Category Archives: U.S. Supreme Court

Lafler v. Cooper, No. 10-209: A Follow-Up to Missouri v. Frye, No. 10-444

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This is a follow up to my last post, where I discussed an opinion issued by the United States Supreme Court, Missouri v. Frye, No. 10-444, wherein the Court held that a criminal defense lawyer’s failure to communicate a plea offer may provide a basis for federal habeas relief.  In Lafler v. Cooper, No. 10-209, issued the same day as Frye, the Court addressed the issue of what remedies may be available to such a federal habeas petitioner.

Lafler went to trial rather than accept a plea deal.  Because Lafler received a more severe sentence at trial, one 3½ times more severe than he likely would have received by pleading guilty, all the parties conceded that Lafler’s decision to reject the plea offer was the result of ineffective assistance during the plea negotiation process.  As a result, the specific issue addressed by the Court was “how to apply Strickland’s prejudice test where ineffective assistance results in a rejection of the plea offer and the defendant is convicted at the ensuing trial.”  Lafler, slip op. at pgs. 4-7.

Although the District Court ordered specific performance of the original plea agreement as a remedy, the Court held that the correct remedy under the circumstances  is to order the State of Michigan to reoffer the plea agreement.  If Lafler accepts the offer, the state trial court would then be free to exercise its discretion under the relevant State law to determine whether to vacate the convictions and resentence Lafler pursuant to the plea agreement, to vacate only some of the convictions and resentence Lafler accordingly, or to leave the convictions and sentence from trial undisturbed.  As noted by the Court, its decision “leaves open to the trial court how best to exercise that discretion in all the circumstances of the case.”  Lafler, slip op. at pg. 16.

In my view, this decision is yet another step by the Court to becoming a kinder, more gentler Court for federal habeas petitioners.  For one of my previous posts on the Court’s change, click here.  To read more about the oral arguments in the companion cases of Frye and Lafler, click here.

United States Supreme Court Addresses Claims of Ineffective Assistance of Counsel for Failure to Communicate Plea Offers: Missouri v. Frye, No. 10-444

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Any experienced criminal defense lawyer should know that he or she has a duty to communicate plea offers to their client.  But did you know that failing to communicate a plea offer might subject you to a claim of ineffective assistance of counsel?  The United States Supreme Court recently addressed this issue in Missouri v. Frye, No. 10-444.  In Frye, the defendant entered a plea of guilty to the charge of driving with a revoked license.  After being sentenced, he filed a motion for postconviction relief based on his attorney’s failure to communicate a plea offer which had lapsed prior to his entering the plea.  Predictably, Frye testified at an evidentiary hearing that he would have entered a guilty plea to the misdemeanor had he known about the offer.  In its Opinion, the Court focused on the factual “context of claimed ineffective assistance that led to the lapse of a prosecution offer of a plea bargain, a proposal that offered terms more lenient than the terms of the guilty plea entered later.”  Slip Op. at pg. 1.  The Court therefore framed the issue as “whether the constitutional right to counsel extends to the negotiation and consideration of plea offers that lapse or are rejected.”  Slip Op. at pg. 1.

In holding that the right to counsel extends to such plea offers, the Court reasoned that today’s criminal justice system has become dominated by the plea-bargaining process.  As noted by the Court, because today’s system is based on pleas, as opposed to trials, “the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant” for purposes of the Sixth Amendment’s right to effective assistance of counsel.  Slip op. at pg. 8.  Next, the Court held that “defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.”  Slip op. at pg. 9.  Because counsel failed to communicate the formal offer to Frye, the Court held that counsel had performed deficiently under Strickland v. Washington, 466 U. S. 668, 686 (1984).

Turning to the prejudice prong of Strickland, the Court then stated that defendants must show (1) a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel; and, (2) a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law.   The Court further noted that to establish prejudice, a defendant would have to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time.  Slip op., pg. 12.

