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Tag: supreme court

Parker: Supreme Court Was Pretty Good To Law Enforcement This Year

 
Ross Parker was chief of the criminal division in the U.S. Attorney’s Office in Detroit for 8 years and worked as an AUSA for 28 in that office.

Ross Parker

 
By Ross Parker
ticklethewire.com

With a couple of notable exceptions the Supreme Court continued to be good to law enforcement in general this past year of 2014, particularly to federal agencies. The functioning so-called “conservative” majority of Chief Justice Roberts along with Justices Scalia, Thomas, Alito, and Kennedy was not invariably responsible for this result. In fact, predicting in advance the votes of particular Justices on particular issues was a dicey exercise.

Although the Supreme Court decides cases by September to June terms, just like most school kids in America, this column will examine notable 2014 Criminal Cases (and those which might be of interest to federal agents). Most were decided in the 2013-2014 term with a few already ruled upon in the 2014-2015 term.

Vehicle Stop Cases

Plumhoff v. Rickard (5/27) – Upholds the use of deadly force (shooting the driver) to end a dangerous car chase by police of a wanted driver of a vehicle that was endangering other drivers and pedestrians.

Navarette v. California (4/27) – Officer had reasonable suspicion that justified a vehicle stop based on an anonymous 911 call that the vehicle had run the caller off the road. Similar cases invalidating stops were distinguished because in this case the informant had actually seen criminal activity.

Hein v. North Carolina (12/15) – An officer’s mistake of law (that a car must have two working brake lights under NC law) if reasonable under the circumstances can validate reasonable suspicion to stop a vehicle.

Search and Seizure Cases

Fernandez v. California (2/25) – Consent to search given by an abused co-inhabitant to police after they had arrested and removed from the house an objecting inhabitant was valid. Prior cases invalidating cases were distinguished since the objecting occupant in those cases was still physically present when the officers acted on the consent of the other occupant.

Riley v. California (6/25) — Officers cannot search digital information from a cell phone seized as incident to an arrest absent a valid search warrant. Such a warrantless search could still be valid in exigent circumstances. See an earlier column for a detailed analysis.

Firearm Cases

Rosemund v.US  (3/5) – Conviction for aiding and abetting a crime of carrying a gun requires proof that the defendant knew in advance that the carrier would be armed and that the defendant had a realistic opportunity to abandon the crime.

Abarmski v. US (6/16) – A straw buyer (who happened to be a policemen buying for his uncle and with his uncle’s money) who purchases a firearm on behalf of another person while filling out the ATF form that the purchase was for himself violates the sec. 922(a)(6) false statement prohibition, even if the other person could have legally purchased the firearm. This was a 5-4 decision in which the normally pro law enforcement Justices voted in the dissent.

US v. Castleman (3/26) – Dismissal of Armed Career Criminal Act charges was reversed by a holding that a prior misdemeanor conviction for domestic violence barred firearm possession under sec. 922(g)(9) even though no physical force had been used in the assault.

Capital Punishment Cases

Hall v. Florida (5/27) – Florida statute which established a bright line rule for defining intellectual disability for the purpose of qualifying for the death penalty at IQ 70 was invalidated as too rigid and permitted an unacceptable risk of executing a disabled defendant. See an earlier column for more detailed analysis.

Note – The nation’s struggle to establish due process in this category continued, sometimes with bizarre results. The majority of states have eliminated the death penalty either de facto or by legislation and in only a handful of southern states does it remain in use. Henry Lee McCollum was exonerated by DNA after he had spent over 30 years on death row in North Carolina in a case that Justice Scalia is said to have ridiculed his appeal a decade earlier. In Arizona a motion to stop an execution was filed and argued by conference call in the middle of an execution by lethal injection when death did not result for over two hours. Alabama continued to be the only state to permit judges to disregard a jury’s verdict of life imprisonment and to impose a death sentence. This has occurred 95 times in the last 30 years and 43 defendants are on death row under the same circumstances.

Controlled Substances Case

Burage v. US (1/27) – Government must prove beyond a reasonable doubt a “but-for” causation in order to convict a defendant of distribution where death results. Contributing to or acting as a substantial cause in the death is insufficient.

