Miranda Violation - Later Statements Derived from Initial Violation [edit]⇲
Statements must be suppressed where they are a product of an earlier Miranda violation. Here, 16 hours after defendant gave a Mirandaless statement in compelling circumstances, the officers did a video reenactment of defendant's story where he made further statements. This second set of statements, the court says, was derived from the initial Miranda violation because:
The identity between the two sets of statements and the state's use of defendant's unwarned statements in the video reenactment persuade us that the break in time and the absence of compelling circumstances during the reenactment were not sufficient to break the causal chain.
Later that day, defendant voluntarily submitted to a polygraph. He was given Miranda warnings at that time and, indicating he understood, said "I can, at any time, decide that I would like a lawyer or not answer any further questions." Defendant failed the polygraph, was interrogated by the polygrapher and confessed to murder. The polygraph statements were not derived from the initial violation because defendant was given and clearly understood his Miranda rights. The court distinguishes today's case from one in which there's a pre-Miranda confession, followed by Miranda warnings and then a repetition of the first statement. In today's case, defendant admitted abusing his child for the first time in the post-polygraph statements. Thus, the Miranda warnings were "effective to purge the taint of the prior violation and ensure a knowing and voluntary waiver of defendant's right to remain silent."
C.J. DeMuniz writes a concurrence to urge a uniform text for criminal polygraph consent forms. The absence of such forms, says the Chief Justice, results in unnecessary litigation and expense. The takeaway for defense attorneys is that defendant could have "argued that the terms of his consent were unclear, or that he was misled by the form he signed, or that the effect of his signature had somehow been misrepresented to him."
State v Jarnagin
Body Wires Require an Ex Parte Order or Exigent Circumstances [edit]⇲
Before the police may listen to a conversation through an informant equipped with a body wire, they must get an Ex Parte Order pursuant to ORS 133.726. There are two exceptions: (1) If it's a drug or prostitution investigation or (2) if there are circumstances of such exigency that it would be unreasonable to get an order. This case was a theft investigation where the police did not get an order and there were no "exigent circumstances" in the constitutional sense. The court finds that exigency in ORS 133.726(7)(b) means the same thing that it does under Article I, Section 9 and the 4th Amendment: circumstances that require swift action to prevent danger, damage, escape or destruction of evidence. Here, the police merely wanted to proceed as soon as possible to stop undesirable activity. There was no immediate threat. The error was not harmless because the informant's wire recording was the primary corroboration of the informant's testimony. Thus, suppression is required by ORS 41.910(1). State v Miskell
Full summaries of the following cases below the break:
- Officer safety questions allowable during a valid stop
- Police officers may not comment on the credibility of a defendant.
- An exception to a jury instruction must be particular.
- Post-offense conduct may be used to upward depart.
- A diagnosis of sex abuse in the absence of physical evidence is inadmissible.
→ read the full summaries...Summaries of the following cases below the break:
- Burglary II - A Storage Room in a Store is a Separate Building
- Encouraging Child Sex Abuse - Downloading is Arguably Duplication
- Compelling Prostitution - Offering Gifts is Not Compelling - & Prostitution is Not a Lesser Included of Compelling
- Free Speech - Camping on the Capitol Steps & The Debate Clause
- Restitution - Still No Right to a Jury
→ read the full summaries...Read the 'full post for a summary of today's opinion
- Article I, section 11--Waiver of Counsel--Failure to Cooperate with Court Appointed Counsel
A defendant cannot waive his right to counsel under Article I, section 11 simply by failing to cooperate with his court appointed counsel.
In this death penalty case, the court allowed co-counsel to withdrawal, but not lead counsel, after both stated they could no longer work with the defendant. The court appointed substitute co-counsel, and unilaterally told the defendant that he had to proceed with the newly appointed team, or proceed pro se.
The defendant told the court he did not want to proceed with any of those choices, and that the court should direct how he must proceed. The court ordered him to proceed pro se.
