Suspected thief turns out to be felon in possession, but gun turns out to be inadmissible

Sometimes a federal gun possession crime results from an investigation specifically directed at the gun offense.  Sometimes, however, gun crimes result from investigations that have nothing to do with guns.  Just ask Phillip David Hernandez, who had an encounter with police as he walked next to a construction site that was located in a high-crime area and that was known for being the target of thieves interested in the construction materials there.  Did the police encounter turn up any stolen construction materials?  Nope.  It turned up a gun – which, as a convicted felon, Hernandez was not permitted to possess.  His case raises the question: was he “seized” for purposes of the Fourth Amendment when police questioned him from their patrol vehicle as he walked near the construction site?  If not, then the gun is admissible against him because the encounter is a “consensual” one, and does not implicate the Fourth Amendment.  But if it was a seizure, then the police have to demonstrate reasonable suspicion for the stop.  Can they?

According to the Tenth Circuit’s opinion in United States v. Hernandez, in October 2014, Denver police spotted Hernandez walking next to the construction site.  He wore all black clothing and carried two backpacks.  The site had been the subject of recent thefts of various materials, including sheet metal and copper piping.  Police suspected Hernandez might be serving as a lookout for thieves, though there was no one else around.  The officers also found it odd that Hernandez did not use the sidewalk on the other side of the street, but instead walked next to the construction area, essentially in the street.

When the officers pulled alongside him, Hernandez kept walking, and the officers followed along in a moving vehicle.  They did not display weapons nor raise their voices.  When asked where he was going and where he had been, Hernandez said he was at his grandmother’s and was headed home.  He then said, upon being asked, that he could not remember his grandmother’s address.  When asked if he would stop walking and talk to the officers, Hernandez complied.  When asked, he gave his real name but a false birthdate.  The officers pulled up his information on their computer, and it showed Hernandez’s mug shot and that he had violated parole, for which there was an active warrant.  He was informed of the warrant and approached by the officers on foot, and he began to walk away.  He reached for his waistband and an officer asked if he had a gun.  He said “yes,” the officer grabbed his arm, and a revolver fell to the ground.

Hernandez was indicted for being a felon-in-possession, 18 U.S.C. 922(g)(1), and filed a motion to suppress, which the district court granted.  The Government appealed.  The Tenth Circuit affirmed the suppression of the gun.

Was Hernandez seized?  Yes, this was a seizure that required reasonable suspicion, according to the court.  While this began, as do many police encounters on the street, as a consensual encounter that required no justification, it became a seizure when the officers asked Hernandez to stop walking and talk to them.  This was the point at which a reasonable person would not have felt free to terminate the encounter and continue on his way – considering that that it was dark, there were no other people around, and the request to stop was made by two uniformed officers who had been following him.  As the court put it, “a reasonable person would have believed that compliance with the ‘request’ was not optional.”

Now that we know he was seized, was there reasonable suspicion that would have justified the seizure?  No, the court said.  The police stop of Hernandez was, rather, based on “inchoate suspicions and unparticularized hunches,” the court wrote.  They had no evidence specific to Hernandez that he had committed any crime, and the mere fact that he was walking next to a location that had been the subject of previous criminal activity is not enough to make their suspicion of him reasonable.  Neither was the fact that he was in a “high-crime” area, or that he wore all black and had two backpacks, or that he chose not to use the sidewalk.

What about the fact that he could not recall his grandmother’s address?  The court found that the Government had not relied upon this argument previously, and should not be able to rely upon it now on appeal.  Still, that fact would not be entitled to much weight, the court said.  When each officer testified, neither relied upon this fact to establish their suspicions about Hernandez, “which,” the court said, “is understandable because ordinary experience tells us that a grandchild who knows the familiar way to his grandmother’s house may well not know her exact street address.”

A final aspect of this case is notable.  Could the Government have argued that the finding of the gun was sufficiently attenuated from the initial unlawful stop, given the existence of the active warrant for Hernandez, a la Utah v. Strieff?  Recall that in Strieff, the Court applied the attenuation doctrine to hold that the discovery of an untainted warrant breaks the link to an unlawful Terry stop.  As it happens, Strieff was decided after briefing and argument in Hernandez.  But the Government never relied on attenuation in the district court, and so had waived that argument on appeal.  Before Strieff had been decided, the Tenth Circuit noted, two other circuits followed the same rule that was ultimately recognized by the Supreme Court in Strieff.  So the attenuation argument was available to the Government, but the Government did not pursue it.

Query whether, had the attenuation argument been properly before the Tenth Circuit, Strieff would make the gun admissible.  Applying the Brown factors, as did Strieff, the Government would have had a persuasive argument that the discovery of the warrant here was an intervening circumstance that makes the gun admissible.

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).

