Tommy Spina: Criminal Defense Attorney

Fair Sentencing Act - Tommy Spina: News & Media

2011-10-27T15:04:44Z

On August 3, 2010, President Obama signed into law the Fair Sentencing Act. That Act modified the mandatory minimum sentence for crack cocaine by increasing the amount necessary to trigger those mandatory minimum sentences. Under the Fair Sentencing Act, the 5 year mandatory minimum sentence kicks in at 28 grams vs. the original 5 grams under the old law. Also, the 10 year mandatory minimum sentence kicks in at 280 grams vs. the original 50 grams under the old law. In order to make these changes effective, the United States Sentencing Guidelines published emergency amendments to the crack cocaine guidelines in 2010. The emergency amendments are going to be made permanent on November 1, 2011. On June 30, 2011, the Sentencing Commission voted to make the amendments to the crack cocaine guidelines retroactive. This means that all defendants who were convicted and sentenced for possession with intent to distribute or for distribution of crack cocaine will be eligible for a reduction in their federal sentence. Being eligible for a reduction does not mean that all defendants will receive a reduction automatically. In order to receive a reduction, the defendant must file a motion under Title 18, United States Code, Section 3582(c)(2). Most importantly, the defendant must wait until after the November 1, 2011 effective date of the amendment. Any motion filed prior to that time is subject to being denied by the court as premature. Not all defendants who were convicted of a crack cocaine offense will be eligible to receive a reduced sentence. In certain circumstances, typically based on the quantity of the crack cocaine at the original sentencing, the changes in the guidelines will not result in a reduction in the sentence.

Court of Appeals Affirms Life Sentences for Pain Management Physician (and Creates Circuit Split) - Tommy Spina: News & Media

2011-09-21T19:34:47Z

In a federal white collar criminal case originating out of the Northern District of Florida (Pensacola Division), the Eleventh Circuit recently affirmed life sentences for a pain management physician convicted of various federal offenses. Among other things, the federal indictment against Dr. David Webb alleged that he unlawfully dispensed controlled substances in violation of federal law (21 U.S.C. § 841), and engaged in health care fraud in violation of § 1347 by issuing prescriptions that were not medically necessary. In connection with both the unlawful dispensing charge, as well as the health care fraud charge, the indictment alleged that Dr. Webb's prescriptions resulted in the death of three of his patients.

At trial, both the Government and Dr. Webb presented expert testimony concerning the legitimacy of the controlled substance prescriptions at issue. According to the Government's expert, Dr. Webb: (1) gave inadequate initial evaluations, including failing to obtain prior medical records and sub-standard physical exams; and (2) failed to refer patients to specialists to help manage their pain. In addition, the Government's expert also testified that Dr. Webb also ignored signs of drug dependency in his patients and continued to prescribe drugs even when patients were "out of control with their self-taking of the medicine." Accordingly, based on these and other factors, the Government's expert opined that Dr. Webb's prescribing practices were "dangerous, absolutely incredible," and "clearly inconsistent with the usual course of medical practice and for other than legitimate medical purposes." At the conclusion of the trial, the jury returned guilty verdicts on all counts but one.

On appeal, Dr. Webb raised a number of arguments, seeking to vacate his three life sentences on the resulting in death counts, as well as the other counts for which he stood convicted. Most notably, Dr. Webb argued that the trial court erred in the instructions that it provided to the jury on the three death related counts.

In essence, Dr. Webb argued that the district court should have provided an instruction that would have required the jury to find that Dr. Webb's conduct proximately caused the deaths or, at a minimum, that the deaths were reasonably forseeable to Dr. Webb. The Eleventh Circuit, however, disagreed.

With respect to the § 841 charges, the court held that § 841's enhanced penalty requires only proof that the death resulted from the victim's use of a controlled substance dispensed by the defendant. Likewise, with respect to the death charge pertaining to the health care fraud count, the Eleventh Circuit reached a similar conclusion; according to the Eleventh Circuit, the results in death language in each statute requires nothing more than a causal connection factually. In other words, under both statutes, the Government is not required to prove proximate cause or reasonable forseeability.

