Navigating Federal Investigations: Search Warrants and Undercover Operations

Navigating Federal Investigations: Search Warrants and Undercover Operations

Introduction

Facing a federal investigation can be an overwhelming experience. As a criminal defense attorney, I recognize the importance of equipping individuals with knowledge about the tools utilized by federal agents. In this guide, we will delve into two critical aspects: search warrants and related techniques, as well as undercover investigations. Understanding these procedures is crucial for those who find themselves as targets of criminal investigations. By familiarizing yourself with these tools, you can better navigate the legal landscape and actively participate in your defense.

Search Warrants and Related Techniques

Federal agents have the authority to obtain search warrants from federal magistrate judges. To obtain a warrant, the government must demonstrate probable cause to believe that evidence of a crime, contraband, or instruments of a crime will be found in the targeted premises or property. Additionally, warrants are required when agents seek to install tracking devices. The Federal Rules of Criminal Procedure stipulate that agents executing a search warrant must prepare an inventory of the seized articles and leave it, along with a copy of the warrant, at the searched location. Typically, this notification is left at the time of the search.

Delayed-Notice Search Warrants

The PATRIOT Act introduced a practice known as delayed-notice search warrants, commonly referred to as "sneak and peek" warrants. These warrants allow the government to delay providing notice after executing a search warrant. This practice is employed when immediate notice could potentially alert the targets of the investigation prematurely or present other obstacles to the investigation. While this practice was already permitted in some circuits prior to the PATRIOT Act, its codification in the legislation may lead to increased use, leaving defendants unaware of searches conducted on their homes, offices, or mail until after the fact. It's important to note that executing a search warrant without drawing attention can be challenging, and the use of delayed-notice warrants is limited to specific cases. In practice, delayed notification is more likely to be used for discrete property, such as mail.

Bank Secrecy Act: SARS & GTOs

Regulations derived from the Bank Secrecy Act, as amended by the PATRIOT Act, have provided law enforcement with additional investigative tools. These tools include suspicious activity reports, geographic targeting orders (GTOs), and Section 314(a) search requests. Suspicious activity reports and GTOs are filed with the Financial Crimes Enforcement Network (FinCEN), while Section 314(a) search requests enable federal law enforcement agencies to request financial institutions to identify accounts or transactions potentially linked to terrorism or money laundering. These tools have been utilized by law enforcement to investigate and apprehend individuals involved in criminal activities. It's worth mentioning that foreign, state, and local law enforcement agencies can also make requests for bank account information under modified regulations.

Mail Cover

One investigative technique that does not require a search warrant is a "mail cover." A mail cover involves nonconsensual recording of data appearing on the outside cover of sealed or unsealed mail matter or the contents of unsealed mail matter, if allowed by law. A mail cover can be authorized when there is reason to believe it will produce evidence related to a postal statute violation, aid in obtaining information about a crime, protect national security, or locate a fugitive.

Undercover Investigations

Undercover investigations are commonly employed by federal law enforcement agencies. In these operations, agents or cooperating witnesses assume the role of individuals engaged in criminal activity and interact with potential investigative targets. These meetings are often recorded using hidden audio or video devices. Undercover recordings are powerful evidence and have been instrumental in high-profile investigations. While undercover agents have long been used in narcotics investigations, they are increasingly prevalent in securities fraud and other white-collar cases.

The Department of Justice (DOJ) has established guidelines governing the FBI's use of undercover operations. Although these guidelines do not create enforceable rights, they can be used by defendants to cross-examine witnesses or challenge the government's evidence. The guidelines require authorization from senior FBI personnel before conducting undercover operations. Several factors, such as the risk of injury, invasion of privacy, potential involvement in illegal conduct, and the suitability of government participation, are considered when evaluating the use of undercover operations. The guidelines also stress the importance of avoiding entrapment, with undercover agents only offering inducements to commit a crime under specific conditions.

Conclusion

When facing a federal investigation, understanding the tools employed by federal agents is vital to mounting an effective defense. By comprehending search warrants and related techniques, such as delayed-notice warrants and mail covers, and familiarizing yourself with undercover investigations and their guidelines, you can actively participate in your defense strategy. Seeking legal representation is crucial during these challenging times to protect your rights and ensure the best possible outcome for your case. As your defense attorney, I am dedicated to safeguarding your interests and will work tirelessly to build a strong defense tailored to your unique circumstances.

