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Short List from the Long Conference

Today the U.S. Supreme Court announced the short list of cases it decided to take up during its end-of-summer Long Conference on Monday.  The long list of cases not taken up (meaning the lower court decision stands) will be announced when the Court opens its new term on the First Monday in October.

Criminal cases include several Fourth and Fifth Amendment claims, one on the "plain error" standard of review on appeal, and one on military commissions.
In order of their appearance on the orders list:

Dalmazzi v. United States, No. 16-691, Cox v. United States, No.16-1017, and Ortiz v. United States, No.16-1423.  These consolidated cases raise issues about whether a military judge's appointment to the U.S. Court of Military Commission Review disqualifies him from continued service on the regular military appellate court.  And, by the way, the Court also wants briefing on whether it even has jurisdiction to review Dalmazzi and Cox.

Collins v. Virginia, No. 16-1027, involves this question, as stated in the state's Brief in Opposition:  "Whether the Fourth Amendment's automobile exception allows a warrantless daytime inspection of a motorcycle's vehicle identification number and license plate, when the motorcycle is parked in the defendant's driveway, adjacent to the steps leading to the front door of the house, and when the officer has probable cause to believe that the motorcycle is stolen and has twice been used to elude police."  The bike's owner probably thinks so.

Byrd v. United States, No. 16-1371, also involves vehicles and the Fourth Amendment.  The Third Circuit opinion says:  "A circuit split exists as to whether the sole occupant of a rental vehicle has a Fourth Amendment expectation of privacy when that occupant is not named in the rental agreement. See United States v. Kennedy, 638 F.3d 159, 165-67 (3d Cir. 2011) (collecting cases). The Third Circuit has spoken as to this issue, however, and determined such a person has no expectation of privacy and therefore no standing to challenge a search of the vehicle."  On that narrow issue, I'm inclined to agree with the defendant.  A person who rents something owns the present right of possession and has as much expectation of privacy for the time being as a permanent owner.  That should have nothing to do with whether the evidence is admissible in Byrd's criminal trial, of course, but it does for the time being.

City of Hays, Kansas v. Vogt, No. 16-1495 is an unusual civil case claiming a violation of the Self-Incrimination Clause of the Fifth Amendment.  (Unlike the Fourth Amendment, this clause actually does regulate the admissibility of evidence in criminal trials.)  A statement that a police officer made while applying for a job in another city was used pretrial after he was charged with a crime, but the case never went to a criminal trial.  The QP is:  "Whether the Fifth Amendment is violated when statements are used at a probable cause hearing but not at a criminal trial."

McCoy v. Louisiana, No. 16-8255, is a capital triple murder case on direct appeal.  It involves a disagreement between the defendant and his trial counsel.  As described in the Louisiana Supreme Court opinion, "the defendant contends that the trial court erred in ruling that the defendant's retained counsel could decide whether to concede guilt of the charged murders at trial, without the defendant's consent."  When the evidence has the defendant absolutely nailed, and the lawyer knows he is blowing credibility by denying it, must he do so anyway if the client insists?

Rosales-Mireles v. United States, No. 16-9493, involves the application of the "plain error" rule on appeal to a sentencing guideline calculation error not objected to in the trial court.  A misdemeanor in the defendant's record was counted twice, which has the effect of shifting the guideline range from 70-87 months to 77-96 months.  The actual sentence of 78 months is within both ranges and a tad above the minimum of the erroneously calculated range.   The Fifth Circuit held that the third prong of the plain error rule was not met.

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