En Banc Eighth Circuit Splits Over Arrest of Escapee

In a case of first impression, an en banc Eighth Circuit ruled that the arrest of an escapee from a work release program in his "home" did not violate the Fourth Amendment, even though the warrant supporting the arrest and search of his "home" was an administrative warrant issued by the warden rather than a formal warrant issued by a judge. The decision reversed an earlier three-judge panel that held the search violated the Fourth Amendment because it was not based on a warrant issued by a neutral and detached magistrate. The facts of U.S. v. Lucas are straightforward. Tyran Lucas, nearing the end of a prison term on drug and weapons charges, was assigned to work-release. While on work-release, Lucas absconded, apparently hiding out for months in the residence of a woman, Theresa Scaife. The head of the Nebraska DOC issued an administrative warrant for the arrest and return of Lucas. Police located Lucas at Scaife's residence, knocked and announced an intent to enter and search. Scaife asked if they had a warrant; police said no but would enter to find Lucas anyway. Scaife opened the door, admitted his presence in the home, and was taken to a squad car. Police searched for Lucas, found him in a closet, ordered him to get dressed in clothes they tossed him. Lucas wanted to wear something else. Police searched the rejected outfit, finding drugs. Lucas dressed and was taken into custody. Police let Scaife reenter the residence and obtained consent to search the entire apartment, finding weapons and other evidence. Lucas moved to suppress the evidence, claiming the police did not have a valid warrant issued by a neutral and detached magistrate. The district court found that the administrative warrant was authorized by statute and that the warden was not in the business of "ferreting out crimes" and so more akin to a neutral and detached party. A panel of the Eighth Circuit reversed, agreeing with Lucas that the arrest violated the Warrant Clause of the Fourth Amendment. The Eighth Circuit agreed to an en banc rehearing and affirmed the trial court.

Five judges (Murphy, Loken, Malloy, Smith, Gruender) would have found the administrative warrant comported with the Fourth Amendment. Judge Bye found the warrant invalid, but would deny the suppression under the "good faith" exception of U.S. v. Leon. Three other judges (Shepherd, Colloton and Benton) found that Lucas had no reasonable expectation of privacy in Scaife's home and therefore the Fourth Amendment did not apply. And four judges (Beam, Wollman, Arnold, Riley) would reinstate the panel opinion invalidating the search.

Surprisingly, no other federal court has had to resolve this issue -- whether an escapee has Fourth Amendment rights in the home in which he "resided" after fleeing from custody, and whether a search of that home can only follow from a valid Fourth Amendment warrant.

Procedurally, this case is even more unusual in that a majority of the en banc court agrees with the panel conclusion that the search was invalid because of the invalid warrant. However, a majority reinstated the conviction based on arguments raised for the first time by the Government to the en banc panel. As stated by Judge Beam in dissent, "This is a garden variety separation of constitutional powers case gone awry. A majority of the judges in regular active service in this circuit employed late blooming, previously unannounced legal concepts, advanced by the government for the first time in its petition for rehearing en banc to vacate the unanimous opinion of the three-judge panel and to create an en banc court. The en banc panel, contrary to existing Supreme Court and circuit precedent, now accepts these new government theories to administer to Tylan Lucas what the court apparently believes are his just desserts for being a bad person and an escaped felon. To reach this result, the court performs a Texas "Sidestep" around clearly established and plainly articulated Fourth Amendment jurisprudence." As Judge Beam further noted, "Indeed, after intensive computerized research of existing databases, I have been unable to find a single instance in this circuit when an en banc panel has allowed new issues it believed to be controlling to be raised for the first time by the losing party in a petition for rehearing en banc, except, of course, matters of subject matter jurisdiction or Article III standing. Considerable circuit precedent is being extinguished today by this en banc opinion."

A majority of the en banc court continue to support the belief that an arrest of an escapee in his home can only occur after the issuance of a valid Fourth Amendment warrant, one issued upon probable cause by a neutral and detached judicial officer. The issue of what, if any, expectation of privacy Lucas had in his home seems a closer question. His expectation was certainly diminished by his status as an escapee; but was it zero or de minimus? The issue is not trivial, because if even a de minimus standard applies, as the police had not even reasonable suspicion to believe Lucas was engaged in drug activity in the Scaife residence, it had no basis to search at all. As for the Leon exception, that only applies on the issuance of a judicial warrant, so Leon is inapplicable.