The Oregon Supreme Court reversed, noting that defendant's refusal to make the choice suggested by the court did not constitute an express waiver to counsel, especially considering that he repeatedly told the court he did not want to proceed pro se.
Moreover, the Supreme Court refused to infer a waiver from the totality of the defendant's conduct, including his refusal to make the choice offered by the court and his refusal to cooperate with multiple court appointed lawyers.
A criminal defendant is under no duty to cooperate with counsel. While some state and federal courts have held that a defendant may impliedly waive his rights through non-cooperation, Article I, section 11 of the Oregon Constitution requires more than just misconduct by the defendant.
It requires, at the very minimum, an advanced warning that the defendant's behavior will result in him being forced to proceed pro se. While the defendant in this case had concededly engaged in poor behavior, the trial court never warned him that continuing that behavior would result in him proceeding pro se.
The trial court also erred in attempting to force defendant to make the choice it presented to him because "the court's submission of the choice
regarding was based on the court's mere assumption that defendant's potential complaints about his lawyers were frivolous
"
In addition, the court also erred when it refused to consider defendant's complaints about his lawyer, which contained sensitive information about trial strategy, in a non-public setting. Before a court could properly decide that the defendant's claims were frivolous, it must have allowed the defendant a reasonable opportunity to prevent his or her position on the facts in a manner that, if appropriate, permitted the safeguarding of confidential communications and trial strategy. Reversed and remanded.
State v. Langley
Read the full post for a summary of today's opinions
- Sentencing--400% Rule--Plain Error
- Dependency--Jurisdiction--Insufficient Record
- Restitution--Date of Calculation
- Sentencing--Plain Error--Refusal to Exercise Discretion
- Automobile Exception--Moving in Connection with a Crime
- Dependency--Psych Eval--Related to the Court's Jurisdiction
- Solicitation--MJOA
- Witness's Invocation of the 5th Amendment--Limitation on Cross Examination
- Preservation--Exceptions to Jury Instructions
- Restitution--Objectively Verifiable Losses
- SPO--Objectively Reasonable Alarm
- Manufacture/Possession of Marijuana--Registered Medical Marijuana Card Holders--MJOA
- Civil Commitment--Danger to Others
Sentencing--400% Rule--Plain Error
It was plain error to sentence the defendant to 208 days when the 400% rule only allowed him to be sentenced to 136 days. In using its discretion to reverse and remand, the court relied on the gravity of the error (4 extra months) as well as the fact that the trial court merely adopted the state's sentencing recommendations with absolutely no regard to the 400% rule.
State v. Truong
Dependency--Jurisdiction--Insufficient Record
Jurisdiction over the child was improper since there was no evidence that either mother or father posed a risk of harm to the child. While the mother, who suffered from a developmental disability requiring adult support services and a variety of medications, had trouble changing diapers and holding the baby's head up on the day it was born, there was no evidence showing that these problems continued. The court bemoans the lack of a developed record, noting that "without those details--particularly when combined with the lack of evidence regarding mother's cognitive abilities generally--it is impossible to determine that mother lacks the capacity to learn the necessary skills without "special assistance," which is the theory upon which jurisdiction was based." Reversed and remanded.
DHS v. 'S.P
Restitution--Date of Calculation
Defendant was ordered to pay $888,793 in restitution arising out of an Assault II charge. Defendant advanced a variety of arguments to the appellate court, most of which were rejected as unpreserved. Defendant's preserved argument, that the court could not award restitution for lost income beyond the date of the plea agreement, was rejected on its merits. A victim is entitled to restitution for loss of income up to the date the trial court determines and awards restitution, not the date of the plea agreement. Affirmed.
State v. Jordan
Sentencing--Plain Error--Refusal to Exercise Discretion
The court refused to exercise its discretion to correct a plain sentencing error where it believed the defendant made a strategic choice not to object. Defendant signed a plea agreement consistent with the sentence imposed and acknowledged that the parties jointly recommended to the court the sentence that was imposed. Moreover, the defendant obtained a significant benefit by entering into the plea agreement (a M11 count was dropped) and was therefore in a poor position to complain to the appellate court. Affirmed.