Although it may not help Dr. Webb, at least one judge on the three judge panel disagreed with the court's decision concerning the resulting in death language in the federal health care fraud statute. As the dissenting judge recognized, the majority's decision on this issue directly conflicts with the Sixth Circuit's decision inUnited States v. Martinez. According to the Sixth Circuit, "proximate cause is the appropriate standard to apply in determining whether a health care fraud violation 'results in death.'"

In a previous post, we have discussed how federal prosecutors in the Atlanta area are ramping up investigations and prosecutions involving physicians that practice in the area of pain management. And as lawyers that have handled federal cases involving similar allegations before, we were disappointed by the Eleventh Circuit's decision to reject the Sixth Circuit's analysis in Martinez. Because of the conflicting decisions between the Sixth and Eleventh Circuits that we now have on the issue, however, we are hoping that the Supreme Court takes Dr. Webb's case (or a similar one) to resolve this Circuit conflict.

Federal Sentencing Law in the Eleventh Circuit: United States Sentencing Commission Issues Summary of Decisions To Assist Federal Practitioners - Tommy Spina: News & Media

2011-08-31T13:51:13Z

Lawyers that specialize in defending federal criminal cases may be interested to know that the federal sentencing commission recently released a document entitled: "Selected Post-Booker and Guideline Application Decisions for the Eleventh Circuit". According to the Commission, "[t]he document is not a substitute for reading and interpreting the actual Guidelines Manual or researching specific sentencing issues." However, those of you that practice federal criminal law in Georgia, Alabama and Florida will find the document useful, because it does contain helpful "annotations to certain Eleventh Circuit judicial opinions that involve issues related to the federal sentencing guidelines."

I reviewed the document this morning and it is a fairly comprehensive. It not only includes case annotations dealing with many of the more common guideline provisions (including fraud, internet, and immigration offenses), but it also includes several sections that involve general principles of federal sentencing law, such as burden of proof issues, the requirements for sentencing on acquitted conduct, and departures and variances.

Eleventh Circuit Affirms Former Birmingham Mayor's Federal Conviction But Doubts About the Constitutionality of the Honest Services Statute Remain - Tommy Spina: News & Media

2011-08-11T19:17:03Z

Last week, the Eleventh Circuit Court of Appeals affirmed the convictions of Larry Langford, the former mayor of Birmingham, Alabama who was convicted last year on various federal white collar offenses including mail and wire fraud, bribery, money laundering, and federal tax offenses.

To me, the most interesting aspect of the opinion is the way in which the Court of Appeals discussed the honest services portion of the federal mail and wire fraud charges. As we discussed in this previous post, last summer, the Supreme Court issued its opinion in United States v. Skilling, a case which, in essence, limited the honest services provision of the federal fraud statutes to bribery and kickback schemes.

Before Skilling was decided, many (if not all) federal circuits made a distinction between honest services prosecutions that involved public officials, as opposed to those working in the private sector. At the risk of simplifying the issue too much, it was far easier for the government to prove an honest services violation against a public official. Skilling itself, however, did not distinguish between public officials and private actors, leading some to believe that after Skilling, the prosecution of both public and private officials would be governed by the same standards.

In its decision in Langford last week, though, the Eleventh Circuit appeared to recognize that the public official/private actor distinction that existed in this Circuit before Skilling still exists. According to the Eleventh Circuit: Public officials inherently owe a fiduciary duty to the public to make governmental decisions in the public's best interest. . . . [I]n a democracy, citizens elect public officials to act for the common good. When official action is corrupted by secret bribes or kickbacks, the essence of the political contract is violated. Illicit personal gain by a government official deprives the public of its intangible right to the honest services of the official."

Well before Skilling, there was considerable disagreement among judges regarding the reach and meaning of the honest services statute in both the public and private sector. Although Skilling limited the reach of the statute to cases that involve bribery and kickbacks, it did not address the abundance of issues over which this considerable disagreement existed. Given the Eleventh Circuit's apparent decision to return to the pre-Skillingera in which a distinction exists between the standards governing the prosecution of public officials and private actors, there are many issues that should and will be litigated in this amorphous area known as "honest services" fraud. As Justice Scalia himself recognized in Skilling, even with the majority's pairing down of the statute, the honest services statute nonetheless remains unconstitutionally vague.

Must Defendant Give DOJ the Password to Her Encrypted Laptop? Federal Court Will Decide - Tommy Spina: News & Media

2011-08-01T19:16:09Z

Is the password to an encrypted laptop more like a key to a lock or a handwritten key to a secret code?

