Monthly Archives: January 2012

United States Issues Another 4th Amendment Opinion: Ryburn v. Huff, No. 11-208

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Last week, I commented on United States v. Jones, No. 10-1259, a case where the Supreme Court ruled that the Government violated the 4th Amendment by installing and monitoring a GPS tracking device on Jones’ vehicle for 28 days.  In Ryburn v. Huff, No. 11-208, the Supreme Court takes on the 4th Amendment again, but this time, finds that no Fourth Amendment violation occurred.

As far as Supreme Court opinions go, this one is pretty straightforward.  The Court issued a per curiam opinion reversing a ruling issued by the Ninth Circuit in a section 1983 case.  In so doing, the Court determined that the police officers enjoyed qualified immunity, and therefore could not be sued for a violation of the Fourth Amendment, after a warrantless entry into the home of a high school student, Huff, whom they were investigating for threatening to “shoot up” the school.  Ryburn, No. 11-208, slip opinion at *1.  After dedicating the first 5 pages of the 9 page opinion to the facts of the case, the Court began its analysis by recalling its previous rulings in Brigham City v. Stuart, 547 U. S. 398, 400 (2006), and Georgia v. Randolph, 547 U. S. 103, 118 (2006), for the proposition that “[a] reasonable police officer could read these decisions to mean that the Fourth Amendment permits an officer to enter a residence if the officer has a reasonable basis for concluding that there is an imminent threat of violence.”  Ryburn, No. 11-208, slip opinion at *5.  Such discussion is the most important part of the case for South Florida’s criminal defense lawyers.

However, the Supreme Court buffs out there may want to focus on the remainder of the Court’s opinion.  In pages 5 to 9 of the slip opinion, the Court devotes its analysis to criticizing the majority panel of the Ninth Circuit for substituting its own 20-20 hindsight conclusions for the detailed findings of fact entered by the District Court.  You can practically see the finger-wagging, and hear the sarcasm, in the Court’s statement: “The panel majority—far removed from the scene and with the opportunity to dissect the elements of the situation—confidently concluded that the officers really had no reason to fear for their safety or that of anyone else.”  Ryburn, No. 11-208, slip opinion at *6 (emphasis added).  The Court also took the Ninth Circuit to task for (1) purporting to accept the District Court’s findings of fact, but then changing them in several respects; (2) concluding that lawful activity cannot be a cause for concern to police officers; (3) taking an unrealistic view of the events as they unfolded at the Huff residence; and, (4) failing to “heed the District Court’s wise admonition that judges should be cautious about second-guessing a police officer’s assessment, made on the scene, of the danger presented by a particular situation.”

What I find most striking about this opinion is the fact that not a single Justice thought strongly enough about the case, one way or the other, to write separately in his or her own name, or to take ownership of the unanimous opinion.  Considering the fact that the Court has two fairly new Justices on board, and also considering the fact that the spectrum of views on the Court is so broad, I was really surprised that the Court issued only a per curiam unanimous opinion in this case.  With that in mind, I am glad to say that I’m not one of the Judges sitting on the Ninth Circuit!

After East Haven Police Officers Are Arrested by FBI for Racial Profiling and Abuse of Hispanics, the Mayor States He’ll Eat Tacos for Dinner

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News reports have surfaced this morning that officers in the East Haven, Connecticut, police department have been arrested by the FBI for racial profiling and abuse of hispanics in their community.  In one report, they were called “bullies with badges.”  According to the previously linked Huffington Post report, the officers targeted and terrorized hispanic arrestees and business owners, whether they were undocumented or not.  A New York Times report shows that the Mayor stands by his department, stating that all the officers are innocent until proven guilty.

