FRANK DUNHAM FEDERAL CRIMINAL DEFENSE CONFERENCE

THE OFFICES OF THE FEDERAL PUBLIC DEFENDERS FOR THE EASTERN AND WESTERN DISTRICTS OF VIRGINIA JOINTLY PRESENT THE EIGHTH FRANK DUNHAM FEDERAL CRIMINAL DEFENSE CONFERENCE Thursday, April 9 - Friday, April 10, 2015 DoubleTree Hotel, Charlottesville, Virginia

TABLE OF CONTENTS Program Schedule.................................................. Faculty Information................................................. iv vi Supreme Court Review............................................... 1 Paul M. Rashkind, United States Supreme Court: Review, Preview, and Overview of Criminal Cases (as of April 1, 2015)..................... 2 Ethics: Representing the Sovereign Citizen.............................. 35 Patrick R. Hanes & Andrea Lantz Harris, Ethics: Representing the Sovereign Citizen............................................. 36 Excerpts, Virginia Rules of Professional Conduct.................... 51 J.J. MacNab, Sovereign Citizen Kane, Southern Poverty Law Center Intelligence Report (Fall 2010)................................... 57 The Sovereigns: A Dictionary of the Peculiar, Southern Poverty Law Center Intelligence Report (Fall 2010)............................. 64 Fourth Circuit Update............................................... 67 Discussion Overview.......................................... 67 Frances H. Pratt, Fourth Circuit Decisions on Criminal Law and Procedure (April 1, 2014 - March 31, 2015)........................ 69 Case Budgeting in the Fourth Circuit................................... 97 Presentation Slides............................................ 98 Indicators of a Possible Mega-Case.............................. 106 Mega-Case Budgeting Forms................................... 107 FDFCDC i

Capital Case Budgeting Forms.................................. 110 Sample, Ex Parte Memorandum in Support of Proposed Case Budget... 113 Engagement Letters for Service Providers......................... 116 Service Provider Time Worksheet............................... 120 Interpreting Opioid Overdose Death: A Medical Toxicologist s Perspective..................................... 121 Gregory G. Davis et al, Recommendations for the Investigation, Diagnosis, and Certification of Deaths Related to Opioid Drugs: Technical Report, 3 Acad. Forensic Pathol. 62 (2013)............... 122 Gregory G. Davis et al, Recommendations for the Investigation, Diagnosis, and Certification of Deaths Related to Opioid Drugs: Position Paper, 3 Acad. Forensic Pathol. 77 (2013)................. 137 William Osler, Edema of Left Lung Morphia Poisoning, 1880 Mont. Gen. Hosp. Reports 291....................................... 144 The Science of Persuasion: How Cognitive Science Can Improve the Way We Write................................. 145 Christopher Corts & Laura A. Webb, Thinking Like a Lawyer Scientist: Using Cognitive Science to Persuade............................. 146 Determining What Is, or Is Not, a Crime of Violence or Violent Felony............................................ 157 Violent Crime Cheat Sheet................................... 158 How to Determine If Your Client Is a Career Offender or an Armed Career Criminal.............................................. 159 Elements of the Generic Enumerated Offenses for ACCA and Career Offender.................................................... 164 Selected Statutes and Guidelines................................ 166 FDFCDC ii

Selected Recent Fourth Circuit Decisions on ACCA, Career Offender, and Aggravated Felonies....................................... 168 Ethics: Game Show Potpourri, Round II................................ 173 Discussion Overview......................................... 173 Professionalism Course 2014-2015: Major Disciplinary Problems...... 176 Christine Harvey et al., 10 Tips for Avoiding Ethical Lapses When Using Social Media, Business Law Today (ABA Business Law Section January 2014)............................................... 182 Proposed Legal Ethics Opinion, LEO 1880 (re. duties of attorney in advising indigent client about appeal)............................ 190 Comment of Federal Public Defender in Opposition to Proposed LEO 1880....................................................... 199 James M. McCauley, Ethics Update 2012 Hot Topics in Legal Ethics........................................................... 202 FDFCDC iii

