Federal Appeals Blog

United States v. Calvin Weaver

No. 18-1697-cr

Second Circuit Court of Appeals

Decided En Banc August 16, 2021

Issue:

Pat-Down Reasonable Under Fourth Amendment?

Whether an officer’s pat-down search of defendant Weaver for weapons was reasonable under the Fourth Amendment where the officer frisked Weaver during a traffic stop after observing him stare at an unmarked police car and try to conceal something in his pants.

Holding:

Pat-Down is Reasonable When Totality of Circumstances Provides Reasonable Suspicion

The Second Circuit held that Weaver’s pat-down was reasonable; it also reiterated 1) that an officer’s verbal directives to a suspect do not transform a stop into a search when they do not amount to physical trespass, 2) an officer’s subjective intent has no bearing on determining when the officer’s interaction with the suspect constitutes a search, and 3) in determining whether an officer has reasonable suspicion that a suspect is armed, courts must look to the totality of the circumstances confronting the officer.

Facts:

Calvin Weaver was frisked during a traffic stop in a neighborhood known for gun violence. The officer who frisked him saw Weaver staring at the unmarked police car before hitching up his pants as he got into a sedan. Officers later encountered the sedan and pulled it over for a traffic violation. As the officer approached the car he saw Weaver slouched in his seat, shifting and using both hands to push down on his pelvic area as if to conceal something. When ordered outside the sedan with his hands on the trunk, Weaver responded that “[he] don’t got nothing.” As Weaver stood at the back of the car he pressed his pelvis toward the car. During the pat-down, officers discovered that Weaver had a loaded semi-automatic pistol and baggies of cocaine hidden in his pants.

Weaver filed a motion to suppress the evidence obtained during what he claimed was an unconstitutional pat-down. The district court denied his motion, focusing on the totality of the circumstances facing the officer at the time of the pat-down. It reasoned that some of the facts, on their own, were insufficient to create reasonable suspicion for a frisk, but that all the facts, when considered together, established that the officer had a reasonable suspicion to believe that Weaver might be armed and dangerous, therefore justifying a pat-down.

Weaver appealed his conviction for being a felon in possession of a firearm, arguing that the district court erred in denying his motion to suppress the gun and drugs found in the search. In support, Weaver claimed that in assessing whether reasonable suspicion existed, the court is limited to analyzing his conduct before the officer ordered him out of the car. Weaver further contended that the officer’s order marked the moment the search began because Weaver reasonably thought he was being searched at that point, and because the officer subjectively intended to search him when he gave him the order. Weaver also argued that the facts known to the officers did not provide them with reasonable suspicion that he had a weapon, as required by the Fourth Amendment in light of Terry v. Ohio (392 U.S. 1 (1968)). A divided Second Circuit panel heard Weaver’s arguments and reversed the district court’s denial of his motion to suppress the firearm and drug evidence. The panel majority concluded that the officer did not have a reason to believe that Weaver was armed and dangerous, but that, “at most, the officers had reason to believe that Weaver possessed something illicit.”

Upon rehearing Weaver’s appeal en banc, the Second Circuit vacated the panel opinion, rejected Weaver’s novel legal contentions as adopted by the panel majority, and confirmed several fundamental principles of Fourth Amendment jurisprudence.

Analysis:

Totality of Circumstances

When considering a ruling on a motion to suppress evidence, the Second Circuit reviews the district court’s legal conclusions de novo, its findings of fact for clear error, and its decision on mixed questions of law and fact, including whether there was a reasonable suspicion to justify a frisk. Warrantless searches and seizures are “per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions” (Katz v. United States, 389 U.S. 347, 357 (1967)). The Terry investigative stop and frisk is one such exception.

Terry Stop and Frisk

In Terry v. Ohio, the Supreme Court upheld a stop and frisk of two men who officers noticed “hover[ed] about a street corner for an extended period of time.” Worried the men were casing the store for a robbery, the officer stopped the men and asked for their names. When one of the men mumbled something in response, the officer grabbed and patted him down, finding a .38-calibre revolver in his coat pocket.