That is the question a federal court will probably have to answer in deciding whether a Colorado woman must give the feds the password to an encrypted laptop seized in her bedroom, according to CNET News'Privacy Inc. blog.

Ramona Fricosu wouldn't have to provide the password, but rather enter it herself to release the material being sought by the U.S. Department of Justice. But her lawyer, Philip Dubois, is objecting to the disclosure. Fricosu is facing bank fraud, wire fraud, and money laundering charges for allegedly seeking to take title to foreclosed homes, along with her husband.

"Decrypting the data on the laptop can be, in and of itself, a testimonial act--revealing control over a computer and the files on it," says attorney Marcia Hofmann of the Electronic Frontier Foundation, which has filed an amicus brief (PDF) on Fricosu's behalf. "Ordering the defendant to enter an encryption password puts her in the situation the Fifth Amendment was designed to prevent: having to choose between incriminating herself, lying under oath, or risking contempt of court."

DUI: The $10,000 ride home - Tommy Spina: News & Media

2011-07-08T14:32:53Z

Everybody knows driving drunk is wrong and stupid, but it's also increasingly expensive. Calculating the costs could be enough to sober some people up.

Supreme Court Speaks About Willful Blindness - Tommy Spina: News & Media

2011-06-01T22:00:16Z

The Supreme Court issued an opinion in the case of Global-Tech Appliances, Inc. v. SEB S.A., a civil patent infringement case. A key issue was whether under 35 U.S.C. s 271(b), a party "must know that the induced acts constitute patent infringement." This case, however, is extremely important for the white collar practitioner and other criminal law practitioners who have cases with willful blindness issues. Willful blindness has been a recent concern in the white collar realm because a CEO, CFO, or other corporate executive may be claiming that he or she did not know about the questioned criminal conduct.

In Global Tech, the Court outlines its position for purposes of both criminal and civil law stating that "[o]ur Court has used the [Model Penal] Code's definition as a guide in analyzing whether certain statutory presumptions of knowledge comported with due process. . . And every Court of Appeals -- with the possible exception of the District of Columbia Circuit ...-- has fully embraced willful blindness, applying the doctrine to a wide range of criminal statutes." (citations omitted) The Court later states:

"While the Courts of Appeals articulate the doctrine of willful blindness in slightly different ways, all appear to agree on two basic requirements: (1) the defendant must subjectively believe that there is a high probability that a fact exists and (2) the defendant must take deliberate actions to avoid learning of that fact. We think these requirements give willful blindness an appropriately limited scope that surpasses recklessness and negligence. Under this formulation, a willfully blind defendant is one who takes deliberate actions to avoid confirming a high probability of wrongdoing and who can almost be said to have actually known the critical facts. . . . By contrast, a reckless defendant is one who merely knows of a substantial and unjustified risk of such wrongdoing, see ALI, Model Penal Code § 2.02(2)(c) (1985), and a negligent defendant is one who should have known of a similar risk but, in fact, did not, see § 2.02(2)(d).

"The test applied by the Federal Circuit in this case departs from the proper willful blindness standard in two important respects. First, it permits a finding of knowledge when there is merely a "known risk" that the induced acts are infringing. Second, in demanding only "deliberate indifference" to that risk, the Federal Circuit's test does not require active efforts by an inducer to avoid knowing about the infringing nature of the activities."

Justice Kennedy dissents. He states, "[h]aving interpreted the statute to require a showing of knowledge, the Court holds that willful blindness will suffice. This is a mistaken step. Willful blindness is not knowledge; and judges should not broaden a legislative proscription by analogy." He also states: "[t]he Court appears to endorse the willful blindness doctrine here for all federal criminal cases involving knowledge. It does so in a civil case where it has received no briefing or argument from the criminal defense bar, which might have provided important counsel on this difficult issue."

Court Says GPS Surveillance Requires Warrant - Tommy Spina: News & Media

2011-03-23T16:41:09Z

A Washington appeals court today struck down a man's conviction and life sentence in a drug case on the grounds the police unlawfully tracked his movement with a GPS device that had been installed without a warrant on his vehicle.

