In United States v. Whitfield, No. 09-3031 (3d Cir., filed December 6, 2010, published January 6, 2011), four Camden police officers in three marked police vehicles were patrolling an area of the city known for violence and drug activity involving crack cocaine. As the caravan approached a particularly active street corner, the officers in the lead car observed two individuals in conversation, later identified as Defendants Whitfield and Langston. Upon receipt of this notice regarding the defendants, the officer in the second car, Officer Redd, observed the defendants engage in a hand-to-hand exchange and quickly exit the area. Officer Redd notified his fellow officers that they should “check out” the two men. However, Officer Redd did not inform his colleagues that he had observed a hand-to-hand exchange between the defendants. All four of the officers stopped their vehicles and approached the defendants. Officer Redd and Sergeant Rivera, who had been driving the third police vehicle in the caravan, claimed that they observed Defendant Whitfield quickly place his hand in his pocket as if he was holding something. The officers drew their weapons and ordered Defendant Whitfield to remove his hand from his pocket, but the defendant refused and continued walking. Officer Redd maintained that Defendant Whitfield looked as if he was searching for a way to escape. As Defendant Whitfield approached Sergeant Rivera, the officer grabbed the defendant and moved him towards the police vehicle. As he was apprehended by Sergeant Rivera, Defendant Whitfield informed the officer that he possessed a firearm. Defendant Whitfield challenged the legality of his seizure by Sergeant Rivera because this officer did not witness Defendant Whitfield engage in the hand-to-hand exchange with Defendant Langston. Sergeant Rivera only observed Defendant Whitfield place his hand in his pocket.
The Third Circuit upheld the seizure, citing the “collective knowledge” doctrine. The Court ruled that, pursuant to this doctrine, “the knowledge of one law enforcement officer is imputed to the officer who actually conducted the seizure, search, or arrest.” The Court reasoned that it would be impractical to expect an officer, who is working with his fellow officers as a “unified and tight-knit team” during a “fast-paced, dynamic situation,” to communicate to the other officers every fact that could be pertinent in a subsequent reasonable suspicion analysis.
Thursday, January 13, 2011
Tuesday, January 04, 2011
Circuit Requires Relevant Conduct to Cross-Reference
Kulick pled guilty to unlawful possession of a firearm. In exchange, the government dismissed other charges, including an extortion charge, dating from more than a year earlier. Nonetheless, the district court cross-referenced to the extortion guideline at sentencing, resulting in application of a guideline four levels higher than would have applied for the unlawful possession of a firearm. The Third Circuit reversed. See United States v. Kulick, No. 09-3833, http://www.ca3.uscourts.gov/opinarch/093833p.pdf.
In reversing, the Court made two important holdings. First, weighing in on a circuit split, the Court decided that cross-referenced conduct is limited to relevant conduct. Thus, in order for the cross-reference here to have been appropriate, the extortion must have been relevant conduct to the unlawful possession of the firearm. Second, the Court held, the extortion was not relevant conduct to the unlawful possession. The two were not part of the same course of conduct or a common shceme or plan, as required by USSG 1B1.3(a)(2). There were 27 months between the crimes, they were not similar offenses (nor did they have a similar purpose), and continuous possession of a firearm is not sufficient to establish relevant conduct. It would "eviscerate the effect and import of the Guidelines to permit an enhancement on these facts."
Kulick also argued that the district court failed to formally rule on his departure request, or adequately explain its failure to vary, based on his rehabilitation, charitable works, and cooperation. The Court found that the district court "actively considered" the rehabilitation. Although the record was ambiguous as to the charitable works, the Court found no error, citing the Guidelines' discouragement of departures on this ground and Cooper's holding that a court need not discuss every argument made at sentencing. In addition, the Court noted that the district court explained its other reasons for the sentence, which were valid.
In reversing, the Court made two important holdings. First, weighing in on a circuit split, the Court decided that cross-referenced conduct is limited to relevant conduct. Thus, in order for the cross-reference here to have been appropriate, the extortion must have been relevant conduct to the unlawful possession of the firearm. Second, the Court held, the extortion was not relevant conduct to the unlawful possession. The two were not part of the same course of conduct or a common shceme or plan, as required by USSG 1B1.3(a)(2). There were 27 months between the crimes, they were not similar offenses (nor did they have a similar purpose), and continuous possession of a firearm is not sufficient to establish relevant conduct. It would "eviscerate the effect and import of the Guidelines to permit an enhancement on these facts."
Kulick also argued that the district court failed to formally rule on his departure request, or adequately explain its failure to vary, based on his rehabilitation, charitable works, and cooperation. The Court found that the district court "actively considered" the rehabilitation. Although the record was ambiguous as to the charitable works, the Court found no error, citing the Guidelines' discouragement of departures on this ground and Cooper's holding that a court need not discuss every argument made at sentencing. In addition, the Court noted that the district court explained its other reasons for the sentence, which were valid.
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