Gun rights, criminal law enforcement, and Justice Thomas

The officer-involved shootings in Baton Rouge and Minnesota last week – combined with the premeditated, cold-blooded murders of five Dallas Police officers, with a firearm – remind us once again of the complicated legal and political issues created by gun violence.  In Dallas, it is notable that the killer did not target vulnerable people in a gun-free zone; he targeted law enforcement officers in public that he knew were armed, and trained to kill with their own guns.  In Baton Rouge and Minnesota – where we are still learning additional facts, making it premature to draw definite conclusions about the legality of the official conduct there – the legal issues are potentially even more complex because they concern the intersection of gun rights and Fourth Amendment law.  I have posted previously (here and here) on the Fourth Amendment issues being created by the liberalization of gun laws around the country.  One persistent problem involves the ways in which a broad reading of gun rights, combined with an accordingly narrow reading of search of seizure powers, could place law enforcement officers in the untenable position of knowing that a person is armed but lacking the power to temporarily detain and disarm them, absent some additional reasonable suspicion beyond the fact that the person is armed.

With that in mind, I want to shift to an interesting but slightly different gun rights problem, one that Justice Thomas raised at the end of the Supreme Court’s term.  In his dissent in Whole Woman’s Health v. Hellerstedt, the Texas abortion law challenge, Thomas writes that, “[t]he Court has simultaneously transformed judicially created rights like the right to abortion into preferred constitutional rights, while disfavoring many of the rights actually enumerated in the Constitution.  But our Constitution renounces the notion that some constitutional rights are more equal than others.”  He continued, “[u]nless the Court abides by one set of rules to adjudicate constitutional rights, it will continue reducing constitutional law to policy-driven value judgments until the last shreds of its legitimacy disappear.”

I am not sure to what he is referring when he speaks of “many” enumerated rights being disfavored, but I am confident he is referring to one in particular: the Second Amendment right to keep and bear arms.  I have such confidence because on the same day, in Voisine v. United States, Justice Thomas offered an even more comprehensive criticism of what he views as the disfavored nature of Second Amendment rights.  In Voisine, Thomas – speaking only for himself, as Justice Sotomayor joined only the first two parts of his dissent, but not Part III – explains that the federal law at issue has the effect of imposing a broad disability on gun ownership, a decision that is left to the discretion of federal and state prosecutors.  “We treat no other constitutional right so cavalierly,” he said, explaining  that a majority of the Court would likely not approve of a law that imposed a lifetime ban on publishing by a person convicted of misdemeanor libel.  He also repeated a line that he used previously in dissenting from the denial of certiorari in a Second Amendment challenge, saying that “the Court continues to ‘relegate the Second Amendment to a second-class right.'” (quoting his dissent in Friedman v. Highland Park).

What was especially notable about his Voisine dissent, though, was his observation about the limits on gun rights.  He acknowledged the limitations described in District of Columbia v. Heller, and appeared to concede that gun rights are not absolute.  But then he noted the broad disabilities approved in Heller – presumptively valid prohibitions on possession by dangerous persons, specifically felons and the mentally ill – and described this as merely dicta.  Apparently, Thomas would approve of narrow gun regulations that “neither prohibit nor broadly frustrate” the exercise of Second Amendment rights.  But the disabilities placed upon felons and the mentally ill, for example, are so broad that they would be valid only when applied to those who are not the “people” protected by the text of the Second Amendment.

Is Justice Thomas suggesting that the firearm possession prohibitions in 18 U.S.C. 922(g) – which impose broad disabilities on a wide variety of citizens, from felons to the mentally ill to unlawful drug users to persons dishonorably discharged from the armed forces to persons convicted of misdemeanor crimes of domestic violence – are unconstitutional?  Is he suggesting that one of the most important gun regulations in the federal criminal law arsenal – the felon-in-possession law – is invalid?  That strikes me as a remarkable position to take, especially in light of the fact that Thomas joined the Heller majority opinion.  But Thomas’s description of this language in Heller as mere dicta, and his concern that these kinds of gun regulations sweep so broadly as to forbid firearms possession “at all times and in all places,” certainly suggests that Thomas is thinking in these terms.

I will be interested in seeing whether future constitutional challenges to the 922(g) prohibitions make use of Thomas’s language from Voisine.  I cannot imagine there are any other votes on the current Court for such a reading of the Second Amendment.  Such a reading would surely frustrate the enforcement of much federal criminal law, and runs counter to the claims of many gun rights advocates who say they still want to “keep guns out of the hands of criminals” and other dangerous people.  Perhaps this is not what Thomas was getting at.  And perhaps he would approve of similar gun possession bans that are narrower in scope (say, a ban for a definite time period).  But his language seems at least to be a nod in the direction of Second Amendment rights that are broader than those recognized in Heller.

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.

