Take the Fifth: Nov. 11, 2020 opinions

Designated for publication

  • U.S. v. Beaudion, 19-30635, appeal from W.D. La.
    • Oldham, J. (Smith, Clement, Oldham), criminal, Fourth Amendment, search and seizure, Stored Communications Act
    • Affirming conviction of defendant for drug offenses, upholding district court’s denial of motion to suppress evidence gained through government’s surveillance of the GPS coordinates on his girlfriend’s (and drug-dealing partner’s) cell phone.
    • A side note to the merits, on opinion drafting, Judge Oldham writes exceedingly clear opinions (whether one agrees with the substantive results or not), and the opening of this opinion is a good example: “This is a case about GPS searches, Fourth Amendment standing, and the Stored Communications Act. Matthew Beaudion and his girlfriend, Jessica Davis, were drug dealers. Narcotics officers obtained a warrant for the GPS coordinates of Davis’s cell phone and used the coordinates to intercept the car in which she and Beaudion were traveling. After losing a motion to suppress, Beaudion pleaded guilty to drug charges. He appealed. We affirm.” There is no guesswork involved about what is to follow.
    • The government obtained a warrant for access to defendant’s girlfriend’s GPS coordinates after (1) multiple lower-level dealers identified defendant and his girlfriend as their supplier; and (2) agent listened in as an informant called defendant’s girlfriend on her cell phone and arranged a meth deal, learning that defendant and his girlfriend would be driving from Dallas to Monroe with four pounds of meth. After officers used the GPS coordinates to track and intercept their vehicle and recover the cell phone, along with the drugs at issue, at trial defendant moved to suppress the evidence as gained through an improperly obtained warrant for the GPS coordinates. The district court accepted the magistrate’s recommendation to deny the defendant’s motion to suppress for lack of Fourth Amendment standing as to his girlfriend’s GPS coordinates, and, in the alternative, held on the merits that the defendant’s warrant-related arguments did not entitle him to relief.
    • The Court examined first the “original public meaning” of the Fourth Amendment’s proscription on unreasonable search and seizure. Examining the historical development of the concept of an “unreasonable” search under English common law, the Court noted that this original understanding “did not contemplate a remedy for those who objected to a trespass [by an unreasonably searching official] suffered by another.” The Court concluded this analysis by noting, “All this history matters. It explains the Fourth Amendment’s requirement for specific warrants. It demarcates unreasonable searches and seizures. And it suggests the remedies for violations of Fourth Amendment rights. Of course, the complexities of history sometimes leave room for debate in answering these questions. But one thing is beyond debate: the Fourth Amendment is not a weapon that uninjured parties get to wield on behalf of others.” Specifically, a defendant has Fourth Amendment “standing” when he objects to a physical intrusion of a constitutionally protected area or when he objects to government action that violates a reasonable expectation of privacy in the place searched.
    • The warrant here was for sixteen hours of access to the GPS coordinates of defendant’s girlfriend’s cell phone. The Court held that the “place searched” was the girlfriend’s cell phone, rejecting defendant’s argument that the true target of the search was the vehicle in which he and his girlfriend were traveling. The Court noted that “[w]hat matters is not the purpose of a search but rather its scope,” and that the scope is always treated with very particularized “granularity.” While the Court held that the girlfriend had a reasonable expectation of privacy in her cell phone and its GPS coordinates, the defendant did not share that same reasonable expectation of privacy. Accordingly, the Court held that he had no Fourth Amendment standing to move to suppress evidence gained from the “search” of his girlfriend’s GPS coordinates.
    • The Court then opined that, even if defendant did have standing, he failed to show that the search was unreasonable. As a threshold matter, the Court noted that it was an “easy case” that the officer received the warrant for the GPS coordinates based on probable cause. The Court then held under plain error review (because the argument is raised for the first time on appeal) that the search did not violate the Stored Communications Act. Under the SCA, a search is appropriate upon gaining a warrant from a court of competent jurisdiction, indisputable here. Defendant argued, however, that the warrant must be based on probable cause that the “subscriber” had committed a crime, and that because his girlfriend’s parents paid her cell phone bills they were the “subscriber.” The Court held that this argument “borders on frivolous” because the SCA contains no such “subscriber” requirement for the issuance of warrant.
  • U.S. v. Frierson, 19-31048, appeal from W.D. La.
    • Elrod, J. (Elrod, Duncan, Wilson), criminal, sentencing
    • Affirming sentence based on application of career offender enhancement founded on previous conviction under La. R.S. § 40:967.
    • Court held that La. R.S. § 40:967 was not “indivisible,” which would have made it broader than the “generic crime” as defined in the law. “Louisiana R.S. § 40:967 is divisible and, under the modified categorical approach, sufficiently narrow to serve as a predicate for sentence enhancement under § 4B1.1(a).”
    • The third criterion of the sentencing guideline was at issue, whether “the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.” The importance of “divisibility” is in how to analogize a conviction for a state offense with the generic understanding of the characterization of that offense under federal law: “Where the state statute is comprised of multiple alternative elements, it may be divided, and the component elements that served as the basis of the prior conviction can be compared to those in the ‘generic crime’ in federal law. If those limited elements from the state statute are narrower than or equivalent to the elements that comprise the analogous federal law, the prior conviction under the state statute is a valid predicate for sentence enhancement.”
    • Because the Louisiana statute allowed for conviction under a broader set of substances than federal law, the Court reviewed whether the particular substance at issue was an “element” of the conviction offense (such that conviction based on other substances would be divisible from a conviction based on a substance that was also federally proscribed) or merely a “means” to commission of the element. The Court held that the possession of a particular substance is an “element” of a divisible crime. Therefore, the prior conviction of defendant under the Louisiana statute for possession of a substance also proscribed under federal law was a valid conviction for purposes of applying the sentencing guideline.

Unpublished

  • U.S. v. Reyes-Puletapuaimapuolesega, 20-50173, appeal from W.D. Tex.
    • per curiam (King, Smith, Wilson), criminal, sentencing
    • Affirming sentence and upholding district court’s calculation of drug quantity and decision to not apply the “minor participant” reduction.