Friday, March 20, 2009

Seizure Disorder

United States v. Simmons, No. 07-5127-cr (2d Cir. March 17, 2009) (Pooler, Sotomayor, Katzmann, CJJ)

This appeal tackles an interesting search and seizure issue, a challenge to the discharge of a juror, and a sentencing issue. Simmons prevailed only on the sentencing claim.

The Anonymous Tip

Police officers received an radio run reporting an anonymous 911 call about an assault, with “a possible gun involved,” in progress. They sped to the address, which was in a neighborhood known for drug and gang activity, and could see no evidence of an assault. Simmons, along with two others, was inside the lobby of the building, and matched the description in the radio run. There was no indication that he was engaged in an assault.

The officers entered the lobby. As Simmons walked toward the front door, one of them ordered him to stop. He did not. The officer ordered him to stop a second time, and this time Simmons complied. The officer asked him to take his hands from his pockets and, when Simmons did not, asked him again, but he still did not. This prompted the officer to grab Simmons’ right side, where he felt a gun. In fact, Simmons had two guns, one in each pocket. In the district court, he unsuccessfully moved to suppress the guns, and the circuit, noting that this “case [was] close,” affirmed.

It began by holding that an anonymous tip that reports an ongoing emergency can be deemed more reliable, and hence requires less corroboration, than one that merely reports “general criminality.”

Next, the court held that Simmons was “seized” when the officer ordered him to stop, and rejected the government’s argument that his post-stop conduct - specifically, his refusal to remove his hands from his pockets - could be a factor in determining whether the officers had reasonable suspicion for the initial stop. The grounds for a stop may be based on events that occur after the order to stop is given “only in cases where the suspect attempts to flee from the policed after being ordered to stop” because the seizure does not occur until the person is apprehended. But since the “grounds for a stop must exist at the time of the seizure,” and since Simmons was seized when he obeyed the second order to stop, the events that occurred after he complied “do not factor into the analysis of reasonable suspicion for the initial stop.”

Ultimately, the court concluded that the officers had reasonable suspicion, both for the stop and the pat-down. The 911 call reported an assault in progress, possibly involving a weapon, Simmons matched the description of the suspect and was at the specified location. Simmons was with other people, late a night in a high-crime area, and the fact that he had his hands in his pockets could have suggested that he was concealing a weapon, especially given the mention of the weapon in the tip, and Simmons' refusal to take his hands from his pockets.

The Juror

Having lost his suppression motion, Simmons went to trial. During two days of deliberations, his jury repeatedly asked for reinstruction on reasonable doubt and also indicated that it “cannot come to a unanimous decision.” When it returned to deliberate for the third day, one juror was absent. She reported to the clerk that she could not come to court because her child was ill. The defense objected to excusing the juror without knowing how long she might be absent, but the judge excused her with no further inquiry, citing “the quality of the trial,” the “indivisible nature of justice,” and the need to avoid inconveniencing the other jurors, in particular one who had complained of financial hardship due to prolonged jury service.

The circuit found no abuse of discretion, although it again cautioned that this was a close case. Some of the judge’s reasons for excusing the juror - the “quality of the trial” and the “indivisible nature of justice” - were “abstractions” that did not offer support for excusing a juror. And, while making an inquiry into a juror’s anticipated length of unavailability is “certainly a better practice than foregoing such inquiry,” it was not “required” here, in light of the judge’s finding that waiting an additional day before continuing deliberations risked causing the absence of another juror. If not for this additional factor, however, there was “serious doubt as to whether the district court’s decision would have been a permissible exercise of discretion, as the decision lies at the margins of that discretion.”

The Sentencing

Simmons was convicted of being a felon in possession of a firearm, which ordinarily has a ten-year statutory maximum. Originally, the government alleged that he was subject to the fifteen-year mandatory minimum under ACCA, but the district judge held that ACCA did not apply. This caused the government to cross-appeal. Subsequently, however, the court of appeals decided United States v. Darden, 539 F.3d 116 (2d Cir. 2008), which rendered that decision correct, and the government abandoned its appeal.

Although the district court did not apply ACCA, it still sentenced Simmons to 175 months’ imprisonment, fifty-five months more than the applicable statutory maximum. The defense pointed this out to the court in a Rule 35(a) motion, but the seven-day period for correcting a judgment had passed. In an order, the district court acknowledged its error but, without authority to correct it, instructed the parties to bring it to the court of appeals’ attention. They did so, jointly asking for a resentencing, which the circuit granted.

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