Fourth Amendment WIN; traffic stop impermissibly extended

United States v. Frazier, No. 20-4131, __ F.4th___, 2022 WL 1099362 (10th Cir. Apr. 13, 2022) Upon stopping car, Trooper only notices Mr. Frazier has a duffle bag, an air freshener bottle, and partially unrolled window. After securing traditional documents from driver, he learns the car is a rental but Mr. Frazier can’t immediately find the rental agreement but is looking for the rental company info and/or the agreement on his phone. The Trooper asks Mr. Frazier questions as he’s concentrating on a phone and it takes a bit for Mr. Frazier to switch gears and answer the trooper. Mr. Frazier has two legitimate IDs, one from Iowa and one from Missouri. Trooper goes back to his patrol car and immediately requests a dog sniff; as the dog handler is not immediately responsive this takes a bit. Then the Trooper starts to write the ticket, then he thinks to ask dispatch if driver has priors, then he searches DEASIL (traces license plates around the country). The Court held this impermissibly extended the stop. The duffle bag, air freshener bottle, partially unrolled window, the fact that the car is a rental, and Mr. Frazier does not immediately answer questions do not equal reasonable suspicion of drug trafficking so that dog sniff would be ok. There are lots of good gems in this opinion, so it is highly recommended.

Remand for resentencing under FSA

United States v. Burris, 29 F.4th 1232 (10th Cir. 2022) (First Step Act changed guideline range) First Step Act made the Fair Sentencing Act’s remedy for disparities between crack and powder cocaine retroactive. Acknowledging that resentencing is totally discretionary, the Tenth Circuit nonetheless holds that the court must calculate the new guideline range before looking at the 18 USC section 3553(a) factors. Basically, the court applies the maxim correctly calculated guideline range is the starting point for any sentence to a resentencing under the First Step Act.

Witness tampering conviction reversed for lack of evidence defendants contemplating a reasonably likely federal proceeding

United States v. Sutton, 2021 WL 1014359 (10th Cir. Apr. 5, 2022) (KS): The panel reverses the convictions of Sutton & Segue for conspiring to tamper with a witness in a federal proceeding in violation of 18 U.S.C. §§ 1512(b)(1), 1512(k). Both Sutton & Segue moved for an acquittal arguing that the government had not shown that they expected the contemplated legal proceeding was likely to be federal. The panel held the district court should have granted the acquittal motion. 18 U.S.C. § 1512(b)(1) requires proof that the individual knowingly used intimidation or threats to influence or prevent the testimony of any person in an official proceeding. The panel said that “official proceeding” refers to federal proceedings. It does not include state judicial proceedings or criminal investigations. Thus, the government had to prove that the proceeding contemplated by Sutton & Segue when they fought another man in the jail with them and whom they believed was an informant, was reasonably likely to be federal. A mere possibility the proceeding will be federal is not enough. Here, the government did not satisfy its burden. It presented no evidence Sutton & Segue contemplated a federal proceeding. Nor did it show it was reasonably likely that the contemplated proceeding would have been federal. Interference with a state proceeding was foreseeable because the man attacked had been arrested by state officials and was in a state jail on state charges. Even if Sutton & Segue knew that the man had spoken to a state police officer who used his information to get a state search warrant from a state judge, there was nothing “federal” about this man’s role. The panel dismissed the government’s argument that a parallel federal drug investigation was on-going. It questioned how Sutton & Segue could have contemplated this investigation. Further, the government did not present any evidence that federal agents knew of the man attacked, nor that anyone in the state jail knew about the federal investigation. One judge dissented.