Navigating Federal Criminal Investigations: Witness Interviews and Subpoenas

Introduction

Federal investigations can be daunting and complex, especially when you find yourself as the target of such inquiries. As a criminal defense attorney, I equip individuals with knowledge about the tools employed by federal investigators. This guide aims to provide you, as a potential client, with a clear understanding of two critical aspects: witness interviews and subpoenas. By familiarizing yourself with these tools, you can make informed decisions and actively participate in your defense.

Tools of Federal Investigation

The federal government uses various methods to investigate alleged criminal activity. These tools can greatly impact your case, and it's vital to comprehend their significance and implications. Let's explore two essential aspects: witness interviews and subpoenas.

Witness Interviews

Witness interviews serve as a cornerstone in federal investigations. During these interviews, federal agents may approach you or other individuals connected to the case. It is crucial to remember that these conversations can have serious consequences. Many individuals unintentionally make self-incriminating statements, while others may try to minimize their involvement by accusing others or offering cooperation to protect themselves.

Federal agencies, such as the FBI, document witness interviews in reports called "302 Reports." These reports memorialize the statements made during the interview process. It is important to note that these reports may be made available to you as part of the discovery process if you are the person interviewed or if the interviewee testifies at trial.

By understanding the dynamics of witness interviews, we can assess the extent to which the government has gathered information about you and your co-conspirators, allowing us to develop a defense strategy tailored to your unique circumstances.

Subpoenas

Subpoenas are another common tool employed in federal investigations. Specifically, a subpoena duces tecum seeks the production of documents and records. These documents often reveal the subject matter and focus of the government's investigation.

Grand jury subpoenas are frequently issued by prosecutors on behalf of the grand jury. If you receive such a subpoena, you have the right to challenge its validity by filing a motion to quash. In some cases, the denial of this motion can be appealed, but failure to comply with an order, without a stay, may result in contempt sanctions.

When faced with a grand jury subpoena, it is advisable to consult with a defense attorney promptly. We can engage with the prosecutor to discuss the scope, timing, and other pertinent details of the document production. It is worth noting that in exceptional cases, prosecutors may issue "forthwith subpoenas" that demand immediate compliance, limiting your ability to consult with an attorney. However, we can navigate such situations and protect your rights.

Administrative subpoenas, which are issued by agencies independently and do not involve prosecutors or the grand jury, can also be employed in certain circumstances.

Conclusion

As a federal criminal defense attorney, I will provide you with the knowledge necessary to navigate federal investigations successfully. By understanding witness interviews and subpoenas, you can actively participate in your defense strategy and make informed decisions. Remember, seeking legal representation is crucial to protect your rights and ensure the best possible outcome for your case. Together, we will build a robust defense tailored to your unique circumstances and fight to safeguard your future.

How the Feds Investigate Criminal Cases

Federal crimes are investigated by various federal agencies, with the Federal Bureau of Investigation (FBI) being the most well-known. The FBI investigates a wide range of federal criminal activities, including white-collar crime, terrorism, organized crime, money laundering, narcotics, violent gangs, child pornography, antitrust crimes, and bank robbery. FBI special agents are stationed in metropolitan areas, smaller cities, and U.S. embassies.

I.          White Collar Crimes

White-collar crimes, such as securities fraud and identity theft, are investigated by multiple agencies, including the FBI and the United States Postal Inspection Service, which focuses on crimes related to the Postal Service. The United States Secret Service investigates computer crime, identity theft, and counterfeit money to safeguard the payment and financial systems.

II.        Government Fraud

All cabinet departments and government agencies have an Office of the Inspector General (OIG) that investigates crimes related to their agency's mission. These OIGs primarily focus on fraud against the government, such as defrauding the Social Security Administration or criminal activity related to labor unions and employee benefit plans.

III.       Narcotics and Violence

Drug crimes and crimes of violence are investigated by agencies like the Drug Enforcement Administration (DEA) and the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). The DEA enforces federal laws related to controlled substances and investigates drug-related crimes, while the ATF focuses on illegal trafficking in tobacco, gun-related violence, and narcotics enforcement.

IV.       Cybercrime/Immigration Offenses

Within the Department of Homeland Security, agencies like the Secret Service and Immigration and Customs Enforcement (ICE) investigate various offenses. The Secret Service primarily protects high-level officials but also investigates international cybercrime, while ICE focuses on immigration-related offenses and cross-border computer crimes.