PROGRAM SCHEDULE Thursday, April 9 1:30 Program check-in begins 2:25 Welcome and Introduction Geremy Kamens, Acting FPD E.D. Va. Larry Shelton, FPD W.D.Va. 2:30 Supreme Court Review Paul Rashkind, AFPD S.D. Fla. 3:45 Break 4:00 Ethics: Representing the Patrick Hanes, Esq., CJA E.D. Va. Sovereign Citizen Andrea Harris, AFPD W.D. Va.. 5:00 Adjourn for evening Friday, April 10 7:30 Breakfast begins 8:00 Program check-in continues 8:25 Welcome and Introduction Geremy Kamens, Acting FPD E.D. Va. Larry Shelton, FPD W.D. Va. 8:30 Fourth Circuit Update Alan DuBois, AFPD E.D.N.C. Patrick Bryant, RWA E.D. Va. 9:30 Case Budgeting in the Fourth Circuit Larry Dash, Fourth Circuit CJA Case Budgeting Attorney 10:15 Break 10:30 Interpreting Opioid Overdose Death: Edward Boyer, MD, PhD A Medical Toxicologist s Perspective FDFCDC iv

11:30 Keynote Address Hon. Julian Bond (lunch provided) 1:00 The Science of Persuasion: How Prof. Christopher Corts Cognitive Science Can Improve Prof. Laura Webb the Way We Write 2:00 Determining What Is, or Is Not, Elizabeth Hanes, AFPD, E.D. Va. a Crime of Violence or Violent Mary Maguire, AFPD, E.D. Va. Felony 3:00 Break 3:15 Ethics: Game Show Potpourri, Ken Troccoli, AFPD E.D. Va. Round II Aamra Ahmad, Esq. 4:15 Complete evaluations 4:30 Program concludes FDFCDC v

FACULTY INFORMATION AAMRA S. AHMAD Assistant Federal Public Defender Emerita, Eastern District of Virginia Education: Professional: B.A. 1999, Wellesley College; J.D. 2003, University of Michigan Law School Law clerk, Hon. James P. Jones, U.S. District Court, Western District of Virginia, 2003-04; associate, Terris Pravlik & Millian, Washington, DC, 2004-07; assistant federal public defender, Alexandria, Virginia, 2007-14 EDWARD W. BOYER Chief, Division of Medical Toxicology, UMass-Memorial Medical Center, Boston, Massachusetts Education: Experience: B.A. 1983, Vanderbilt University; M.A. 1984, Columbia University; M. Phil. 1986, Columbia University; Ph.D. 1988, Columbia University; NIH Postdoctoral Fellow 1989-90, The Rockefeller University; M.D. 1995, Columbia College of Physicians and Surgeons Residency in Emergency Medicine, Hospital of the University of Pennsylvania; Fellowship in Medical Toxicology, Boston Children s Hospital, Boston, Massachusetts; currently chief, Division of Medical Toxicology, UMass-Memorial Medical Center, Boston, Massachusetts; Professor of Emergency Medicine, University of Massachusetts Medical School PATRICK L. BRYANT Appellate Attorney, Office of the Federal Public Defender, Eastern District of Virginia Education: B.A. 1998, Duke University; J.D. 2002, Washington and Lee University School of Law FDFCDC vi

