Thursday, August 02, 2007

DEFENDANT, WHO FLED FROM ILLEGAL TRAFFIC STOP, WAS NOT “SEIZED”

United States v. Baldwin, No. 06-4265-cr (2d Cir. July 23, 2007) (Jacobs, Wesley, Gibson, CJJ).

Police officers, acting on an anonymous tip, pulled over a car that the defendant was driving. He refused to comply with any of their orders and, when one officer approached the passenger’s side, he sped off. After a chase, the car slammed into an embankment and the defendant was arrested. In the car, the officers found firearms and ammunition along with crack and drug paraphernalia.

Defendant moved to suppress the evidence on the ground that the initial order to stop the car was illegal. The district court denied the motion, holding that the defendant was not seized because he did not submit to the officers’ authority.

On appeal, the court agreed: “We hold that, to comply with an order to stop - and thus to become seized - a suspect must do more than halt temporarily; he must submit to police authority, for there is no seizure without actual submission.” The court adopted a totality of the circumstances test to determine whether there has been a submission to authority, focusing on “the nature of the interaction, and not its length.”

The court went on to conclude that the evidence was lawfully obtained because it was incident to the defendant’s arrest, and the arrest, by the time it happened, was supported by probable cause. It also rejected the defendant’s claim that, since the order to stop was not supported by reasonable suspicion, everything that followed was tainted. A defendant can be seized based on events that occur after the issuance of an unreasonable order to stop.

CASE REMANDED OVER GOVERNMENT’S REFUSAL TO DISCLOSE BRADY/GIGLIO MATERIAL

United States v. Rodriguez, No. 05-3069-cr (2d Cir. July 24, 2007)(Leval, Cabranes, CJJ, Rakoff, DJ).

Ramiro Rodriguez was convicted of narcotics trafficking primarily on the testimony of two cooperating witnesses. One of those witnesses admitted on direct examination that she lied “about everything” when she “first spoke with the government.” The government had not disclosed this to the defense before trial and, when counsel asked to be told about the substance of the lies, the government refused. The district judge, who initially thought the information should be turned over, ultimately declined to force the issue, apparently agreeing with the government that since the lies had not been reduced to writing there was no disclosure obligation.

On appeal, the court made short work both of the government’s intransigence and the district judge’s confusion. “The obligation to disclose information covered by [Brady/Giglio] exists without regard to whether that information has been recorded in tangible form.” The court remanded the case to the district court so that it could determine whether the information was material, and whether the failure to disclose it prejudiced the defense.

It is truly shocking to learn that, until July 24, 2007, SDNY actually believed that it did not have to disclose exculpatory evidence unless they themselves had memorialized the information in a writing. Surely there are countless cases where important Brady/Giglio information was withheld on this utterly frivolous ground. Shame on you, SDNY!

Several significant aspects of this opinion should, hopefully, force the USAO to start playing fair. First, the opinion makes clear that the government has to disclose the substance of Brady/Giglio material, not merely its existence, something that SDNY prosecutors have typically resisted. Second, footnote 4 indicates that the government has to turn over the information even if it might not be in a form that would be admissible in court. Third, the court takes a dim view of the government’s argument that a general disclosure is adequate because the defense can explore the matter on cross-examination. “Defense counsel would be in the difficult position of having to question the witness blindly in the jury’s presence, not knowing whether the answers elicited might seriously incriminate or prejudice the defendant.” Fourth, footnote 6 expresses a clear preference for pretrial disclosure.