The unanimous three-judge ruling in the U.S. Court of Appeals for the D.C. Circuit said that law enforcement officers must obtain a warrant to use GPS tracking equipment. The appeals court said the government violated the Fourth Amendment and reversed the conviction of the defendant, Antoine Jones, former co-owner of a night club in Washington.

"We're gratified that a unanimous D.C. Circuit agreed that protecting civil liberties requires that the technology of the 21st Century be evaluated on its own terms, and not as if it were still the technology of past decades," said Arthur Spitzer, legal director of the American Civil Liberties Union National Capital Area, which participated as a friend-of-the-court. "That principle needs to be applied in many other contexts as well."

A spokesman for the U.S. Attorney's Office for the District of Columbia, William Miller, said the government is reviewing the opinion. Miller declined to comment further. Prosecutors could decide to ask the full court to review the case. The government can also petition the U.S. Supreme Court to take the case. Two federal appellate circuits--the 9th and the 7th--have found that the use of GPS tracking over a long period of time is not a "search" under the Fourth Amendment.

Federal prosecutors argued the police did not need a warrant to track the travels of the drug trafficking suspect, Antoine Jones, because he was moving freely about in a vehicle on public roads in the District of Columbia and in Maryland. The authorities initially had a warrant, but it expired. The GPS device was re-attached to Jones's vehicle in violation of a court order in the U.S. District Court for the District of Columbia.

The appeals court, in a 41-page opinion written today by Judge Douglas Ginsburg, rejected the government's position. Click here for the opinion and here for earlier coverage of the case.

Ginsburg, joined by Judges David Tatel and Thomas Griffith, said the "whole of a person's movement" is not "exposed" to the public because the whole reveals more about a person than individual movements. Ginsburg drew a comparison to a person's rap sheets, suggesting that one crime in a person's papers does not compare to a full understanding of the person's criminal history.

"It is one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work," Ginsburg wrote. "It is another thing entirely for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person's hitherto private routine."

A single trip to a gynecologist's office "tells little about a woman, but that trip followed a few weeks later by a visit to a baby supply store tells a different story," the judge said. "A person who knows all of another's travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups -- and not just one such fact about a person, but all such facts.

Jones , co-owner of the "Levels" nightclub, became targets of a Metropolitan Police Department drug investigation. The authorities arrested Jones and Maynard in October 2005 on charges that included conspiracy to distribute cocaine. At trial, a jury acquitted Jones on a number of counts but could not reach a verdict on the conspiracy charge. A mistrial was declared.

Prosecutors brought Maynard and Jones to trial in late 2007, and a jury found the men guilty in January 2008. The government's case was largely built on the GPS evidence--allegedly showing Jones driving to and from a drug stash house in Maryland. Prosecutors did not have any evidence showing Jones was involved in any drug transaction. The government relied heavily on statements from co-conspirators who claimed Jones was a ringleader in a trafficking organization.

Jones's trial counsel, A. Eduardo Balarezo, a solo practitioner in Washington, said, "Mr. Jones always said that all he wanted was for the law to be applied fairly, today he got his wish."

Stephen Leckar of Washington's Shainis & Peltzman, who argued for Jones in the D.C. Circuit last November, said that requiring investigators to adhere to the "modest requirement" of obtaining a warrant will not burden law enforcement.

"Judge Ginsburg's eloquently-written opinion recognized the increasing importance in a high-tech age of requiring law enforcement agents to seek the approval of a neutral judge before surreptitiously installing a device that records relentlessly your every movement in time and space," Leckar said.

What would Jack Camp have done? - Tommy Spina: News & Media

2011-03-09T15:23:18Z

After a guilty plea to a drug felony and two misdemeanors, the former federal judge is seeking leniency he rarely granted, lawyers say

http://www.dailyreportonline.com/Editorial/News/singleEdit.asp?origin=EmailRefer&l=em20503285113768508

Kottwitz Revisited: Eleventh Circuit Court of Appeals Vacates Criminal Conviction upon Rehearing, Holding That Jury Should Have Heard Instruction on Reliance on the Advice of an Accountant - Tommy Spina: News & Media

2011-01-03T15:04:23Z

In this post in August, we reported that the Eleventh Circuit had held that a trial court abused its discretion in failing to instruct the jury on good faith reliance. In that opinion, the Court vacated convictions on three counts, but affirmed a conspiracy conviction. Last week, in United States v. Kottwitz, the Court decided on rehearing that the "[d]efendants introduced enough circumstantial evidence to warrant an instruction that -- at some pertinent point --[they] may have relied on the accountant's advice" on the conspiracy count, as well.