As to the constitutionality of the stop, the Court reasoned that the government’s general interest in effective crime prevention and detection can outweigh the minor intrusion imposed by a police stop for questioning. Accordingly, Terry establishes the rule that police may stop a person for investigative purposes when they have a “reasonable suspicion” that “a person they encounter was involved in or is wanted in connection with a completed felony,” even if that suspicion does not rise to the level required for probable cause.

Regarding the frisk, the Court reasoned that an officer must have a reasonable suspicion not only that criminal activity is afoot, but also that the person suspected is “armed and dangerous” (Terry, 392 U.S. at 23). The further line of inquiry recognizes that a frisk is a more intrusive invasion of a person’s security than a stop. The Supreme Court concluded with Terry that a frisk was nevertheless a “minor inconvenience and petty indignity” in light of the need for law enforcement officers to protect themselves and other prospective victims of violence. In other words, the Court recognized that the adherence to the probable cause standard for pat-downs could leave officers without the tools they need to do their jobs safely and respond to quickly evolving situations.

‘Reasonable Suspicion’ Standard

The reasonable suspicion standard requires only that an officer “be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion…” (Id. At 21). Reasonable suspicion requires less than the ‘fair probability’ of wrongdoing needed to support probable cause. In determining whether an officer has an “objective” basis for his conduct, the Court must “view the totality of the circumstances through the eyes of a reasonable and cautious officer on the scene, whose insights are necessarily guided by the officer’s experience and training” (United States v. Santillan, 902 F.3d 49, 56 (2d Cir. 2018). A “mosaic” of factors can contribute to a basis for reasonable suspicion, including, among other things, “the suspect’s behavior, the context of the stop, and the crime rate in the area” (Navarette v. California, 572 U.S. 393, 403 (2014)).

When Did the Search Begin?

An “officer’s action must be justified at its inception” (Kansas v. Glover, 140 S. Ct. 1183, 1188 (2020)). Thus, when reviewing the constitutionality of a frisk for weapons, the Court must examine the facts that preceded the frisk. In order to determine whether the facts preceding the search provided reasonable suspicion to conclude that Weaver was armed, the Court must first consider when the search began. It holds that the office began to search Weaver when he physically patted him down.

The Supreme Court has articulated two tests for determining whether a police officers’ conduct constitutes a “search” for purposes of the Fourth Amendment: whether the police officer “physically intrudes on a constitutionally protected area” and if not, whether the officer violates a person’s “reasonable expectation of privacy.”

‘Search’ Means Physical Trespass of Constitutionally Protected Area

Neither the officer’s verbal command to place Weaver in a position where a frisk might occur, nor his intent to conduct a frisk produced any invasion of a private and constitutionally protected area based on physical trespass or a reasonable expectation of privacy. The Supreme Court has held that as part of a lawful stop, an officer may take reasonable steps to ensure safety. He may order the driver and passengers out of the car, even if he does not have a reason to search the car or its occupants (See Pennsylvania v. Mimms, 434 U.S. 106, 111 n.6 (1977)). Depending on the circumstances, he may handcuff a suspect, secure him in the back of a patrol car, or order him to lie on the ground, move to another location, stand against a wall, or—as in this case—stand with his hands against the trunk of the car. Each of these measures may be appropriate to minimize safety risks, prevent a suspect’s flight, or secure a scene generally, and each can be challenged for being unreasonable or for transforming a Terry stop (requiring reasonable suspicion of criminal activity) into a de facto arrest (which requires probable cause). None of these measures, however, transforms a “seizure” into a “search.”

In short, the Second Circuit held that an officer’s verbal directives to a suspect do not transform a “stop” into a “search” unless the officer committed a physical trespass into a constitutionally protected area or otherwise violated the person’s reasonable expectation of privacy. Additionally, it is irrelevant whether the suspect reasonably believed that he was being searched, or what the officer’s subjective intentions were in placing the defendant in the search position. The search objectively commenced when the officer started physically patting down Weaver’s clothes.

For these reasons, the Second Circuit held that the officer had a particularized and objective basis for believing that Weaver might be armed and dangerous at the time he commenced the search, therefore the frisk was justified under the Fourth Amendment. The Second Circuit vacated the panel’s decision and affirmed the judgment of the district court.

United States v. Beltran-Levya (Guzman Loera)

Second Circuit Court of Appeals

Decided on January 25, 2022

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Issue:

Whether 1) defendant Guzman’s indictment should have been dismissed under the doctrine of specialty and 2) whether the Government violated the Fourth Amendment when it rerouted, then obtained electronic communication from Guzman’s private servers.