As cybercrime becomes a major threat, multiple agencies, including the FBI and the Department of Homeland Security, have developed initiatives to combat it. They collaborate with private industry, academia, and law enforcement to investigate cybercrimes and prevent their occurrence.

V.        Regulatory Agencies: Civil-Criminal Enforcement

Various regulatory agencies, such as the Internal Revenue Service, Office of Foreign Assets Control, and Securities and Exchange Commission, have dual civil-criminal enforcement functions. They investigate offenses like tax fraud, trade sanctions violations, and securities fraud, often leading to both civil and criminal prosecutions.

IV.       Department of Justice

Federal crimes are prosecuted by United States Attorneys' Offices across the country, headed by United States Attorneys. These offices have units dedicated to specific types of crimes, and major case decisions often require supervisory approval. Main Justice, the Department of Justice's headquarters in Washington, D.C., handles certain specialized prosecutions and provides additional approvals for specific decisions.

The Department of Justice has created task forces, advisory groups, and sections to enhance its enforcement efforts in various areas, such as organized crime, drug enforcement, corporate crime, and cybersecurity. These initiatives collaborate with federal agencies and coordinate investigations and prosecutions.

In cases involving high-level executive branch wrongdoing, special counsels may be appointed to investigate independently. Special counsel appointments follow specific regulations and occur when there is a conflict of interest within the executive branch.

Overall, federal crimes are investigated and prosecuted by multiple agencies and departments, working together to uphold the law and protect the interests of the United States.

Trump Indicted by the Feds: Federal Criminal Procedure Insights

On Thursday, June 8, Donald Trump announced via video on Truth Social that he’s been indicted in the classified documents investigation. Special Counsel Jack Smith has been investigating Trump since November 2022 for his handling of classified documents after he left office. Although every case plays out in court differently, due process requires certain steps. What information can we infer based on federal criminal practice and procedure?

1. Donald Trump Status: From Target to Defendant

   It was widely reported that Trump received a Target Letter, officially informing him he was the Target in the federal investigation. Once there is an indictment, he becomes a defendant.

2. Typical for the Prosecutor to Inform Trump’s Attorneys First

   Once an indictment is obtained, federal criminal procedure mandates that the defendant appear in federal court, before a US Magistrate Judge. The defendant must be arraigned and bail will be set. Given that the court appearance must be coordinated, it is typical for the federal prosecutor to promptly inform the defendant’s attorneys to schedule his appearance.

3. Indictment Likely Filed and Sealed

   The indictment is likely filed and sealed. The federal prosecutor will file a letter with the assigned judge to unseal the indictment—we will know once we have access to the docket. If it has been filed under seal, prosecutors will write a letter to the court, which will be entered on the docket, requesting that the indictment is unsealed. This will happen either shortly before, or after, his initial appearance.

4. First Appearance: Bail and Arraignment

   Trump is scheduled to appear before a federal court in Miami, Florida on Tuesday June 13, 2023 at 3pm ET. This is likely before the duty magistrate judge. He is going to be arraigned and his conditions of release will be set. Typically, the federal prosecutors will provide the indictment to the defendant and his attorneys prior to the hearing so that they can review it with the defendant. The defendant will typically waive the reading of his indictment and enter a “not guilty” plea.

Although every case moves through the system differently, the Federal Rules of Criminal Procedure control what moves are permitted.

Update 06/13/23

Today, June 13th 2023 at 3 PM ET, former President Donald J. Trump is set to appear before a federal court in Florida. He is currently facing charges on 37 felony counts,  31 of which concern violations of the Espionage Act, through “willful retention” of classified records

___

by Ellis Palividas Esq., Criminal Defense Attorney, PA

Federal White Collar Crime: The “Non-Imprisonment Defense” in White Collar Crime Cases

OVERVIEW

In United States v. Steven Fishoff, the court considered Section 32 of the Securities Exchange Act, which stipulates that a defendant who violates Securities and Exchange Commission (“SEC”) rule or regulation but proves he “had no knowledge of such rule or regulation” is not subject to imprisonment. The rule is intended to protect laypersons who commit technical violations. 

Issue: What is the burden on a defendant who wishes to use the Section 32—the “non-imprisonment defense?”