As I was reading the rather dry majority opinion, something was not sitting right with me.  I wondered: how can the Court reconcile its decision (that counsel can be deemed ineffective for failing to communicate a plea offer) with the fact that a defendant has no right to be offered a plea in the first place, or a federal right to have the trial court accept a plea?  After all, the majority opinion acknowledged such fact at pages 5 and 12 of the slip opinion (citing Weatherford v. Bursey, 429 U. S. 545, 561 (1977); and Santobello v. New York, 404 U. S. 257, 262 (1971)).

Then, reading the opening paragraph of Justice Scalia’s dissent, I had one of those “aha!” moments.  Scalia wrote,  “Counsel’s mistake did not deprive Frye of any substantive or procedural right; only of the opportunity to accept a plea bargain to which he had no entitlement in the first place.”  Scalia Dissent, Slip. Op. at pgs. 1-2.  Scalia further noted that the majority acknowledged that the plea that Frye ultimately accepted was not tainted by any attorney error.  Scalia Dissent, Slip Op. at pg. 2.

Against those two points, Scalia presents a logical argument: that the majority opinion certainly seems to be out of sync with previous jurisprudence in this area.  The remainder of Justice Scalia’s dissent contains a good discussion of the difficulties that the Court’s majority opinion has left the lower courts, and criminal defense lawyers, to deal with.  I highly suggest that anyone who practices in this area to take a few moments to read the opinion.

In my next post, I’ll discuss Lafler v. Cooper, No. 10-209, another opinion released on the same day as Frye, which addresses other questions relating to ineffective assistance with respect to plea offers, including remedies.

Martel v. Clair, No. 10-1265: United States Supreme Court Considers Motions to Substitute Counsel in Federal Habeas Proceedings for Capital Cases

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If you are a Florida criminal defense lawyer that handles federal habeas petitions in capital cases, the United States Supreme Court has issued an opinion that you may be interested in reading.  In Martel v. Clair, No. 10-1265, the Court held that motions to substitute counsel brought under 18 U.S.C. § 3599(e) should be evaluated using the same “interests of justice” standard applied in non-capital cases under a 18 U.S.C. § 3006A.  In so doing, the Court agreed with Clair, not the State of California, as to the standard that should be applied.

However, the Court went on to hold that Clair failed to show that the District Court abused its discretion when it denied Clair’s motion to substitute counsel.   In support of such holding, the Court reasoned that (1) during the 10 year period that Clair’s habeas petition was being litigated, Clair had filed, then dropped, several previous motions to substitute counsel; (2) the Court had already held an evidentiary hearing and entertained substantial post-hearing briefing; (3) because the motion for substitution of counsel claimed that new evidence had been discovered, granting Clair’s motion would mean that the District Court would have had to allow Clair to either amend his habeas petition, and allow a stay of the petition to allow Clair to exhaust his remedies in State court; and, (4) by the time that Clair had filed his motion to substitute counsel, the District Court had already ruled that further submissions would not be permitted.

The end result of the case may seem harsh.  After all, the Supreme  Court affirmed the District Court’s denial of Clair’s motion to substitute counsel, observing that “[t]he court was not required to appoint a new lawyer just so Clair could file a futile motion.”  Clair, No. 10-1265, slip op. at pg. 16.  However, attorneys familiar with capital cases and habeas proceedings should not be surprised that the Court had to call an end to the litigation at some point in time.

Messerschmidt v. Millender, No. 10-704: United States Supreme Court Reaffirms the Leon Good Faith Exception, Finds Officers are Entitled to Qualified Immunity

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On February 22, 2012, the United States Supreme Court issued an opinion in Messerschmidt v. Millender, No. 10-704, wherein the Court reaffirmed the good faith exception to the exclusionary rule, as set forth in United States v. Leon, 486 U.S. 897, 922-923 (1984).  Florida’s criminal defense and criminal appeals attorneys should take a few minutes and read through Messerschmidt, because the Court applies the Leon standard to an arguably facially overbroad search warrant.

