I hope to have my own thoughts on the new Supreme Court opinion in Mansor up soon. Suffice it to say, for now, that you shouldn't be relying on the memos you wrote after the COA opinion was issued. The new opinion requires a significantly different analysis, which is better for some defendants but worse for others. Furthermore, boilerplate Mansor motions really will be worthless. Very fact-specific care will be needed each time you challenge an electronic devices search warrant on particularity grounds.
In the meantime, please enjoy this analysis by Orin Kerr, who was heavily quoted in the opinion.
Orin Kerr's same-day take on the status of the third-party doctrine can be found here (question #9)
- It lives, but there is an equilibrium-adjustment cap on it. The old understanding was that the third-party doctrine is a bright-line rule: When you voluntarily disclose information to someone, whether to an undercover officer or a business you're working with, you don't have Fourth Amendment rights in the recipient's copy of that information. Chief Justice Roberts says that the third-party doctrine is more limited than that.
- As I read him, the Chief seems to be saying that there is an equilibrium-adjustment limit on the third-party doctrine. Once the third-party doctrine starts to give the government massive new powers, the third-party doctrine may no longer apply. Here's the key passage:
- "There is a world of difference between the limited types of personal information addressed in Smith and Miller and the exhaustive chronicle of location information casually collected by wireless carriers today.The Government thus is not asking for a straightforward application of the third-party doctrine, but instead a significant extension of it to a distinct category of information."
As many of you may know, I've written about the limitations on the third-party doctrine under the Oregon Constitution ever since St v Ghim came out. OCDLA had a presentation on Ghim at the Winter Conference 2017, which is looking rather prescient right now.
There is a lot for defense attorneys to work with now, under both Constitutions.
In a good opinion from the Court of Appeals today, State v. Gollas-Gomez, the defendant's convictions were reversed because the trial court refused to remove for cause a juror who admitted that he would be partial in the state's favor. Both sides are guaranteed the right to an impartial jury.
The issue was well-preserved, including the fact that the defendant used all of his peremptory challenges, a requirement for appealing a trial court's decision not to remove a juror for cause.
And the juror was ultimately seated on the jury.
Had the juror not been seated on the jury, because the defendant used one of his peremptories on the juror, it is likely, under current case law, the convictions would not have been reversed, because (1) no harm if the biased juror is not seated on the jury and (2) defendant does not have a due process right to peremptory challenges.
This puts defense counsel in an awkward position. If the judge refuses to remove a juror for cause, the defendant can still remove the juror (to avoid poisoning the trial) but gives up the issue for appeal. On the other hand, it's just one juror, and who wouldn't want to good basis for reversal, especially on multiple measure 11 charges, even if the only way to do so is to leave the juror on.
There may be a way around this. The defendant does not have a due process right to peremptory challenges, but if peremptory challenges exist, the defendant has a right to the same number of challenges as the state. There is no reason the state should have an advantage. After all, if a statute or UTCR expressly gave the state more peremptory challenges at the outset than the defendant, that would be a clear constitutional violation. Why should it be any different if the same result is achieved by an erroneous ruling by the court that effectively reduces the number of challenges a defendant has?
- This case presents the question whether the automobile exception to the Fourth Amendment permits a police officer, uninvited and without a warrant, to enter the curtilage of a home in order to search a vehicle parked therein. It does not.
Opinion is here.
And here is Orin Kerr's hot take on the curtilage issues the opinion raises.
- HABEAS CORPUS -- Failure to provide medical care
Fourthamendment.com summary here.
Headline from fourthamendment.com: W.D.Tex.: Removal of def’s key fob to press the buttons to locate car was a search that violated a REP in def’s pants pocket
Their summary is here.
SCOTUS opinion here.
Summary from SCOTUSblog here.
Orin Kerr's analysis here.
From the headnotes:
- Held: 1. The mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy. Pp. 6–13.
That's a no-no. Summary of SCOTUS's capital opinion here.
The opinion can be found here.
It starts with a bang:
- Ohio State Trooper Hartford knew three things about Tyrone Warfield before stopping his car. He knew that Warfield, having recently exited a construction zone, was driving under the speed limit with both hands on the steering wheel. He knew that Warfield had touched the lane line twice. And he knew that Warfield was black.
Fourthamendment.com has the details.
Interesting legal article out of Illinois. It begins notably as follows:
- There’s a new rule for ballistics experts who testify at trial.
- “Take my word for it” is not enough.
- During a December 2011 trial, state police firearms examiner Justin Barr testified that he believed the bullet recovered from the victim’s body originated from Jones’ gun.
- Barr explained that experts look for “sufficient similarities” between bullets when trying to identify a match, but there is a level of subjectivity in the process.
- On cross-examination, he explained firearm examiners don’t have to identify a set number of matching irregularities or scratches, nor do they have to count them in order to determine a match. He ended his testimony without identifying any individual characteristics between his test bullets and the one recovered from the victim’s body.