Professional: Staff attorney, U.S. Court of Appeals for the Fourth Circuit, Richmond, Virginia, 2002-04 and 2005-07; law clerk, Hon. Charles R. Wilson, U.S. Court of Appeals for the Eleventh Circuit, Tampa, Florida, 2004-05; appellate attorney, Office of the Federal Public Defender, Alexandria, Virginia, 2007-present CHRISTOPHER CORTS Assistant Professor of Legal Writing, University of Richmond School of Law Education: Professional: B.A. 1994, Otterbein College; M.A. 2008, Fuller Theological Seminary; J.D. 2011, University of Virginia School of Law Associate, Carlton Fields, Miami, Florida, 2011-13; assistant professor of legal writing, University of Richmond School of Law, 2013-present LARRY M. DASH CJA Case Budgeting Attorney, U.S. Court of Appeals for the Fourth Circuit Education: Professional: B.A. 1982, Columbia College (Missouri); J.D. 1989, Touro College, Jacob D. Fuchsberg Law Center Assistant staff judge advocate, U.S. Air Force, 1991-94; circuit trial counsel, U.S. Air Force, 1994-97; associate, Greg D. McCormack, P.C., Virginia Beach, Virginia, 1997-98; private practice, Newport News, Virginia, 1998-2001; assistant federal public defender, Norfolk, Virginia, 2001-14; CJA case budgeting attorney, U.S. Court of Appeals for the Fourth Circuit, Richmond, Virginia, 2014-present G. ALAN DUBOIS First Assistant Federal Public Defender, Eastern District of North Carolina Education: B.A. 1984, Duke University; J.D. 1987, University of Virginia School of Law FDFCDC vii

Professional: Staff attorney, U.S. Court of Appeals for the Fourth Circuit, Richmond, Virginia, 1988-89; assistant federal public defender (senior appellate attorney), Raleigh, North Carolina, 1989-2013; first assistant federal public defender, Raleigh, North Carolina, 2013-present ELIZABETH W. HANES Assistant Federal Public Defender, Eastern District of Virginia Education: Professional: B.A. 2000, University of Richmond; J.D. 2007, University of Richmond School of Law Law clerk, Hon. Joseph R. Goodwin, U.S. District Court, Southern District of West Virginia, Charleston, West Virginia, 2007-08; law clerk, Hon. Robert B. King, U.S. Court of Appeals for the Fourth Circuit, Charleston, West Virginia, 2008-09; assistant federal public defender, Richmond, Virginia, 2009-present; adjunct professor, Virginia Commonwealth University, 2014-present PATRICK R. HANES Partner, Williams Mullen, Richmond, Virginia Education: Professional: B.A. 1988, University of Virginia; J.D. 1994, University of Virginia School of Law Law clerk, Hon. Albert V. Bryan, Jr., U.S. District Court, Eastern District of Virginia, 1994-95; associate, Williams Mullen, Richmond, Virginia, 1994-2002; partner, Williams Mullen, 2002- present; deputy counsel, Williams Mullen, 2014-present; adjunct professor, Washington and Lee School of Law, 2013-present ANDREA LANTZ HARRIS Assistant Federal Public Defender, Western District of Virginia Education: B.A. 1988, University of Notre Dame; J.D. 1994, University of Louisville FDFCDC viii

Professional: Solo practitioner, Charlottesville, Virginia, 1995-99; assistant public defender, Charlottesville Public Defender Office, 1999-2006; assistant federal public defender, Charlottesville, Virginia, 2006-present MARY E. MAGUIRE Assistant Federal Public Defender, Eastern District of Virginia Education: Professional: B.A. 1986, Middlebury College; J.D. 1991, Georgetown University Law Center Legislative assistant & assembly fellow, California State Assembly, 1986-88; assistant federal defender, Federal Defenders of San Diego, Inc., 1991-94; associate, Cohen & Hubachek, San Diego, California, 1994-96; Law Office of Mary E. Maguire, San Diego, California, 1996-97; project associate, ABA Death Penalty Representation Project, Washington, DC, 1997-98; senior assistant public defender, Alexandria, Virginia, 1998-2001; assistant federal public defender, Richmond, Virginia, 2001- present; adjunct professor, University of Richmond School of Law, 2004-present; adjunct professor, Virginia Commonwealth University, 2013-present PAUL M. RASHKIND Supervisory Assistant Federal Public Defender, Southern District of Florida Education: Professional: B.B.A. 1972, University of Miami; J.D. 1975, University of Miami School of Law Assistant state attorney, Miami, Florida, 1975-78; chief assistant state attorney (appeals), Miami, Florida, 1977-78; associate, Sams Gerstein & Ward, 1978-83; partner, Bailey, Gerstein, Rashkind & Dresnick, 1984-92; chief of appeals and supervisory assistant federal public defender, Miami, Florida, 1992-present FDFCDC ix