The case began as a police investigation into Jerry Ray Bowen’s attempted shooting his girlfriend, Shelly Kelly.  As part of the investigation, police drafted a warrant to search the home of Bowen’s former foster-mother, Augusta Millender.  Because Shelly Kelly told officers about Bowen’s gang membership and prior violent and firearms offenses, the warrant at issue was drafted to search for and seize the following:

“All handguns, rifles, or shotguns of any caliber, or any firearms capable of firing ammunition, or firearms or devices modified or designed to allow it [sic] to fire ammunition.  All caliber of ammunition, miscellaneous gun parts, gun cleaning kits, holsters which could hold or have held any caliber handgun being sought.  Any receipts or paperwork, showing the purchase, ownership, or possession of the handguns being sought.  Any firearm for which there is no proof of ownership.  Any firearm capable of firing or chambered to fire any caliber ammunition.”

“Articles of evidence showing street gang membership or affiliation with any Street Gang to include but not limited to any reference to ‘Mona Park Crips’, including writings or graffiti depicting gang membership,activity or identity.  Articles of personal property tending to establish the identity of person [sic] in control of the premise or premises.  Any photographs or photograph albums depicting persons, vehicles, weapons or locations, which may appear relevant to gang membership, or which may depict the item being sought and or believed to be evidence in the case being investigated on this warrant, or which may depict evidence of criminal activity.  Additionally to include any gang indicia that would establish the persons being sought in this warrant, affiliation or membership with the ‘Mona Park Crips’ street gang.”

Messerschmidt, No. 10-704, slip op. at pg. 4.  Two affidavits in support of the warrant outlined the officer’s extensive training and experience in gang-related activity, as well as why the officer thought there was sufficient probable cause to support the issuance of the warrant.  See Id.

After Millender sued the officers, including Messerschmidt, under 42 U.S.C. section 1983, alleging that the officers subjected them to an unreasonable search and seizure under the Fourth Amendment, the officers claimed qualified immunity.  The District Court found that the officers were not entitled to the defense, and the Ninth Circuit agreed.  The United States Supreme Court reversed.

In holding that the officers were entitled to qualified immunity based on their good faith execution of the warrant, the Court reasoned that (1) based on the circumstances of the case, it would not have been “entirely unreasonable” for an officer to believe that there was probable cause to search for all firearms and firearm-related materials; (2) based on the facts as contained in the affidavit, it was reasonable for officers to believe that evidence of Bowen’s gang membership would aid the prosecution of Bowen; and, (3) by having the warrant reviewed and approved by police supervisors and a neutral magistrate, the officers “took every step that could reasonably be expected of them.”  The Court further reasoned that the Ninth Circuit erred in relying on Groh v. Ramirez, 540 U. S. 551 (2004), because that case was factually distinguishable in that Groh concerned a warrant that failed to describe the items to be seized at all.

Justice Sotomayor’s dissent (joined by Justice Ginsburg) raises an interesting point: that as the case wound its way through the courts, all 13 Judges who had presided over the case came to the same conclusion: that the officers were not entitled to qualified immunity.  With that in mind, it seems rather shocking that it a majority of the High Court came to the completely opposite conclusion!  How can that be?  At first, you might think that political bias may have played a role.  After all, the majority opinion was delivered by Chief Justice Roberts, and joined by Justices Scalia, Kennedy, Thomas, and Alito.  But then, as I reread the majority opinion, I think I found the answer:  the majority’s analysis focused on the facts as contained in the warrant and affidavits at the time that they were drafted and executed by the officers.  However, in the dissent, Justices Sotomayor and Ginsburg focused their analysis on the officers’ testimony which was given in discovery proceedings, while the lawsuit was being litigated in court, a point in time which is well after the warrant was drafted and executed.  See Messerschmidt, slip op. at pg. 10, n. 2 (noting that the dissent relies on facts which were outside the affidavit, including Messerschmidt’s deposition testimony and other evidence, and only referred to the probable cause affidavit twice).