State v. Nolasco-Lara
Automobile Exception--Moving in Connection with a Crime
On remand from Kurokawa-Lasciak, the court found that a warrantless search of the defendant's car did not fall within the automobile exception because the car was not moving "in connection with a crime" when police first saw it. The moving car was not connected with a crime until after the officer randomly ran the defendant's license plate, discovering that the car had an outstanding warrant. It was only after this finding that the defendant was stopped and drugs were discovered. Moreover, the officer could not have justified the search as under exigent circumstances or a search incident to arrest. Reversed.
State v. Groom
Dependency--Psych Eval--Related to the Court's Jurisdiction
Requiring the father to take a psychological evaluation was rationally related to the basis of the court's jurisdiction over his child. The reason for the court's jurisdiction in the first place was the father's unavailability and imprisonment for assault and riot. The court further found that the father posed a risk to the child, a finding which was supported by the record. A psychological evaluation would aid DHS in assessing father's safety risk and moreover, would actually benefit the father because he would "benefit from services to help him establish a relationship with her." Affirmed.
DHS v. B.W.
Solicitation--MJOA
The trial court correctly denied the defendant's MJOA on a solicitation charge. The defendant, a member of a biker gang called "The Outsiders," was charged with solicitation after attempting to hire a police informant (Informant #1) to kill someone. Informant #1's conversation with police was recorded on a DVD.
While in jail, the defendant asked his roommate, Informant #2, to get the DVD to the Outsiders, noting that once they got the DVD they would "get rid" of Informant #1 and make sure he didn't show up for trial.
The court found that the defendant had solicited Informant #2 to kill Informant #1, even though he didn't actually ask Informant #2 to do the killing. The court held, as a matter of law, "a person commits the crime of solicitation when that person solicits an intermediary to procure a third party to commit the intended crime, so long as the intermediary is aware of that intended crime."
State v. Everett
Witness's Invocation of the 5th Amendment--Limitation on Cross Examination
The trial court did not err in refusing to strike all of the witness's direct testimony when he invoked the 5th amendment on cross. The questions that the defendant asked him were not necessary to testing his direct testimony, nor did the witness's invocation of his rights hamper the defendant's ability to put on a defense. Affirmed.
State v. Everrett
Preservation--Exceptions to Jury Instructions
Defendant's unpreserved objection to a faulty aid-and-abetting instruction was non-reviewable by the COA. ORCP 59(H)(1) requires that the defendant except to an instruction immediately after the trial court instructs the jury in order to be reviewable.
State v. Alonzo
Restitution--Objectively Verifiable Losses
In a per curiam opinion, the state concedes that the court erred when it ordered the defendant to pay 12 percent interest on the unemployment benefits he had unlawfully received. Restitution is limited to "objectively verifiable monetary losses." The interest that the victim-the Oregon Employment Department-would receive is not such a loss. Reversed and remanded.
State v. White
SPO--Objectively Reasonable Alarm
Per curiam reversal of a SPO where the record was legally insufficient to establish the requisite objectively reasonable alarm
A.M.G v. Young
Manufacture/Possession of Marijuana--Registered Medical Marijuana Card Holders--MJOA
A per curiam reversal where the trial court improperly denied the defendant's MJOA on his manufacture and possession of marijuana charges. The state did not prove that the useable marijuana present at his address was more than he and his cousin, both registered medical marijuana cardholders, could lawfully possess.
State v. Brewer
Civil Commitment--Danger to Others
A per curiam reversal of a civil commitment where the state concedes that there is insufficient evidence to show that the AMIP was a danger to others because of her mental disorder.
State v. W.C.
Read the full post for a summary of today's opinions
- 6th Amendment--Ineffective Assistance of Counsel--Plea Bargaining
In a 5-4 split, the Supreme Court held that the 6th amendment right to effective counsel requires that defense attorneys communicate to their clients any formal plea offers from the prosecution.