Short answer: The defendant can establish lack of knowledge and avoid imprisonment if he demonstrates, by a preponderance of the evidence, that he did not know the substance of the rule or regulation that he violated.

FACTS

Steven Fishoff (“Fishoff”) began trading securities in the early 1990s and by 2009 he started his own firm, Featherwood Capital, Inc (“Featherwood”), where he profited anywhere between $2 and $5 million per year. Fishoff did not have formal training in the securities markets, regulations, or compliance. Nor did he have a securities or other professional licenses. He operated the firm without any expert legal or regulatory advice. 

One of Fishoff’s strategies was short-selling a company’s stock in anticipation of the company making a secondary offering. Short-selling is the sale of a security that the seller has borrowed believing that the price will drop. The seller profits by buying back the stock at a lower price before returning it. A secondary offering is when a public company issues and sells new shares to raise money—thus diluting the value of existing shares and causing a price drop. 

Although secondary offerings are confidential, a company, through its underwriter, may contact potential buyers to assess interest. This may result in the salesperson providing confidential information such as the issuing company and the pricing and timing of the offering. The recipient of this information pursuant to the sales pitch is then considered “over the wall” or “OTW” and is barred per SEC’s Rule 10b-5-2 from trading the issuer’s securities or disclosing the information to anyone else before it is publicly announced.

Featherwood was accused of such criminal insider trading. It received confidential information about impending secondary offerings and would short-sell them. Two of Fishoff’s associates opened accounts at investment banking firms and cultivated relationships with bankers to receive solicitations to invest in secondary offerings. 

The case arose from the trading of stock in Synergy Pharmaceuticals, Inc. One of his associates at the investment bank was solicited to participate in Synergy’s confidentially marketed secondary offering. The associate called Fishoff a few minutes later. Featherwood started short-selling Synergy stock that same morning via Fishoff’s online trading account. When Synergy announced the second offering, Fishoff made between $1.5 and $3.5 million by short-selling Synergy stock.

PROCEDURAL HISTORY

In November 2015, Fishoff was charged in a five-count indictment including one count of conspiracy to commit securities fraud and four separate counts of securities fraud. He pled guilty to Count 4, securities fraud in violation of 15 U.S.C. §§ 78j(b) and 78ff, 17 C.F.R. § 240.10b-5 (Rule 10b-5) and 18 U.S.C. § 2.  Fishoff claimed that he had no knowledge of SEC Rule 10b5-2 and was entitled to the affirmative defense against imprisonment pursuant to Section 32 of the Securities Exchange Act. 

The District Court rejected the Section 32 affirmative defense and the Circuit Court affirmed.

HOLDING

The defendant who wishes to qualify for the non-imprisonment defense must  demonstrate, by a preponderance of the evidence, that he did not know the substance of the rule that he violated. It is immaterial that a defendant does not know the exact number of the rule or that he did not specifically intend to violate the rule. 

The Circuit Court rejected the Fishoff’s argument that he did not have knowledge of the SEC’s technical rules and that no layperson would know Rule 10b5-2. Fishoff was a full-time trader who made his living trading stocks—so he was not a layperson. Moreover, Fishoff and his associates exchanged information using code, which shows consciousness of guilt. Finally, the fact that he had no compliance personnel, despite advice from friends who were securities professional, demonstrates that Fishoff deliberately avoided such advice because he knew he was violating securities rules. 

Federal Sentencing: Aggravated Role Adjustment Per §3B1.1

How does federal sentencing work?

Arriving at a federal sentence is a complicated process. There are two components: (1) offense level; (2) criminal history. This guide deals with the offense level; specifically, the defendant's aggravated role in the criminal activity. Where the defendant is accused of a crime with five or more participants, the defendant can receive a significantly higher offense level if the court determines that the defendant was an organizer or manager according to §3B1.1.

By how much can §3B1.1 (Aggravated Role) increase the offense level?

§3B1.1 provides for a 2-, 3-, and 4-level increase to the offense level depending on the defendant's aggravating role in the offense: (a) if the defendant was an organizer or leader or was otherwise extensive, increase by 4 levels; (b) if the defendant was a manager or supervisor (but not organizer or leader) increase by 3 levels; (c) if the defendant was an organizer or leader in a criminal activity other than described in (a) or (b) increase by 2 levels.

What factors impact the application of the adjustment?