Now, as a criminal defense lawyer, I can agree with such position.  But what I cannot agree with is the Mayor’s total disregard for the seriousness of the allegations in his town.  I was shocked this morning when I heard, on the CNN show “Starting Point” with Soledad O’Brien, a portion of a taped interview given by the East Haven Mayor, Joe Maturo.  When the reporter pointed out to the Mayor that in his police department of 50 officers, not one is  Hispanic, Maturo sarcastically responded, “and your point is? . . . “  The reporter, undaunted, also asked Mayor Maturo what he was going to be doing for the Hispanic community.  Maturo’s response?  “I might have tacos when I go home, I’m not quite sure yet.”  Wow.  Tacos.

For local news reports, and to listen to the Mayor’s comments, click here and here.  Maturo later apologized for the remark, blaming his insensitivity on the fact that the interview was his 12th or 13th of the day, and that the comments were made late in the day.

Government’s Use of GPS Tracking Device to Monitor Vehicle for 28 Days Violates Fourth Amendment: United States v. Jones, No. 10-1259

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On January 23, 2012, the United States Supreme Court issued an opinion in United States v. Jones, No. 10-1259, the GPS tracking device case that I mentioned in a previous post.  Justice Scalia delivered the majority opinion, and was joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Sotomayor.  Concurring opinions were drafted by Justices Sotomayor and Alito.  Interestingly, none of the Justices dissented.  The issue, as framed by the Court was,

 . . . whether the attachment of a  Global-Positioning-System (GPS) tracking device to an individual’s vehicle, and subsequent use of that device to monitor the vehicle’s movements on public streets, constitutes  a search or seizure within the meaning of the Fourth Amendment.

The essence of the opinion can be summarized as follows: (1) the Government attached the GPS device to Jones’ car one day after the warrant permitting installation of the device expired; (2) the Government monitored Jones’ vehicle for the next 28 days, and collected more than 2,000 pages of data as to the vehicle’s location over a four-week period; (3) although the District Court held that the Government’s tracking of Jones’ vehicle on public streets did not violate the Fourth Amendment, the United States Supreme Court disagreed.

In holding that the Government’s installation of a GPS device on Jones’ vehicle, and the subsequent use of that device to monitor the vehicle’s movements, constituted a “search” under the Fourth Amendment, the Court first highlighted a key fact: “[t]he Government physically occupied private property for the purpose of obtaining information.”  The Court emphasized the Fourth Amendment’s historically close relationship to property rights, and, then, in classic Scalia strict-constructionist-style, observed that it is the Court’s duty to “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.”  Next, the Court distinguished Jones from other cases involving electronic tracking technology, United States v. Knotts, 460 U. S. 276, 281 (1983), and United States v. Karo, 468 U. S. 705 (1984), by noting that neither Knotts nor Karo dealt with the Government’s trespassory installation of a tracking device.  The Court further reasoned that the Government’s trespassory installation of the device, and collection of data over the next 28 days, violated the Fourth Amendment because the Government did more than merely visually monitor the location of Jones’ vehicle.

For those of you who love reading Scalia on the attack, you will not be disappointed, for even though Scalia authored the majority opinion, he still took a few good swings at the concurring Justices’ opinions.  If you are a criminal defense attorney who does any work in the area of searches and seizures, you really need to take a few minutes to read Scalia’s critique of the concurrences because he compares and contrasts several key search and seizure cases so succinctly.  Nevertheless, the concurrences should be read because they also raise the issue of whether a Fourth Amendment violation would have been found in the Jones case had the majority analyzed the case under the Katz “reasonable expectation of privacy” test, as opposed to more traditional property-trespass framework.

What does the Jones opinion mean for the criminal defense lawyer of South Florida?  We all know that these days, the Government is increasingly using technology in criminal investigations.  (You can read a previous post of mine on the topic here).  In that light, I suggest that the Jones opinion is significant because it shows that the Court may be swinging back to the protect the rights of the individual against unlawful Government and law enforcement intrusion.