In this case, the defense attorney failed to communicate an offer to the defendant, which lapsed. The defendant later submitted himself to open sentencing, where he was given a much harsher sentence than he would have received under the original plea offering.
Under the Strickland/Hill two-prong test, the court found the defense attorney's actions deficient because practically every state/federal jurisdiction requires that plea offers be communicated to the defendant.
Moreover, the court found that the defendant was prejudiced because had defense counsel communicated this plea to him, he would have accepted a plea bargain limiting his prison stay to one year, as opposed to agreeing to open sentencing, where he received 4 years. The court then re-defined the standard for prejudice in situations such as these, noting that:
Strickland's inquiry into whether "the result of the proceeding would have been different," requires looking
at
whether he would have accepted the offer to plead pursuant to the terms earlier proposed. In order to complete a showing of Strickland prejudice, defendants
must also show that, if the prosecution had the discretion to cancel it or if the trial court had the discretion to refuse to accept it, there is a reasonable probability neither the prosecution nor the trial court would have prevented the offer from being accepted or implemented.
Scalia, with whom Alito, Thomas, and Roberts join, dissents, noting that the "ultimate focus" of the Strickland test is the "fundamental fairness of the proceeding being challenged." Because all agree that the plea-proceedings in court were based on accurate advice from court and counsel, that should be the end of the matter. Reversed and remanded. Missouri v. Frye
In a companion case to Frye (also a 5-4 split, also a majority opinion written by Kennedy), the court held that there can be ineffective assistance of counsel arising from plea bargaining if the defendant is later convicted at a fair trial.
Here, the defendant fired a shot towards the victim's head, but somehow missed, hitting her in the waist. He was charged with, among other things, attempted murder. The prosecution twice offered to dismiss two of the charges and to recommend a sentence of 51 to 85 months. After informing the defendant of these offers, the defense attorney managed to convince him to go to trial anyway, on the theory the prosecution would be unable to prove intent because the victim was shot in the waist. The defendant was convicted on all counts and sentenced to a minimum of 185 months.
The court rejected the AG's contention that the 6th amendment does not apply to plea bargaining, reaffirming the Frye opinion.
Since all sides conceded that the attorney's actions were deficient, the only question was prejudice. Because the defendant was more than willing to accept the plea offer before the defense attorney convinced him to do otherwise, and because the defendant received a minimum sentence 3 1/2 times greater than the plea he was offered, the Strickland prejudice requirement was met.
Scalia, with whom Alito, Thomas, and Roberts join, dissents. Again, as in Frye, Scalia re-iterates his belief that the 6th amendment ensures only that the defendant be given a fair trial, and as such, the right is not infringed unless counsel's mistakes call into question the "basic justice of a defendant's conviction or sentence."
Lafler v. Cooper
Read the full post for a summary of today's opinion:
- Article I, section 27--PCC 14A.60.010(A)--Carrying a Loaded Firearm in Public
Article I, section 27--PCC 14A.60.010(A)--Carrying a Loaded Firearm in Public
In an en banc opinion, the court rejects a facial challenge to PCC 14A.60.010(a), an ordinance prohibiting the carrying of a firearm in a public place after recklessly failing to unload it, holding that it violates neither Article I, section 27, nor the 2nd amendment of the U.S. Constitution.
Under the majority's interpretation, the primary concern of Article I, section 27 was to prevent limitations on a person's ability to carry weapons in order to protect self and home. Since the ordinance does nothing to criminalize any conduct occuring in a person's home or prohibit a person from carrying a recklessly not-unloaded weapon in order to engage in justified conduct (reasonable self defense), the provision does not implicate any of the founders concerns.
Additionally, the majority emphasizes that the ordinance falls well within the legislature's authority to protect public safety, a concept "that was understood when the Oregon Constitution was adopted and as it is understood today."