First, the size and scope of the criminal activity--five or more or otherwise extensive. Second, the defendant's particular role in that activity--"organizer or leader" or a "manager or supervisor."

Who bears the burden to prove the defendant's aggravated role?

The government must prove that the defendant should receive an aggravating role adjustment at sentencing.

What is the legal standard to prove the defendant's aggravated role?

The government must prove the defendant's aggravated role by a preponderance of evidence. This standard is lower than the standard at trial, which is beyond a reasonable doubt.

Who counts as a participant?

The participants are people who (1) were aware of the criminal objective, and (2) knowingly offered their assistance. Therefore, a person who is not a coconspirator can be a participant if they aid the defendant with knowledge of the criminal activity. Therefore, the definition of participant is broader than the definition of conspiratorial liability.

What are some practical examples of participants and non-participants?

An example of a participant is a defendant's high-level employee, who continued to solicit investments despite knowing the company was operating a Ponzi scheme and made knowing false representations to potential investors. United States v. Aptt, 354 F.3d 1269 (10th Cir. 2004) Similarly, a defendant's wife was a participant in the defendant's fraud scheme when she knowingly made false representations to potential investors. United States v. Alfonzo-Reyes, 592 F.3d 280 (1st Cir. 2010). An example of a non-participant is a defendant's employees in a mail fraud scheme because they were "innocent clerical workers." United States v. King, 257 F.3d 1013, 2024 (9th Cir. 2001).

How does the court determine the defendant's role in the criminal activity?

The defendant's role in the offense is made on the basis of all conduct within the scope of §1B1.3 (Relevant Conduct). Therefore, the court will not only look to the defendant's participation in the counts of conviction. The difference between an organizer and a manager turns on the degree of responsibility in the criminal activity. To qualify, the defendant needs to have organized or supervised only ONE participant.

What factors distinguish leaders and organizers from managers and supervisors?

The non-exhaustive list of factors the courts considers are:

(1) the exercise of decision making authority;

(2) nature of participation in the commission of the offense;

(3) the claimed right to a larger share of the fruits of the crime;

(4) the degree of participation in planning or organizing the offense;

(5) the nature and scope of the illegal activity; and

(6) the degree of control and authority exercised over others.

How to practically avoid an aggravated role enhancement?

It depends on whether the defendant is pleading guilty or taking the case to trial. If the defendant is pleading guilty, it is imperative to negotiate this aspect with the government and include it in the guilty plea agreement. If the case is going to trial, the government will likely seek to impose the maximum adjustment available. Therefore, the case at trial needs to be tailored to minimize the defendant's role. The defense needs to be focused on maximizing the role of others and minimizing the role of the defendant.

Federal Sentencing: How to Obtain a Mitigating Role Offense Level Adjustment Pursuant to §3B1.2

How does federal sentencing work?

Arriving at a federal sentence is a complicated process. There are two components: (1) offense level; (2) criminal history. This guide deals with the offense level, specifically, the defendant's mitigating role in the criminal activity. Where the defendant is accused of a crime with at least one other participant, the defendant can significantly reduce the offense level if the court determines that the defendant played a minor or minimal role according to §3B1.2.

By how much can §3B1.2 (Mitigating Role) decrease the offense level?

§3B1.2. provides for 2-, 3-, and 4-level decreases to offense level. If the defendant was a minimal participant, decrease by 4 levels. If the defendant was a minor participant in any criminal activity, decrease by 2 levels. In cases falling between minimal and minor, decrease by 3 levels.

What goes into determining whether to apply §3B1.2(a) or (b)?

According to Application Note 3(A), the court is looking for the defendant to be "substantially less culpable than the average participant in the criminal activity." The court will look at the totality of the circumstances. The defendant bears the burden of proving by a preponderance of the evidence that he or she is entitled to a mitigating role adjustment.

How do courts determine the "average participant?"

The court will only look at the other participants in the specific criminal activity of the case. The court will not look at "typical" offenders who committed similar crimes in other cases.

What factors does the court look at to determine the minimal or minor participant adjustment?

(1) The degree to which the defendant understood the scope and structure of the criminal activity;

(2) the degree to which the defendant participated in planning or organizing the criminal activity;

(3) the degree to which the defendant exercised decision-making authority or influenced the exercise of decision-making;

(4) the nature and extent of the defendant's participation in the commission of the criminal activity;

(5) the degree to which the defendant stood to benefit from the criminal activity.