Cases Involving Agents

Wood v. Moss (5/27) – Secret Service Agents were entitled to qualified immunity in a Bivens civil action where they moved a protest group two blocks away and out of sight of the President when he unexpectedly decided to deviate from a planned motorcade route in Oregon in order to eat lunch. The agents acted in good faith with valid security concerns. The fact that the protesters could not continue their expressions like the supporters when the President went back to the planned route did not justify the civil suit.

US v. Clark (6/9) – A bare allegation that IRS agents had acted with an improper purpose, without adequate facts, was insufficient to compel them to be subject to examination in a civil action by taxpayers who had been summoned to testify and produce documents.

In these dozen cases, dedcisions favorable to law enforcement were an 8 to 4 majority, a good result in most fields of endeavor.

 

 

Michigan Supreme Court Justice Michael F. Cavanagh’s Remarkable Judicial Career Celebrated

By Ross Parker
ticklethewire.com

Legal luminaries this week celebrated the distinguished judicial career of Michigan Supreme Court Justice Michael F. Cavanagh, the longest serving appellate judge in state history. Several hundred people attended the court’s extraordinary session in Lansing on December 3rd to express their appreciation for his exceptional service to the legal profession and the people of the state of Michigan.

Justice Cavanagh became a judge in 1972 when he was elected as a district judge in Lansing. Two years later he was elected as Judge of the Michigan Court of Appeals, and in 1983 the electorate promoted him to the state Supreme Court where he has served for thirty-three years. He was Chief Justice from 1991-1995. When he retires on January 1st  next year, he will have sat on the bench for forty-two years and ruled on nearly 100,000 cases.

His life on the bench reminds us of the qualities that make up a great judge: integrity, a consistent sense of justice, common sense, contribution to the development of the rule of law, and civility.

Successfully navigating the treacherous waters of Michigan judicial politics is itself a notable accomplishment. There are many arguments against an elected judiciary. Voter neglect and indifference regularly produce judges who are mediocre or worse and who serve as prime examples of why a well constructed appointive system makes more sense. But Justice Cavanagh is the exception. Even when his views on subjects such as criminal law and procedure are out of the mainstream, he continues to be respected for the integrity of his opinions.

Fifty years ago Chief Justice Earl Warren and the U. S. Supreme Court revolutionized criminal procedure in America by a decade of cases which re-interpreted the 4th, 5th, and 6th Amendments to the Constitution. In the decades which followed many of these rulings have been tempered and contracted by conservative Court majorities who struck the balance differently between defendants’ rights and crime control.

As prosecutors we have applauded this shift. So why should we celebrate the views of judges like Justice Cavanagh, who often ruled contrary to the changing majority by supporting the continued expansion of defendants’ rights? Because his views, majority or dissent, made us all better prosecutors and law enforcement officers. They poked and prodded us in the nuances of investigation and prosecution to be more careful, more consistent, and more professional in our jobs. His sense of justice contributed significantly to the creation of a better criminal justice system.

His enrichment toward the development of the rule of law extends well beyond criminal law and procedure into a wide variety of other substantive areas. He also mentored 53 law clerks (including me), was a law school teacher of ethics and practice, a champion of victims’ rights, a national leader in the support of tribal courts, and a tireless worker for the improvement of the law and its practitioners.

For all of these attributes, it is Michael Cavanagh’s civility and peacemaking qualities which are most valued by those who worked with and for him.  Having seen judges who demean, terrify, and reduce lawyers to tears, and having been the object of thrown briefs, vocal tirades, I have more than once wished, at least for a moment, that I had stayed on the family farm. But being in Justice Cavanagh’s presence is always a refreshing, even enjoyable, experience.

Justice Cavanagh is that rare judge who can probe and question, and even ultimately rule against you, without making litigators want to retreat to a life of wills and debt collection in the safety of their offices. Surely this courtesy and respect will continue to be paid forward into countless acts of civility and professionalism by lawyers and judges for decades to come.

So thanks Justice Michael Cavanagh. Your life’s work made a difference for us all.

Parker: Michigan Supreme Court Justice Michael F. Cavanagh’s Remarkable Judicial Career Celebrated

Ross Parker was chief of the criminal division in the U.S. Attorney’s Office in Detroit for 8 years and worked as an AUSA for 28 in that office.
By Ross Parker
ticklethewire.com

Legal luminaries this week celebrated the distinguished judicial career of Michigan Supreme Court Justice Michael F. Cavanagh, the longest serving appellate judge in state history. Several hundred people attended the court’s extraordinary session in Lansing on December 3rd to express their appreciation for his exceptional service to the legal profession and the people of the state of Michigan.

