Chris Fialko

A little bit of history was made at 401 West Trade Street Friday, but Charlotte didn’t seem to notice much. The Fourth Circuit Court of Appeals held a session of oral arguments at the federal courthouse here for the first time in more than 50 years. Lawyers and law students showed up in numbers to watch and note the event, but the rarity is not what struck me.

I sat in the gallery in the courtroom where Swann v. Board of Education – the seminal Charlotte school desegregation case – got its start. Overlooking the courtroom are eight large portraits of white male federal judges who have held court in the last 100 years. As best I can tell, in 140 years all of the federal district judges here have been white men. If I’m wrong, please let me know.

At 9:30 sharp, court began and the three appeals court justices walked in: Allyson Kay Duncan, an African American, Albert Diaz, a Hispanic American, and James A. Wynn, Jr., an African American.

I have been practicing in that courtroom for 17 years. For me, it was a jarring, surreal but welcome moment.

When the Fourth Circuit quoted from James Otis, Jr. this summer, I fell out of my chair.

Otis was a pre-revolutionary war hero, whose oration against the British Writs of Assistance in 1761 inspired John Adams and others. And the Fourth Circuit has reached 250 years back to Otis to assert that the criminal defense lawyers’ joke – the Fourth Amendment is dead in the Fourth Circuit – may not be so.


It’s true: the Fourth Amendment is making a comeback in the Fourth Circuit. Maybe it’s because the mood of the country has turned against big government. And big government will thrive when police can search whoever they want, whenever they want.

Maybe it’s because six new justices have climbed onto the bench in the last four years.

Maybe it’s because the justices are granting oral argument in more criminal cases at the Court in Richmond. We lawyers can speculate all day long. But the Fourth Circuit opinions seem to state plainly the reasons: the justices are tired of the prosecutors’ painting every set of facts as supporting any search and seizure.

In three cases this year, different Fourth Circuit panels flat out scolded the government for its practice of arguing that everything is suspicious. (Fair warning: what follows is some wonky stuff.)

First came the general scolding in Foster:

  • The Court expressed “our concern about the inclination of the Government toward using whatever facts are present, no matter how innocent, as indicia of suspicious activity.” United States v. Foster, 634 F.3d 243, 248 (March 2, 2011).


  • “[A]n officer and the Government must do more than simply label a behavior as “suspicious” to make it so.” (Same.)


n  “Moreover, we are deeply troubled by the way in which the Government attempts to spin these largely mundane acts into a web of deception.” (Same.)


Next came Massenburg, where the Court took time to remind the government and district courts of the origins of the Fourth Amendment:

n  “Indeed, as our late friend and colleague Judge Michael reminded us in the 2010 Madison Lecture at New York University, “The Fourth Amendment owes its existence to furious opposition in the American colonies to British search and seizure practices . . . . Th[e] controversy [over the use of general warrants] left citizens of the new American states with a deep-dyed fear of discretionary searches permitted by general warrants and writs of assistance.”” United States v. Massenburg, 654 F.3d F.3d 480, 486 (August 15, 2011).

And, my personal favorite:

n  “James Otis famously decried general searches as “instruments of slavery … and villainy,” which “place [ ] the liberty of every man in the hands of every petty officer,” warning against abuses by “[e]very man prompted by revenge, ill humor, or wantonness.” Timothy Lynch, In Defense of the Exclusionary Rule, 23 Harv. J.L. & Pub. P. 711, 722 (2000) (quoting James Otis, Speech on the Writs of Assistance (1761)).” (Massenburg at 488.)


And finally came the opinion in Hill, where

n  The Court reiterated “the ‘centuries-old principle of respect for the privacy of the home.’” Id. at 260 (quoting Wilson v. Layne, 526 U.S. 603, 610, 119 S.Ct. 1692 (1999). In Hill, the Court found that the emergency circumstances exception to the Fourth Amendment did not apply to allow entry into an apartment when the facts showed only damage to the front door of the apartment, “unsupported hunches of the police, and noises from within.” Hillat 267. United States v. Hill, 649 F.3d 258 (August 18, 2011),


Some of my colleagues think the blunt message in these cases is intended as much for the trial judges as it is for the federal prosecutors. The cases certainly have reinvigorated my appreciation for the Fourth Amendment, and boosted my morale. James Otis was a flawed dude (you can look it up),  but it’s way cool that he has made his way from colonial Boston to 21st century Richmond.