Edmonds dissents, with Brewer, Nakamoto, and Armstrong joining him. Edmonds finds the majority's interpretation incorrect, because its interpretation of the statute is not the interpretation as actually advanced by the city. Under the majority's interpretation:
...a person charged under the ordinance is permitted to testify that he or she reasonably perceived the need to carry a loaded firearm for the purpose of self-defense, and if that testimony, if believed by the factfinder, is sufficient to defeat a prosecution under the ordinance, then the majority has effectively written into the ordinance a self-defense exemption--an exception that the city admittedly did not include among the more than a dozen exceptions it enacted.
As actually advanced by the city, the statute prohibits any possession of a loaded firearm in a public place, unless specifically exempted.
After an extremely detailed exploration of constitutional history, the dissent concludes that the ordinance is unconstitutional because
...of the breadth of the ordinance's definition of a "public place." The framers of Article I, section 27, and the citizens of Oregon who adopted that provision as part of our state constitution, could not have contemplated that a citizen could be prohibited from bearing constitutionally protected arms for self-defense in all public places and private properties open to the public.
State v. Christian
Read the full post for summaries of today's cases on the following topics:
- Felon in Possession - Misd. Treatment Still a Felony
- Inventory Search - Exceeding the Scope
- Venue - A City and Milemarker Isn't Enough
- Consec. Sentencing Is Not an Erroneous Term
- Dependency - Jurisdiction - Likelihood of Harm
- Mental State - Jury Instructions
- Stalking Protective Orders - Contact and Alarm
- Dependency - Jurisdiction - Prior Sex Offense and Failed Treatment Not Enough
__________________________________________________
Felon in Possession - Misdemeanor Treatment - Still a Felony Unless Reduced at Time of Judgment
Defendant was properly convicted of felon in possession of a firearm even though his felony had been reduced to a misdemeanor. A felony at the time of judgment continues to be a felony for the purposes of the felon in possession statute regardless of misdemeanor treatment. The reason is that ORS 166.270(3) specifically defines felony to include any felony conviction except where "the court declared the conviction to be a misdemeanor at the time of judgment".
State v Stark
Inventory Search - Exceeding the Scope
Officers exceeded the authority of their inventory policy where they searched the bed of a pickup truck secured by a locked tonneau cover. The bed of a pickup truck is neither a "trunk" nor an "external vehicle container", the two possibilities allowed under the inventory policy. A pickup bed is not a trunk because only cars have trunks. Pickups have beds. Just because the tonneau cover allowed the bed to function like a trunk doesn't make it into a trunk ("just as a fanny pack is not a purse"). It is self-evidently not an external vehicle container because the bed of a pickup is not external to the vehicle. Reversed.
State v Hanna
Venue - Driving While Revoked
The state did not prove venue because it requires speculation to get from their proof (that the crime was committed in North Plains on highway 26 near mile marker 57) to the conclusion that the crime was committed in Washington County. Reversed.
State v Mills
Correction of Erroneous Term By Sentencing Court - Consecutive Sentences
A failure to impose consecutive sentences is not an "erroneous term" that can be modified under ORS 138.083(1)(a). Here, when a court revoked probation it intended for the sentence to run consecutive to another prison sentence the defendant was already serving. However, the judge didn't mention it in the judgment or on the record. The judge was not allowed to amend the judgment two years later to reflect her unstated intent because there was no erroneous term in the judgment. The judgment was clear in its failure to impose a consecutive sentence.
State v Gilbert
Dependency - Jurisdiction
Continuation of jurisdiction was inappropriate where there was no evidence underlying the decision and even the original jurisdiction was based on evidence that did not indicate "a reasonable likelihood of harm". Specifically, the original jurisdiction was based on inadequate supervision evidenced by unsupervised access to the internet and exposure to mom's "unconventional" but not unlawful lifestyle.
DHS v DM
Mental State - Jury Instructions
Defendant was not entitled to a jury instruction specifying the conduct to which a mental state applies because the standard jury instructions for menacing are not incorrect. The instruction for "intentionally" is correct because, to prove menacing, the state must establish both conduct and a result. The instruction for menacing is correct because it informs the jury of the elements to which the mental state applies.