KENNETH P. TROCCOLI Assistant Federal Public Defender, Eastern District of Virginia Education: Professional: B.A. 1981, Boston College; J.D. 1984, George Washington University Law School; LL.M. 2001, Georgetown University Law Center Law clerk, Hon. H. Carl Moultrie, Superior Court of the District of Columbia, Washington, DC, 1984-85; associate, Krooth & Altman, Washington, DC, 1986-88; associate, Arent Fox Kintner Plotkin & Kahn, Washington, DC, 1988-91; associate, Cadwalader Wickersham & Taft, Washington, DC, 1991-92; assistant/senior assistant public defender, Alexandria, Virginia, 1992-99; assistant federal public defender, Alexandria, Virginia, 2002-present; adjunct professor, American University Washington College of Law, 2012-present LAURA A. WEBB Assistant Professor of Legal Writing, University of Richmond School of Law Education: Professional: B.A. 1996, George Washington University; J.D. 1999, University of Virginia School of Law Associate, McCandlish Holton, PC, Richmond, Virginia, 1999-2003; associate, Reed Smith, LLP, Richmond, Virginia, 2003-04; adjunct associate professor, University of Richmond School of Law, 2006-13; assistant professor of legal writing, University of Richmond School of Law, 2013-present FDFCDC x

SUPREME COURT REVIEW Paul M. Rashkind NOTES FDFCDC 1

I. SEARCH & SEIZURE UNITED STATES SUPREME COURT REVIEW - PREVIEW - OVERVIEW CRIMINAL CASES DECIDED AND GRANTED REVIEW FOR THE OCTOBER 2014-15 TERMS THRU APRIL 1, 2015 PAUL M. RASHKIND CHIEF, APPELLATE DIVISION OFFICE OF THE FEDERAL PUBLIC DEFENDER, S.D. FLA. A. Electronic Privacy 1. Satellite Based Monitoring of Felon. Grady v. North Carolina, 135 S. Ct. (March 30, 2015) (per curiam). Torrey Dale Grady was convicted in North Carolina trial courts of a second degree sexual offense in 1997 and of taking indecent liberties with a child in 2006. After serving his sentence for the latter crime, Grady was ordered to appear in New Hanover County Superior Court for a hearing to determine whether he should be subjected to satellite-based monitoring (SBM) as a recidivist sex offender under state law. The law provides, The satellite-based monitoring program shall use a system that provides all of the following: (1) Time-correlated and continuous tracking of the geographic location of the subject.... (2) Reporting of subject s violations of prescriptive and proscriptive schedule or location requirements. N.C. Gen. Stat. Ann. 14 208.40(c). Grady did not dispute that his prior convictions rendered him a recidivist under the relevant North Carolina statutes, but argued that the monitoring program under which he would be forced to wear tracking devices at all times would violate his Fourth Amendment right to be free from unreasonable searches and seizures. Unpersuaded, the trial court ordered Grady to enroll in the program and be monitored for the rest of his life. Grady renewed his Fourth Amendment challenge on appeal, relying on the Supreme Court s decision in United States v. Jones, 565 U.S. (2012) (police officers engaged in a search within the meaning of the Fourth Amendment when they installed and monitored a Global Positioning System (GPS) tracking device on a suspect s car). The North Carolina Court of Appeals rejected Grady s argument, concluding that it was foreclosed by one of its earlier decisions. The North Carolina Supreme Court summarily dismissed Grady s appeal and denied his petition for discretionary review. The U.S. Supreme Court reversed and remanded, finding that SBM is a search under the Fourth Amendment: The State s program is plainly designed to obtain information. And since it does so by physically intruding on a subject s body, it effects a Fourth Amendment search. That said, the Court noted that the second component of Fourth Prepared by Paul M. Rashkind 1 FDFCDC 2

