Category Archives: U.S. Supreme Court

Moncrieffe v. Holder, No.11-702: United States Supreme Court Holds That State Criminal Statute Penalizing The Sharing Of Small Amount Of Marijuana Does Not Constitute Aggravated Felony For Purposes Of Immigration Statute

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It’s been a really busy week, but I found a recent opinion that I wanted to pass along to all of Florida’s criminal defense and criminal appeals lawyers out there.  If you handle drug cases with potential immigration/deportation consequences (i.e, ANY drug cases where your client’s status is either unclear, or your client is clearly a noncitizen), then you should take a few minutes to read the United States Supreme Court opinion of Moncrieffe  v. Holder, No. 11-702.

The facts in the Moncrieffe opinion are pretty typical: Moncrieffe, a Jamaican citizen, came to the U.S. legally at the age of 3.  See Moncrieffe, slip op., pg. 3.  During a 2007 traffic stop, cops found 1.3 grams (yes, grams) of marijuana in his car.  Moncrieffe pled guilty to possession of marijuana with intent to distribute under Georgia law (obviously, Georgia law is a lot more harsh than Florida law).  Under a Georgia statute which allows for more lenient treatment to first time offenders, the trial court sentenced Moncrieffe to 5 years of probation, after which his record would be expunged.  See id.

Alleging that the conviction constituted an “aggravated felony” for purposes of 21 U. S. C. §841(a), punishable by up to 5 years’ imprisonment under 21 U.S.C. 841(b)(1)(D), the Government deported Moncrieffe, and the Board of Immigration Appeals affirmed.  See id at pg. 3.  After the 5th Circuit denied Moncrieffe’s petition for review, the United States Supreme Court granted cert, and reversed.

In holding that Moncrieffe’s conviction under the Georgia statute did not qualify as an “aggravated felony” under the Immigration and Nationality Act (INA), the Court rejected the Government’s application of the “categorial inquiry” or “categorial approach,” which is employed  to determine if an offense constitutes an aggravated felony.  See id , slip op., pgs. 4-19.  Although Justice Sotomayor’s majority opinion is rather technical in nature, this line pretty much sums up what the Court thinks of the Government’s argument:

“In short, to avoid the absurd consequences that would flow from the Government’s narrow understanding of the categorical approach, the Government proposes a solution that largely undermines the categorical approach.  That the only cure is worse than the disease suggests the Government is simply wrong.”

Id., slip op., pg. 19.  Ouch.

Unfortunately for Moncrieffe and others in his situation, escaping aggravated felony treatment does not necessarily lead to a conclusion that deportation has been avoided.  Rather, the Court cautioned that it only means that mandatory removal has been avoided.  Rather, under 8 U.S.C. §1227(a)(2)(B)(i), a marijuana distribution offense still renders a non-citizen deportable as a “controlled substances offender.”  See id., slip op., pg. 19.  At that stage, the non-citizen will have to seek asylum, or cancellation of the removal proceedings, assuming the non-citizen meets the other criteria under 8 U.S.C. §§1158(b), 1229b(a)(1)–(2).  As acknowledged by the Court, determinations of asylum or cancellation of removal proceedings are purely discretionary with the Attorney General.

What’s the take away from this case, you ask?  Well, although the Court rejected the Government’s attempt to define possession of a small amount of marijuana as an aggravated felony, the fact remains that non-citizens convicted of even the most low level misdemeanor drug offenses, including first-time offenders who have successfully completed required probationary periods as a prerequisite to expunction, remain subject to possible deportation proceedings.

No Miranda Warnings for the Surviving Boston Bomber Dzhokhar Tsarnaev Because of the Public Safety Exception?

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Unless you’ve had your head in the sand, you’ve no doubt seen the media coverage of the apprehension of the second Boston Bomber, Dzhokhar Tsarnaev, on April 19.  You probably also know that he’s currently being held in a hospital, being treated for his injuries, while the prosecuting authorities, both state and federal, decide how to handle things from here.  But what you may not know is that he has NOT been given his Miranda warnings.  How can that be?

Those of us practicing criminal defense and criminal appeals know that anytime there’s custodial interrogation, the individual should be Mirandized.  (Of course we also know that many times, officers decide the for themselves what constitutes custodial interrogation, but that’s a topic for another post).  According to news reports, the feds have invoked the public safety exception to Miranda, which can be traced to the United States Supreme Court case of New York v. Quarles, 467 U.S. 649 (1984).  According to Quarles, the reason the court carved out the public safety exception was because of the exigency of the situation facing the officers in that case.  There, the officers, while “in the very act of apprehending a suspect, were confronted with the immediate necessity of ascertaining the whereabouts of a gun which they had every reason to believe the suspect had just removed from his empty holster and discarded in the supermarket. So long as the gun was concealed somewhere in the supermarket, with its actual whereabouts unknown, it obviously posed more than one danger to the public safety: an accomplice might make use of it, a customer or employee might later come upon it.“  Quarles, 467 U.S. at 657.