United States Supreme Court Issues Habeas Opinions in Maples v. Thomas, No. 10-63, and Gonzalez v. Thaler, No. 10-895

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You may recall that in a previous post dated October 4, 2011, I listed a few federal criminal and habeas cases that I thought South Florida criminal defense and criminal appeals lawyers might want to monitor this Term.  Well, so far, the Court has issued opinions in two of the cases.  They are:

MAPLES V. THOMAS, No. 10-63, (slip opinion dated January 18, 2012):   A win for the habeas petitioner!  Maples had been sentenced to death in Alabama and filed postconviction motions alleging ineffective assistance of counsel.  While the postconviction motion was pending, the attorneys who had been handling Maples’ case left their firm (Sullivan & Cromwell of New York) for new employment, but never notified Maples of their departure, never moved to withdraw, and never moved to substitute counsel.  Maples lost his postconviction motion.  A copy of the court order was sent to Maples’ attorneys at their former firm, but the firm returned the mailings, unopened, to the Clerk of Court.  The Clerk attempted no further mailing, and Maples’ time for filing further appeals expired.  Maples’ subsequent federal habeas petition was denied by the United States District Court on procedural default grounds, and the Eleventh Circuit affirmed.  However, the United States Supreme Court reversed the judgment of the Eleventh Circuit, finding that Maples had shown the requisite “cause” to excuse the procedural default.  In the opinion, the Court described Maples being “blameless,” and, stated, to my amazement:

The sole question this Court has taken up for review is whether, on the extraordinary facts of Maples’ case,  there is “cause” to excuse the default.  Maples maintains that there is, for the lawyers he believed to be vigilantly representing him had abandoned the case without leave of court, without informing Maples they could no longer represent him, and without securing any recorded substitution of counsel.  We agree.  Abandoned by counsel, Maples was left unrepresented at a critical time for his state postconviction petition, and he lacked a clue of any need to protect himself pro se.  In these circumstances, no just system would lay the default at Maples’ death-cell door.  Satisfied that the requisite cause has been shown, we reverse the Eleventh Circuit’s judgment.

Why was I amazed at that language?  Well, if you’re a criminal defense or criminal appeals lawyer who is familiar with habeas jurisprudence, you know that many times, the individual petitioners are penalized for their counsel’s procedural errors, notwithstanding the fact that the individual petitioners have little to no control over the acts of their attorney.  However, here, the Court recognized the practical reality of Maples’ situation, and showed him some leniency by allowing him the chance to litigate another postconviction motion.

GONZALEZ V. THALER, No. 10-895 (slip opinion dated January 10, 2012):  This is a very technical, and somewhat dry, opinion.  Although the issues specifically framed by the Court were ”(1) whether the Court of Appeals had jurisdiction to adjudicate Gonzalez’s appeal, notwithstanding the §2253(c)(3) defect; and, (2) whether Gonzalez’s habeas petition was time barred under §2244(d)(1) due to the date on which his judgment became final,” the Court addressed several sub-issues, including (a) the effect of defects in certificates of appealability on the jurisdiction of the Circuit Court; (b) the meaning of the term “jurisdictional;” (c)  when a State court conviction becomes final for purposes of habeas review; and, (d) timeliness of habeas petitions.  The most lively portion of the opinion, as you could have guessed, is Justice Scalia’s dissent.  I may not agree with a lot of what Scalia writes, but I have to admit that it takes some truly special talent to make dry jurisdictional arguments worth reading!

Michael McAuliffe Will Not Seek Reelection as Palm Beach County State Attorney

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Here is some news that will no doubt make more than one Palm Beach county criminal defense attorney happy.  (I know that a few former Palm Beach County prosecutors will probably be happy too!)  The Palm Beach Post reports that Michael McAuliffe announced that he will not seek reelection as the Palm Beach County State Attorney because he has been presented with a “compelling opportunity” in the private sector.  In his announcement, McAuliffe also stated that  he had “achieved the goals [he] outlined at the start of [his] tenure.”

Wow.  Must be nice to be able to say that you’ve reached all your goals after being the head of a large government office for only 4 years.  McAuliffe was only elected in 2008, and his longtime predecessor, Barry Krischer, served in the same position for 16 years!