Amendment analysis is the reasonableness of the search. It remanded to the state court to make the reasonableness determination. That conclusion [that SBM is a search], however, does not decide the ultimate question of the program s constitutionality. The Fourth Amendment prohibits only unreasonable searches. The reasonableness of a search depends on the totality of the circumstances, including the nature and purpose of the search and the extent to which the search intrudes upon reasonable privacy expectations. See, e.g., Samson v. California, 547 U.S. 843 (2006) (suspicionless search of parolee was reasonable); Vernonia School Dist. 47J v. Acton, 515 U.S. 646 (1995) (random drug testing of student athletes was reasonable). The North Carolina courts did not examine whether the State s monitoring program is reasonable when properly viewed as a search and we will not do so in the first instance. 2. Cell Phone Privacy. Riley v. California and United States v. Wurie, 134 S. Ct. 2473 (June 25, 2014). In a consolidated opinion denominated Riley v. California, the unanimous Supreme Court held that officers must generally secure a warrant before searching digital information on a cell phone seized from an individual who has been arrested. Chief Justice Roberts wrote an opinion, beginning with the reminder that, In the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement. See Kentucky v. King, 563 U.S., (2011). Search incident to lawful arrest, the Court held, is not such an exception. Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans the privacies of life, Boyd [v. United States, 116 U.S. 616, 630 (1886)]. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple get a warrant. Although the search-incident-to-arrest exception to the Fourth Amendment does not apply, the Court s opinion indicates that the exigentcircumstances exception may apply to cell phone searches, but only when there are case-specific exigent circumstances, requir[ing] a court to examine whether an emergency justified a warrantless search in each particular case. Although the decision was unanimous, Justice Alito wrote an opinion concurring in part and concurring in the judgment. To put the decision in context, the facts of the Riley and Wurie cases follow: Riley Police stopped David Riley, a local college student, who was driving his Lexus near his home in San Diego. The officer who initiated the stop told Riley that he had pulled him over for having expired tags. The officer soon learned that Riley was driving with a suspended license and decided to impound Riley s car. During the inventory search, officers discovered two firearms under the car s hood. Based on this discovery, Riley was arrested for carrying concealed and loaded weapons. The arresting officer seized Riley s cell phone from his Prepared by Paul M. Rashkind 2 FDFCDC 3

person. It was a Samsung Instinct M800, a smartphone similar to an iphone, capable of accessing the internet, capturing photos and videos, and storing both voice and text messages, among other functions. Police officers performed two separate, warrantless searches of its digital contents: (1) The arresting officer scrolled through the phone s contents at the scene. He noticed that some words (apparently in text messages and the phone s contacts list) normally beginning with the letter K were preceded by the letter C. The officer believed that the CK prefix referred to Crip Killers, a slang term for members of a criminal gang known as the Bloods. (2) The second search took place hours later at the police station. After conducting an interrogation in which Riley was nonresponsive, a detective specializing in gang investigations, went through Riley s cell phone. The detective searched through a lot of stuff on the phone looking for evidence. He found several photographs and videos that suggested Riley was a member of a gang. He also found a photo of Riley with another person posing in front of a red Oldsmobile that the police suspected had been involved in an earlier gang-related shooting. Riley was eventually charged and convicted of shooting at an occupied vehicle, attempted murder, and assault with a semiautomatic firearm, all for the benefit of a criminal street gang. Prosecutors tied him to the crime, in part, due to the photograph on his smartphone that showed him posing in front of a car similar to one seen at the crime scene. After losing his search and seizure challenges in state court, Riley petitioned the Supreme Court to consider, Whether or under what circumstances the Fourth Amendment permits police officers to conduct a warrantless search of the digital contents of an individual s cell phone seized from the person at the time of arrest. In granting cert, the Supreme Court reworded the question presented as: Whether evidence admitted at petitioner s trial was obtained in a search of petitioner s cell phone that violated petitioner s Fourth Amendment rights. Wurie A police officer noticed Brima Wurie make an apparent drug sale out of his car that the officer believed to have been arranged by cell phone. After the transaction, the officer confronted the buyer and found two bags of crack cocaine in his pocket. The buyer told the officer that he had purchased the drugs from B, the driver of the car, who was a crack dealer living in South Boston. Officers following Wurie then arrested him for drug distribution, read him the Miranda warnings, and drove him to a nearby police station, where they seized two cell phones, a set of keys, and more than one thousand dollars in cash from his person. Five to ten minutes after Wurie arrived at the station, officers noticed that one of Wurie s cell phones, a flip phone that a user must open to make calls, was repeatedly receiving calls from a number identified as my house on the phone s external screen. Minutes later, the officers opened the phone to check its call log. They saw a photo of a woman holding a baby set as the internal screen s wallpaper. The officers pressed one button to navigate to the phone s call log, then pressed another button to obtain the number for my house. They did not view any other information Prepared by Paul M. Rashkind 3 FDFCDC 4

