court said “the totality of these facts easily elevated such a suspicion well above the level of a hunch. Viewed in their totality, and in a commonsense manner, the record facts provided an articulable, objective reason to believe Bohannon might then be present in Dickson’s apartment.”

As I indicated previously, there is such a significant split of authority on the “reason to believe” standard that I am confident the Supreme Court will be presented with the opportunity to resolve the split.  Moreover, the Bohannon case would present the Court with an additional opportunity to resolve the uncertainty over whether the subject of an arrest warrant can claim the protections of Steagald.  This is essentially a standing problem (or what used to be viewed under the “standing” nomenclature).   The question is whether the suspect (the subject of the arrest warrant) can assert the protections of a case that was designed to protect the interests of the third-party in whose home he is found.  The Second Circuit here said the suspect has no greater rights in the third-party’s home than he does in his own home, where a search warrant would not be necessary (given the arrest warrant, see Payton).

One might argue that in light of the fact that social guests have reasonable expectations of privacy in the home of their host, they should be able to claim the heightened protections of Steagald.  But why should this fact matter?  The suspect also has an expectation of privacy in his own home, yet is not entitled to the protections of a search warrant there as long as a valid arrest warrant exists.  In other words, the arrest warrant suffices to protect the suspect regardless of his location.  As Steagald recognizes, the same cannot be said of the third-party in whose home the subject is found or in whose home the police are looking.  I think there is therefore substantial merit in the Second Circuit’s holding in this regard, though I also think it is worthy of clarification from the Supreme Court.