June brought several interesting criminal-law related cases, including two Fourth Amendment challenges involving THC in our changed legal landscape, a discussion of whether a crime forbidding the impersonation of police is unconstitutional, and a challenge to a conviction for lying on firearm purchase paperwork under the Second Amendment.
United States of America v. Prentiss Jackson, No. 23-1708 & 23-1721:
This is an interesting case which shows how piecemeal state deregulation/legalization of marijuana has not deprived of us interesting Fourth Amendment fact patterns, Instead, it would appear that this changing legal landscape–where pro-marijuana laws are often in tension with other regulatory schemes, including the federal marijuana prohibition–often creates new kinds of tricky Fourth Amendment issues.
Police in Illinois stopped Prentiss for driving without headlights after midnight. Because the officer smelled the odor of what he claimed was “unburnt” marijuana, he asked Jackson if he and his passenger had been smoking. Jackson admitted to smoking “weed” (which is not illegal under Illinois law) earlier in the day, but denied smoking inside the car. The officer observed no indicia of impairment. The officer then instructed Jackson to hand over his keys while the officer wrote out a warning. When Jackson cooperated with those instructions, however, the officer switched tactics and told Jackson that he would be searching him and his car for weapons. He promised to “cut breaks and warnings” if Jackson was cooperative. Jackson and his passenger were ordered to exit the car and told that they would receive a warning for the marijuana violation; however, if they did not permit a “probable cause” search, the officer told them they would be arrested. Jackson then produced a tw0-gram baggie of weed. Jackson ultimately exited the car so that the officer could perform a pat down and administer field sobriety tests. Instead, Jackson fled on foot and a gun fell out of has pants. Jackson was ultimately convicted of possession of a firearm by a felon.
The question presented is whether the officer had probable cause to order Jackson out of the car to search him and his vehicle. Here, the officer pulled Jackson over for a violation of Illinois law–driving without headlights. Jackson’s lack of a license was another violation. And, under Illinois law, the odor of unburnt marijuana supported an inference that he was violating a state statute prohibiting the transportation of marijuana in an improper container. Moreover, Jackson’s admission of marijuana use and the headlight violation “could indicate driving under the influence.” Arguments attempting to attack the credibility of the officer’s olfactory prowess go nowhere, as does an unpreserved argument that marijuana odor is indistinguishable from legal hemp.
Most interestingly, the Seventh Circuit ultimately holds that “the smell of unburnt marijuana outside a sealed container independently supplied probable cause and thus supported the direction for Jackson to step out of the car for the search.” This is in response to Jackson’s argument that, because marijuana is now legal in Illinois, police could not use the odor of THC to supply probable cause. However, it is well-settled that “the smell of marijuana alone justifies a Fourth Amendment search or seizure.” And marijuana remains illegal under federal law. Moreover, even though Illinois has ostensibly legalized the substance, there remain a battery of regulations–including “laws restricting the packaging of and use of marijuana.” Because Illinois law requires marijuana, when transported in a car, to be stored in a “sealed” and “odor-proof” container, an officer who smells marijuana has PC that the law is being violated– a proposition well-settled under Illinois law. Accordingly, the Court affirms the district court’s denial of the suppression motion.
United States of America v. Patrick Hancock, No. 22-2614: Hancock was convicted under an Indiana statute which makes it unlawful for a civilian to impersonate a police officer. He argues that the law is an unconstitutional infringement on his freedom of speech. The law survives the constitutional challenge, however, as it contains an essential element that the person has an “intent to deceive”–meaning that, contrary to Hancock’s arguments, Halloween partygoers and actors are not covered by this law.
United States of America v. Echo A. Schiedt, No. 23-2567: Schiedt challenges her conviction under a federal law that criminalizes making false statements when filling out paperwork in conjunction with a firearms purchase. She argues that this law, which places a condition on her exercise of her Second Amendment right, is unconstitutional under SCOTUS’s recent precedent (the case predates Rahimi). The Seventh Circuit, however, holds that this is not a “Second Amendment case.” Such regulations do not “infringe” the right to bear arms and such conduct is wholly outside the scope of the Second Amendment.