State v Durst
Stalking Protective Order - Contact and Alarm
To support a Stalking Protective Order, a contact involving speech must be an unequivocal threat of imminent personal violence. Here, the respondent told the petitioner, a fellow shopper at Good Will that "You should be afraid of me, they're not going to stop me, I can do whatever I want." Since "they" was Good Will and "whatever I want" referred to his aggressive shopping style, the words did not convey an immenent violent threat. The aggressive shopping itself did not support a SPO because it was not sufficiently agressive to make it reasonable for the petitioner to fear the threat of physical injury. Respondent pushed petitioner 10 times over the previous year in an attempt to keep her from the more valuable books at the Good Will bins.[http://www.publications.ojd.state.or.us/sites/Publications/A142110.pdf
Reitz v Erazo]
Consent to Search - Extension
A stop is not extended where consent to search is requested by one officer while the other officer is writing a traffic ticket.
State v Nims
Dependency - Jurisdiction
The fact that father had previously beaten and sodomized a 3 year old and failed to complete treatment was insufficient to establish danger to the children. The incident was two decades prior. The state did not prove that father's condition was not in remission, as he testified. At best, they presented a 14 year old evaluation indicating he was still a danger. that 14 year gap, however, is a "temporal canyon". The burden is not on father to prove he's in remission. J. Wollheim dissents:
I would find that DHS proved, by a preponderance of the evidence, that father, having never remedied the condition that caused him to sodomize young children in his care, poses a current risk to such children, including his own.
DHS v BB
Breath Test Refusal Admissible at Trial Even if Warnings Aren't Understood. [edit]⇲
When arrested for DUII, a defendant is properly "informed" of the consequences of refusal to take a breath test if the arresting officer complies with the requirement to read the rights and consequences substantially as set out in ORS 813.130. Here, even though the defendant had a "weak" command of the English language and the officer "noticed a language barrier in his communication with the defendant," the defendant's refusal was admissible. The state does not have to establish that the defendant fully understood the information.
State v. Cabanilla
Read the full article for details about the following new cases:
- Eyewitness Identification - Suggestive Procedures
- Civil Commitment - Danger to Self - Suicidality
→ read the full summaries...Read the full article for details about the following new cases:
- Relevancy - Other Acts
- Diagnosis of Sex Abuse - Multiple Complainants
- Stalking Protective Order - No Mental State as to Alarm
- Termination of Parental Rights - Unfitness
- Dependency - No Appeals Past 90 Days
- Appealing a Stipulated Illegal Sentence
→ read the full summaries...Read the full article for details about the following new cases:
- County venue can be inferred from proof of a city.
- Consent to search invalid following unlawful detention.
- Emergency aid requires an actual, imminent threat.
- The passive resistence instruction for Interfering with a Police Officer must be given when requested.
→ read the full summaries...Read the full article for details about the following new case:
- Jail Isn't Always "Custody" for Miranda
Whether a person is "in custody" or not, for Miranda purposes, does not turn on whether the person is in jail or prison. So says the U.S. Supreme Court in a new opinion.
In this case, defendant was serving jail time. He was summoned to a visiting room and interrogated for 5 to 7 hours about a different crime. He ultimately confessed. He was never read Miranda or told that he didn't have to speak with the deputies. He was told more than once that he was free to leave. The upshot of the opinion is that there is no categorical rule regarding what is or is not custody:
In sum, our decisions do not clearly establish that a prisoner is always in custody for purposes of Miranda whenever a prisoner is isolated from the general prison population and questioned about conduct outside the prison.
Justice Alito, writing for the majority reasons that a person serving time is not automatically the sort of custody with which Miranda is concerned because:
- The shock of being arrested is not present for a person already in jail.
- The person knows, in any case, that after the interrogation is over, custody will continue. That is, custody is unrelated to the interrogation.
- The interrogating officers don't have authority over the person's release.
Rather than a categorical rule, courts should look to the individual circumstances of the interrogation to determine whether "a reasonable person would have felt he or she was not at liberty to terminate the interrogation and leave."