How do you distinguish between "minimal" and "minor" participant?

The court will look at the factors above and make a judgment call. A minimal participant is someone who lacks the knowledge or understanding of the scope and structure of the enterprise and of the activities of others. A minor participant is someone who is clearly less culpable but cannot be described as minimal.

By how many months can this adjustment reduce a sentence?

It depends on where on the sentencing matrix the offense level is before the court finds that the defendant is a minimal participant. If the offense level is 24 before the reduction, then the defendant would save 18 months. The higher the offense level is, the more significant the sentencing guideline reduction will be.

When is the determination of the minimal/minor role adjustment made?

At sentencing. Evidence is required to prove the relatively minimal/minor role of the defendant, which will be presented at the hearing.

What are some examples of cases where the minimal/minor role adjustment would apply?

This role adjustment is important in any case where there is at least one other participant in any crime. The most typical example is in drug trafficking organization prosecutions. The courts will distinguish between the kingpin and the person who carried a bag of drugs on one or two occasions.

Federal Motion To Suppress: Fifty-Six Minute Traffic Stop Not Unlawfully Prolonged—Drugs Not Suppressed in Federal Case

OVERVIEW

In United States v. Tykei Garner and United States v. Jerry Fruit, the Third Circuit considered whether a traffic stop violated the defendants’ Fourth Amendment right to be free from unreasonable seizures. Specifically, whether the Pennsylvania state trooper unlawfully prolonged traffic stop.

Issue: Was the traffic stop unlawful because it was “prolonged beyond the time reasonably require to complete the mission” Illinois v. Caballes, 543 U.S. 405, 407 (2005).

Short Answer: The trooper had reasonable suspicion to extend the stop based on information he obtained during the first few minutes of the traffic stop and before he engaged in any unrelated investigation.

FACTS

On July 5, 2016,  PA State Trooper Kent Ramirez stopped a car with a New York license plate for speeding on Interstate 81 near Harrisburg, Pennsylvania. Prior to the stop, the trooper ran the license plate and learned it was owned by Enterprise Rent-A-Car, but it lacked the typical bar code rental stickers. After the stop and upon approach, the car smelled of air freshener and each vent had an air freshener clipped to it. The trooper asked for a rental agreement from the driver—Jerry Fruit (“Fruit”). The agreement indicated that the car should have been returned twenty days before the traffic stop. The driver stated that the passenger, Tykei Garner (“Garner”), was his cousin. 

Before the trooper returned to the car to run the driver’s license plate and contact Enterprise regarding the rental, the trooper asked the driver questions about his employment, traffic tickets, and his criminal history. About six minutes after the stop, the trooper asked the passenger out to question him. The passenger said that the driver was dropping him off in Greencastle, PA, to visit his girlfriend but would return to New York the next day for a court hearing. 

About twelve minutes into the stop, the trooper returned to his car to check with Enterprise on the status of the rental agreement, and to verify the driving records and criminal histories. The information was entered manually into the cruiser, which could take twelve to fifteen minutes. The search revealed they had no warrants, and the driver was on supervised release for a federal crime. The driver and passenger also had extensive criminal records, including drugs and weapons crimes. Enterprise did extend the agreement beyond the expiration date. 

The trooper decided to asked to permission to search the car but waited until backup arrived—which was 37 minutes into the stop. The trooper asked for permission but the driver refused. The trooper stated that he had enough to believe there was criminal activity and that he would call a K-9 unit. The K-9 unit arrived seventeen minutes later—56 minutes into the stop. The trooper believed there was criminal activity based on (1) the conflicting stories, (2) their long criminal histories, and (3) that they were very nervous. The K-9 alerted to the back seat and trunk. The officers recovered 300 grams of cocaine and 261 grams of heroin in the trunk. The driver and the passenger were arrested.

PROCEDURAL HISTORY

 The driver and passenger were indicted for conspiracy to possess with intent to distribute heroin and cocaine. They moved to suppress the evidence seized during the stop arguing stop was longer than necessary to issue the speeding ticket and lacked reasonable suspicion to engage in the investigation. The District Court denied the motion, ruling the trooper had “an escalating degree of reasonable suspicion” that justified the stop. 