B. Motor Vehicles stored on the phone. The officers typed the number for my house into an online directory and learned that it was associated with an address on Silver Street in South Boston near where Wurie had parked his car before his arrest. The officers drove to the Silver Street address, where they found a mailbox labeled with Wurie s name and observed through the window of a first-floor apartment a woman who closely resembled the woman in the wallpaper on Wurie s phone. The officers then obtained and executed a search warrant for the apartment. They ultimately seized crack cocaine, marijuana, cash, a firearm, and ammunition from inside. Based on this evidence, Wurie was convicted of being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. 922(g); distributing crack cocaine, in violation of 21 U.S.C. 841(a); and possessing crack cocaine with intent to distribute, in violation of 21 U.S.C. 841(a). He was sentenced to 262 months in prison. He successfully challenged the search on appeal, but the government sought review in the Supreme Court. The Court had granted cert to resolve the question: Whether the Fourth Amendment permits the police, without obtaining a warrant, to review the call log of a cell phone found on a person who has been lawfully arrested. 1. Anonymous Tip as Reasonable Suspicion to Stop Vehicle. Prado Navarette v. California, 134 S. Ct. 1683 (Apr. 22, 2014). A police dispatcher received a 911 call saying a silver Ford 150 truck had run the caller off the road. The vehicle was identified by its model, color and license plate. The caller was identified by name, but that name was not included in the radio dispatch that followed. A patrolling California Highway Patrol officer heard the dispatch, saw the vehicle matching the description, and stopped the truck. The officer did not observe erratic driving, but acted solely on the tip. The officer searched the truck after smelling marijuana, finding four large bags of pot. The driver and passenger were arrested, and later pleaded guilty to transporting marijuana. Before pleading guilty, they unsuccessfully sought to suppress evidence derived from the stop. They argued that the anonymous tip received by police was insufficient to provide reasonable suspicion of criminal activity justifying an investigative stop of the vehicle, where the officers directly confirmed only significant innocent details of the tip but did not directly observe any illegal activity. They appealed that adverse ruling, but the California Court of Appeal concluded that the totality of the circumstances supported a finding of reasonable suspicion, justifying the traffic stop. The Supreme Court granted cert to determine whether the Fourth Amendment requires an officer who receives an anonymous tip regarding a drunken or reckless driver to corroborate dangerous driving before stopping the vehicle. In a 5-4 decision authored by Justice Thomas, the majority affirmed, holding that the stop complied with the Fourth Amendment because, under a totality of the circumstances, the officer had reasonable Prepared by Paul M. Rashkind 4 FDFCDC 5

