The Supreme Court today decided Virginia v. Moore, holding 8-1-0 that an arrest based on probable cause is not a violation of the Fourth Amendment even though the officer was not authorized by state law to arrest for that offense. David Moore was properly stopped for driving with a suspended license. The officers arrested him instead of citing him, as they were supposed to do, and the search incident to arrest revealed 16g of crack.

The actual question in the case is the admissibility of the crack in evidence. The drastic, disproportionate, ill-advised remedy of exclusion of valid evidence once again spills over into the substantive law of the Fourth Amendment.

Continue reading "Rights, Remedies, and Arrests: Virginia v. Moore" »

Posted by Kent Scheidegger at 08:36 AM | Permalink | Comments (0)

The U.S. Supreme Court has issued its order list from last Friday's conference. The one criminal case granted is Herring v. United States, No. 07-513. The Question Presented is:

Whether the Fourth Amendment requires evidence found during a search incident to an arrest to be suppressed when the arresting officer conducted the arrest and search in sole reliance upon facially credible but erroneous information negligently provided by another law enforcement agent.

Cert.-stage pleadings and the Eleventh Circuit opinion are available on SCOTUSblog.

Among the cases denied certiorari were:

Norris v. Simpson, No. 07-653, noted here Friday, on whether a murderer who never claimed to be retarded before, despite a state-law exclusion from capital punishment, can suddenly claim to be retarded after the Atkins decision.

ACLU v. NSA, No. 07-468, on standing to litigate the government's terrorist surveillance program.

Antoinette Frank v. Louisiana, No. 07-6923, a petition by one of the few women on death row, a former New Orleans police officer who murdered three people, including her partner.

Schriro v. Lopez, No. 07-683, on exhaustion of ineffective assistance claims.

Posted by Kent Scheidegger at 08:06 AM | Permalink | Comments (0)

Orin Kerr has this long, interesting post at the Volokh Conspiracy on "Why the defendant should win in Virginia v. Moore." My reason why the state should win is much shorter and simpler. Mapp v. Ohio, 367 U.S. 643 (1961), which found an exclusionary rule applicable to the states in the Fourth Amendment, was wrongly decided. It is just barely tolerated as a matter of stare decisis and should not be extended anywhere that the Court's precedents do not absolutely require. Whatever federal interest there may be in protecting people from a search that the state could have authorized but didn't, there is none so strong as to require the drastic remedy of excluding evidence for a reason unrelated to its reliability and contrary to the truth-seeking function of the criminal trial.

Posted by Kent Scheidegger at 02:21 PM | Permalink | Comments (3)

The Ninth Circuit today upheld Congress's expansion of DNA testing to persons convicted of any felony in United States v. Kriesel, No. 06-30110. The previous decision in Reynard upheld an earlier version of statute, which included a list of mostly violent felonies. The Supreme Court denied certiorari in Reynard on Monday, noted here. Today's decision is by Judge McKeown. Judge B. Fletcher dissents.

Posted by Kent Scheidegger at 02:45 PM | Permalink | Comments (0) | TrackBacks (0)

The U.S. Supreme Court decided Brendlin v. California this morning, holding that a traffic stop of a vehicle amounts to a seizure of everyone in it. Hence, if the stop results in evidence incriminating a passenger, the passenger has standing to object to challenge the legality of the stop. No big surprise here. William Branigin has this report in the Washington Post. The decision was unanimous, written by Justice Souter.

In other SCOTUS action, the Court denied certiorari in Quarterman v. Nelson, No. 06-1254, which involved the Fifth Circuit's stunning conclusion that Penry error is "structural" and therefore never harmless no matter how strong the prosecution's case in aggravation or how weak the proffered mitigation.

In Barbour v. Allen, No. 06-10605, the Court once again refused to reconsider Murray v. Giarratano, 492 U.S. 1 (1989), which held there is no constitutional right to state-paid counsel in state habeas.

Posted by Kent Scheidegger at 07:45 AM | Permalink | Comments (1)

On Wednesday, a panel of the Ninth Circuit decided United States v. Mayer, No. 06-50481, rejecting a claim that the government had acted improperly by infiltrating the National Man/Boy Love Association (NAMBLA). The court held that such an investigation requires good faith, which is a legitimate law enforcement purpose. This decision is welcome news, as there are many organizations today that have a facade of legitimate advocacy, behind which are conspiracies to commit or facilitate major crimes.

The panel was Judges Hall, O'Scannlain, and Callahan, which is about the most favorable for the prosecution that you can get in the Ninth. I'm sure there will be a petition for rehearing en banc, and there is a decent chance of it being granted.