 

Thoughts on Birchfield: search incident okay for breath, but not for blood

On a busy Thursday at the Supreme Court, the decisions on affirmative action and the President’s immigration executive order overshadowed an important Fourth Amendment case, Birchfield v. North Dakota (and a somewhat less important Armed Career Criminal Act case, Mathis v. United States).

In an effort to combat the national scourge of drunk driving, every state has implied consent laws that govern the refusal of a BAC test upon suspicion of drunk driving.  That is, when a person obtains a license and uses public thoroughfares, they are deemed by the state to have implicitly consented to having their BAC tested.  Many states impose civil or administrative penalties (e.g., license suspension) for refusing such a test.  Several states, though – including North Dakota and Minnesota – go further and make it a crime to refuse such a test after the person has been arrested for a drunk driving offense.

When a person is subjected to a lawful arrest, the police may search the arrestee’s person, any items or containers associated with the person, and anything within the arrestee’s grabbing area or wingspan.  See Chimel v. California; Robinson v. United States.  If a person is arrested upon a traffic stop or after being inside a car, police may then search the passenger compartment of the vehicle if the arrestee is left unsecured and the passenger compartment is within his literal grabbing area, or if there is reason to believe evidence relevant to the crime of arrest will be found inside.  See Arizona v. Gant.  But in Riley v. California, the Court held that the search incident doctrine does not extend to the contents of cell or smart phones, finding that a balancing of the privacy and governmental interests favored the requirement of a warrant.  Using a similar analysis, the Court this week held that the search incident doctrine permits a state to require a person – on pain of criminal penalty if he refuses – to take a breath test after being arrested for a drunk driving offense.  Breath tests, the Court repeated, “do not ‘implicate significant privacy concerns.'”  (quoting Skinner v. Railway Labor Executives’ Assn.).  But, the Court said, “[b]lood tests are a different matter.”  The Fourth Amendment does not allow the state to criminalize the refusal to take a blood test.  Blood tests are substantially more invasive than breath tests, and so the individual’s interests – like those in Riley – militate in favor of mandating a warrant for blood, absent some other legal justification.

The Court also examined whether the blood test refusal statute could survive based not on the search incident doctrine, but on the consent doctrine.  Consent to a search, when voluntary, makes the search per se reasonable under the Fourth Amendment.  The Court, however, held that the consent doctrine did not justify requiring consent to a warrantless blood test, at least where the refusal amounts to a crime.

This, I think, is an important point.  The Court did not consider the constitutionality of these implied consent laws generally.  That issue was not before the Court, and Justice Alito’s opinion stated that the Court had cited these laws approvingly in other cases (though those are cases that did not themselves consider the constitutionality of implied consent as a Fourth Amendment matter).  He further said that nothing in Birchfield should be read to cast doubt on these laws.  Rather, Justice Alito was content to simply hold, more narrowly, that a criminal penalty for refusal went beyond what the Fourth Amendment would permit, saying simply that there must be “a limit” on the consequences to which a person consents when they drive on public roads.  Presumably, then, it is unreasonable to imply consent to a blood test and to criminalize refusal to do so merely because the person uses public roads.

But the Court’s holding on this point was terse and lacked much explanation.  Is this the only “limit”?  Why would implied consent to a blood test be invalid when there is a criminal penalty, but the very same conduct constituting implied consent would be valid consent when the State simply takes away one’s license?  In other words, what – for purposes of interpreting the Fourth Amendment – is the difference between criminal penalties and civil or administrative penalties when it comes to refusing consent to a blood test?  I wonder whether these implied consent laws with non-criminal consequences are ripe for a Fourth Amendment challenge at the Court, notwithstanding Birchfield’s observation that nothing in the case “should be read” as making implied consent laws constitutionally dubious.

Which brings me to another takeaway from Birchfield.  For those wondering about the scope of the case, remember that it applies only in the context of a search incident, i.e., where there is an arrest.  If a driver is pulled over and subjected to a BAC test before being arrested, Birchfield does not govern.  It is in these situations that the state would have to rely upon either consent doctrine or exigency to justify the demand for a test.  We know from Missouri v. McNeely that the natural metabolization of alcohol in the blood does not amount to a categorical exigency, but rather must be judged case-by-case.  And if the exigency could not be established, that would leave consent as the basis for a warrantless search, which brings me back to my previous point about whether treating this as implied consent is constitutionally valid under the Fourth Amendment.

For readers interested in federal criminal law specifically, the Court will likely issue its decisions in McDonnell and Voisine on Monday.  We also expect to see the Court’s ruling in Whole Women’s Health, the Texas abortion restriction case.