suspicion that the driver was intoxicated. The majority noted this is a close case but that the indicia of reliability here is stronger than in other Supreme Court cases in which there was only a bare-bones tip, e.g., Florida v. J.L. (bare-bones tip unreliable). The underlying premise of the decision was simple: We have firmly rejected the argument that reasonable cause for a[n] investigative stop] can only be based on the officers s personal observation, rather than information supplied by another person. Justice Scalia dissented (joined by Ginsburg, Sotomayor and Kagan), noting that the majority opinion purports to adhere to our prior cases and does not explicitly adopt... a departure from our normal Fourth Amendment requirement that anonymous tips must be corroborated. The California Court of Appeal in this case relied on jurisprudence from the California Supreme Court (adopted as well by other courts) to the effect that an anonymous and uncorroborated tip regarding the possibility of an intoxicated driver provides without more reasonable suspicion to justify a stop.... Today s decision does not explicitly adopt such a departure from our normal Fourth Amendment requirement that anonymous tips must be corroborated; it purports to adhere to our prior cases, such as Florida v. J.L. and Alabama v. White. But, Justice Scalia cautions: Be not deceived. The Court s opinion serves up a freedom-destroying cocktail. He explains: Law enforcement agencies follow closely our judgments on matters such as this, and they will identify at once our new rule: So long as the caller identifies where the car is, anonymous claims of a single instance of possibly careless or reckless driving, called in to 911, will support a traffic stop. This is not my concept, and I am sure would not be the Framers, of a people secure from unreasonable searches and seizures. [A portion of this summary was prepared by Sentencing Resource Counsel Laura Mate]. 2. Extending Traffic Stop for Dog Sniff Absent Reasonable Suspicion. Rodriguez v. United States, 135 S. Ct. 43 (cert. granted Oct. 2, 2014); decision below at 741 F.3d 905 (8th Cir. 2014). Just after midnight, police officer Morgan Struble observed a vehicle veer slowly onto the shoulder of the highway, before it jerked back onto the road. Struble initiated a traffic stop of the vehicle at 12:06 a.m. Struble is a K-9 officer, and his dog Floyd was with him that night. Struble approached the vehicle on the passenger s side. The driver identified himself as Rodriguez. When asked why he drove onto the shoulder, Rodriguez replied that he had swerved to avoid a pothole. The passenger, who would not make eye contact with Struble, identified himself as Scott Pollman. Struble gathered Rodriguez s license, registration, and proof of insurance and asked Rodriguez to accompany him to the patrol car. Rodriguez asked if he was required to do so, and Struble said that he was not. Rodriguez then decided to wait in his own vehicle. Struble went to his patrol car to complete a records check on Rodriguez. When he returned to Rodriguez s vehicle, Struble asked Pollman for his identification and inquired where Pollman and Rodriguez had been. Pollman explained that Prepared by Paul M. Rashkind 5 FDFCDC 6

they had traveled to Omaha, Nebraska, to look at a Ford Mustang that was for sale and that they were returning to Norfolk, Nebraska. When Struble went to his patrol car for a second time, he completed a records check on Pollman and called for a second officer. Struble issued a written warning to Rodriguez at 12:27 or 12:28 a.m. Struble then asked for permission to walk his dog around Rodriguez s vehicle. When Rodriguez refused consent, Struble instructed him to exit the vehicle. Rodriguez then exited the vehicle and stood in front of the patrol car while they waited for a second officer to arrive. At 12:33 a.m., a deputy sheriff arrived, and a minute later, Struble walked the dog around the outside of Rodriguez s car. The dog alerted to the presence of drugs halfway through the second pass, approximately twenty or thirty seconds later. All told, seven or eight minutes had passed from the time Struble had issued the written warning until the dog indicated the presence of drugs. A search of the vehicle revealed a large bag of methamphetamine. Rodriguez was eventually charged with possessing with intent to distribute methamphetamine. Question presented: This Court has held that, during an otherwise lawful traffic stop, asking a driver to exit a vehicle, conducting a drug sniff with a trained canine, or asking a few off-topic questions are de minimis intrusions on personal liberty that do not require reasonable suspicion of criminal activity in order to comport with the Fourth Amendment. This case poses the question of whether the same rule applies after the conclusion of the traffic stop, so that an officer may extend the already-completed stop for a canine sniff without reasonable suspicion or other lawful justification. 3. Traffic Stop Based on Mistake of Law Is Reasonable. Heien v. North Carolina, 135 S. Ct. 530 (Dec. 15, 2014). Vasquez was driving Heien s vehicle in North Carolina, but was stopped by a police officer because one of his brake lights was out. Heien was a passenger in the back seat. Following a license and registration check, Vasquez was asked for permission to search the vehicle, which he declined, noting that the vehicle belonged to Heien. Heien was then asked for permission to search, which he gave. Police found a plastic bag of cocaine and charged them both. Vasquez pleaded guilty, but Heien moved to suppress, arguing that police had no valid Fourth Amendment basis for the stop because there was no articulable suspicion of criminal activity, nor of a traffic infraction. The trial court denied the motion and Heien pleaded guilty, reserving the right to appeal the suppression ruling. The state court of appeals reversed, finding that state law only requires one working taillight and held that an officer s mistaken belief that a defendant has committed a traffic violation is not an objectively reasonable justification for a traffic stop. The North Carolina Supreme Court vacated that ruling, despite noting that [v]arious federal and state courts have provided different answers to the question whether a stop is... permissible when an officer witnesses what he reasonably, though mistakenly, believes to be a traffic violation. In doing so, the state supreme court adopted the minority view on Prepared by Paul M. Rashkind 6 FDFCDC 7