United States of America v. Marcos Mendez, No. 23-1460: When returning from an international trip, Mendez was approached by a customs agent who then scrolled through his phone, resulting in the discovery of child pornography. Applying the well-settled “border search” exception, the Court holds that no warrant was required to scroll through the phone’s gallery. The Court therefore rejects an attempt to argue that SCOTUS’s recent precedent in Riley v. California and Carpenter v. U.S. requires expanded protections for cell phones, even at the border. Under settled precedent, a “routine” search of a cell phone does not require individualized suspicion. The Court does not address, however, whether expanded forensic analysis requires more.
United States of America v. Gerald S. Sewell, No. 23-2844: Holding that the defendant, who was convicted of attempted enticement of a minor following his sexually charged chats with an FBI agent who he believed to be a 15-year-old girl, was not entitled to an entrapment instruction at his jury trial. Although the agent was the one who broached the topic of sex, it was clearly Sewell “who encouraged someone he believed to be a 15-year-old girl to meet for a sexual rendezvous.”
United States of America v. Mario Giannini, No. 22-3139: Although the government clearly violated the law when it failed to turn over discovery–a violation that was only discovered mid-trial–Giannini’s appeal falters because he cannot demonstrate sufficient prejudice.
United States of America v. Seldrick R. Carpenter, No. 23-3295: The core issue in this appeal is probably of little interest to state litigators–whether a supervised release revocation proceeding held under federal law entitles a defendant to a jury trial (it does not). However, the case is interesting because it involves a discussion of the “other” jury trial guarantee within our constitution–Section 2 of Article III. Although there’s a clever attempt to find a distinguishable source of authority for Carpenter’s arguments within that text, the Seventh Circuit holds that the jury trial right discussed therein is intended to be complementary to the Sixth Amendment; the two clauses do not have distinct meanings or function in our constitutional system.
United States of America v. Roland Black, No. 22-2659: Law enforcement intercepted a package mailed to a residence because they believed it contained narcotics. Finding “furanyl fentanyl” therein, the officers replaced the drugs with a “sham” substance and booby-trapped the box with a luminescent powder before delivering it to the intended address. Black was arrested at the residence with the luminescent substance on his hands. Here, police had reasonable suspicion to seize the package in the first instance, given law enforcement’s investigation which revealed it was being mailed at the behest of a known drug dealer under suspicious circumstances. Moreover, police held on to the package a “reasonable” length of time before obtaining a warrant to open it and replace the contents–one day.
United States of America v. Juventino L. Plancarte, No. 23-2224: Plancarte challenges the search of his vehicle which resulted from a K9 “hit.” Interestingly, he takes direct aim at jurisprudence upholding K9 sniffs, arguing that in our changed legal landscape with respect to THC, such sniffs are properly considered warrantless searches. In essence, he argues that because the K9 allegedly could not differentiate between legal hemp and illegal marijuana, such sniffs can reveal “more than just contraband” and therefore infringe upon protected privacy interests. However, the Seventh Circuit falls back on well-settled dog sniff jurisprudence to hold that this open-air sniff during a traffic stop was permissible and not a Fourth Amendment search at all.
United States of America v. Huazhi Han, No. 23-1020: Han did not consent to a search of his home. Instead, his wife, Wang, gave police permission to search the property. On appeal, Han argues that Wang’s consent was involuntary given that officers lied to her when they told her Han had already consented, “cajoled” her about guns in the home which allegedly threatened Wang’s child, and stepped across the threshold of the home before she consented to their entry. Emphasizing the deferential standard of review for such a factual finding, the Court concludes that while reasonable minds may disagree about the voluntariness of Wang’s consent, it cannot find that the district court erred. It also holds that the district court properly admitted evidence that Han had threatened another witness and that the government did not commit prosecutorial misconduct when it allegedly commented on Han’s silence during closing arguments.