HOLDING

The Third Circuit held that the trooper had reasonable suspicion to extend the stop based on information obtained in the first few minutes of the stop and before he engaged in any unrelated investigation. Therefore, the stop was never unlawfully extended. 

An officer may conduct unrelated investigations that do not lengthen a roadside detention. Arizona v. Johnson, 555 U.S. 323, 333 (2009). If they extend the  stop, the seizure is unlawful unless otherwise supported by reasonable suspicion or probable cause.  The lawful seizure ends when the “tasks tied to the traffic infraction are—or reasonably should have been—completed.” Rodriguez v. United States, 575 U.S. 348, 354 (2015).  Pinpointing the moment when tasks tied to the traffic stop are completed or reasonably should have been complete is called the “Rodriguez moment.” The goal is to analyze whether the officer has reasonable suspicion or probable cause at that moment. 

The tasks tied to the mission of a traffic stop include checking the driver's license, determining if there are outstanding warrants, and inspecting the car's registration and proof of insurance. Some questions relating to the travel plans fall within the scope of the traffic stops as well as delays for safety reasons.

To extend the stop beyond tasks tied to the initial mission are completed or should have been completed, the officer must have objectively reasonable and articulable suspicion that illegal activity had occurred or was occurring. 

To determine if the officer has reasonable suspicion, the court considers the totality of the circumstances—the whole picture.” United States v. Cortez, 449 U.S. 411, 417 (1981). The standard requires “considerably less than proof of wrongdoing by a preponderance of evidence,” United States v. Sokolow, 490 U.S. 1, 7 (1989), but requires more than a “hunch.” Terry v. Ohio, 392 U.S. 1, 27 (1968).

In this case, the Rodriguez moment occurred when Trooper Ramirez asked questions about Fruit’s employment, family and criminal history. The questioning was not tied to the traffic stop’s mission—the speeding violation—because it was aimed at detecting criminal activity. 

There is no Fourth Amendment violation if Trooper Ramirez had reasonable suspicion when he began questioning Fruit. The Court held that there was reasonable suspicion based on the following factors:

• The car did not have the typical bar code stickers on the driver’s window or the rear windshields—so it is likely someone peeled them off in violation of the rental agreement;

• The car smelled a strong odor of air freshener and saw air fresheners clipped on every vent;

• Fruit was traveling along  a known drug trafficking corridor;

• The rental agreement expired two weeks earlier

• Fruit seemed extremely nervous throughout the stop. 

CONCULSION

This stop occurred along I-81 between New York City and Hagerstown. This is a known drug trafficking corridor where police patrol actively. A stop for a minor traffic infraction, such as speeding, can result in a long and thorough investigation if there are red flags.  In federal motion to suppress law, it is relatively easy to prolong stops if there are articulable signs of criminal activity. 

In this case, the red flags which established reasonable suspicion were: altering the car exterior of the car to hide that it is a rental; placing air fresheners inside the car to hide drug odors from police; inaccurate paperwork; and nervousness. These factors justified further investigation which revealed their criminal histories and further questioning which revealed inconsistencies in their stories. Finally, the K-9 unit was called and the dog revealed 300 grams of cocaine and 261 grams of heroin.  

Federal Motion to Suppress: Third Circuit Affirms District Court's Motion to Suppress Firearm and Upholds Fifteen-year Mandatory Sentence under ACCA

OVERVIEW

In United States v. Michael Torres, the Third Circuit Court considered an appeal from Michael Torres, who was convicted of possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Torres received a mandatory 15-year sentence under 18 U.S.C. § 924(e) of the Armed Career Criminal Act (“ACCA”). The case explores:

(1) Federal Fourth Amendment law—specifically, the law on the difference between arrests which require probable cause and investigatory stops which require reasonable suspicion;

(2) the Armed Career Criminal Act (“ACCA”) and whether a felony conspiracy conviction qualifies as an ACCA predicate offense when it encompasses a defendant’s other substantive predicate convictions. 

Opinion filed on May 29, 2020.

FACTS

An officer from the City of York Police Department  was on patrol in York’s west end—a high-crime area known for violent crime. At about 6 pm, the officer was flagged down by a man in a parked car. The man pointed to the only pedestrian on the bridge, described his jacket, pants, and sneakers and told the officer that he saw him pull out a gun and fire twice into an old factory across the street.  The pedestrian was identified as Torres. 