Holding:

The Second Circuit held that 1) Guzman lacked the standing to invoke the specialty doctrine as the treaty does not confer individual rights and Mexico explicitly signed a waiver excepting the specialty doctrine, and 2) the Fourth Amendment does not apply to “non-resident aliens,” and neither the servers nor Guzman were located in the U.S.

Facts:

Guzman, also known as “El Chapo,” is the former leader of Mexican drug trafficking organization Sinaloa Cartel, which imported more than a million kilograms of cocaine and hundreds of kilograms of heroin, marijuana, and methamphetamine into the U.S. In July 2009, the Eastern District of New York indicted Guzman and an arrest warrant was issued. Guzman was a fugitive at that time, following his escape from a Mexican prison in 2001 by bribing officials. In 2014, Mexican authorities recaptured Guzman and detained him in a maximum-security prison where he escaped again in 2015 after digging a mile-long tunnel starting under his cell. In 2016 he was recaptured by Mexican authorities, and in 2017, Mexico extradited Guzman to the U.S. to stand trial.

After a three-month trial, Guzman was convicted of a Continuing Criminal Enterprise (CCE) offense, an international narcotics conspiracy, a cocaine importation conspiracy, a cocaine distribution conspiracy, international distribution of cocaine, use of firearms in relation to drug trafficking crime, and conspiracy to launder narcotics proceeds. Guzman was sentenced to five concurrent sentences of life imprisonment for the CCE and drug trafficking offenses, a consecutive 30-year sentence for the firearms offense, a concurrent term of 240 months’ imprisonment for the money laundering offense, and he was also ordered to forfeit more than $12 billion.

On appeal, Guzman makes ten claims: 1) that his indictment should have been dismissed under the doctrine of specialty, 2) he was denied his Fifth and Sixth Amendment rights to a fair trial and the effective assistance of counsel due to the conditions of his pretrial detention, 3) the murder conspiracy, charged as one of the CCE violations, should have been dismissed, 4) the Government violated his Fourth Amendment rights and Rule 41 when it obtained electronic messages from servers location in the Netherlands, 4) the District Court exceeded its discretion in making evidentiary rulings, 6) Guzman’s lead lawyer had a per se conflict of interest, 7) Guzman was prohibited from presenting a defense of Government bias, 8) the jury charge on unanimity was erroneous, 9) a new trial should have been granted based on juror misconduct, and 10) the case should be remanded for a hearing on whether the Government and the District Court engaged in improper ex parte proceedings. The Second Circuit concluded that none of these claims had merit, and they therefore affirmed the order of the Appellate Division.

Analysis:

Doctrine of Specialty Claim

The doctrine of specialty is an international law principle requiring that an extradited defendant “can only be tried for one of the offenses described in the extradition treaty, and for the offense with which he is charged in the proceedings for his extradition” (United States v. Rauscher, 119 U.S. 407, 430 (1886). Guzman argued that after Mexico agreed to extradite him to the U.S. for charges in indictments in Texas and California, the Government “fraudulently procured” Mexico’s waiver of the specialty doctrine in order to transfer him to stand trial in New York. He also argued that Mexico did not agree to the harsh conditions of his pretrial detention.

Mexico extradited Guzman to the U.S. pursuant to the Extradition Treaty. Shortly after, Mexico consented to an exception of the doctrine of specialty, pursuant to Article 17, which states that “the treaty does not confer an individual right to assert violations of the Treaty.”  The District Court denied Guzman’s motion to dismiss the New York indictment based on the doctrine of specialty, ruling that Guzman lacked standing to invoke the doctrine, relying on United States v. Barinas, 865 F.3d 99, 105 (2d Cir. 2017), wherein the Second Circuit explained that “international treaties establish rights and obligations between States-parties—and generally not between states and individuals, notwithstanding the fact that individuals may benefit because of a treaty’s existence.” (Id. at 104-05). Furthermore, the Court explained, Mexico explicitly consented to having Guzman tried on the New York indictment. His specialty claim was therefore denied.