Posted by Kent Scheidegger at 04:08 PM | Permalink | Comments (1)

Doug Berman at SL&P discusses H.R. 563 by Congressman Duncan Hunter, also noted on the NYT's political blog. The bill provides, "It is hereby ordered that the conviction and sentences of Border Patrol Agents Ignacio Ramos and Jose Compean are vacated." These are the two Border Patrol agents convicted for shooting a drug smuggler.

If the bill were to pass and be signed by the President, which is unlikely, its constitutionality is doubtful under Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995). Deciding cases is the judicial power, and issuing pardons is executive. The legislative power is to make the law by which cases are decided, not to decide them. As Justice Scalia notes in Plaut, the Constitution's relatively strict separation of powers was adopted in reaction to the unhealthy mixing that was common in the states in the Articles of Confederation period.^*

Constitutional questions aside, though, if Congressman Hunter and his 99 cosponsors believe that the verdict in this case is an injustice, and if they can actually pass a bill, why not do it the right way and clarify the substantive law? If the use of deadly force in these circumstances should not be a crime, then Congress can and should enact a statute saying so, applicable not only to these two officers but to all similarly situated.

Continue reading "Congressional Pardon?" »

Posted by Kent Scheidegger at 12:25 PM | Permalink | Comments (0)

From today's decision in the police chase case, Scott v. Harris, comes this line that should not be remarkable, but is. "We think it appropriate in this [weighing] process to take into account not only the number of lives at risk, but also their relative culpability." In other words, society should be more concerned with the lives of innocent people than with the life of the person whose intentional, criminal conduct caused the danger in the first place. It is a comment on the state of the Supreme Court's "fleeing felon" jurisprudence that such an obvious statement needs to be made and that it is noteworthy.

Continue reading "Scott v. Harris -- Culpability Matters" »

Posted by Kent Scheidegger at 03:20 PM | Permalink | Comments (2)

Justice Scalia, with his usual subtlety, begins today's decision in Scott v. Harris by asking, "Can an officer take actions that place a fleeing motorist at risk of serious injury or death in order to stop the motorist’s flight from endangering the lives of innocent bystanders?" The answer is obviously "yes," but the Eleventh Circuit saw the "facts" for its consideration on summary judgment differently.

Continue reading "Summary Judgment, Lies, and Videotape" »

Posted by Kent Scheidegger at 10:12 AM | Permalink | Comments (0)

The transcript of oral argument in Brendlin v. California is now available. The question presented is whether a traffic stop of a vehicle amounts to a seizure of the passenger so that he has standing to challenge the legality of the stop. During petitioner's argument, it seemed that the case might be decided on a Wong Sun question of whether the evidence was so far removed from the alleged illegality that it would not be suppressed in any event. However, during the state's argument, the justices appeared to back off from that and return to the question presented. Orin Kerr has some first-hand observations at the Volokh Conspiracy.

Posted by Kent Scheidegger at 01:32 PM | Permalink | Comments (0)

Ninth Circuit Judges Reinhardt and Paez have been reversed again. This time by ... [drum roll] ... Judges Reinhardt and Paez. Hat tip: Decision of the Day.

Lionel Mendez was pulled over by two Phoenix officers for not having a valid license plate. They talked to him during the stop, and he said he had been a gang member and done prison time. They asked if he had weapons in the car, and he admitted he did. The original opinion concluded, "Mendez’s Fourth Amendment rights were violated when he was subjected to interrogation by the officers that exceeded the scope of the traffic stop." Judge Tallman's dissent began, "Here we go again."

Today the panel withdrew the original opinion and replaced it with a new one, which concludes,

We hold that the officers’ questioning of Mendez did not extend the duration of a lawful stop. For this reason, we also hold that the expanded questioning need not have been supported by separate reasonable suspicion.

The original opinion failed to take into account the Supreme Court decision in Muehler v. Mena, which reversed a Ninth Circuit decision on similar reasoning. Mena, BTW, was written by Judge Pregerson, joined by a visiting senior judge and ... bonus points for guessing.

Some Ninth Circuit judges consider being reversed by the Supreme Court to be a "badge of honor," but even a badge of honor can cease to be memorable when it is bestowed too often.

Posted by Kent Scheidegger at 05:28 PM | Permalink | Comments (3)

In Wallace v. Kato, the Supreme Court delved once again into the problem of the same constitutional claim being at issue in a state criminal case and a civil suit brought by the criminal-case defendant against people involved in his arrest or prosecution. It has been a thorny problem over the years.

Continue reading "Statute of Limitations -- Civil" »

Posted by Kent Scheidegger at 04:52 PM | Permalink | Comments (0)

From Armstrong County, Pennsylvania, comes this story of a particularly grisly and probably erroneous application of the exclusionary rule. Peggy Jo Conner is charged with kidnapping her pregnant neighbor, Valerie Oskin, and attempting to cut out Ms. Oskin's unborn son. Even though the police found Conner at the scene with blood on her, the judge ruled that was not probable cause for arrest and therefore her statement is inadmissible. (Another issue is exactly when she was arrested.)