Justice Cavanagh became a judge in 1972 when he was elected as a district judge in Lansing. Two years later he was elected as Judge of the Michigan Court of Appeals, and in 1983 the electorate promoted him to the state Supreme Court where he has served for thirty-three years. He was Chief Justice from 1991-1995. When he retires on January 1st  next year, he will have sat on the bench for forty-two years and ruled on nearly 100,000 cases.

His life on the bench reminds us of the qualities that make up a great judge: integrity, a consistent sense of justice, common sense, contribution to the development of the rule of law, and civility.

Successfully navigating the treacherous waters of Michigan judicial politics is itself a notable accomplishment. There are many arguments against an elected judiciary. Voter neglect and indifference regularly produce judges who are mediocre or worse and who serve as prime examples of why a well constructed appointive system makes more sense. But Justice Cavanagh is the exception. Even when his views on subjects such as criminal law and procedure are out of the mainstream, he continues to be respected for the integrity of his opinions.

Fifty years ago Chief Justice Earl Warren and the U. S. Supreme Court revolutionized criminal procedure in America by a decade of cases which re-interpreted the 4th, 5th, and 6th Amendments to the Constitution. In the decades which followed many of these rulings have been tempered and contracted by conservative Court majorities who struck the balance differently between defendants’ rights and crime control.

As prosecutors we have applauded this shift. So why should we celebrate the views of judges like Justice Cavanagh, who often ruled contrary to the changing majority by supporting the continued expansion of defendants’ rights? Because his views, majority or dissent, made us all better prosecutors and law enforcement officers. They poked and prodded us in the nuances of investigation and prosecution to be more careful, more consistent, and more professional in our jobs. His sense of justice contributed significantly to the creation of a better criminal justice system.

His enrichment toward the development of the rule of law extends well beyond criminal law and procedure into a wide variety of other substantive areas. He also mentored 53 law clerks (including me), was a law school teacher of ethics and practice, a champion of victims’ rights, a national leader in the support of tribal courts, and a tireless worker for the improvement of the law and its practitioners.

For all of these attributes, it is Michael Cavanagh’s civility and peacemaking qualities which are most valued by those who worked with and for him.  Having seen judges who demean, terrify, and reduce lawyers to tears, and having been the object of thrown briefs, vocal tirades, I have more than once wished, at least for a moment, that I had stayed on the family farm. But being in Justice Cavanagh’s presence is always a refreshing, even enjoyable, experience.

Justice Cavanagh is that rare judge who can probe and question, and even ultimately rule against you, without making litigators want to retreat to a life of wills and debt collection in the safety of their offices. Surely this courtesy and respect will continue to be paid forward into countless acts of civility and professionalism by lawyers and judges for decades to come.

So thanks Justice Michael Cavanagh. Your life’s work made a difference for us all.

Supreme Court Effortlessly Throws Out Warrantless Cell Phone Searches

Ross Parker was chief of the criminal division in the U.S. Attorney’s Office in Detroit for 8 years and worked as an AUSA for 28 in that office.
 
By Ross Parker
ticklethewire.com

Guessing the correct result and even the basic rationale of the Supreme Court’s cell phone case could be considered a minor achievement, but not even the most ardent defense attorney would have predicted that the opinion would be a unanimous 9-0 decision authored by the normally pro-law enforcement Chief Justice. Chief Justice Roberts’ opinion held, without a single dissent, that the warrantless search of an arrestee’s cell phone incident to his arrest was in violation of the 4th Amendment. It’s embarrassing to miss the ease with which the Court made the decision.

In doing so the Court resolved a split in lower courts and rejected a line of cases which compared the cell phone search to be analogous to the previously authorized search of an arrestee’s papers, diaries and the like. That had been the rationale of one of the two cases reviewed, the California Court of Appeals decision in Riley v. California, which had upheld the police search of a man’s cell phone when he was stopped on a traffic charge and then arrested for illegal firearm possession. The search had produced data linking him to a gang shooting, and he was convicted of attempted murder. Instead the Court followed the other decision reviewed, U.S. v. Wurie, in which the Court of Appeals threw out drug and firearm convictions for a defendant whose cell phone was searched incident to his arrest.

