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Wednesday, July 30, 2014
Ind. Decisions - Two new 7th Circuit opinions, one from yesterday and one from today (a reversal)
In U.S. v. Gutierrez (SD Ind., Pratt), a 15-page opinion dated 7/29, Judge Flaum writes:
Based on a tip that Oscar Gutierrez was involved in drug trafficking, law enforcement went to his home with a certified narcotics canine and knocked at the front door. Officers saw movement inside, but no one answered the door. The officers had the dog examine the front door for the scent of narcotics, and he alerted. After knocking for fifteen minutes, the officers forcibly entered and se-cured the home, but they did not conduct a search until an officer swore out an affidavit and returned with a search warrant. That warrant relied on the dog’s positive alert. The ensuing search revealed eleven pounds of methamphetamine in Gutierrez’s home.In U.S. v. Davison (ND Ind., Moody), a 6-page opinion dated 7/30, Judge Posner writes:
All of this occurred in November 2012. In 2013, however, the Supreme Court held that the use of a drug-sniffing dog on an individual’s porch is a Fourth Amendment search. Florida v. Jardines, 133 S. Ct. 1409, 1414–16 (2013). There is thus no question that the sniff in Gutierrez’s case is no long-er permissible, for the officers lacked a warrant (at the time of the sniff) and no exception to the warrant requirement applied; moreover, a warrant based primarily on an impermissible sniff would be invalid. However, under Davis v. United States, 131 S. Ct. 2419 (2011), the evidence in this case should not be suppressed if “binding appellate precedent specifically authorize[d]” the officers’ conduct at the time they acted. Id. at 2429 (emphasis omitted). The district court found that our precedent did authorize the officers’ conduct. We agree, and therefore affirm.
The defendant, a member of the “Concord Affiliated” street gang in Gary, Indiana, was convicted in 2003 of two counts of having distributed at least 50 grams of crack cocaine. 21 U.S.C. § 841(a)(1). In October 2003, the district judge, determining that the defendant had foreseen the gang’s sale of “way in excess of” 1.5 kilograms of crack—at that time the threshold quantity for the highest base offense level (38) for a federal drug offense—sentenced crack. That was the entire amount that the conspiracy of which the defendant was a member had been found to have sold, and we had upheld that finding in United States v. Hall, 600 F.3d 872, 876 (7th Cir. 2010), a case that involved a mo-tion for a reduction in sentence by two of the current de-fendant’s co-conspirators.
Both the district judge in denying the defendant’s motion for a reduction in the length of his sentence, and the gov-ernment in defending that denial in this court, appear, how-ever, to have misunderstood “relevant conduct,” the basis on which the judge had computed a base offense level of 38 for the defendant and sentenced him to 360 months in pris-on. Relevant conduct is conduct by the defendant that even if not charged is to be used to determine his base offense level, U.S.S.G. § 1B1.3 and Application Note 1. * * *
The possible significance of the murders to the question of the defendant’s relevant conduct thus remains an unre-solved issue. It is a factual issue for the district judge to re-solve in the first instance, as are any other factual issues re-garding the defendant’s relevant conduct. We reverse the judgment and remand the case for recon-sideration of the defendant’s motion.
Posted by Marcia Oddi on July 30, 2014 12:54 PM
Posted to Ind. (7th Cir.) Decisions