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

Tag: United States Supreme Court

Maryland v. King, No. 12-207: A Sad Day for the Presumption of Innocence

Ok, so here’s the breakdown of the Supreme Court’s decision in Maryland v. King, No. 12-207.  The Court was split 5-4.  In the majority are Justices Kennedy, Roberts, Thomas, Breyer, and Alito.  The dissenting opinion was authored by (who else?) Scalia.  He was joined by Justices Ginsburg, Sotomayor, and Kagan.  I don’t know about you, but that seems like a rather odd lineup.

Now for the substance of the opinion.  After discussing the technical aspects of the Maryland DNA Collection Act, the evolution of DNA technology in the criminal justice system, and the Federal national DNA database known as CODIS, the Court noted that the cornerstone of Fourth Amendment analysis of governmental intrusions is reasonableness.   See Maryland v. King, No. 12-207, slip op. pg. 8.  After weighing privacy interests v. law enforcement interests, the Court, as you know by now, sided with law enforcement.  Rather than go through the opinion in an objective manner, I’d like to point out some passages that I find rather unsettling.

First, in an effort to describe the critical role DNA plays in the identification of arrestees, the Court made the following observations: (1) arrestees often conceal their true identity; (2) people detained for minor offenses often turn out to be the most devious of and dangerous criminals; (3) only hours after the Oklahoma City bombing, Timothy McVeigh was stopped for driving without a license plate; (4) police stopped serial killer Joel Rifkin for the same reason; (5) one of the terrorists involved in the September 11 hijacking was stopped and ticketed for speeding two days before the hijacking.  See King, slip op., pg. 13.

In another disturbing passage, the Court discussed how an arrestee’s past conduct is essential to an assessment of the danger he poses to the public, and that such information will be used by courts to determine whether to release arrestees on bail.  See King, slip. op, pg. 15.  Specifically, the Court notes that knowing that the defendant is wanted for a violent offense based on DNA identification is especially probative of the court’s consideration of the danger the defendant poses to the community.  See King, slip op., pg.  15.  Interestingly, the Court cited to the Federal Bail Reform Act, 18 U.S.C. 3142, as being similar to the Maryland Act.  See id.   If you’re a Florida criminal defense attorney who appears regularly in Federal court, then you already know that the Bail Reform Act is significantly different from bail in Florida’s state courts.  (While criminal defendants charged in Florida state court enjoy a constitutional right to bail, there is no such right under the Federal Act.)  The Court also noted that even if an arrestee is released on bail, development of the DNA identification which reveals a defendant’s unknown violent past can and should be used to revoke his conditional release.  See id. at pg. 17.

I don’t know about you, but the above sections seem to reflect an intent to incarcerate someone out of fear of what may happen in the future, as opposed to the offense for which he or she has actually been convicted.  However, this mentality runs contrary to the cornerstone of the United States criminal justice system: that every person is presumed innocent.

While you should take a few minutes to review the opinion for yourself, the best part of the opinion is no doubt the dissent authored by Justice Scalia.  After reading Scalia’s persuasive commentary, it’s hard to imagine how 5 Justices of the United States Supreme Court were able to reach the decision they did.

Maryland v. King, No. 12-207: United States Supreme Court Holds That Police Can Take DNA Swab As Part of Booking Procedure

Well, Florida attorneys handling criminal defense and criminal appeals should know that there was a big opinion issued by the United States Supreme Court today.  In Maryland v. King, No. 12-207, the Court held that police may now take a DNA swab as part of the booking procedure of an arrest supported by probable cause.  I haven’t had a chance to read the 50-page opinion yet, but I didn’t want to delay things any further.  Here’s a link to one of the news reports, and another link to a great summary on SCOTUSblog.

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

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.

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

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

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).


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