No Sixth Amendment Right to Counsel before Indictment

A defendant has no right to counsel under the Sixth Amendment before formal charges are levied against him or her, even when plea bargaining and other procedural actions are happening

Turner v. United States, 2017 BL 45346, 6th Cir., No. 15-6060, 2/15/17.

The Sixth Circuit ruled that a federal defendant does not have the right to counsel under the Sixth Amendment until charges are officially levied against the defendant. The issue arose because a defendant was being charged by both the state and federal governments for crimes from the same incident. The defendant retained defense counsel for his state criminal proceedings, but was unable to have counsel appointed for the federal proceedings until he was  officially indicted. During the state proceedings and before a federal indictment, the state-appointed defense attorney gave the defendant advice that later proved detrimental to the defendant’s federal case. In the federal appeal based on the claim of ineffective assistance of counsel, the defendant argued that the state appointed counsel provided bad legal advice regarding a plea bargain before the defendant was indicted. The Sixth Circuit, however, rejected the appeal, finding that the right to counsel did not attach at the time of the bad advice, precluding the ineffective assistance of counsel claim brought in the appeal. Even though the federal prosecutors communicated with the defendant before his indictment, the defendant did not have a right to counsel.

https://www.bloomberglaw.com/public/desktop/document/Turner_v_United_States_No_156060_2017_BL_45346_6th_Cir_Feb_15_201?1487783061

Killing Dogs During a Police Search Not Inherently Unconstitutional

The death of two dogs during a police search was deemed reasonable under the Fourth Amendment because of their aggressive behavior that was impeding a police search of a home

Brown v. Battle Creek Police Dep't, 2016 BL 420467, 6th Cir., No. 16-1575, 12/19/16.

The Sixth Circuit held that police officers did not violate the Fourth Amendment in killing two pit bulls during a drug raid. Although the court recognized that dogs are property and any unreasonable seizure of them would be considered unconstitutional, due to their aggressive nature and interference in the performance of a large-scale drug raid by police officers, their killing was reasonable. It was irrelevant to the court that the dogs were owned by occupants of the house who were not subject to the search.

https://www.bloomberglaw.com/public/desktop/document/Brown_v_Battle_Creek_Police_Dept_No_161575_2016_BL_420467_6th_Cir?1485369674

Border Search Okay, Even If Driver Never “Crossed” Border

After making a U-turn at a border crossing, the warrantless border search was constitutional because the subjective intent of the driver did not matter

D.E. v. Doe, 2016 BL 276645, 6th Cir., No. 15-2128, 8/26/16.

   The Sixth Circuit held that border patrol agents did not conduct an illegal warrantless search at a border crossing, even if the driver did not actually cross the border. The driver, after mistakenly entering a border crossing into Canada, made a U-turn at the station and was stopped by U.S. border patrol agents. After being stopped, the driver's vehicle was searched and drugs were discovered in the vehicle. The court upheld the search, clarifying  that the subjective intent of the driver, whether wanting to cross the border or not, does not have any impact on the broad search powers at an international border crossing setting. It was irrelevant that the driver did not want to cross the border.

https://www.bloomberglaw.com/public/desktop/document/DE_v_Doe_No_152128_2016_BL_276645_6th_Cir_Aug_25_2016_Court_Opini?1472748746

Sex Offender Registration Penalty Changes Cannot Affect Offenders Retroactively

Amendments added to Michigan’s Sex Offender Registration Act that retroactively apply to sex offenders violates their constitutional right against ex post facto punishments

Does v. Snyder, 2016 BL 276689, 6th Cir., No. 15-1536, 8/25/16.

   The Sixth Circuit ruled that Michigan’s Sex Offender Registration Act (SORA) and its new amendments could not retroactively affect offenders in the state because it would violate the Constitution’s Ex Post Facto Clause. The clause prevents the changing of punishment for actions that have already happened, after the fact. While civil and regulatory laws like SORA cannot violate the Ex Post Facto clause on their own, if a plaintiff shows there is a criminal penalty then the clause comes into play. The court found that certain amendments in the past ten years have changed how the state “imposes punishment,” rather than affecting civil penalties, thereby violating the Ex Post Facto Clause.

   The court made sure to distinguish its decision from Alaska’s sex offender registry law, which was upheld by the United States Supreme Court. The circuit court found that SORA went beyond what was decided by the Supreme Court because it regulated where “registrants may live, work, and ‘loiter.’” The restrictions put significant burdens on the registrants, not the “minor and indirect” effects found in the Alaskan registry.

http://www.bloomberglaw.com/public/document/Does_v_Snyder_No_15153623462486_2016_BL_276689_6th_Cir_Aug_25_201.

Vague Law Prevents Removal of Albanian Immigrant that Committed Robbery

A provision under the Immigration and Nationality Act is void because of vagueness, preventing removal of an immigrant that committed a non-armed robbery

Shuti v. Lynch, 2016 BL 217913, 6th Cir., No. 15-3835, 7/7/16.