Fourth Amendment Claim

Guzman argued that the Government violated the Fourth Amendment by obtaining records of his phone conversations and text messages, and that the District Court erred in not suppressing these conversations. The Government obtained the conversations after gaining the cooperation of the engineer who initially set up a private, encrypted network for the Sinaloa Cartel, which was located first in Colombia, then in Mexico and Canada. At the direction of the FBI agents, the engineer moved the Guzman Network servers to the Netherlands and downloaded Guzman’s calls. The Government worked with Dutch authorities to surveil and obtain search warrants for the servers.

Prior to trial, Guzman moved to suppress the “Dutch Calls.” The District Court ruled that Guzman failed to establish that his rights were violated as he relied on the affidavit of an agent lacking knowledge that the Dutch servers belonged to Guzman. The Fourth Amendment does not apply to “the search and seizure by the United States agents of property that is owned by a nonresident alien and located in a foreign country” United States v. Verdugo-Urquidez, 494 U.S. 259, 261 (1990). Because neither Guzman nor the servers were located in the U.S., the Dutch Calls were not subject to Fourth Amendment protections. His Fourth Amendment claim was denied, along with all remaining eight claims on appeal.

US v. Fowler

445 F. 3d 1035

Eighth Circuit Court of Appeals 

Decided on April 17, 2006

Issue:

Government Advocates for Enhancement Despite Plea Agreement Stipulations

Whether the Government breached the plea agreement with defendant Fowler when it advocated for the career-offender enhancement at sentencing despite stipulating in the agreement to recommend defendant’s offense level to be 25. 

Holding:

Government Breached Agreement

The Eighth Circuit held that the Government breached the plea agreement when it advocated for the imposition of the career-offender enhancement despite its recommendation that the offense level be 25. 

Facts:

Dwight Fowler pled guilty to five counts of bank robbery in violation of 18 U.S.C. § 2113(a). The plea agreement specifically addressed a number of sentencing issues, including Fowler’s estimated offense level of 25. The “GUIDELINES RECOMMENDATIONS” section of the agreement detailed the version of the Guidelines manual the parties recommend, the applicable base offense level for the conduct, and what enhancements applied. The section concluded, “based on these recommendations, the parties estimate that the Total Offense Level is 25.” 

The pre-sentence report (PSR), however, recommended the imposition of the career-offender enhancement based on defendant’s past conviction stemming from a series of armed robberies, raising his offense level to 29. Fowler objected to the enhancement, arguing that it would be a breach of the plea agreement. In response, the Government filed a memorandum in support of the PSR enhancement, disputing that it had agreed the career-offender enhancement was inapplicable. The district court accepted the Government’s argument and sentenced defendant to 151 months of imprisonment followed by three years of supervised release. 

Analysis:

Government Advocated for a Different Outcome from the One Promised 

The plea agreement in this case clearly bound both the Government and Fowler to recommend an adjusted offense level of 25 for his conduct. But in its written and oral presentation to the court, the Government actively advocated for an outcome different from the one it promised Fowler. At oral argument, the Government suggested it felt compelled to state its view because the district court asked for it at sentencing. This assertion fails to explain the Government’s written response to Fowler’s objections to the PSR, and the district court’s asking for the Government’s position does not excuse it for failing to abide by the plea agreement. The Eighth Circuit remanded the case for the district court to determine the appropriate remedy. 

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US v Andrews

No. 20-2768

Third Circuit Court of Appeals

Decided on August 30, 2021

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Issue:

Entitlement to Compassionate Release

Whether the District Court erred in denying defendant Andrews’ motion for compassionate release based on “extraordinary and compelling reasons” warranting a reduced sentence under 18 U.S.C. § 3582(c)(1)(A)(i), where Andrews is serving a 312-year sentence for thirteen armed robberies committed when he was nineteen.

Holding:

Compassionate Release requires “Extraordinary and Compelling” Reasons

The Third Circuit held that 1) the District Court did not err in denying Andrews’ motion for compassionate release because his reasons fell short of the “extraordinary and compelling” reasons requirement, and 2) courts wield considerable discretion in granting such motions.