Since I wrote this, the US Sentencing Commission came out with a long report criticizing mandatory minimums.  See this link for more details.

I told my client’s wife not to bring the kids to court. She didn’t listen. My client – let’s call him Irving – is a welder. He came to North Carolina in 2000, and for eight years worked five or six days a week at the same job, welding custom-shaped industrial piping. He is a skilled dude. I got a letter from his boss, who called Irving “an exemplary employee.” He got married, moved into a clean double-wide trailer, and began a family. Two daughters and a son. He filed and paid taxes every year. When the Great Recession hit, Irving was among the last to be laid off. He spent 2009 and 2010 welding here or there in temp jobs. One night in April 2011 detectives worked with an informant to set up a cocaine deal. The police were staking out the suspect’s house, when Irving showed up driving his beat-up 12 year-old car. The suspect got into the car. The cops stopped the car. Two hundred fifty-two grams of cocaine were found in the car – exactly 9 ounces, a common amount for a cocaine transaction.

Irving was charged under North Carolina law with three counts of Trafficking between 200 – 400 grams of cocaine. (Why three? The statutes allow the State to parse the same dope into three supposedly separate crimes: Trafficking (1) by possession; (2) by transportation; and (3) in conspiracy.) The Tar Heel state sticks each of these crimes with a mandatory sentence of 70 – 84 months imprisonment. See N.C.G.S. 90-95(h)(3). No parole. If convicted, the Judge has no discretion to mitigate the sentence. 70 – 84 months, period. I thought we had a chance to win a trial. I studied the discovery – the police reports indicated no one had any idea Irving was involved in the transaction until he showed up. But there were two big problems. At the moment the cops found the dope in the car, Irving tried to run. And Irving is an undocumented alien from Mexico.

The prosecutor offered this plea deal: one sentence of 70 – 84 months, or else the State would pursue boxcars – three consecutive 70 – 84 months, i.e. 210 to 252 months imprisonment. (17.5 to 21 years) I filed a motion to disclose the identity of the informant, hoping it might shake the prosecutor to offer a lesser plea (to Level I trafficking, 35 – 42 months). But the prosecutor was willing to burn the informant. I filed a motion to suppress, arguing the supposed basis for the stop – following another car too closely – did not justify the scope of the stop and search of the car. In the end, my client decided he could not risk a trial. He took the plea.

At the sentencing hearing, I explained to the Judge how Irving was a hard-working family man, with three young children who were U.S. citizens. How he had been married for 10 years. How he had made one mistake, and was going to be deported at the end of his sentence anyway. I showed the Judge the letter from his boss, his paycheck stubs, his tax returns. I did all this even though everyone knew the Judge had no discretion. 70 – 84 months. Mandatory minimums make no sense. We know that now. They’ve been around for 17 years, and the number of drug cases has not decreased. The price of cocaine has not gone up. The price of incarcerating men like Irving, a first offender whose personal history indicates he likely won’t re-offend, is too high.

Irving’s three year-old son watched through the glass door of the courtroom. Watched the bailiffs handcuff his dad, and take him out the back door to the jail. When I walked into the hallway with Irving’s wife, the boy asked: “Is papa coming home now?” When his mom did not speak, the boy began to wail.

Walking my client out of jail after 11 years in prison for a murder he did not commit was, for lack of a better term, cool.

Here’s a link to today’s NC Bar Association Criminal Section newsletter article about the Innocence Commission trial that we won in Asheville in September. It’s a bit wordy.

It was a grueling trial, but truly rewarding.

Pictures may be a better way to understand what happened: Here is the photo gallery the Asheville Citizen-Times published on the last day of the trial:


In the case of the United States v. Jason Edward Simmons, Chris Fialko of Charlotte, NC petitioned for a rehearing.

The Petition for Rehearing was Granted.

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