Posts Tagged ‘motion to suppress’

Walkaway conviction not a crime of violence under ACCA.

Tuesday, January 12th, 2010

U.S. v. Lee, 586 F.3d 859 (11th Cir. 2009)

Defendant was convicted of being a felon in possession of a firearm and sentenced to 180 months in prison. On appeal, he argued that the district court erroneously denied his motion to suppress the gun found in his co-defendant’s vehicle and abused its discretion by allowing improper jury instructions. The defendant also challenged his sentence arguing that his prior NJ convictions did not meet the standard under the ACCA to enhance his sentence.

The appellate court held that because the defendant, a passenger, had no legitimate expectation of privacy in the interior of the vehicle, he neither had a privacy expectation of the glove box, and lacked standing to challenge the search.

The appellate court also found that the district court’s jury instructions constituted an accurate statement of the law and therefore did not warrant reversal.

Lastly, the appellate court examined the defendant’s NJ prior walkaway conviction to determine it if fit within the ACCA’s enumerated crimes. It found that “a non-violent walkaway escape from unsecured custody is not sufficiently similar in kind or degree of risk posed to the ACCA’s enumerated crimes to bring it within its residual provision.” Therefore, the appellate court vacated defendant’s sentence and remanded back to the district court for resentencing.

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Posted in Fourth Amendment, Jury Instructions, Motion to Suppress Evidence, Probable Cause, Search and Seizure, Search incident to arrest, sentence enhancement | No Comments »

Unsolicited private search does not constitute “search” under Fourth Amendment as long as search is confined to same scope as initial private search.

Wednesday, November 25th, 2009

U.S. v. GARCIA-BERCOVICH, 582 F.3d 1234 (11th Cir. September 10, 2009)

Appealing his convictions for both conspiracy to distribute and possession with the intent to distribute at least 100 kilograms, but less than 1000 kilograms of marijuana, the defendant argued that there was insufficient evidence to establish his knowledge or awareness that there was marijuana contained in the package seized and that the district court erred when it denied his motion to suppress because the government improperly expanded the search. However, the appellate court found that sufficient evidence did exist to support the defendant’s knowledge or awareness because the defendant made multiple trips to pick up packages from an unknown source, he had prior convictions for marijuana importation, he acted with “deliberate ignorance” regarding the existence of contraband, and he attempted to evade the police when caught. The court then examined the legality of the motion to suppress and found no error because as long as the search was confined to the same scope as the initial search, once one box was opened permissibly, the others could also be searched as part of same package.

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Posted in Conspiracy, Drug Crimes, Fourth Amendment, Motion to Suppress Evidence, Probable Cause, Search and Seizure, due process | No Comments »

State’s regulation for safety inspections of commercial motor vehicles was adequate substitute for warrant under Fourth Amendment.

Wednesday, October 21st, 2009

U.S. v. PONCE-ALDONA, 2009 WL 2450282 (11th Cir. August 12, 2009)

The defendant conditionally pled guilty to drug charges but on appeal argued that the district court erred in denying his motion to suppress because the initial stop did not fall under the administrative search exception to the warrant requirement under the Fourth Amendment. The appellate court examined the district court’s denial of the motion to suppress and found that the Georgia statute’s regulatory scheme as a whole, including the incorporated federal regulations, satisfied the third prong of the Burger test) for compatibility with the Fourth Amendment (The defendant did not raise any challenges to the first or second prong). The Georgia statue provided notice to owners that their vehicles would be searched on a regular basis, and that the time, place, and scope of the inspections placed proper restraints upon the inspecting officer’s discretion.

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Posted in Fourth Amendment, Motion to Suppress Evidence, Search Warrant, Search and Seizure | No Comments »

Arrest was supported by probable cause, therefore irrelevant for Fourth Amendment purposes.

Monday, July 27th, 2009

U.S. v. Goings, 2009 WL 1927455 (11th Cir. July 7, 2009)

The defendant pleaded guilty to possession with intent to distribute crack cocaine. He then appealed, challenging denial of his motion to suppress and argued that the District Court erred by denying his suppression motion only on the ground that the arrest leading to the discovery of the evidence violated Florida law. However, the Court of Appeals ruled that the district court correctly found that, under the Supreme Court’s Moore decision, it was irrelevant for purposes of the Fourth Amendment whether a defendant’s arrest violated state law, so long as it was supported by probable cause.

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Posted in Fourth Amendment, Motion to Suppress Evidence, Probable Cause, Search and Seizure | No Comments »

Extraterritorial application of 18 USC Section 2251 warranted as part of a comprehensive scheme to eradicate sexual exploitation of children.