In this case, defendant was not in custody for Miranda purposes. Defendant testified that "I was told I could get up and leave whenever I wanted." Further, defendant was not physically restrained or threatened. In fact, he was given food and water. And, the door to the conference room was left open.
Justice Ginsburg writes the opinion for the 3 dissenters who would have found that defendant was in custody. Defendant did not feel free to leave and had very good reason to feel that way. He was taken against his will to the interrogation. He told the officers, more than once, that he didn't want to speak with them. He wasn't given his evening medications. And he was questioned long into the night by armed officers. For the dissent, the standard would be whether there was "an incommunicado interrogation in a police dominated atmosphere."
Howes v. Fields ||
Article I, Section 12 of the Oregon Constitution has it's own body of cases about when a person is in compelling circumstances such that Miranda like warnings are required. However, "The Oregon constitutional test is comparable to the test for determining whether a person is in custody for Fifth Amendment purposes, and Oregon courts have approached the two questions using the same analysis." State v Warner, 181 Or App 622 (2002). In other words, the new S.Ct. opinion may very well be persuasive, though not binding.
Read the full article for details about the following new cases:
- A warrant check does not impermissibly extend a stop
- Cross may be limited where confusing and collateral
- Judge may not impose no Contact provision on PPS
- Evidence of Satanism admissible if it's a motive
- No inventory of closed containers unless policy allows
- DCS to a minor - no mental state as to age
→ read the full summaries...Read the full article for details about the following new cases:
This morning the U.S. Supreme Court issued a Fourth Amendment opinion, U.S. v. Jones, finding that GPS vehicle tracking is a search. Scalia and 3 other justices think it's a search because the physical trespass of a vehicle (to which the GPS tracker was attached) was something the original founders would have understood to fall within the Fourth Amendment. That is, this was a physical trespass, therefore it was a search. Alito and 3 other justices think that applying an originalist understanding to modern technology is laughably absurd. The test the Alito concurrence would apply is whether a person's reasonable expectation of privacy is violated. Sotomayor is the swing vote. She believes that the trespass test is a Constitutional minimum but also that a more expansive privacy test should be used to account for our modern world:
JUSTICE ALITO's approach, which discounts altogether the constitutional relevance of the Government's physical intrusion on Jones' Jeep, erodes that longstanding protection for privacy expectations inherent in items of property that people possess or control. By contrast, the trespassory test applied in the majority's opinion reflects an irreducible constitutional minimum: When the Government physically invades personal property to gather information, a search occurs. The reaffirmation of that principle suffices to decide this case.
Nonetheless, as JUSTICE ALITO notes, physical intrusion is now unnecessary to many forms of surveillance. With increasing regularity, the Government will be capable of duplicating the monitoring undertaken in this case by enlisting factory- or owner-installed vehicle tracking devices or GPS-enabled smartphones. In cases of electronic or other novel modes of surveillance that do not depend upon a physical invasion on property, the majority opinion's trespassory test may provide little guidance. But "[s]ituations involving merely the transmission of electronic signals without trespass would remain subject to Katz analysis." As JUSTICE ALITO incisively observes, the same technological advances that have made possible nontrespassory surveillance techniques will also affect the Katz test by shaping the evolution of societal privacy expectations. Under that rubric, I agree with JUSTICE ALITO that, at the very least, "longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy. . .
More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a greatdeal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. Perhaps, as JUSTICE ALITO notes, some people may find the "tradeoff" of privacy for convenience "worthwhile," or come to accept this "diminution of privacy" as "inevitable,", and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy.