Facts:

In 2005 defendant Eric Andrews robbed thirteen North Philadelphia businesses at gunpoint. Andrews was charged with the robberies, conspiring to commit the robberies, and brandishing a firearm during the completed crimes. A jury found Andrews guilty on all counts and he was sentenced to 312 years’ imprisonment: 57 months for the robberies and conspiracy under 18 U.S.C. § 1951, and 3,684 months for brandishing a firearm during a crime of violence under 18 U.S.C. § 924(c). Andrews received such a sentence because, at the time, each additional § 924(c) count carried a 25-year mandatory minimum.

With the First Step Act of 2008, Congress revised § 924(c) so that the 25-year mandatory minimum for subsequent offenses would not apply unless the defendant already had a final conviction for a § 924(c) charge at the time of the offense. Had Andrews been sentenced after 2008, his consecutive convictions for brandishing a firearm would generate a statutory minimum of 7 years each, resulting in a 91-year sentence. But Congress did not make the statutory change retroactive, so Andrews was not entitled to a reduced sentence. He was, however, entitled to move for a modified sentence via compassionate release. In his support of his motion, Andrews pointed to the recent changes to the § 924(c) mandatory minimums as well his rehabilitation in prison, his young age at the time of his offense, the government’s decision to charge him with thirteen § 924(c) counts, and his alleged susceptibility to COVID-19. Defendant claimed that these reasons were “extraordinary and compelling” reasons under the compassionate release statute. The District Court disagreed, denying Andrews’ motion.

Analysis:

Compassionate Release is a “Purely Discretionary Decision”

The Third Circuit reiterated that courts wield considerable discretion in compassionate release cases, and it will not disturb a court’s determination unless left with a “definite and firm conviction that it committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors.” (US v. Pawlowski, 967 F.3d 327, 440 [2020]). The Court explained that a grant of compassionate release is “a purely discretionary decision.” Therefore, in determining whether the District Court abused its discretion, the Third Circuit reviewed the court’s decision under the abuse-of-discretion standard.

Definition of “Extraordinary and Compelling”

A prisoner’s motion for compassionate release may be granted if the court finds that the sentence reduction is 1) warranted by “extraordinary and compelling reasons”; 2) “consistent with applicable policy statements issued by the Sentencing Commission”; and 3) supported by the traditional sentencing factors under 18 U.S.C. § 3553(a), to the extent they are applicable.

Before the District Court could consider whether defendant’s proposed reasons collectively satisfied the “extraordinary and compelling” requirement, it first had to determine the meaning of the phrase under the statute. Commission policy describes “extraordinary and compelling reasons” as: 1) medical conditions, 2) complications in old age, 3) family circumstances, and 4) “other reasons” as determined by the Directer of the Bureau of Prisons. But the court concluded that this policy statement applies only to Bureau-initiated motions and is inapplicable to prisoner-initiated motions. Furthermore, the court held that is was free to interpret the phrase for itself and consider reasons beyond the four categories listed in the policy statement.

Defendant’s Reasons for Compassionate Release Fall Short of Requirement

The District Court concluded, then, that two of the proposed reasons—the duration of defendant’s sentence and the non-retroactive changes to mandatory minimums—could not be extraordinary and compelling as a matter of law. The duration of a lawfully imposed sentence does not create an extraordinary or compelling circumstance, and the First Step Act’s changes to the § 924(c) statute did not apply to people who had already been sentenced. “There is nothing ‘extraordinary’ about leaving untouched the exact penalties that Congress prescribed and that a district court imposed for particular violations of a statute.” (United States v. Thacker, 4 F.4th 569, 574 (7th Cir. 2021)). “Indeed, the imposition of a sentence that was not only permissible but statutorily required at the time is neither an extraordinary nor a compelling reason to now reduce that same sentence.” (United States v. Maumau, 993 F.3d 821, 838 (10th Cir. 2021)).

Regarding the other reasons included in defendant’s motion, the District Court held that they, too, fell short of the extraordinary and compelling requirement. The court recognized that Andrews was arrested at nineteen and has made great strides in his rehabilitation in prison, but that his other reasons—susceptibility to COVID-19 and the Government’s decision to charge him with thirteen firearm counts—weighed against him because he presented no facts showing that prosecutors abused their discretion and he provided insufficient details about his susceptibility to COVID-19.

The Third Circuit therefore found no clear errors of judgment, and it affirmed the District Court’s order denying defendant’s motion for compassionate release.