Wednesday, June 10th, 2009

United States v. Kapordelis, No. 07-14499 (11th Cir 2009)

Defendant was convicted for producing, receiving, and possessing child pornography in violation of 18 U.S.C. §2251(a), 2252A(2)(A), and 2252A(a)(5)(B). Defendant appealed his 420 month sentence and argued that the district court erred by: (1) denying his motion to dismiss Counts 1 and 3 of the Fourth Superseding Indictment; (2) denying his request for a Franks hearing and his motion to suppress evidence obtained under certain search warrants; (3) admitting testimony concerning his solicitation of sex from boys, under the age of eighteen, while in the Czech Republic under Federal Rule of Evidence 404(b); (4) applying the 2003 US Sentencing Guidelines instead of the 2002 Guidelines in imposing a sentence; (5) finding that one of his victims was vulnerable, pursuant to U.S.S.G. Section 3A1.1; (6) double counting the number of images of child pornography and imposing a 2-level enhancement pursuant to U.S.S.G. Section 2G2.4(b)(2), and a 5-level enhancement under Section 2G2.4(b)(5)(D); (7) accepting a written victim impact statement during sentencing; and (8) imposing an unreasonable sentence.

Defendant was initially indicted on two counts of engaging in sex tourism. Then additional evidence was gathered and several superseding indictments were issued. The Fourth Superseding Indictment charged him with producing child pornography photographs and video on four separate occasions in violation of 18 U.S.C. Section 2251(a), receiving child pornography on a desktop computer and then a laptop computer, Section 2252A(2)(A), and possessing child pornography, Section 2252A(a)(5)(B). The PSR assigned an offense level of 41 and recommended a Guidlelines range of 324-405 months.

The court found that the extraterritorial application of 18 USC Section 2251 was warranted as the statute is a part of a comprehensive statutory scheme to eradicate sexual exploitation of children, and that “punishing the creation of child pornography outside the United States that is actually, is intended to be, or may reasonably expected to be transported in interstate or foreign commerce is an important enforcement tool.” (referencing United States v. Thomas, 893 F.2d 1066, 1069 (9th Cir. 1990). The court then considered the violation of Section 2251(a) alleged in Counts 1 and 3 to be a continuing offense, affirming the district court.

As to the Franks hearing, the court found that the magistrate judge undertook the evaluation prescribed by Franks and considered the affidavit in support of the search warrant with the omissions and additions proposed by Defendant and therefore did not err in declining to hold a hearing. Regarding the probable cause issue of the search warrant, the court found that the necessary nexus existed between the facts surrounding Defendant’s overseas travels and the facts that suggested he met and engaged in sexual activity with young boys, thus establishing the likelihood that evidence would be found in his home.

As to Defendant’s argument that evidence of trysts with young boys was precluded under FRE 404(b), the court ruled that “whether unlawful in the jurisdiction where they take place or not,” evidence “is admissible under Rule 404(b) if there is sufficient proof to support a jury’s finding that the defendant committed the similar act and the other act is probative of a material issue other that the defendant’s character.” The probative value of this evidence was found to outweigh its prejudicial nature.

The district court varied upward to the statutory maximum, giving the Defendant the longest sentence possible, based on his long history of abuse, parity, and the need for incapacitation. The Eleventh Circuit ruled that while the use of the 2002 Guidelines would have resulted in fewer enhancements, the overall record indicates that the district court would have imposed the same 420 month sentence had it applied the 2002 Guidelines.

Next, the court found the application of the vulnerable victim enhancement under U.S.S.G. Section 3A1.1 was not error as the boys qualified as “vulnerable victims” because they were asleep or otherwise nonresponsive and thus unable to object or respond in any way when Defendant took pornographic pictures of them.

Defendant’s arguments regarding double counting and the victim impact statement were rejected and the court then addressed the upward variance and reasonableness of the sentence by showing that the district court did not abuse its discretion and did take into consideration the Section 3553(a) factors, finding that “the 420 month sentence (1) promoted respect for the law, (2) illustrated the seriousness of the offense, and (3) will serve as a deterrent. Based on the totality of the circumstances, including the Defendant’s history of abuse, number of images in his possession, and the need to protect society, the Eleventh Circuit court found compelling justification to support the upward variance and reasonableness of the Defendant’s sentence.

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Posted in Computer Sex Crimes, Fourth Amendment, Internet Crime, Motion to Suppress Evidence, Pre-Sentence Investigation Report, Probable Cause, Procedure, Search Warrant, Search and Seizure, Sentencing Guidelines, kiddie porn, sentence enhancement, upward variance | No Comments »

Search that uncovered a gun between mattress and box spring upheld as reasonable because it was within the grab area of two individuals who were present in the apartment where the defendant was arrested pursuant to an arrest warrant.

Wednesday, April 29th, 2009

United States v. Bennett, 555 F.3d 962 (January 21, 2009)

The defendant was convicted of possession of a firearm by a convicted felon. During the course of executing an arrest warrant for Bennet at his apartment, the police conducted a protective sweep of one of the bedrooms in the apartment, occupied by Bennet’s brother and a friend, where they found a rifle between a mattress and box spring. The defendant moved to suppress arguing that the search “improperly expanded the scope of their protective sweep outside Bennett’s grab area.” The Eleventh Circuit upheld the search finding that the agent had a reasonable belief that the brother and friend could be dangerous and both had been moved to the bed by the agent. It was reasonable for the agent to lift the mattress as a safety precaution since the officer was not familiar with what objects may have been in the room, as the boys may have been, and the mattress was properly within the limited grab area of both young men.

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Posted in Arrest Warrant, Fourth Amendment, Motion to Suppress Evidence, Procedure, Search and Seizure, Search incident to arrest | No Comments »