United States v. Snype, Docket No. 04-3299-cr(L) (2d Cir. March 17, 2006) (Cabranes, Raggi, Sand):
This thoroughly litigated case produced a lengthy opinion touching on important Fourth Amendment, trial, and sentencing issues. These issues ranged from intertwined issues of a “warrantless” search and its fruits, the voluntariness of a consent to search, and the lawful scope of that consent, various trial errors including an error under Crawford v. Washington, and several challenges to the mandatory life sentence. The Circuit ultimately rejected all, although the defendant’s arguments appear in a number of cases to be more substantial than the Court’s opinion might suggest.
The defendant Snype was charged with conspiracy to commit bank robbery. According to the government’s cooperating witness, who said he had acted as a lookout, Snype and another man robbed the bank at gunpoint. When police arrived, Snype and his partner fled, shooting at police, and when their SUV was run off the road, Snype escaped while the partner was killed. The police eventually arrested the cooperator, got a warrant for Snype’s arrest, and arrested him at the apartment of a woman, a friend of someone Snype knew, where Snype had stayed overnight. Although the Circuit’s opinion does not give a full description of the police’s entry of the apartment, it involved a forcible entry by a heavily armed SWAT team who handcuffed Snype and the woman and “raised the possibility” of putting the woman’s child in foster care while she was held in custody. The police saw on the floor Snype’s knapsack and bag as well as an open teller’s box from the bank, with bundles of cash visible inside. Ultimately the woman consented to a search of her apartment including the knapsack and bag, which contained additional evidence.
The defendant raised several issues: 1) that the consent was not voluntary, given the forcible nature of the entry and the police threat to take away the woman’s child; 2) that in any event, the woman did not have the authority to consent to the search of Snype’s bag; 3) that the forcible entry of the apartment based only on an arrest warrant was unconstitutional, and 4) that the consent was the fruit of that unlawful entry.
The Court found the consent voluntary based on the woman’s own testimony that she had known Snype only since the day before, that her consent was voluntary, that “she perceived” the entry and threats as being “way before” her consent, that calm had been restored before she gave consent, that she did not feel threatened by the officer’s presence or their threat to take away her child, and that she knew she was not required to give consent. It also found that the consent could extend to a search of Snype’s belongings although this seems substantially more doubtful; the Court’s reliance on cases in which a third party has “access to the area searched” and the like, hardly makes clear that, before the police arrived, the woman had any access or permission to open Snype’s bags or to consent to their search.
Snype argued in the alternative that the consent was the fruit of an unlawful entry of the apartment, since the police had only an arrest warrant, which was not adequate to enter an apartment that was not his home under Steagald v. United States. The Court assumed, without holding, that the entry was illegal; there is substantial authority that only the actual householder may raise the failure to get a search warrant, but, where the arrestee actually has an expectation of privacy in the area, there may be some doubt about the right rule. For much the same reasons as it found the consent voluntary, however, the Court found that the consent was not tainted by the search.
The trial error most worth mentioning is a Crawford error in admitting the plea allocution of a co-conspirator against Snype. The Court acknowledged, as it had to, the error, but found it harmless.
Because Snype was convicted in this case of a “serious violent felony” and had two prior “serious violent felonies,” he received, instead of a five-year maximum sentence under 18 U.S.C. § 371, a mandatory life sentence under 18 U.S.C. § 3559, the “three strikes” law. Snype’s arguments centered on an affirmative defense to the mandatory sentence, allowing him to escape its application if he could prove by clear and convincing evidence that no firearm was used in a robbery that was the instant or a predicate “serious violent felony.” Snype’s most substantial argument was that under Apprendi v. New Jersey, the finding that a firearm was used had to be made by a jury, not a judge. The Circuit rejected this claim essentially on the authority of cases such as Patterson v. New York, holding that the burden of proof of some affirmative defenses could be placed on the defendant. But Patterson was not a Sixth Amendment case, and the affirmative defense there was determined by the jury. Since the finding that a gun was used in the two predicate robberies as well as the instant offense was essential to the imposition of a mandatory lifetime sentence, rather than a five-year maximum, it seems clear under Apprendi that a jury had to make that finding. And, after Shepard v. United States, that principle applies to prior crimes as well, to the extent that the use of a weapon is not shown on the face of the record of the conviction.