The officer did not ask for the man’s name nor did he ask for the license plate number. The officer radioed for backup and followed Torres. When other officers arrived, the officer took his gun out and ordered Torres to “get to the ground.” Torres got to the ground and the officers asked if he had a weapon on him—he said that he did and that it was in his right pocket. 

MOTION TO SUPPRESS FIREARM

Torres was indicted by a grand jury for violating 18 U.S.C. § 922(g)(1) and brought a motion to suppress the firearm. Torres argued that the officers violated the Fourth Amendment when they seized him, so the firearm should have been suppressed. The seizure was an arrest and lacked probable cause. In the alternative, if the seizure was an investigatory stop, it was not supported by reasonable suspicion to detain him. 

Arrest or Investigator Stop?

First, the Circuit Court had to decide whether this was an arrest or an investigatory stop—this is important because an arrest requires probable cause that a person committed a felony and an investigatory stop merely reasonable suspicion. 

There is no bright-line rule to distinguish a warrantless arrest from an investigatory stop. The “reasonableness of the intrusion is the touchstone” of the analysis. Baker v. Monroe Township, 50 F.3d 1186, 1192 (3d Cir. 1995). There is no per se rule that pointing a gun or handcuffing someone constitutes an arrest. When officers are investigating armed and dangerous offenders, they need to be able to take measures to determine if the person is actually carrying a weapon and neutralize it.  

Applying the rule to this case, the officer received a tip that Torres had just discharged a firearm in a high-crime area. The encounter was brief—only thirty-five seconds elapsed between the time the officer ordered Torres to stop and when the recovered the firearm. Therefore, this was an investigatory stop and not an arrest. 

Was the investigatory stop supported by reasonable suspicion?

Reasonable suspicion exists if an officer can “articulate more than an inchoate and unparticularized suspicion or hunch of criminal activity.” The officer acted on an informant’s tip, therefore, the Court had to decide whether it was reliable. 

There are five factors that go into whether a tip is reliable:

1. the information was provided to the police in person, allowing an officer to assess directly the informant’s credibility; 

2. the informant could be held responsible if his allegations are untrue;  

3. the information would not be available to the ordinary observer; 

4. the informant had recently witnessed the alleged criminal activity at issue; and 

5. the informant’s information accurately predicted future activity. United States v. Brown, 448 F.3d 239, 249–50 (3d Cir. 2006).

The Court considered the Brown factors and considered the tip reliable. The officer interacted with the tipster and could assess his credibility. The tipster waved the forcer down and told him that he had personally witnessed the firearm discharge. The officer could hold the man accountable if the allegation as untrue even though he did not take any information—he knew his fee and car. Finally, the event had just been observed.  

The Court affirmed the District Court’s denial of Torres’ motion to suppress since this was an investigatory stop supported by reasonable suspicion based on a reliable tip. 

ARMED CAREER CRIMINAL ACT

The question the Court answered here is: does a felony conspiracy conviction qualify as an ACCA predicate offense when it encompasses a defendant’s other substantive predicate convictions?

Under the ACCA, a defendant who violates 18 U.S.C. § 922(g)(1) after receiving three or more convictions for “a violent felony or a serious drug offense, or both, committed on occasions different from one another.” 18 U.S.C. § 924(e)(1).

Torres argued that he should not have been subject to the enhanced mandatory-minimum because his federal drug conspiracy encompassed his two state drug possession convictions. Essentially, the two state drug possessions were part of the federal conspiracy—therefore, the conspiracy does not qualify as an ACCA predicate offense when it encompasses a defendant’s other substantive predicate conviction.

The test to determine whether convictions were committed on different occasions is the separate episode test and analyze whether the offenses were “distinct in time.” United States v. Schoolcraft, 879 F.2d 64, 73 (3d Cir. 1989).

In this case, Torres’ drug possession offenses were “distinct in time” from the drug conspiracy offense. The two state drug possession offenses occurred July 2004 and July 2005. However, the federal drug conspiracy continued between July 2004 and February 2006. In his guilty plea, he also admitted to several other overt acts: packing and dispensing drugs and contacting co-conspirators and the ringleaders. Therefore, his participation in the conspiracy was broader than his two drug possession offenses and instead of withdrawing from the conspiracy, he returned to it after the drug convictions and the Circuit Court upheld the 15-year mandatory sentence.