United States Supreme Court Affirms Removal of Asian Husband and Wife, Lawful Permanent Residents Since 1984, After They Are Convicted of Filing False Tax Returns: Kawashima v. Holder, No. 10-577

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Now that the Mardi Gras season is over, the federal criminal defense and immigration defense lawyers in Palm Beach, Broward, and Miami Dade county may want to take a few moments moment to read a newly issued opinion from the United States Supreme Court: Kawashima v. Holder, No. 10-577.  On February 21, 2012, the Court affirmed the deportation and removal of Akio and Fusako Kawashima, natives and citizens of Japan who were lawful permanent residents of the United States since June 21, 1984.  According to the opinion, in 1997, Mr. Kawashima pleaded guilty to one count of willfully making and subscribing a false tax return in violation of 26 U.S.C. § 7206(1), and Mrs. Kawashima pleaded guilty to one count of aiding and assisting in the preparation of a false tax return in violation of 26 U.S.C. § 7206(2).  After  framing the issue as “whether aliens who commit certain federal tax crimes are subject to deportation as aliens who have been convicted of an aggravated felony,” the Court held that “violations of 26 U. S. C. §§ 7206(1) and (2) are crimes ‘involv[ing] fraud or deceit’ under 8 U.S.C. § 1101(a)(43)(M)(i) and are therefore aggravated felonies as that term is defined in the Immigration and Nationality Act, 8 U. S. C. § 1101 et seq., when the loss to the Government exceeds $10,000.”

Justice Thomas delivered the majority opinion of the Court, and was joined by the other conservative members of the Court, Chief Justice Roberts, and Justices Scalia, Kennedy, Alito, and Sotomayor.  Although the majority opinion is a rather short 11 pages, be warned: the writing is a dry, statutory construction discussion of several  tax and immigration sections, including 26 U.S.C. §§ 7206(1), (2), and 8 U.S.C. §§ 1101(a)(43)(M)(i) and 1227(a)(2)(A)(iii) of the Immigration and Nationality Act.

As with most Supreme Court opinions, the dissenting opinion is once again the most interesting part to read.  While Justices Ginsburg, Breyer, and Kagan also undertake a statutory-construction discussion, the critical tone in which the dissenters point out the flaws of the majority opinion cannot be mistaken.  Ordinarily, I would summarize the points in the dissenting opinion for you, but in this case, Justice Ginsburg’s writing is so persuasive, that I think that you really should take a few moments and read it for yourself.

On a side note, I am interested to see how much media attention, if any, the Kawashima opinion will receive.  Immigration is always a hot-button issue in American politics, but I suspect that this case will attract little, if any attention.   After all, it’s a boring tax and immigration case, right?  If any of you are basketball fans out there, you probably know of some of the racial comments that have been made about the New York Knicks’ Jeremy Lin.  And if you read the article that I read on CNN this morning, you might also know that for some reason, racism against Asians appears to be more socially acceptable than racism against other minority groups.  Saturday Night Live addressed that topic nicely, as you’ll see if you read the article yourself.  I suspect that in light of today’s culture, nobody will care much at all about the fact that Mr. and Mrs. Kawashima are going to be deported because they are Asian.  I hope that’s not the case.  I hope that people instead think about what really happened here: Mr. and Mrs. Kawashima, lawful permanent residents of the U.S. since 1984, made the unfortunate choice of filing false tax returns.  And now they are being deported?

A Kinder, Gentler Court for Federal Habeas Petitioners? Holland v. Florida, 130 S.Ct. 2549 (2010)

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Since my previous post on the United States Supreme Court case of Maples v. Thomas, No. 10-63, I’ve been wondering if we are seeing a kinder, gentler Court, at least in the area of federal petitions for writ of habeas corpus.  I think the answer is yes.