 

Supreme Court decides Taylor: knowingly robbing a drug dealer of drugs or proceeds satisfies Hobbs Act

After a long week of business travel, I’m ready to begin posting again and wanted to begin with some observations on the (in my view) egregious treatment given to Dustin Johnson yesterday at Oakmont by the United States Golf Association.  Fortunately, DJ played sterling golf down the stretch, mooted the consequences of the USGA’s concerns, and (implicitly, of course) gave the USGA a big ol’ middle finger with a dramatic birdie at 18 to widen his margin of victory in the U.S. Open.  But I have been thinking about doing some posts on what the rules of sports can learn from rules of law, and the Johnson-ball-moving controversy supplies an excellent subject for such a post (as would the almost equally egregious treatment DJ received from the PGA of America at Whistling Straits back in 2010, robbing him of his place in the playoff for the PGA Championship – I’m sure I want to revisit that, too).

But that commentary will have to wait.  More immediately, it was a big day at the Supreme Court for federal criminal justice.  Nothing shocking, but three cases announced today each have some significance for prosecutors and defense lawyers.

The Court decided Taylor v. United States.  I posted on Taylor earlier in the year (here).  Predictably, the Court, per Justice Alito, held that the jurisdictional element of the Hobbs Act, 18 U.S.C. 1951, is satisfied merely by showing that the defendant knowingly robbed a drug dealer of drugs or drug proceeds.  The opinion was short, and found that any questions about the scope of the jurisdictional element were governed by Gonzales v. Raich.  Because Congress has the authority to regulate the intrastate possession, manufacture, or distribution of controlled substances, it follows that Congress can criminalize the intrastate theft of controlled substances.

Three items from Taylor are noteworthy.  First, Justice Alito’s opinion accepted, for purposes of this litigation, the holding from Stirone v. United States that the Hobbs Act employs the full scope of congressional commerce power.  Justice Alito does not defend this proposition with any additional language, but simply says the “expansive language of the Act” cannot be interpreted otherwise.  But that is exactly the problem: the expansive language of the Act.  Had Taylor placed before the Court the question of whether the wording of the jurisdictional element was consistent with the Court’s Commerce Clause cases since 1995 (Lopez), and not 1960 (Stirone), I think Justice Alito would have had to defend the scope of the Hobbs Act more decisively.  My view is that these drug robbery cases are the somewhat easy cases, because of Raich; far more difficult applications of the jurisdictional element involve other kinds of robberies, ones that do not involve subject matter already covered by a Court decision on the scope of the Commerce Clause (e.g., robbery of, say, a local convenience store, or a home-invasion robbery of a person who also owns a small business).  Justice Alito seems to acknowledge this by limiting the holding to drug dealer robberies, and perhaps that very sentence will encourage challenges to the scope of the jurisdictional element in other robbery cases that do not involve drug dealers.

Second, Justice Alito acknowledges Justice Thomas’s lone dissent.  Justice Thomas was largely echoing concerns he has raised for twenty years about the Court’s Commerce Clause jurisprudence, and because he could not muster majorities in the previous Commerce Clause cases in which he wrote separately to express his views on Commerce Clause originalism, it is unsurprising that he is speaking for himself here, as well.  But Justice Alito then says “we have not been asked to reconsider Raich.  So our decision in Raich controls the outcome here.”  Fair enough.  But what if the Court had been asked to reconsider Raich?  I’m not sure this matters much, as I think Justice Alito (and the Chief Justice) would be highly unlikely to undo Raich.  Even if that question were before the Court, Justice Thomas would likely be writing for himself (after all, he is the only Raich dissenter who is still on the Court).

Finally, the majority opinion says the Hobbs Act is satisfied if the defendant “knowingly stole or attempted to steal drugs or drug proceeds.”  I read this as requiring proof of knowledge as to the derivation of the items sought.  But what if the defendant robbed a drug dealer and did not know the person was a drug dealer?  Or, what if the defendant knowingly targeted a drug dealer but stole items not derived from the sale of drugs (such as, for example, expensive jewelry that the victim bought with salary from legitimate employment)?  The Court’s language here could invite additional litigation in these cases on the question of where the money to purchase the stolen items came from –  legitimate sources or drug trafficking?

The Court today also decided RJR Nabisco v. European Community (here), which held that in civil RICO litigation, RICO does not apply extraterritorially unless Congress expressly makes it so.  Because civil RICO decisions can affect the scope of criminal RICO prosecutions (each kind of action derives from the same body of statutory law), I will think more about how important this case may (or may not) be in future criminal RICO cases.

And the Court decided Utah v. Strieff (here), holding that the exclusionary rule does not apply where an unconstitutional Terry stop leads to the discovery of an outstanding warrant, the arrest for which turns up drug evidence.  The discovery of the outstanding warrant, the Court held, breaks the chain of causation between the initial illegality and the seizure of the evidence.  I’ll have more to say on Strieff in a future post.