Now, does that really seem like the situation that officers and prosecuting authorities are currently facing with Dzhokhar Tsarnaev?  I admit that it’s pretty likely that the authorities have not revealed all the facts that have gone into their decision not to Mirandize Tsarnaev, but I would think that if there were any exigent circumstances, such as the possibility of immediate public danger, then the press would have been privy to that.  After all, the FBI actively called on the press to help them locate the suspects when they released the photos of Dzhokhar Tsarnaev and his brother the day before Dzhokhar Tsarnaev  was apprehended.   And the whole reason the city of Boston was on lockdown was because the police feared that he would have  a bomb on his person.  I guess we’ll have to watch the legal aspects of this unfold.  All I can say is that Dzhokhar Tsarnaev is going to need one hell of a lawyer.

UPDATE:  See the criminal complaint here.

Wins For the Little Guys in United States Supreme Court, Eleventh Circuit, and Florida Supreme Court

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The stars must be aligned just right, because for the first time in a long time, the US Supreme Court, Eleventh Circuit, and Florida Supreme Court all recently issued opinions favorable to criminal defendants.  It’s like a hat trick for criminal defense and criminal appeals lawyers!

In Millbroook v. United States, 11-10362, Millbrook, a federal prisoner in the custody of the Bureau of Prisons, filed an action against the United States after he was sexually assaulted and verbally threatened while in custody.  Although the District Court granted summary judgment in favor of the United States, and the Third Circuit affirmed, the United States Supreme Court reversed, and held that Millbrook’s lawsuit was not barred by the “law enforcement proviso” of the Federal Tort Claims Act (FTCA).  In so holding, the Court relied on the plain text of the section and determined that Congress intended immunity determinations to be based on a federal officer’s legal authority, not on a particular exercise of that authority.  See Millbrook, 11-20362, slip op., pg. 6.  Based on the plain text of the statute, the Court rejected the Government’s argument that an officer’s intentional tort must occur in the course of executing a search seizing evidence, or making an arrest in order to expose the Government to liability.  See id.

In United States v. Hinds, No. 11-16048, Hinds was convicted of conspiring to possess with intent to distribute 50 grams or more of cocaine base (crack cocaine).  On direct appeal, the Eleventh Circuit agreed with Hinds that his sentence should be vacated because the amount attributed to him was too speculative.  On remand, the District Court failed to give Hinds the benefit of the Fair Sentencing Act (FSA), so Hinds appealed, and won again.  In holding that Hinds should have been given the benefit of the FSA, the Court noted, in footnote 2, that the Government conceded that Hinds should have been given the benefit of the FSA when he appeared on remand.  Too bad Hinds had to appeal twice to get the benefit of the FSA.

Finally, in State v. Larry Phillips, No SC11-411, the Florida Supreme Court found that Phillips, who had been committed under the Jimmy Ryce Act, was eligible for immediate release because the State waited to file its commitment petition after Phillips’ criminal sentence had expired.

Florida v. Jardines: United States Supreme Court Holds that Using Drug Dog on Homeowner’s Front Porch is a Search Under Fourth Amendment

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You may recall in one of my previous posts that I was waiting for the Supreme Court to issue opinions in a couple of Florida cases involving drug dogs.  Well, on March 26, 2013, the Supreme Court issued its opinion in the second case, Florida v. Jardines, No. 11-564, and held that using a drug dog on a homeowner’s  front porch to investigate the contents of the home is a “search” within the meaning of the 4th Amendment.  If you are a criminal defense or criminal appeals attorney who handles a lot of cases involving the Fourth Amendment, this is a good case to keep in handy.  At a mere 10 pages, the majority opinion is a straightforward application of the Fourth Amendment’s property-based protections.  In short, the Court affirmed the Florida Supreme Court’s decision, and held that the officer’s act of entering the curtilage with the drug dog for the sole purpose of conducting a drug sniff of the residence violated the Fourth Amendment.

Not surprisingly, the best part of the opinion lies in the unusual composition of the majority and dissenting camps.  While Justice Scalia authored the majority opinion, (he was joined by Justices Thomas, Kagan, Ginsburg, and Sotomayor), the dissenters were Justices Alito, Kennedy, Breyer, and Chief Justice Roberts.  Justices Kagan, Ginsburg, and Sotomayor issued a concurring opinion, wherein they stated that they would have also affirmed on privacy grounds, following Kyollo v. United States, 533 U.S. 27 (2001).