Pepper: United States Supreme Court Will Hear Arguments Next Week Regarding Consideration of Rehabilitation upon Resentencing - Tommy Spina: News & Media

2010-12-02T18:06:16Z

Next Monday, the federal Supreme Court will hear arguments in Pepper v. United States. In this fascinating case, the Court will consider whether judges can take a prisoner's efforts at rehabilitation into consideration when that prisoner is resentenced. This case is interesting both because the government has changed its stance and because of the uncommon circumstance that Mr. Pepper was resentenced to three additional years in prison after four years of freedom.

Mr. Pepper pleaded guilty to conspiracy to distribute methamphetamine and was sentenced to 24 months in prison, although the Sentencing Guidelines range was 97 to 127 months. The government successfully appealed that sentence, but the judge resentenced Mr. Pepper to the same amount of time, in part because of the prisoner's efforts at rehabilitation following the first sentence. Prosecutors again appealed, arguing that such a consideration was an abuse of discretion. The Eighth Circuit agreed. Upon resentencing by a different judge, Mr. Pepper was ordered to return to prison to serve an additional 41 months.

After successfully appealing Mr. Pepper's below-guidelines sentence twice, the Department of Justice has switched sides and is supporting Mr. Pepper's contention on appeal to the Supreme Court that rehabilitation should be taken into account. As reported in the Des Moine Register, when she was Solicitor General, Justice Kagan sided with Mr. Pepper, arguing that court rules do not prohibit "a court from considering at resentencing a defendant's efforts at rehabilitation undertaken after his initial sentencing." Rather, a federal law "specifically instructs sentencing courts to consider 'the history and characteristics of the defendant.'" Justice Kagan will not take part in the Supreme Court's decision.

The Court appointed a private lawyer as amicus curie to defend the Eighth Circuit's decision below. The appointment of amici to defend the appellate court's decision is discussed in this Stanford Law Review note by Brian Goldman, which is summarized at ScotusBlog

Federal Sentencing Guidelines Amendments Part IV: Recency - Tommy Spina: News & Media

2010-11-29T19:21:14Z

The amendment deleted 4A1.1(e), which addressed the recency of previous imprisonment in calculating the criminal history points that increase a defendant's sentence. That provision added points if the defendant committed the offense less than two years after release from imprisonment or while in imprisonment or escape status.

The proponents of this amendment argued that the recency and status guidelines were redundant, unfairly adding to the cumulative impact of the criminal history calculation. Statistics showed that the recency of a prior record, when combined with the status provision in subsection (d), predicted recidivism in only 1 case out of 1000. In addition, not only did recency fail to reflect meaningful differences in past criminal conduct, it was actually more likely to increase punishment for less culpable defendants. The effect 4A1.1(e) and (d) had on deported immigrants who illegally reentered the country was particularly egregious, considering other cumulative guidelines and their usual reasons for re-entry.

In its explanation of the amendment, the Commission also noted that public comment and testimony had indicated that many defendants who recidivate soon after being released from prison do so due to the challenges to successful reentry after imprisonment, rather than increased culpability.

Federal Sentencing Guidelines Amendments Part III: Cultural Assimilation - Tommy Spina: News & Media

2010-11-18T14:48:30Z

Ed. Note: On November 1, the U.S. Sentencing Commission's 2010 Amendments to the federal Sentencing Guidelines went into effect, along with a temporary, emergency amendment to implement Section 8 of the Fair Sentencing Act. On the whole, the amendments reflect a reduction in federal criminal sentences and provide the sentencing judge with additional discretion. In the coming weeks, we will post analyses of some of the more important changes to the Guidelines. The Sentencing Commission's reader-friendly guide to the 2010 amendments is available here.

The third amendment to the Sentencing Guidelines addresses judges' discretion to grant a downward departure for cultural assimilation by immigrant defendants convicted of illegal reentry. The 11th Circuit upheld departures on this basis in U.S. v. Sanchez-Valencia in 1998. Some other circuits have declined to rule on this issue, so the amendment was passed in order to promote uniformity in sentencing.

