Tuesday, March 28, 2006

Can a Host Consent to the Search of an Overnight Guest's Closed Luggage? Does Apprendi Require a Jury to Find Facts of an Affirmative Defense?

United States v. Snype, Docket No. 04-3299-cr(L) (2d Cir. March 17, 2006) (Cabranes, Raggi, Sand):

This thoroughly litigated case produced a lengthy opinion touching on important Fourth Amendment, trial, and sentencing issues. These issues ranged from intertwined issues of a “warrantless” search and its fruits, the voluntariness of a consent to search, and the lawful scope of that consent, various trial errors including an error under Crawford v. Washington, and several challenges to the mandatory life sentence. The Circuit ultimately rejected all, although the defendant’s arguments appear in a number of cases to be more substantial than the Court’s opinion might suggest.

The defendant Snype was charged with conspiracy to commit bank robbery. According to the government’s cooperating witness, who said he had acted as a lookout, Snype and another man robbed the bank at gunpoint. When police arrived, Snype and his partner fled, shooting at police, and when their SUV was run off the road, Snype escaped while the partner was killed. The police eventually arrested the cooperator, got a warrant for Snype’s arrest, and arrested him at the apartment of a woman, a friend of someone Snype knew, where Snype had stayed overnight. Although the Circuit’s opinion does not give a full description of the police's entry of the apartment, it involved a forcible entry by a heavily armed SWAT team who handcuffed Snype and the woman and “raised the possibility” of putting the woman’s child in foster care while she was held in custody. The police saw on the floor Snype’s knapsack and bag as well as an open teller’s box from the bank, with bundles of cash visible inside. Ultimately the woman consented to a search of her apartment including the knapsack and bag, which contained additional evidence.

The defendant raised several issues: 1) that the consent was not voluntary, given the forcible nature of the entry and the police threat to take away the woman’s child; 2) that in any event, the woman did not have the authority to consent to the search of Snype’s bag; 3) that the forcible entry of the apartment based only on an arrest warrant was unconstitutional, and 4) that the consent was the fruit of that unlawful entry.

The Court found the consent voluntary based on the woman’s own testimony that she had known Snype only since the day before, that her consent was voluntary, that “she perceived” the entry and threats as being “way before” her consent, that calm had been restored before she gave consent, that she did not feel threatened by the officer’s presence or their threat to take away her child, and that she knew she was not required to give consent. It also found that the consent could extend to a search of Snype’s belongings although this seems substantially more doubtful; the Court’s reliance on cases in which a third party has “access to the area searched” and the like, hardly makes clear that, before the police arrived, the woman had any access or permission to open Snype’s bags or to consent to their search.

Snype argued in the alternative that the consent was the fruit of an unlawful entry of the apartment, since the police had only an arrest warrant, which was not adequate to enter an apartment that was not his home under Steagald v. United States. The Court assumed, without holding, that the entry was illegal; there is substantial authority that only the actual householder may raise the failure to get a search warrant, but, where the arrestee actually has an expectation of privacy in the area, there may be some doubt about the right rule. For much the same reasons as it found the consent voluntary, however, the Court found that the consent was not tainted by the search.

The trial error most worth mentioning is a Crawford error in admitting the plea allocution of a co-conspirator against Snype. The Court acknowledged, as it had to, the error, but found it harmless.

Because Snype was convicted in this case of a “serious violent felony” and had two prior “serious violent felonies,” he received, instead of a five-year maximum sentence under 18 U.S.C. § 371, a mandatory life sentence under 18 U.S.C. § 3559, the “three strikes” law. Snype’s arguments centered on an affirmative defense to the mandatory sentence, allowing him to escape its application if he could prove by clear and convincing evidence that no firearm was used in a robbery that was the instant or a predicate “serious violent felony.” Snype’s most substantial argument was that under Apprendi v. New Jersey, the finding that a firearm was used had to be made by a jury, not a judge. The Circuit rejected this claim essentially on the authority of cases such as Patterson v. New York, holding that the burden of proof of some affirmative defenses could be placed on the defendant. But Patterson was not a Sixth Amendment case, and the affirmative defense there was determined by the jury. Since the finding that a gun was used in the two predicate robberies as well as the instant offense was essential to the imposition of a mandatory lifetime sentence, rather than a five-year maximum, it seems clear under Apprendi that a jury had to make that finding. And, after Shepard v. United States, that principle applies to prior crimes as well, to the extent that the use of a weapon is not shown on the face of the record of the conviction.