Florida’s 4th DCA Holds That Suspect in Barricaded Residence is Not in Custody for Purposes of Miranda, and Happy Anniversary, Gideon v. Wainwright!

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If you’re a criminal defense or criminal appeals lawyer who loves constitutional issues, you may want to take a minute to read through an opinion issued by Florida’s 4th DCA recently.  In Erin Atac v. State, No. 4D10-3024, the Court followed the decisions of other States, and held that Atac was not in custody for purposes of  Miranda v. Arizona, 384 U.S. 436 (1966), when he made incriminating statements to police during a barricaded standoff.  His conviction for manslaughter was affirmed.

In other news, it’s the 50th anniversary of the monumental decision Gideon v. Wainwright.  For an interesting report containing some cool background information, as well as an entire website dedicated to preserving the legacy of the Gideon decision, click here and here.  Enjoy!

Florida v. Harris, SC11-817: United States Supreme Court Reverses Florida Supreme Court in Case Involving Drug Detection Dog at Traffic Stop

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For those Florida criminal defense attorneys who handle a lot of drug cases, here is an opinion worth reading.  In a relatively short (14 page) opinion, the United States Supreme Court unanimously reversed the Florida Supreme Court in Florida v. Harris, No. SC11-817.  Generally, the overall holding is favorable to the State because the Court held that the State is NOT required to “present an exhaustive set of records, including a log of the dog’s performance in the field, to establish the dog’s reliability,” Harris, slip op., pg. 1, as the Florida Supreme Court had required.   However, in so holding, the US Supreme Court really slapped down the Florida Supreme Court.  For some reason, I really love to see the Florida Supreme Court get reversed.

In its analysis, the Court reasoned that the hypertechnical requirements of the Florida Supreme Court opinion were completely contrary to the common-sense  approach to a determination of probable cause, which should be based on the totality of the circumstances.  Harris, slip op., pg. 4.  The Court stated,

. . . The Florida Supreme Court flouted this established approach to determining probable cause.  To assess the reliability of a drug-detection dog, the court created a strict evidentiary checklist, whose every item the State must tick off.  Most prominently, an alert cannot establish probable cause under the Florida court’s decision unless the State introduces comprehensive documentation of the dog’s prior “hits” and “misses” in the field. (One wonders how the court would apply its test to a rookie dog.)  No matter how much other proof the State offers of the dog’s reliability, the absent field performance records will preclude a finding of probable cause.  That is the antithesis of a totality-of-the-circumstances analysis.  It is, indeed, the very thing we criticized in [Illinois v.] Gates when we overhauled our method for assessing the trustworthiness of an informant’s tip.  A gap as to any one matter, we explained, should not sink the State’s case; rather, that“deficiency . . . may be compensated for, in determining the overall reliability of a tip, by a strong showing as to . . . other indicia of reliability.” Id., at 233.  So too here, a finding of a drug-detection dog’s reliability cannot depend on the State’s satisfaction of multiple, independent evidentiary requirements.  No more for dogs than for human informants is such an inflexible checklist the way to prove reliability, and thus establish probable cause.
Making matters worse, the decision below treats records of a dog’s field performance as the gold standard in evidence, when in most cases they have relatively limited import.  Errors may abound in such records.  If a dog on patrol fails to alert to a car containing drugs, the mistake usually will go undetected because the officer will not initiate a search.  Field data thus may not capture a dog’s false negatives.  Conversely (and more relevant here), if the dog alerts to a car in which the officer finds no narcotics, the dog may not have made a mistake at all.  The dog may have detected substances that were too well hidden or present in quantities too small for the officer to locate.  Or the dog may have smelled the residual odor of drugs previously in the vehicle or on the driver’s person.  Field data thus may markedly overstate a dog’s real false positives.  By contrast, those inaccuracies—in either direction—do not taint records of a dog’s performance in standard training and certification settings.  There, the designers of an assessment know where drugs are hidden and where they are not—and so where a dog should alert and where he should not.  The better measure of a dog’s reliability thus comes away from the field, in controlled testing environments.

Harris, slip op. pgs. 5-8.

