1 United States Supreme Court Criminal & Immigration Law Decisions of the 2012-2013 TermPeter W. Fenton, J.D. Assistant Professor of Criminal Justice Kennesaw State University Michael B. Shapiro, J.D. Clinical Instructor of Criminal Justice Georgia State University
2 The Dirty (Bakers) Dozen
3 Fourth Amendment CasesBailey v. United States, No , decided February 19, [scope of search incident to search warrant] Florida v. Harris, No , decided February 19, [drug dogs and traffic stop searches] Florida v. Jardines, No. 11–564, decided March 26, [drug dog at front door of home] Maryland v. King, No. 12–207, decided June 3, [DNA testing of arrestees] Missouri v. McNeely, No. 11–1425, decided April 17, [warrantless taking of blood to determine blood- alcohol level in routine DUI case]
4 Bailey v. United States Preparing to execute a search warrant on an apartment, police saw two men leave and drive away. The car was followed for a mile before being stopped. Keys were found during a pat-down search, and after arrest, it was discovered that one the keys unlocked the apartment. Was the detention justified as (1) incident to the execution of a search warrant (Michigan v. Summers) or (2) supported by reasonable suspicion (Terry v. Ohio)? The rule in Summers is limited to the immediate vicinity of the premises to be searched and does not apply here, where Bailey was detained at a point beyond any reasonable understanding of the immediate vicinity of the premises in question.
5 Florida v. Harris During a routine traffic stop, police observed Harris’s nervousness and an open beer can, and sought consent to search Harris’s truck, which was refused. A trained narcotics dog alerted, leading the officer to conclude that he had probable cause for a search. That search turned up nothing the dog was trained to detect, but did reveal pseudoephedrine and other ingredients for manufacturing methamphetamine. In a subsequent stop while Harris was out on bail, the same dog again alerted on Harris’s truck but nothing was found. At a suppression hearing, Harris’s attorney did not contest the quality of the dog’s training in drug detection, focusing instead on the dog’s certification and performance in the field, particularly in the two stops of Harris’s truck. Because training and testing records supported the dog’s reliability in detecting drugs and Harris failed to undermine that evidence, police had probable cause to search Harris’s truck.
6 Florida v. Jardines Police took a drug-sniffing dog onto Jardines’ front porch, where the dog gave a positive alert for narcotics. Based on the alert, the officers obtained a warrant for a search, which revealed marijuana plants. The trial court suppressed the evidence, holding that the officers had engaged in a Fourth Amendment search unsupported by probable cause. The investigation of Jardines’ home was a “search” within the meaning of the Fourth Amendment.
7 Maryland v. King After arrest on assault charges, King was booked and a cheek swab DNA sample was taken pursuant to the Maryland DNA Collection Act (Act). The swab was matched to an unsolved 2003 rape, and King was charged with that crime. He moved to suppress the DNA match, arguing that the Act violated the Fourth Amendment. When officers make an arrest supported by probable cause to hold for a serious offense and bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.
8 Missouri v. McNeely Stopped for speeding and crossing the centerline, McNeely declined to take a breath test to measure his blood alcohol concentration (BAC). Following his arrest, he was taken to a nearby hospital for blood testing, where the officer directed a lab technician to take the sample. The officer never attempted to secure a search warrant. McNeely moved to suppress the blood test result, arguing that taking his blood without a warrant violated his Fourth Amendment rights. In routine drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant. This case is distinguished from Schmerber v. California (1966), which had upheld a DWI suspect’s warrantless blood test where the officer “might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence’”.
9 Fifth Amendment Cases Evans v. Michigan, No , decided February 20, [directed verdict of acquittal bars retrial under double jeopardy] Salinas v. Texas, No. 12–246, decided June 17, [Fifth Amendment privilege against self- incrimination]
10 Evans v. Michigan After the State rested its case, the trial court granted Evans’ motion for a directed verdict of acquittal, concluding that the State had failed to prove that the burned building was not a dwelling, a fact the court mistakenly believed was an “element” of the statutory offense. The Michigan Supreme Court held that a directed verdict based on an error of law that did not resolve a factual element of the charged offense was not an acquittal for double jeopardy purposes. The Double Jeopardy Clause bars retrial for Evans’ offense.