Sotomayor concurrence, U.S. v. Jones
Stealing shamelessly from SCOTUSblog, the go-to Supreme Court website, here's the reporting from around the blogosphere:
By Kali Borkoski on Jan 23, 2012 at 2:55 pm
This morning the Court issued its decision in the GPS tracking case United States v. Jones, holding that attaching a GPS device to a vehicle and then using the device to monitor the vehicle's movements constitutes a search under the Fourth Amendment. Although the Justices were unanimous in upholding the opinion by the U.S. Court of Appeals for the District of Columbia Circuit, the reasoning on which they relied to reach that conclusion varied. Lyle Denniston explained the decision in detail for this blog, while Greg Stohr covered the case for Bloomberg. Additional coverage is available from Adam Liptak at the New York Times, Robert Barnes and Cecilia Kang of the Washington Post, Joan Biskupic of USA Today, Mike Sacks of the Huffington Post, Kashmir Hill at Forbes, Jesse Holland and Pete Yost of the Associated Press (via MSNBC), Ariane de Vogue of ABC, James Vicini of Reuters, Tony Romm of Politico, Jim Harper of Cato@Liberty, and Brendan Sasso at The Hill's Hillicon Valley blog.
NRP's The Two-Way blog features a discussion on the case between Nina Totenberg and Paul Brown.
At the Volokh Conspiracy, Orin Kerr has several posts on the opinion here, here, and here.
Read the full article for details about the following new cases:
- Hearsay - Statement Against Penal Interest - Availability
- Stop - Free to Leave
- Restraining Order Hearing - Right to Cross Examine
- Probation - Community Service - Consent of Defendant Required
→ read the full summaries...Read the full article for details about the following new cases:
- Felon In Possession - No Mental State for Felony Status
No mental state is required for the element of being a felon in the crime of felon in possession of a firearm. In this case, defendant was told by the judge that his felony would be reduced to a misdemeanor as soon as he successfully completed probation. Defendant successfully completed probation so he assumed that his felony was a misdemeanor. The Supreme Court rules today that his mistaken belief is not a defense.
State v. Rainoldi
That's the ruling to take away from today's case but it's worth going through the analysis because figuring out what elements have mental states is a notoriously confusing endeavor. The analysis starts with ORS 161.095(2), which says that, except as provided in ORS 161.105, the state is required to prove a mental state for "each material element of the offense that necessarily requires a culpable mental state". This circular sentence has been the subject of much ridicule over the years. But, for today's case, it doesn't matter because felon in possession falls into the ORS 161.095(2) exception for crimes outside the criminal code. Felon in possession isn't part of the criminal code, despite the fact that it can be found in your blue statute book labeled "Criminal Code", because ORS 161.005 sets forth a specific list of statutes that comprise what"may be cited as the Oregon Criminal Code of 1971?. Felon in possession isn't in that list.
The mental state analysis for non-criminal code crimes is as follows:
- Figure out whether the legislature clearly indicated its intent to dispense with a mental state for the element in question. If yes, then that's the end of the story.
- If such clarity is lacking, then go back to ORS 161.095(2), the circular, ridiculed statute above.
The analysis for figuring out whether the legislature clearly intended to dispense with a mental state is as follows:
- Look at the text of the statute. For felon in possession, the statute is silent as to mental states. Silence is not dispositive but it cuts against there being a mental state.
- Does the element address the defendant's conduct or does it address either the defendant's status or an attendant circumstance. For FIP, the defendant's status as a felon again cuts against there being a mental state.
- Does the legislative history clarify the situation? For FIP, there are no statements from Oregon legislators. But there is a significant historical knowledge from the nationwide movement toward these laws as well as the California and national laws on which Oregon's was based. The historical documents and statements indicate that the clear purpose was to deny felons firearms because felons pose a risk to the public. That risk exists regardless of whether the felon knows of his or her felon status. Thus, again, this prong cuts against there being a mental state element.
- Would requiring a mental state frustrate the purpose of the statute? Requiring a mental state for felonious status would frustrate the purpose of the statute because it's unrelated to the risk, creating more of a burden to the state than is appropriate for the purpose of the crime.
So there you go. All four prongs cut against the defense in this case. Thus, not surprisingly, the court finds that the legislature clearly intended to dispense with a mental state for the element of felony status. See Mental States and Elements for more analysis of today's case.
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