Now, I admit that the above language is pretty helpful to the State.  However, the Court continued, provided some helpful ammunition to the criminal defense and criminal appeals lawyers out there, too.  The Court noted that a defendant should have the opportunity to “challenge such evidence of a dog’s reliability, whether by cross-examining the testifying officer or by introducing his own fact or expert witnesses.”  Harris, slip op., pg. 8.  For example, a defendant “may contest the adequacy of a certification or training program, perhaps asserting that its standards are too lax or its methods faulty.”  Id.  In addition, a defendant may “examine how the dog (or handler) performed in the assessments made in those settings.”  Id.  After all, “evidence of the dog’s (or handler’s) history in the field, although susceptible to the kind of misinterpretation we have discussed, may sometimes be relevant.”  Id.  Finally, the Court noted that even if a dog is presumed generally reliable, “circumstances surrounding a particular alert may undermine the case for probable cause—if, say, the officer cued the dog (consciously or not), or if the team was working under unfamiliar conditions.”  Id. at pg. 9.

Unfortunately for Harris, his trial attorney failed to challenge any aspect of the drug dog’s training in the trial court.  See Id. at pg. 10.  As a result, the Court refused to consider his arguments raised in that regard for the first time on appeal.  See Id. 

Apart from the discussion of probable cause, this opinion also has good lesson for all the criminal defense attorneys out there: don’t forget to object and/or challenge the State’s evidence at every opportunity.  Even if you don’t know how useful or successful your challenges will be, once a case goes up on appeal, anything, and everything, may be fair game.  Failing to challenge evidence at the trial level (or failing to object) often precludes the right to appellate review, as noted by the Court in Harris.

A Hollow Victory in Lozman v. City of Riviera Beach, Timeliness of Habeas Claims, and Disqualification of Judges Who Are Facebook Friends with Prosecutors

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It’s already mid-week, but I wanted to pass along a few things that might interest you.  Remember the guy Fane Lozman who was fighting the City of Riveira Beach over marina fees owed for his houseboat?  Well, the United States Supreme Court issued an opinion in his case, Lozman v. City of Riviera Beach, No. 11-626.  The Supreme Court reversed the Eleventh Circuit, making Lozman the victor.  Too bad the City already destroyed his houseboat.

The Eleventh Circuit recently issued an en banc opinion in Michael Duane Zack v. Kenneth Tucker, No. 09-12717, wherein the Court held that the AEPDA statute of limitations applies claim-by-claim, rather than to the petition as a whole.  If you handle a lot of habeas cases, the opinion is worth a quick read.  My least favorite part of the opinion?  Judge Carnes’ concurrence, where he ridicules the position taken at oral argument by one of the attorneys as absurd.  Ouch.

Finally, attorneys throughout the State of Florida, civil and criminal alike, might want to monitor the case of Pierre Domville v. State, 4D12-556, where the Fourth District Court of Appeal has certified a question of great public importance to the Florida Supreme Court:  “Where the presiding judge in a criminal case has accepted the prosecutor assigned to the case as a Facebook “friend,” would a reasonably prudent person fear that he could not get a fair and impartial trial, so that the defendant’s motion for disqualification should be granted?”  An article in the Palm Beach Post can be read here.

Will Police Officers Need A Warrant To Take Nonconsensual Blood Samples in DUI Cases?

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Florida’s DUI defense attorneys should know that the United States Supreme Court heard oral argument in a DUI blood case on January 9, 2013.  In Missouri v. McNeely, SC 11-1425, the question presented is: Whether a law enforcement officer may obtain a nonconsensual and warrantless blood sample from a drunk driver under the exigent circumstances exception to the Fourth Amendment warrant requirement based upon the natural dissipation of alcohol in the bloodstream.

Although the Palm Beach Post published a brief report on the arguments, a more thorough discussion of the oral argument can be found at SCOTUSblog.  After reading the SCOTUSblog discussion, it seems that the Justices may be leaning towards requiring a warrant before a blood draw can be taken, except in exigent circumstances.  Here’s a few paragraphs from SCOTUSblog:

Endlessly repeating the claim that there would never be enough time to get a warrant before alcohol content would dissipate, as the lawyers for the state and for the federal government did, seemed to impress not one member of the Court.  Even a Justice broadly sympathetic to law enforcement, like Justice Samuel A. Alito, Jr., used his questions to explore when officers in rural communities would be given a pass on a warrant requirement, without suspending that requirement altogether.

A few minutes into Missouri’s argument , by John N. Koester, Jr., an assistant prosecuting attorney in Jackson, Mo., Justice Antonin Scalia set the tone that would prevail.  “Why not force the suspect to take a breathalyzer test rather than having a needle forced into his arm?”  That question immediately demolished the notion that a blood test is not an invasive procedure and, being a form of force, was something that should not be left within complete police discretion.   And, of course, the only way to keep the procedure from being simply a matter of police choice was to require them to ask someone neutral for permission — in other words, seek a warrant.