11 Salinas v. Texas Petitioner, without being placed in custody or receiving Miranda warnings, voluntarily answered some of a police officer’s questions about a murder, but fell silent when asked whether ballistics testing would match his shotgun to shell casings found at the scene. At trial, over his objection, the prosecution used his failure to answer the question as evidence of guilt. Because Salinas’ interview with police was voluntary, the failure to answer the question was admissible.
12 Sixth Amendment Case Alleyne v. United States, No. 11–9335, decided June 17, 2013 [Sixth Amendment-enhanced sentence] Petitioner was charged with using or carrying a firearm in relation to a crime of violence, 18 U. S. C. §924(c)(1)(A), which carries a 5-year mandatory minimum sentence, which may be increased to 7 for brandishing, or 10 for discharge of the firearm. The jury form indicated that Petitioner had “[u]sed or carried a firearm during and in relation to a crime of violence,” however the trial judge adopted the presentence report’s recommended 7- year sentence. Because mandatory minimum sentences increase the penalty for a crime, any fact that increases the mandatory minimum is an “element” that must be submitted to the jury, Apprendi v. New Jersey (2000). Because the fact of brandishing aggravates the legally prescribed range of allowable sentences, it constitutes an element of a separate, aggravated offense that must be found by the jury, and the judge’s increase of the penalty violated petitioner’s Sixth Amendment rights.
13 Miscellaneous Case McQuiggin, Warden v. Perkins, No. 12–126, decided May 28, 2013 [actual innocence and the Antiterrorism and Effective Death Penalty Act of (AEDPA)] Perkins filed a federal habeas petition more than 11 years after his murder conviction asserting newly discovered evidence of actual innocence, relying on three affidavits, each pointing to the state’s chief witness as the murderer. The District Court found that, even if the affidavits could be characterized as evidence newly discovered, Perkins had failed to show diligence entitling him to equitable tolling of AEDPA’s one year limitations period. Actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar, Schlup v. Delo (1995), or expiration of the AEDPA statute of limitations, as in this case. Under Schlup’s demanding standard, the gateway should open only when a petition presents “evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of non-harmless constitutional error.”
14 Honorable Mentions Calhoun v. United States, No , decided February 25, 2013 [statement condemning prosecutor’s racial comments by Sotomayor] Chaidez v. United States, No , decided February 20, 2013 [Padilla immigration consequences warning not retroactive] Moncrieffe v. Holder, Attorney General, No. 11–702, decided April 23, 2013 [“aggravated felony” for purposes of deportation] Peugh v. United States, No. 12–62, decided June 10, [ex post facto]
15 Calhoun v. United StatesDuring a trial on drug conspiracy charges, the prosecutor pressed Calhoun repeatedly to explain why he did not want to be in the hotel room. Eventually, the District Judge told the prosecutor to move on. That is when the prosecutor asked, “You’ve got African-Americans, you’ve got Hispanics, you’ve got a bag full of money. Does that tell you—a light bulb doesn’t go off in your head and say, This is a drug deal?” Due to trial counsel’s failure to contemporaneously object, the issue was not properly preserved for a standard appeal, however Justice Sotomayor, with Justice Breyer joining, wrote to express outrage for the prosecutor’s use of such a racially charged statement, which he repeated in closing argument.
16 Chaidez v. United StatesImmigration officials initiated removal proceedings against Chaidez in 2009 based upon her plea of guilty to mail fraud in To avoid removal, she sought to overturn that conviction contending that her former attorney’s failure to advise her of the guilty plea’s immigration consequences constituted ineffective assistance of counsel under the Sixth Amendment and Padilla v. Kentucky (2010), which held that the Sixth Amendment requires defense attorneys to inform non- citizen clients of the deportation risks of guilty pleas. Padilla does not apply retroactively to cases already final on direct review.