Mississippi’s Attorney General Calls Outgoing Governor Haley Barbour Boss Hogg!

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Yes, that’s right.  The Attorney General of Mississippi called out-going Governor Haley Barbour Boss Hogg!  (I’m probably dating myself here, but many of you might remember that weasel in the white suit from the Dukes of Hazzard show back in the day).  Well, now CNN reports that the Mississippi Attorney General has vowed to chase down all the “pardoned” people and return them back to prison.  Never mind the fact that the releasees may not have committed any new crimes (at least not yet).  All I can say is that this is even more crazy than any of the stuff that happens in Broward County!

Happy Friday, South Florida!

Perry v. New Hampshire: United States Supreme Court Declines to Find that the Due Process Clause Requires Trial Judges to Conduct Preliminary Assessments of Reliability of Eyewitness Identifications Where There Are No Allegations of Police Misconduct

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On January 11, 2012, the United States Supreme Court issued an opinion in Perry v. New Hampshire, 10-8974, a case involving the phenomenon of eyewitness misidentification.   In Perry, the Court was urged to rule that across-the-board procedural changes should be made in all criminal cases to guard against the chance of eyewitness misidentification.  Specifically, the issue presented was “whether the Due Process Clause requires a trial judge to conduct a preliminary assessment of the reliability of an eyewitness identification made under suggestive circumstances not arranged by the police.”  However, because Perry’s case did not involve any allegations of police misconduct, the Court declined to rule for Perry.  The Court stated, “[w]hen no improper law enforcement activity is involved, we hold, it suffices to test reliability through the rights and opportunities generally designed for that purpose, notably, the presence of counsel at postindictment lineups, vigorous cross-examination, protective rules of evidence, and jury instructions on both the fallibility of eyewitness identification and the requirement that guilt be proved beyond a reasonable doubt.”  Perry, No. 10-8974, slip op. at page 2.

Although long, the opinion is worth reading because the Court discusses the evolution of caselaw on the exclusion of eyewitness identifications which were obtained by improper police influence and because the Court acknowledges some of the problems with eyewitness misidentification.  I was amazed to read, at page 15 of the slip opinion, that the Court stated that “the potential unreliability of a type of evidence does not alone render its introduction at the defendant’s trial fundamentally unfair.”  Wow.  Notwithstanding its acknowledgement of some of the issues inherent in eyewitness identifications, the Court basically finds that sending the issue to the jury should suffice.  See Perry, slip. op. at page 15 (“The fallibility of eyewitness evidence does not, without the taint of improper state conduct, warrant a due process rule requiring a trial court to screen such evidence for reliability before allowing the jury to assess its creditworthiness.”)  Perhaps the most interesting part of the opinion is Justice Sotomayor’s dissent.  I highly recommend you take a few minutes to read it, as  she really does a good job of picking apart the flaws of the majority opinion’s analysis.

What does the Perry decision mean for the criminal defense bar of South Florida?  In short, claims of eyewitness misidentification and suggestive police lineups will continue to be analyzed on a case-by-case basis.  However, at least Justice Sotomayor’s dissent might provide some good information that a criminal defense attorney could cite in future motions challenging the admissibility of eyewitness identifications.

For my previous post on the issue of eyewitness misidentification, click here.  A news report on the Perry decision can be found on CNN by clicking here.

Advising People of the Immigration or Deportation Consequences of Their Guilty Pleas: Will the Florida Supreme Court Accept Jurisdiction to Decide if Padilla v. Kentucky, 130 S.Ct. 1473 (2010), Applies Retroactively?