Koester [also] learned quickly that Justice Anthony M. Kennedy, always a potential “swing” voter, was deeply skeptical of the never-enough-time argument.   Kennedy noted that half of the states do not allow the taking of DUI blood samples without a warrant, and they have streamlined procedures for issuing warrants that deal with the alcohol dissipation phenomenon.   “Does that bear on the question of reasonableness?” Kennedy asked, rhetorically.

Given the tenor of the Justices’ questions at oral argument, this case has potentially huge implications for Florida’s Implied Consent law.  Florida’s DUI defense and criminal appeals attorneys should stay tuned.  To read a transcript of the oral arguments, click here.  The audio recording should be available at the end of the week, on Friday, January 11, 2013.  The general page for links to the US Supreme Court audio recordings can be found by clicking here.

United States Supreme Court to Decide Circuit Split In Case Involving Application of Plain Error Standard in Criminal Appeals:Henderson v. United States, No. 11-9307

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Although the Court’s calendar is quiet for this Thanksgiving week, Florida’s criminal appeals attorneys might like to know that after Thanksgiving, the United States Supreme Court will be holding oral argument in a case involving the application of plain error standard in criminal cases where the law changes while the case is on appeal.  In Henderson v. United States, No. 11-9307, the question presented is:

Rule 52(b) of the Federal Rules of Criminal Procedure permits an appellate court to
correct a trial court’s “plain error” despite the lack of an objection in the trial
court.  In Johnson v. United States, 520 U.S. 461 (1997), this Court held that, when
the governing law on an issue is settled against the defendant at the time of trial
but then changes in the defendant’s favor by the time of appeal, “it is enough that
an error be ‘plain’ at the time of appellate consideration.”  Id. at 468.  Johnson did
not address the timing of plain-error review when the governing law on an issue is
unsettled at trial but clarified in the defendant’s favor while his appeal is pending.
The courts of appeals have split 5 to 3 on the question that Johnson left open. That
question, which this case squarely presents, is:
When the governing law is unsettled at the time of trial but settled in the
defendant’s favor by the time of appeal, should an appellate court reviewing for
“plain error” apply Johnson’s time-of-appeal standard, as the First, Second, Sixth,
Tenth, and Eleventh Circuits do, or should the appellate court apply the Ninth
Circuit’s time-of-trial standard, which the D.C. Circuit and the panel below have
adopted?

Happy Thanksgiving!

United States Supreme Court Considering Two Narcotics Dog Cases: Florida v. Jardines, No. 11-564, and Florida v. Harris, No. 11-817

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Florida’s criminal appeals and criminal defense attorneys might like to know that on Wednesday, October 31, 2012, the United States Supreme Court heard oral argument in two cases involving the use of narcotics dogs, both of which originated from our very own State of Florida.  In Florida v. Jardines, No. 11-564, the question presented is “whether a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog is a Fourth Amendment search requiring probable cause?”  In Florida v. Harris, No. 11-817, the question presented is “Whether the Florida Supreme Court has decided an important federal question in a way that conflicts with the established Fourth Amendment precedent of this Court by holding that an alert by a well-trained narcotics detection dog certified to detect illegal contraband is insufficient to establish probable cause for the search of a vehicle?”

According to a CNN report, in Jardines’ case, Miami-Dade police were acting on a tip when they went to Jardines’ front door with the drug dog, Franky, in tow.  The animal quickly responded, barking in the driveway, sniffing at the door, then sitting as he was trained to signal that drugs were nearby.  A detective testified he, too, smelled an unusual odor and noticed the air conditioning running continuously, along with the presence of moth balls on the stoop, used to mask scents.  The officers remained nearby on the premises while a search warrant was obtained.  Marijuana was found growing in the house.  The Florida Supreme Court overturned Jardines’ conviction, concluding the warrantless use of Franky was “unreasonable government intrusion into the sanctity of the home.”

In Harris’ case, after he was stopped by police for an expired tag, an officer brought in the drug dog, Aldo, who focused on the truck door handle.  A subsequent search produced 200 pills inside the vehicle used to make methamphetamine.  The Florida Supreme Court also reversed Harris’ conviction, finding that the dog was unreliable because a few weeks after the initial search, the man was again stopped in his vehicle and the dog gave a false alert.  The Florida Supreme Court concluded the State’s general assertion a dog was sufficiently “trained” and “certified” was not enough alone to establish probable cause justifying vehicle searches.

These should be some interesting opinions!