Florida Criminal Appeals Attorney Law

Appellate Law, Criminal Defense and Appeals and Post Conviction Relief in Florida Courts, Federal District Courts and the 11th Circuit

Month: January, 2012

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

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

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

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

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!

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

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!


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