When a DCS w/in 1000 feet of a school is based on a Boyd delivery (that is, there is not a completed delivery but a substantial step towards a delivery), I suspect many of us erroneously compartmentalize two things we shouldn't. What I mean is, I think we first determine whether or not there was evidence of a substantial step toward a delivery and, if there was, whether defendant was within 1000 feet of a school.
But if we treat those two questions as separate, we potentially give up a possible defense in some DCS w/in 1000 feet of a school cases. Rather, we should ask ourselves -- did the substantial step take place within 1000 feet of a school?
How is that different? Well, assume defendant obtains substantial amounts of drugs, weighs them, bags them, makes arrangements to sell them, and all of this occurs far away from a school. But at some point, some small step occurs within 1000 feet of a school, and that's when he is busted. The state can easily prove a substantial step for a delivery. The state can also prove defendant was within 1000 feet of a school. But can the state prove that the "substantial step" occurred within 1000 feet of a school? Do all the steps that were taken before defendant was within 1000 feet of a school accumulate, so that -- even if the obtaining and weighing and bagging occurred somewhere else -- those steps can be counted toward determining if a substantial step has been taken near the school?
There are plenty of cases where this analysis will not help much. But I can imagine some cases where it would. The key steps a defense attorney would need to take are: (1) asking for a lesser-included of DCS; (2) asking for a jury instruction that states that all steps client took towards delivery can be considered in determining if there was a substantial step towards delivery, (3) but also asking for a jury instruction that says that only the steps taken within 1000 feet of a school should be considered in determining if defendant took a substantial step towards delivery within 1000 feet of a school.
What support do I have for the argument? The statute itself, the definition of attempt and the Boyd case itself. Altogether, they suggest that substantial steps toward a delivery must themselves occur within 1000 feet of a school, not merely the most recent step.
New draft article by Orin Kerr. Opening paragraph of abstract:
- This Article considers whether government agents can conduct searches or seizures to enforce a different government’s law. For example, can federal officers make stops based on state traffic violations? Can state police search for evidence of federal immigration crimes? Lower courts are deeply divided on the answers. The Supreme Court’s decisions offer little useful guidance because they rest on doctrinal assumptions that the Court has since squarely rejected. The answer to a fundamental question of Fourth Amendment law – who can enforce what law – is remarkably unclear.
Applying the right mental state to the material elements: a quick summary and something you probably didn't know
Recently, I have given a number of presentations on the steps any defense lawyer should take in determining what mental state applied to which material elements. One anonymous critic wasn't impressed, but for a very practical reason: do jurors really care whether certain crimes have to be committed knowingly, recklessly or negligently? They want to know, "did the guy do it"?
I think it depends on the case. Applying criminal negligence to $ value in a theft or criminal mischief may not matter most of the time, but in the right case -- a victim claiming $800 sunglasses in her stolen purse, plus a $400 alligator-skin wallet, to give an extreme example -- it could easily result in a conviction for a less serious charge.
But I think the question misses the big picture. One, defense attorneys should always make sure the state proves its case, and we aren't doing our jobs by giving the state a gimme on an element or two. Secondly, the jury may not care but the Court of Appeals will. The wrong jury instruction will result in a reversal more times than not. Given how risk-adverse some trial judges are, the likelihood of a judge giving an instruction at odds with the standard instruction is slim, and the chances of reversal are high, if you ask for the right instruction.
So, here is a quick summary of a portion of the relevant law, and a slight twist that might come in handy in the right case.
Ulbricht v. United States Pending petition
Issues: (1) Whether the warrantless seizure of an individual’s internet traffic information without probable cause violates the Fourth Amendment; and (2) whether the Sixth Amendment permits judges to find the facts necessary to support an otherwise unreasonable sentence.
Go to link above to get the petition, which deserves extra points for the Princess Bride references.
In a recent case, US v. Griffith, the contents of a search warrant affidavit are described as follows:
- The bulk of the ten-page affidavit supporting the search warrant explained Griffith's suspected involvement in the homicide committed more than one year beforehand. The affiant, a 22-year veteran of the police department, recounted the evidence and expressed his belief that Griffith had been the getaway driver. The affidavit also described the evidence that Griffith now lived with Lewis in her apartment.
Two sentences in the affidavit then set out the basis for believing incriminating evidence would be discovered in the apartment. Those sentences read as follows:
- Based upon your affiant's professional training and experience and your affiant's work with other veteran police officers and detectives, I know that gang/crew members involved in criminal activity maintain regular contact with each other, even when they are arrested or incarcerated, and that they often stay advised and share intelligence about their activities through cell phones and other electronic communication devices and the Internet, to include Facebook, Twitter and E-mail accounts.
- Based upon the aforementioned facts and circumstances, and your affiant's experience and training, there is probable cause to believe that secreted inside of [Lewis's apartment] is evidence relating to the homicide discussed above.