Anonymous Anonymous said...

But couldn't the government write a law stating that any prior robbery counts as a strike even if the defendant can show beyond a shadow of a doubt that the robbery did not involve a gun?

If your answer is yes, don't you think that under Almendaro-Torez a judge can make the finding of a prior robbery conviction?

If your answer to that question is also yes, why can't the government provide the defendant with an "affirmative defense" that can eliminate the strike, viz. that the prior robbery did not involve a gun? Why doesn't the general principle of Patterson extend to to Apprendi-land as well?

I'm curious to hear a slightly more fleshed out argument here, because the issue is fascinating.

March 30, 2006 at 8:48 PM  
Blogger David Lewis said...

Sorry, didn't see your comment earlier.

I think that it's fairly clear that the fact that Congress did not need to make the involvement of a gun important in raising the sentence does not mean that, even though it has, no constitutional protections apply to the finding of that fact. Indeed, I think the whole line of Apprendi decisions implicitly (or maybe explicitly) rejects this line of argument. In Apprendi itself, for example, the state could have made the maximum sentence for the underlying crime higher, regardless of the hate crime element, but it opted to make the higher sentence hinge on proof of a particular motive. The Court examined the law in Apprendi, and in related cases, based on the legislature did, not what it might have done.

As for Patterson, the Apprendi cases all reject the analogy of Patterson, which was heavily relied on by the dissents. If anything, rather than Patterson calling the application of Apprendi principles into question, the Apprendi cases raise the issue whether Patterson, as it stands, was correctly decided. This would require a consideration of the purposes of the jury trial right as against the requirement of proof beyond a reasonable doubt, their historical antecedents, and so on. The question is not simple, but the Supreme Court has pretty clearly said that the Apprendi cases are not limited by what it said in Patterson.

Your arguments are hardly frivolous, of course, but there are certainly two sides to the question, and what the Supreme Court has said in the Apprendi cases must not be ignored. In any event, this exchange shows, I think, that the Circuit's treatment of the question is unduly cursory, and need not be taken as writ in stone.

April 4, 2006 at 10:46 AM  
Anonymous Anonymous said...

David, I think your response is well thought out and has considerable merit. I think you would agree that, at the circuit level, courts must adhere to Patterson as the law, despite its considerable formalism. Whether the concerns animating Patterson can be grafted onto the Apprendi line of cases is, as you ably point out, unclear.

We could come up with some interesting thought experiments here that would help untangle that question. For example, after Patterson, could the New York legislature remove from the jury the power to convict of "heat of passion" manslaughter and, instead, allow the JUDGE to determine in the first instance the defendant's affirmative defense of insufficient malice aforethought? I don't know the answer to this, but the answer is likely no. If the answer is no, then the argument that Patterson is applicable to the Apprendi line of cases is destroyed beyond repair, I think.

I don't want to put words in your mouth, but would your position in Snype would be the following: Congress can make the "absence of a firearm" an "affirmative defense" to the application of a "strike," but that the jury nevertheless must be the body to pass upon that question, even if the standard of proof is mere preponderance of the evidence.

If that is your position, then I come very, very close to laying down my sword -- that argument very much tracks the death penalty regime that the Furman/Ring line of cases have established.

I think it is interesting laying Snype and Reifler side by side -- each, as you suggest, deal with an Apprendi problem in a far too cursory fashion. Does this suggest that inferior courts are reluctant to breath life into Apprendi, or that the Apprendi line of cases have laid down rules too obscure for lower courts to even discern?

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