The opinion is detailed and definitely worth the read. It remains to be seen how often the Court will use the en banc status to reverse a unanimous panel decision on grounds not even raised to the panel.

Interesting Statute of Limitations Decision

Dennis Cox sued Ripley County and its Commissioners for undercompensation of salary due him for his tenure as Sheriff of Ripley County. His last date of service was December 31, 1996. Cox filed his claim on December 31, 2001. Defendants moved to dismiss, arguing the suit is barred by the three year statute of limitations found in Section 516.130.1, RSMo. Cox argued the applicable period is the five year statute of limitations in Section 516.120.2, RSMo. Section 516.130.1 applies for suits against officers "upon a liability incurred by the doing of an act in his official capacity and in virtue of his office, or by the omission of an official duty, including the nonpayment of money collected upon an execution or otherwise." Section 516.120.2 applies to an "action created by a statute other than a penalty or forfeiture." In Cox v. Ripley County, the Southern District noted that the commissioners would qualify as officers. But that did not end the inquiry. The court examined similar suits and concluded that 516.130.1 applies only to specific wrongs done by an individual in his capacity as an officer; in this case, no allegations of individual misconduct were alleged. Further, Section 57.317 creates a mandatory salary for sheriffs. Hence, that statute gives rise to a specific claim that in turn specifically invokes Section 516.120.2. Consequently, the court found the five year statute of limitations applies, and the claim is not barred.

Can A Defendant Resist Arrest If the Arrest is Over?

That is the question the defendant sought to frame in State v. Ondo. After the defendant had been handcuffed and read his Miranda rights, advised he was placed under arrest for domestic assault, the deputy began to empty the pockets of defendant so that all his personal possessions would remain in his house before he was transported to the station. During this process, defendant attempted to move for the door, for which he was Tased. Defendant kicked the deputy and received another Tase. Defendant was arrested for resisting arrest. On appeal, defendant argued for a definition of arrest that is complete once defendant has been handcuffed and read Miranda rights, rendering him in custody. The Southern District decided that definition was "too restrained." "Appellant was handcuffed and he had been read his Miranda warnings, but the evidence indicates that Appellant had not been placed in the patrol car, and the arresting officer had not completed his arrest procedures, which included emptying the pockets of the arrestee. Appellant resisted the officer's attempts to empty his pockets and resorted to violence to complete his purpose. In order to control Appellant, officers were forced to use a Taser not once, but at least twice. On these facts, it is clear that the officers did not have Appellant sufficiently restrained and Appellant had not yet submitted to the officer's custody." The Southern District adopted a flexible, contextual approach to the definition of arrest. The statute defining arrest, however, does not appear as flexible: "An arrest is made by an actual restraint of the person of the defendant, or by his submission to the custody of the officer, under authority of a warrant or otherwise." Section 544.180 RSMo. Since the statute is in the disjunctive, completion of any of the choices should effect a complete arrest. That is why defendant contended once defendant had been restrained and read Miranda rights, he had been actually restrained. The problem with the approach used by the court is it seems to have no logical endpoint -- if the defendant becomes contentious during transport, or booking, hours later, is he still resisting arrest? Other courts have used a contextual approach as well, but the facts allowed a more abrupt end point. When do standard arrest procedures become too attenuated or extended to qualify as "arrest"? Food for thought....

Southern District Affirms Reduction in Support and Maintenance for Loss of Employment

In In re the Marriage of Clinton, the Southern District reviewed a modification of maintenance and child support. At the time of dissolution, husband worked as a manager in a family closely held corporation. He earned $50,000 with bonuses of $130,000 annually. The trial court ordered husband to pay $1,000 per month for maintenance and $1,500 per month in child support for two children. Two years after the dissolution, husband's father sold the family businesses. Husband received a net $1,000,000 from the sale. Husband used this money to buy a house and to start a music business. Four years later, Husband closed the music business. Now earning only $1,000 per month, Husband sought to reduce his child support and maintenance obligations. Husband had a college degree and no physical disabilities. Husband worked as a part-time radio programmer/announcer and gave private guitar lessons. The trial court decided to reduce child support to $600 per month and maintenance to $200 per month, imputing to husband income of $2,000 per month -- well below the $15,000 per month at the time of the dissolution. Wife appealed, arguing the income reductions were voluntary decisions made by husband. "Wife argues that Husband could have maintained his previous level of income if he had looked for employment as a manager of a construction company rather than trying to run his own music business and only seeking employment within the music field. However, Wife presents no evidence of Husband's ability to obtain such employment or of the availability of such employment in Husband's community. Nor does Wife present any evidence that Husband has the necessary management skills for such a position; instead Wife points out that Husband was unable to successfully operate the music business he opened." The court found critical the fact that husband could not foresee the sale of the family business and the fact that wife offered no evidence of how husband could presently earn income comparable to his salary with the family business.