In Maryland v. Pringle, 540 U.S. 366 (2003), the Supreme Court held unanimously that cocaine behind the armrest of a car was probable cause to arrest the passenger. Although it is dicey to make a judgment from the statement of facts in a newspaper article, this would seem to be as strong a case for probable cause as Pringle. Fortunately, the prosecutors believe they can make the case without this evidence, so regardless of whether the constable or the judge blundered, the miscreant may not go free.

Update. Joel Jacobsen has more detail on this case at Judging Crimes. He concludes there was probable cause cubed.

Posted by Kent Scheidegger at 06:04 PM | Permalink | Comments (0)

The Sixth Circuit granted a stay in the NSA surveillance case, ACLU v. NSA. Dan Sewell of the Associated Press has this article, in which he describes the program: "The program monitors international phone calls and e-mails to or from the United States involving people the government suspects have terrorist links." The headline writer (who is usually not the reporter) apparently didn't read the article and captioned it, "Court Temporarily OKs Domestic Spying."

Continue reading "Stay Granted in Surveillance Case" »

Posted by Kent Scheidegger at 03:29 PM | Permalink | Comments (0)

Eric Lichtblau of the New York Times reports here that Judge Anna Diggs Taylor, author of the controversial NSA surveillance ruling, is the secretary and a member of the board of trustees of a foundation that has given at least $125,000 to the ACLU. The ACLU is a party to the case, and the question of whether it has standing is one of the controversial aspects of the decision. Stephen Gillers is quoted in the article as saying this was not grounds for recusal but should have been disclosed. The double standard between this opinion and his stance on the even more tenuous conflict claim regarding the Scalia/Cheney duck hunting trip is noted by James Taranto here. Matthew Franck and Ed Whelan weigh in at Bench Memos here and here, respectively.

Posted by Kent Scheidegger at 01:01 PM | Permalink | Comments (0)

An AP story by Dan Sewell begins, "Even though the administration's warrantless surveillance program is heading toward an appellate court loaded with Bush appointees...." The second paragraph quotes a law professor on what a "conservative-dominated" court is likely to do.

Huh? "Loaded"? "Conservative-dominated"? The Sixth Circuit?

Continue reading "NSA Appeal & the Sixth Circuit" »

Posted by Kent Scheidegger at 10:14 AM | Permalink | Comments (1)

Yesterday, the Second Circuit upheld the program of random bag searches in the New York subway system.

As set forth more fully below, we hold that the special needs doctrine may apply where, as here, the subject of a search possesses a full privacy expectation. Further, we hold that preventing a terrorist attack on the subway is a “special” need within the meaning of the doctrine. Finally, we hold that the search program is reasonable because it serves a paramount government interest and, under the circumstances, is narrowly tailored and sufficiently effective.

Decision here. AP story here. The NYCLU is considering an appeal.

Posted by Kent Scheidegger at 08:59 AM | Permalink | Comments (0)

On Monday, the Supreme Court decided in Samson v. California that a California law requiring that parolees be subject to search by any police officer at any time does not violate the Fourth Amendment. CJLF's press release on the case is here, and our brief is here. There were three possible theories under which this condition might have been upheld: consent, special needs, or the general reasonableness of the requirement. The Court chose the latter theory.

Continue reading "Searches, Parolees, Reasonableness, and GPS" »

Posted by Kent Scheidegger at 04:01 PM | Permalink | Comments (1)

The Supreme Court's 5 to 4 decision in the case of Hudson v. Michigan on Thursday is a confrontation between two distinct views on law enforcement. The decision allows the introduction of criminal evidence uncovered during a warranted search, even when the police did not properly knock and announce their presence as required by an earlier Supreme Court decision. Critics of the decision, including the Cato Institute and the ACLU, fear that it will allow paramilitary police units to kick in the doors of private homes, violating the privacy of all citizens. Supporters, including the Criminal Justice Legal Foundation, view the decision as an important signal that the Court does not intend to extend the exclusionary rule and that police with a warrant retain some flexibility on how to conduct a search in situations where their safety is at risk or the evidence may be destroyed.

Posted by Michael Rushford at 09:04 AM | Permalink | Comments (1)

The Associated Press has this story on the argument today in Hudson v. Michigan

Posted by CJLF Staff at 02:14 PM | Permalink | Comments (0)

On May 18, the U.S. Supreme Court will hear reargument in Hudson v. Michigan, No. 04-1360, on the question of whether the police's failure to comply with the knock and announce rule should result in the suppression of evidence obtained in an otherwise valid search. CJLF's amicus curiae brief supporting the State of Michigan is available here.

Posted by Kent Scheidegger at 11:50 AM | Permalink | Comments (0)