17 Moncrieffe v. Holder Moncrieffe, a Jamaican citizen here legally, plead guilty in Georgia to possession of marijuana (1.3 grams) with intent to distribute. Under the Immigration and Nationality Act (INA), a noncitizen convicted of an “aggravated felony” is both deportable and ineligible for discretionary relief. The INA lists as an “aggravated felony” “illicit trafficking in a controlled substance,” including the conviction of an offense that the Controlled Substances Act makes punishable as a felony (more than one year’s imprisonment) and conviction under state law if it proscribes conduct punishable as a felony under that federal law. If a noncitizen’s conviction for a marijuana distribution offense fails to establish that the offense involved either remuneration or more than a small amount of marijuana, it is not an aggravated felony under the INA.
18 Peugh v. United States Petitioner was convicted of bank fraud for conduct that occurred in 1999 and At sentencing, he argued that the Ex Post Facto Clause required that he be sentenced under the version of the Federal Sentencing Guidelines in effect at the time of his offenses rather than a later version in effect at the time of sentencing. The Ex Post Facto Clause is violated when a defendant is sentenced under Guidelines promulgated after he committed his criminal acts and the new version provides a higher sentencing range than the version in place at the time of the offense.
19 Decisions of the Term A complete list of criminal and immigration law decisions from the United States Supreme Court’s term is available from the presenters.
20 Preview of the 2013-2014 Term FOURTH AMENDMENTRiley v. California (No ) and United States v. Wurie (No ) – whether to treat cell phones like ordinary containers and allow police to review the digital contents without a warrant? Fernandez v. California (No ) – whether, under Georgia v. Randolph, a defendant must be personally present and objecting when police officers ask a co-tenant for consent to conduct a warrantless search or whether a defendant’s previously stated objection, while physically present, to a warrantless search is a continuing assertion of Fourth Amendment rights which cannot be overridden by a co-tenant? Navarette v. California (No ) – whether the Fourth Amendment requires an officer who receives an anonymous tip regarding a drunken or reckless driver to corroborate dangerous driving before stopping the vehicle?
21 Preview of the 2013-2014 Term FIFTH AMENDMENTKansas v. Cheever (No ) – whether the state violates the defendant’s Fifth Amendment privilege against self-incrimination by rebutting the defendant’s mental state defense with evidence from a court-ordered mental evaluation of the defendant? Kaley v. U.S. (No ) – see Sixth Amendment slide.
22 Preview of the 2013-2014 Term SIXTH AMENDMENTBurt v. Titlow (No ) – was counsel ineffective for allowing respondent to maintain his claim of innocence and is convicted defendant’s subjective testimony that he would have accepted a plea but for ineffective assistance sufficient to demonstrate a reasonable probability that defendant would have accepted the plea? Kaley v. U.S. (No ) – when a post-indictment ex parte restraining order freezes assets needed by a criminal defendant to retain counsel of choice, do the Fifth and Sixth Amendments require a pre-trial, adversarial hearing at which the defendant may challenge the evidentiary support and legal theory of the underlying charges?
23 Preview of the 2013-2014 Term DOMESTIC VIOLENCEU.S. v. Castleman (No ) – whether a conviction for misdemeanor domestic assault by intentionally or knowingly causing bodily injury to the mother of his child qualifies as a conviction for a “misdemeanor crime of domestic violence” under 18 U.S.C. § 922(g)(9)? INTENT AND STRICT LIABILITY Burrage v. United States (No ) – is distribution of drugs causing death under 21 U.S.C. § 841 a strict liability crime, and can one be convicted for distribution of heroin causing death if the heroin was not the sole cause of death of a person?
24 Preview of the 2013-2014 Term RESTITUTION TREATIESParoline v. U.S. (No ) – what, if any, causal relationship or nexus between the defendant's conduct and the victim's harm or damages must the government or the victim establish in order to recover restitution under 18 U.S.C. Sec. 2259? TREATIES Bond v. U.S. (No ) – does the Chemical Weapons Convention Implementation Act apply to ordinary poisoning cases?
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