Is that enough for probable cause? The federal circuit court ruled as follows:
- The government's argument in support of probable cause to search the apartment rests on the prospect of finding one specific item there: a cell phone owned by Griffith. Yet the affidavit supporting the warrant application provided virtually no reason to suspect that Griffith in fact owned a cell phone, let alone that any phone belonging to him and containing incriminating information would be found in the residence. At the same time, the warrant authorized the wholesale seizure of all electronic devices discovered in the apartment, including items owned by third parties. In those circumstances, we conclude that the warrant was unsupported by probable cause and unduly broad in its reach.
The court explains further:
- In light of the distinctness of the inquiries, probable cause to arrest a person will not itself justify a warrant to search his property. Regardless of whether an individual is validly suspected of committing a crime, an application for a search warrant concerning his property or possessions must demonstrate cause to believe that “evidence is likely to be found at the place to be searched.” Groh v. Ramirez, 540 U.S. 551, 568 (2004). Moreover, “[t]here must, of course, be a nexus ․ between the item to be seized and criminal behavior.” Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 307 (1967).
- Those concerns about the distinct requirements for a search warrant are particularly salient in this case, for two reasons. First, the warrant application sought authorization to search a home, which stands at “the very core” of the Fourth Amendment's protections. Silverman v. United States, 365 U.S. 505, 511 (1961); see Groh, 540 U.S. at 559. Second, the scope of a permissible search depends on the specific spaces in which the object of the search might be found. See Maryland v. Garrison, 480 U.S. 79, 84-85 (1987). Authorization to search for an item fitting in the palm of a hand, like a cell phone, thus can entail an intrusive inspection of all corners of a home. (And here, as explained below, officers sought and obtained authorization to continue their search until they found every cell phone and electronic device in the apartment.) This case, in short, involves the prospect of an especially invasive search of an especially protected place.
Wait! Is the court really saying there must be some evidence that this particular suspect owned a cell phone?
- That brings us back to the warrant application's reliance on cell phones—in particular, on the possibility that Griffith owned a cell phone, and that his phone would be found in the home and would contain evidence of his suspected offense. With regard to his ownership of a cell phone, it is true that, as the Supreme Court recently said, cell phones are now “such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” Riley, 134 S. Ct. at 2484. We do not doubt that most people today own a cell phone.
- But the affidavit in this case conveyed no reason to think that Griffith, in particular, owned a cell phone. There was no observation of Griffith's using a cell phone, no information about anyone having received a cell phone call or text message from him, no record of officers recovering any cell phone in his possession at the time of his previous arrest (and confinement) on unrelated charges, and no indication otherwise of his ownership of a cell phone at any time. To the contrary, the circumstances suggested Griffith might have been less likely than others to own a phone around the time of the search: he had recently completed a ten-month period of confinement, during which he of course had no ongoing access to a cell phone; and at least one person in his circle—his potential co-conspirator, Carl Oliphant—was known not to have a cell phone.
- We are aware of no case, and the government identifies none, in which police obtained authorization to search a suspect's home for a cell phone without any particularized information that he owned one. In the typical case, officers will have already come into possession of a suspect's phone after seizing it on his person incident to his arrest. See, e.g., id. at 2480-82; United States v. Bass, 785 F.3d 1043, 1049 (6th Cir. 2015). Officers also might receive reliable indication of a suspect's possession of a cell phone. See, e.g., United States v. Mathis, 767 F.3d 1264, 1269 (11th Cir. 2014); United States v. Grupee, 682 F.3d 143, 145-46 (1st Cir. 2012). There was no such information here about Griffith.
Orin Kerr believes the gov't should prevail in the potentially explosive case of US v. Carpenter, argued in November at SCOTUS. But oral argument suggested that the court had a majority in favor of Carpenter. Orin Kerr -- who is always worth reading but particularly on cases where electronic devices and the 4th Amendment intersect -- proposes a way that the court could rule for Carpenter that he thinks makes the most sense.
- If the Court wants to rule for Carpenter, I think the best rule would be that the Fourth Amendment gives individuals Fourth Amendment rights in records solely useful to the government to identify that individual's physical location at a particular time. The question would be objective: Is that category of record something that ordinarily is solely useful to the government to determine a person's location? If the nature of that kind of record means that it is of a type ordinarily only of government use to identify a person's physical location, then it is protected by the Fourth Amendment unless there has been consent to the search. On the other hand, if government collection of that kind of record ordinarily has a non-location purpose, then this special rule would not apply and the third-party doctrine would continue to apply.
This is an attractive argument. There is something particularly disturbing about the concept of perpetual surveillance. But of course such surveillance is complicated when we voluntarily carry around the instruments of such surveillance. Regardless, I'm linking to Mr. Kerr's argument not merely because it's always valuable to work through such issues (especially when the potential unravelling of the third-party doctrine could have such a big impact on the practice of criminal defense), but also because his analysis is useful for those of who might litigate the issue at the trial level and your client's location is exactly what the government was seeking.