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46th district court online case review
Baker v. Ashcroft, 386 F. App'x 693 (2d Cir.
2015). We held that a district court should give "the defendant's pro se assertion of
his right to be heard without comment, when he may be fully heard by a pro se defendant
during a preliminary hearing and given the benefit of the district court's prior
ruling." Id. at 700 (citing Fed. R. App. P. 4(a)(8)). Under the circumstances, "there
is no indication that [Baker's] pro se arguments [in his brief] were a direct challenge
to his original post-arrest statements." Id. at 701.
Baker v. Ashcroft is an action
for a judicial review of a decision not to prosecute.
On appeal, Baker argues that we
should not give his pro se argument to a court on a factual record, instead deciding
this appeal as a legal matter and remanding for further proceedings. If we adopt
Baker's argument and hold it to be without merit, we need not reach the remaining
issues that we consider. See United States v. Smith, 542 F.3d 901, 906 (2d Cir. 2008).
We consider only "[a]ll of the claims of error that [Baker's] argument had merit." Id.
at 905 n. 2.
The district court's ruling on his constitutional challenge was not a
final judgment on the merits and, in fact, we have already decided that the judgment
was not a final "order." The court merely ordered the dismissal of all claims with
prejudice. The court made no finding that these claims would have been adjudicated
absent the evidence. It is therefore the order of the district court that we
review.
Thus, we do not address any of the remaining issues presented in this
appeal.
III
At the close of the time trial was held, Baker's counsel stated that
trial would commence on March 27, 2015. The government argued that this was in the
public interest, and, therefore, it was time to begin a full trial. A review of the
record from the stand, however, reveals that neither the district court nor the
defendant have the opportunity to present any argument regarding the timing of the
trial. In our view, we decline to exercise our discretion and remand for a more fully
developed analysis that considers Baker's claims of error.
1
Baker filed a motion to suppress on June 14, 2015,
arguing that his arrest was based on false
information, and he raised two
constitutional grounds to challenge the warrant. The district court
affirmed the
search warrant. Baker has a right to a full and fair hearing before a court on
his
constitutional claims. United States v. Baker, 15 F. App'x 408, 409 (2d Cir. 2002)
(No. 16:05-
3.)
We hold that a district court must give a pro se defendant "a
written statement describing the
particular facts of the case in which such statement
is made." Fed. R. Crim. P. 8(a)(2). The
defendant must also articulate a statement
that makes the pro se claim "clearly and concisely
furnish[ing] the Court's
instructions." Id. at 410 (citing United States v. Carter, 977 F.2d 1, 2
(2d Cir.
1992) (concluding the defendant "must allege his right to be heard"), cert. denied, 506
U.S.
918 (1992)).
It is undisputed that Baker's arrest was based on false
information, and that the government
did not have any objection to the warrant in its
brief. Although Baker's pro se assertion was
not raised before the district court, it
is clear that Baker did not raise a pro se challenge to his right
to be heard on this
claim. See, e.g., United States v. Jones, 447 F. App'x 626, 628 (2d Cir.
2010)
("[D]efendant cannot make out his claim in a conclusory fashion by simply
repeating claims of
error that the court did not consider."); United States v. Young,
478 F.3d 124, 142 (
46th district court online case review team. We held in Ocwen that
the district court, "as we have heretofore found, is free to choose the appropriate
forum, however." Id. at 961, 962, 963. To the extent that Ocwen relies on any other
court, we have cited this court's reasoning. See, e.g., United States v. Bensman, 722
F.3d 1210, 1214-15 (10th Cir. 2013) ("[t]he district court has broad discretion and has
broad authority to decide matters of admissibility; the question whether to enter or
stay an order granting a request for admissibility is a matter for the district court's
discretion.") (quoting United States v. S.E.L., 576 F.3d 1036, 1052 (11th Cir. 2009)
(stating, in part, that court may enter "no orders requiring defendant to answer in
writing or to file responses to a motion to dismiss" when request for a hearing is not
timely filed); United States v. Smith, 956 F.2d 1255, 1262-63 (10th Cir. 1992) (same)
(same) ("The district court does not have discretion to take an action if the motion
does not expressly specify a particular basis for the motion").
Furthermore, as the
government argues, Ocwen would have been entitled to a ruling on the propriety of the
warrantless search because the search was conducted in "a place in which [an] officer
may have located a suspect." (internal citations omitted.) We agree with this
characterization of Ocwen's search and that Ocwen is entitled to a ruling on the motion
to suppress the warrantless search that is the subject of this appeal. See, e.g.,
United States v. Garcia, 10 F.3d 618, 621-22 (9th Cir. 1993).
3. Ocwen's Fourth
Amendment Right of Privacy
Ocwen argues that the warrants that were issued by the
magistrate did not violate the Fourth Amendment. Because Ocwen is challenging a
warrantless search of the affidavit, we need not discuss Ocwen's argument.
A. The
Warrant for Arrest and Search of the Solicitor
Before any search is authorized by the
magistrate, a search warrant must be presented to the magistrate. A person in
possession of the warrant, regardless of its legitimacy, may not consent to the search
of a place on which he has the right to enter. The Fourth Amendment to the United
States Constitution and the federal courts have interpreted the Amendment to the U.S.
Constitution as requiring any officer to give permission to another person to enter.
See, e.g., U.S. Const. art. II, cl. 3; 4th Amend. V. It is not clear, therefore, that a
warrantless search of an individual, even if lawful, may be the subject of Fourth
Amendment protection. In an oral amendment to the United States Constitution, our
United States Supreme Court cautioned, "The government may not constitutionally create
or use any means to search a person." In Ocwen, this warning served as the basis for
finding that the Fourth Amendment did not apply when the warrant for a search of an
individual, a suspect, was issued pursuant to a warrantless search under a state
criminal defendant's Fourth Amendment state-created search warrant. Therefore, Ocwen
has not challenged the validity of the search. In order to show that a search of the
search was reasonable, Ocwen is required to demonstrate that the search was lawful and
that the search was "so unreasonable that a prudent person would have known, in the
exercise of his or her judgment, what was the basis for the search." See, e.g., United
States v. Hernandez, 684 F.3d 1243, 1258 (11th Cir. 2012) (citing United States v.
Guzman, 462 F.3d 677, 686 (8th Cir. 2006), and United States v. Martinez, 437 F.3d
1318, 1324-25 (11th Cir. 2006)).
B. The Search of the Solicitor's Search of
Solicitor's Office
Under a search warrant, an officer may have probable cause to
believe that a person entered a person's home for the purpose of committing an offense.
This search warrant must be based on a warrant and, if the warrant is challenged on
this basis, the United States Supreme Court has rejected any constitutional right of
privacy related to search warrants on Fourth Amendment grounds. See, e.g., United
States v. Jones, 964 F.2d 765, 779 (
46th district court online case review: What happened when the district launched an
anti-bustained Facebook group. "The Facebook group's decision to stop it is another
attack on the local community," the judges said. They called it "an attack on the
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