If you took a few moments to read Maples, you’re familiar with the Court’s exercise of leniency toward Maples, which is somewhat rare in habeas cases.  (As I mentioned in my previous post, habeas petitioners are often penalized for mistakes made by their postconviction attorney).  You’d also recall that in Maples, the Court relied heavily on Holland v. Florida, 130 S.Ct. 2549 (2010).

Holland is another case where the Supreme Court also showed leniency toward a federal habeas petitioner.  In Holland, the Court held, for the first time, that (1) the one year statute of limitations contained in section 2244(d) (governing the filing of section 2254 federal habeas petitions challenging state court convictions) can be tolled for equitable reasons; and, (2) an attorney’s professional misconduct may, at times, constitute “extraordinary circumstances” to warrant equitable tolling.  See Maples, No. 10-63, slip op. at *13 (recalling holding of Holland).  Significantly, in Holland, the Court explicitly stated that the analysis employed by the Eleventh Circuit to determine whether an attorney’s misconduct might warrant equitable tolling was “too rigid.”  See Holland, 130 S.Ct. at 2549.  While the Court didn’t reach the conclusion that the professional misconduct of Holland’s attorney rose to the level of “extraordinary circumstances” sufficient to warrant equitable tolling, the Court did remand the case back to the Eleventh Circuit for such a determination.  See Holland, 130 S.Ct. at 2565.  The Eleventh Circuit, in turn, remanded the matter back to the District Court for a possible evidentiary hearing on the issue.  See Holland v. Florida, 613 F.3d 1053 (11th Cir. 2010).  As of the date of this post, the status and disposition of Holland’s case in the District Court is unclear.  Westlaw does not show any further published opinions subsequent to the Eleventh Circuit remand at 613 F.3d 1053.  However, I suppose if you have time to kill, you could always check PACER for the status of Holland’s case.  His case originated locally, in the United States District Court for the Southern District of Florida, and appears to be assigned case number No. 06-20182-CV-PAS (Judge Seitz).

While I have not yet had the time to review the 2,358 opinions which cite to Holland, I think it’s fair to say that Holland may have begun a new era in postconviction litigation.  While it’s true that habeas petitioners have long argued that they should not be held accountable for the mistakes of their lawyers, habeas petitioners now have a strong case to point to in support of such argument.

Criminal Defense Lawyers Thinking Outside the Box and Suggestions for the United States Supreme Court

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Well, it is now Friday afternoon in South Florida, so I thought I would pass along some short thoughts for the weekend.

1.) Sanders v. State, No. 4D10-3865, is, in my opinion, a great example of a criminal defense lawyer thinking outside the box.  After the trial court denied the defense motion to dismiss, on appeal, the 4th District Court of Appeal reversed.  In short, the Court agreed with the defense that the grand theft charges should have been dismissed because the theft was committed while the plane was in flight, before touching down in Florida.  I am sure that this argument would have driven me crazy back when I was a prosecutor, but now, I think it’s pretty clever!

2.) Lately, some high-profile people, such as Erwin Chemerinsky, Dean of University of California, Irvine School of Law (and well-known Supreme Court lecturer), have been calling for the Supreme Court to make itself more accessible to the common people.  Some of Dean Chemerinsky’s suggestions include allowing television cameras into the courtroom to broadcast oral arguments, letting the public know in advance which decisions it will be releasing, hiring a “clear writer” to reduce each decision down to a single paragraph that would accompany a ruling, and explaining why certiorari was denied.  In another report on CNN, Joe Mathewson, a former attorney and Supreme Court reporter for the Wall Street Journal, also calls for the installation of cameras in the courtroom in time for the oral arguments scheduled in the case where the Court will decide the constitutionality of President Obama’s new healthcare law.  The case, Dept. of Health & Human Srvcs. v. Florida, No. SC11-398, is set for oral argument on Monday, March 26, 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.