Time Served Credit for the Trial Court, Not the DOC

In a case of first impression, the Missouri Supreme Court ruled, in Donaldson v. Crawford, that in a probation revocation, only the trial court, and not the Department of Corrections, has the power to assess "time served" credits in passing sentence for the revocation. Donaldson was convicted of selling a controlled substance and placed on probation. While on probation, Donaldson was arrested for rape and armed criminal action, for which he was ultimately convicted and sentenced to prison. Upon reaching eligiblity for release on the later charges, he was detained to answer for violating his probation, which was revoked and sent to prison on the original drug offense. Donaldson filed a declaratory judgment seeking "time served" credit be applied by the DOC to his latest sentence. The trial court denied relief, relying on the language of Section 559.100.2, RSMo, which states that "the circuit court may, in its discretion, credit any period of probation or parole as time served on a sentence." The Supreme Court held that this statute, read in conjunction with Section 558.031.1, RSMo, vests exclusive authority for time served credit in the circuit court.

Document Preparation Fees Constitute Unlawful Practice of Law

On Tuesday, the Missouri Supreme Court decided Eisel v. Midwest Bank Centre, a case with potentially far-reaching consequences for industries that charge processing fees for legal documents. Midwest Bank Centre, a Missouri bank, processes mortgage loans as part of its regular business. In doing so, the bank charges a document preparation fee for completing pre-printed forms like deeds of trust and promissory notes. Plaintiffs sued, claiming the processing fee constitutes the unauthorized practice of law. The trial court found for Plaintiffs, and the Supreme Court agreed. Section 484.020, RSMo, states no person "shall engage in the practice of law or do law business" unless duly licensed to do and with license in full effect. Section 484.010.2, RSMo, defines the "law business" as the "advising or counseling for a valuable consideration of any person, firm, association, or corporation as to any secular law or the drawing or the procuring of or assisting in the drawing for a valuable consideration of any paper, document or instrument affecting or relating to secular rights or the doing of any act for a valuable consideration in a representative capacity, obtaining or tending to obtain or securing or tending to secure for any person, firm, association or corporation any property or property rights whatsoever." The Court found the operative language the fee charged for the service of completing the documents. The Court previously had prohibited trust associates and escrow companies from charging for document preparation. See, In re Mid-America Living Trust Associates, Inc., 927 S.W.2d 855, 871 (Mo. banc 1996). The bank also raised a "personal interest" defense, which the Court rejected. "Possessing a financial stake in the outcome of a contract or loan does not defeat the fact that a non-lawyer charging a fee for document preparation constitutes the unauthorized business of law." The Court also rejected a "voluntary payment" defense as inequitable, placing the burden of recognizing ex ante the unauthorized practice of law on unwary consumers.

Some questions left unanswered by the decision to ponder: If the bank continues to offer the service of completing the legal documents without a specific processing fee, but nevertheless as part of a package of services that make up the loan, is that also a fee for legal services? The Court has previously held that non-lawyers can prepare documents by filling in the blanks of forms as part of the incidental action of its business, but it cannot charge specifically for that fee, as that would constitute the unauthorized practice of law. How is hiding the fee any different? While it makes sense the Court wants to encourage cost-effective and efficient secured transactions, is the distinction between a specific processing fee and a general fee for an overall service a distinction without a difference? Perhaps the lesson is that the processing fee serves as a flagrant waving of a flag that a certain non-law-business is practicing law and we want to protect the public from that offense. But is not the absence of the specific fee, but the continuation of the practice, equally odious? A drafting error, whether charged for or not, could void a loan or a trust or any number of secured transactions. Should we not protect the consumer by assuring an attorney has a role in the process? Food for thought...