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In 2010, the United States Supreme Court decided Padilla v. Kentucky, 130 S.Ct. 1473 (2010), wherein the Court held that Padilla’s criminal defense lawyer provided ineffective assistance of counsel by failing to advise Padilla that his plea to charges of drug distribution would subject him to automatic deportation under 8 U.S.C. section 1227(a)(2)(B)(i).  The Court further held that in order to render effective assistance of counsel, a criminal defense attorney must advise his or her client whether a plea carries a risk of deportation.  See Padilla, 130 S.Ct. at 1486.

The issues surrounding pleas and immigration consequences are not new to Florida’s trial or appellate courts.  In 2006, four years prior to Padilla, the Florida Supreme Court held that claims of ineffective assistance of counsel based on counsel’s failure to warn of the immigration consequences of a plea must be filed within 2 years of the date that the judgment and sentence (or order withholding adjudication of guilt) become final.  See State v. Green, 944 So. 2d 208, 217-218 (Fla. 2006).  Since Padilla, the issues surrounding immigration or deportation consequences of pleas have remained on the forefront, and one of the latest issues is the retroactivity of Padilla.   In April of 2011, the Third District Court of Appeal issued a decision in Hernandez v. State, 61 So. 3d 1144 (2011), wherein the Court certified the question of the retroactivity of Padilla to be of great public importance.  Although the State of Florida and Hernandez filed their jurisdictional briefs with the Florida Supreme Court in September of 2011, the Court has yet to issue an opinion.  At the end of 2011, the Fourth District Court of Appeal held that Padilla does not apply retroactively.  See Rodriguez v. State, No. 4D10-2016, 2011 WL 5964343 (Fla. 4th DCA Nov. 30, 2011).  Since the issue of retroactivity has yet to be decided, I suppose that Florida’s criminal defense bar, and criminal defendants alike, will have to continue to wait to see what path the Court will choose.  The docket in Hernandez v. State, No. SC11-1357, can be viewed here.

Congratulations to Raag Singhal on his Appointment to the Circuit Court Bench of Broward County

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When I learned that Raag Singhal was appointed to the Broward Circuit Court bench last month, I thought to myself, “now that’s going to be one great judge.”  I remember having some cases with Raag when I was a prosecutor in Broward County, and I have to say that he was always a pleasure to deal with.  He was everything prosecutors want an opposing criminal defense lawyer to be: professional, courteous, reasonable, thoughtful, and just an all-around great guy.  I have no doubt that Judge Singhal will display all those attributes as he presides over the many cases that will be assigned to him.  Congratulations, Judge Singhal!

For those of you who are interested, Judge Singhal’s investiture will be held at 1:15 pm on January 20, 2012, in the Jury Assembly Room of the Broward County Courthouse.  A link to the Broward County Barrister, which contains the announcement for Judge Singhal’s investiture on page 31, can be found here.

Some Important Advice for the New Year: Don’t be Late for Court!

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The criminal defense attorneys of South Florida are well aware that certain judges, none of whom will be named here, do not tolerate tardiness.  Once a lawyer has been practicing long enough, he or she will just know which Judges are sticklers for promptness.  I remember when I was a prosecutor in Broward, one Judge actually had her bailiff handcuff a fellow prosecutor to a chair in the courtroom after he was only a few minutes late!  A case decided by the 4th DCA just before New Year’s Eve reminded me of those good ole days I spent in the Broward County courthouse . . .

In the case of Kimothy Marquez Massie v. Bradshaw, 4D11-4714, Massie made the unfortunate mistake of being a mere 22 minutes late to court.  The Judge would have none of it, and immediately took Massie into custody.  Three days later, the court held a bond hearing, and determined that no conditions of bond would assure that Massie would not commit future crimes, or that he would appear for future court dates.  On appeal, the 4th DCA reversed, finding that the trial court erred for two reasons.  First, the trial court considered a criminal charge in Dade County, even though it occurred prior to the criminal incident in Massie’s case.  Second, and most importantly, the 4th DCA noted that Massie had not ever previously failed to appear or been tardy for a court appearance in his case.

While I am glad that Massie prevailed in his appeal, the morale of this story is clear: don’t be late for court!