The amendment adds an application note to § 2L1.2 providing that a downward departure may be appropriate on the basis of cultural assimilation if the defendant:
• Resided continuously in the United States from childhood;
• Illegally re-entered or stayed in the U.S. because of cultural ties from that childhood; and
• A departure is not likely to increase the risk to the public from further crimes of the defendant.

The sentencing court is directed to consider the following factors:
"(1) the age in childhood at which the defendant began residing continuously in the United States,
(2) whether and for how long the defendant attended school in the United States,
(3) the duration of the defendant's continued residence in the United States,
(4) the duration of the defendant's presence outside the United States,
(5) the nature and extent of the defendant's familial and cultural ties inside the United States, and the nature and extent of such ties outside the United States,
(6) the seriousness of the defendant's criminal history, and
(7) whether the defendant engaged in additional criminal activity after illegally reentering the United States."

Federal Sentencing Guidelines Amendments Part II: Relevance of Specific Offender Characteristics - Tommy Spina: News & Media

2010-11-18T14:47:29Z

The Sentencing Guidelines now recognize that certain characteristics of the defendant may be relevant in calculating sentencing ranges, including age, mental and emotional conditions, physical condition, and military service. This amendment was in response to sentencing judges increasingly using variances, rather than relying on departure provisions.

The amendment revises the introductory commentary to Chapter Five, Part H to explain that its purpose is to provide a framework for addressing specific offender characteristics consistently to avoid unwarranted sentencing disparities. It then amends policy statements §§ 5H1.1 (Age), 5H1.3 (Mental and Emotional Conditions), and 5H1.4 (Physical Condition, Including Drug or Alcohol Dependence or Abuse; Gambling Addiction) to provide that age; mental and emotional conditions; and physical condition or appearance, including physique, "may be relevant in determining whether a departure is warranted, if [the offender characteristic], individually or in combination with other offender characteristics, is present to an unusual degree and distinguishes the case from the typical cases covered by the guidelines." It also amends § 5H1.11 (Military, Civic, Charitable, or Public Service; Employment-Related Contributions; Record of Prior Good Works) to state that military service "may be relevant in determining whether a departure is warranted, if the military service, individually or in combination with other offender characteristics, is present to an unusual degree and distinguishes the case from the typical cases covered by the guidelines".

The new authorization to consider age in some cases will help white-collar defendants, who often are older than those convicted of other federal crimes. Judges may consider youth as well, which will be most helpful in drug cases. While the amendments direct judges not to give these specific offender characteristics excessive weight, we are pleased that the Commission has finally recognized that they are relevant.

Davis: United States Supreme Court Will Hear Case Arising Out of the Eleventh Circuit Regarding the Good Faith Exception to the Exclusionary Rule in Criminal Cases - Tommy Spina: News & Media

2010-11-08T14:49:06Z

Earlier this week, the Supreme Court granted certiorari in Davis v. United States. The Court will resolve a federal circuit court split: whether the good faith exception to the exclusionary rule applies to a search that is later ruled unconstitutional. This March, the Eleventh Circuit held inDavis that the exclusionary rule does not apply when the police conduct a search reasonably relying on well-settled precedent, even if that precedent is later overturned. We hope the Court reverses this decision.

In Davis, the defendant was a passenger in a routine traffic stop in Alabama. He gave the police officers a false name. When asked to exit the vehicle, Davis removed his jacket and left it in the car, then was taken toward a group of bystanders. The bystanders provided his real name, leading to Davis's arrest for giving a false name. In the search incident to his arrest, the officers found a gun in the jacket, which was still in the car. Davis was convicted of possession of a firearm and sentenced to more than 18 years.

As we explained , the Supreme Court decided Arizona v. Gant in April 2009. The Court held that police are authorized "to search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search," unless some evidence related to the crime of arrest may be in the vehicle. This decision rendered the search in Davis unconstitutional.

In applying Gant to searches predating the decision, the Ninth and Tenth Circuits disagreed on whether the exclusionary rule must be applied to searches now rendered unconstitutional. The Eleventh Circuit joined the Tenth in holding that the good faith exception prevented exclusion of evidence from such searches. The Fifth Circuit has held similarly prior to Gant, but the Seventh Circuit was skeptical.

We hope the Supreme Court protects defendants' constitutional rights and reverses the Eleventh Circuit's decision.