the issue, holding that so long as an officer s mistake is reasonable, it may give rise to reasonable suspicion. [R]equiring an officer to be more than reasonable, mandating that he be perfect, would impose a greater burden than that required under the Fourth Amendment. The North Carolina Supreme Court further held that the officer s mistake was reasonable because [w]hen the stop at issue in this case occurred, neither this Court nor the Court of Appeals had ever interpreted our motor vehicle laws to require only one properly functioning brake light. The U.S. Supreme Court affirmed (8-1) in a decision authored by Chief Justice Roberts: The Fourth Amendment prohibits unreasonable searches and seizures. Under this standard, a search or seizure may be permissible even though the justification for the action includes a reasonable factual mistake. An officer might, for example, stop a motorist for traveling alone in a high-occupancy vehicle lane, only to discover upon approaching the car that two children are slumped over asleep in the back seat. The driver has not violated the law, but neither has the officer violated the Fourth Amendment. But what if the police officer s reasonable mistake is not one of fact but of law? In this case, an officer stopped a vehicle because one of its two brake lights was out, but a court later determined that a single working brake light was all the law required. The question presented is whether such a mistake of law can nonetheless give rise to the reasonable suspicion necessary to uphold the seizure under the Fourth Amendment. We hold that it can. Because the officer s mistake about the brake-light law was reasonable, the stop in this case was lawful under the Fourth Amendment. Justices Kagan and Ginsburg concurred, stressing that the officer s error had to be objectively reasonable, and that errors of law concerning the contours of the Fourth Amendment itself can never support a valid search and seizure. Justice Sotomayor dissented, preferring a subjective analysis of the officer s knowledge: I would hold that determining whether a search or seizure is reasonable requires evaluating an officer s understanding of the facts against the actual state of the law. 4. Qualified Immunity for Use of Deadly Force in High Speed Chase. Plumhoff v. Rickard, 134 S. Ct. 2012 (May 27, 2014). In 2004, Donald Rickard was killed when he lost control of his vehicle after being shot by police officers following a high-speed pursuit that began at a gas station next to an interstate highway entrance in West Memphis, Arkansas, and ended on the streets of Memphis, Tennessee. His estate filed a 1983 suit against police officers for excessive force, in violation of the Fourth and Fourteenth Amendments. In such cases, a court must grant qualified immunity unless the use of force was prohibited by clearly established law. Here, the Sixth Circuit denied qualified immunity for force used in to end a vehicular pursuit that is similar to the force ruled permissible by the Supreme Court in Scott v. Harris, 550 U.S. 372 (2007). The Sixth Circuit denied qualified immunity by distinguishing Scott in the details from the force used three years earlier in this case. The Sixth Circuit applied a similar analysis in Walker v. Davis, 649 Prepared by Paul M. Rashkind 7 FDFCDC 8