   The Sixth Circuit joined the Seventh and Ninth Circuits in voiding a provision from the Immigration and Nationality Act (INA) for being too vague using precedent from Johnson v. United States. Under Johnson, the Supreme Court held that “violent felony” was unconstitutionally vague in the Armed Criminal Career Act (ACCA). In making this decision, the court ruled that the precedent set in Johnson could be “mixed and matched” with other statutes, making it applicable to other acts with similar language. The court held that the definition of “crime of violence” shares a resemblance to the ACCA’s “violent felony” definition, which was eventually invalidated. The order was vacated ad the case was remanded.

https://www.bloomberglaw.com/public/desktop/document/Shuti_v_Lynch_No_153835_2016_BL_217913_6th_Cir_July_07_2016_Court?1469141588

6th Circuit: Freedom of Information Act Exemption Protects Mug Shot Disclosure

An exemption under the Freedom of Information Act that protects personal privacy also prevents booking photos from public disclosure

Detroit Free Press Inc. v. DOJ, 6th Cir. (en banc), No. 14-1670, 7/14/16.

   The Sixth Circuit reversed 20 years of precedent that allowed the public disclosure of federal booking photos because of new concerns surrounding privacy in the 21st Century. The court held that these types of photos fit within an exemption of the Freedom of Information Act (FOIA), which prevents the disclosure of information that “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” The court, noting that the photos share “embarrassing and humiliating information,” and argued the information not only violates a person’s privacy, but that it is the exact type of information meant to be protected by the FOIA’s exemption.

   While ruling against the use of public disclosure of booking photos, the court also added that a case-by-case approach should be used to decide whether or not a booking photo disclosure is in the best interest of the public and in the purpose of the FOIA.

http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0164p-06.pdf

General Drug Trafficking Knowledge Not Enough for Probable Cause

An officer’s general knowledge about items used in drug trafficking was not enough to establish probable cause for obtaining a search warrant

United States v. Brown, 2016 BL 205724, 6th Cir., No. 13-1761, 6/27/16.

   The Sixth Circuit found that an officer’s general knowledge about drug trafficking, coupled with flawed information about the homeowner’s participation in dealing drugs, did not establish sufficient probable cause for a search warrant. Although the officer had sufficient cause to search the homeowner’s car, information collected from the car, including the address of the house, was not enough on its own to satisfy search warrant requirements. The court found “no evidence that [the homeowner] distributed narcotics from his home, that he used it to store narcotics, or that any suspicious activity had taken place there.” Further in the opinion, the court continued by saying, “The affidavit did not suggest that a reliable confidential informant had purchased drugs there, that the police had ever conducted surveillance at [homeowner’s] home, or that the recorded telephone conversations linked drug trafficking to Brown’s residence.” Without any such probable cause, the search was unreasonable.

http://www.bloomberglaw.com/public/document/United_States_v_Brown_No_16a0148p06_2016_BL_205724_6th_Cir_June_2.

Untimely Guilty Plea Not Enough to Prevent Responsiblity Credit

An untimely guilty plea in a plea deal is not sufficient for denying the two-level sentencing deduction for acknowledging responsibility

United States v. Hollis, 2016, BL 166203, 6th Cir., No. 15-5246, 5/25/16.

    The Sixth Circuit overruled a federal district court's ruling in denying to take into account a guilty plea in a plea deal after the defendant failed to meet the deadlines set by the judge, who found that such tardiness caused a "waste of government resources." The circuit court responded that under U.S.S.G. Section 3E1.1(a), that "timeliness of a defendants plea" can only be considered "to the extend that timeliness reflects the extent of the defendant's sincerity in accepting responsibility."

   The court notes that the waste of government resources lies in subsection (b) in the same section, which credits the defendant's offense level one step if the plea saves government resources. While overturning the district court's ruling, the circuit court did note that timeliness is not completely irrelevant. The court in their conclusion found that a defendant entering a plea deal at the eleventh hour does not necessarily indicate an acceptance of responsibility, but rather apprehension of the government's case against him or her. "Such a situation might occur when the plea comes on the eve of or during a trial," the court elaborates.

   The takeaway is that the timeliness of a plea is only considered to the extent that it shows insincerity, not inconvenience or a waste of government resources.

http://www.bloomberglaw.com/public/document/United_States_v_Hollis_No_155246_2016_BL_166203_6th_Cir_May_25_20.

Government Must Notify Bail Bond of Material Modification of Bond Conditions

A bail bond company is not liable for any material modifications of the bond’s conditions without actual notice by the court first

United States v. Mohammed-Ali, 2016 BL 156093, 6th Cir., No. 15-6003, 5/17/16.

   Constructive notice of a change in a bond’s conditions is not sufficient for a bail bond agency to be liable.  Actual notice of a change in conditions by a company is both fair and practical, the court noted, further stating that it was “unrealistic to expect a bail bond company to constantly sift through every motion in all its cases to check whether a bond’s conditions have been altered.” Moreover, the burden of notice is better placed on some other party, including the court, defendant, or prosecutor. In enforcing a bond’s liability, the court must send actual notice by mail, a benefit that should be extended to bail bond companies when “a motion that leads to the condition…creates the bail bond’s liability in the first place.”

http://www.bloomberglaw.com/public/document/United_States_v_MohammedAli_No_156003_2016_BL_156093_6th_Cir_May_