The Court rejected the Justice Department position and reasoned that the invasion of privacy was not comparable to the other cases involving the search of notes, private documents and the like. The extent of private material exposed in a modern cell phone is of an entirely different magnitude than that which could be kept in such papers. The extra-legal consideration was perhaps left between the lines. Everyone including Supreme Court Justices has a cell phone and increasingly relies on it for a variety of private and extensive purposes.

The opinion found a clear distinction in the latest cell phone technology and its ever-expanding capacity to store a vast trove of private information. From a legal analysis standpoint (and foreseeable only with 20-20 hindsight), the case was a logical extension of the Court’s increasing propensity to rein in law enforcement’s use of advanced technology. Thermal imaging, DNA, and transponders are a few of the techniques which had been found to be “unreasonable searches” without prior judicial authorization.

So what does the case portend? The loss of free rein to investigate the secrets of those arrested without prior judicial authorization will be an inconvenience to law enforcement, especially since nearly every person arrested possesses a smart phone. But enterprising agents will mitigate this loss in many cases by imaginative considerations of probable cause to present to a judge. Other advanced tools of the expanding sources of technology should probably be second-guessed in terms of the need for a warrant. But most prosecutors and case agents were already aware of this trip for the unwary.

Does it mean a cutting back from the wide scope of non-cell phone searches incident? Probably not since the prior cases in this category set forth a fairly well defined course of action by arresting officers.

On the other hand, being presumptuous about who your friends are on the High Court can be a humbling experience.

 

Parker: Supreme Court Effortlessly Throws Out Warrantless Cell Phone Searches

Ross Parker was chief of the criminal division in the U.S. Attorney’s Office in Detroit for 8 years and worked as an AUSA for 28 in that office

Ross Parker

 
By Ross Parker
ticklethewire.com

Guessing the correct result and even the basic rationale of the Supreme Court’s cell phone case could be considered a minor achievement, but not even the most ardent defense attorney would have predicted that the opinion would be a unanimous 9-0 decision authored by the normally pro-law enforcement Chief Justice. Chief Justice Roberts’ opinion held, without a single dissent, that the warrantless search of an arrestee’s cell phone incident to his arrest was in violation of the 4th Amendment. It’s embarrassing to miss the ease with which the Court made the decision.

In doing so the Court resolved a split in lower courts and rejected a line of cases which compared the cell phone search to be analogous to the previously authorized search of an arrestee’s papers, diaries and the like. That had been the rationale of one of the two cases reviewed, the California Court of Appeals decision in Riley v. California, which had upheld the police search of a man’s cell phone when he was stopped on a traffic charge and then arrested for illegal firearm possession. The search had produced data linking him to a gang shooting, and he was convicted of attempted murder. Instead the Court followed the other decision reviewed, U.S. v. Wurie, in which the Court of Appeals threw out drug and firearm convictions for a defendant whose cell phone was searched incident to his arrest.

The Court rejected the Justice Department position and reasoned that the invasion of privacy was not comparable to the other cases involving the search of notes, private documents and the like. The extent of private material exposed in a modern cell phone is of an entirely different magnitude than that which could be kept in such papers. The extra-legal consideration was perhaps left between the lines. Everyone including Supreme Court Justices has a cell phone and increasingly relies on it for a variety of private and extensive purposes.

The opinion found a clear distinction in the latest cell phone technology and its ever-expanding capacity to store a vast trove of private information. From a legal analysis standpoint (and foreseeable only with 20-20 hindsight), the case was a logical extension of the Court’s increasing propensity to rein in law enforcement’s use of advanced technology. Thermal imaging, DNA, and transponders are a few of the techniques which had been found to be “unreasonable searches” without prior judicial authorization.

So what does the case portend? The loss of free rein to investigate the secrets of those arrested without prior judicial authorization will be an inconvenience to law enforcement, especially since nearly every person arrested possesses a smart phone. But enterprising agents will mitigate this loss in many cases by imaginative considerations of probable cause to present to a judge. Other advanced tools of the expanding sources of technology should probably be second-guessed in terms of the need for a warrant. But most prosecutors and case agents were already aware of this trip for the unwary.

Does it mean a cutting back from the wide scope of non-cell phone searches incident? Probably not since the prior cases in this category set forth a fairly well defined course of action by arresting officers.

On the other hand, being presumptuous about who your friends are on the High Court can be a humbling experience.

 

Two Democrats Criticize Obama Administration for Handling of NSA Spying

Steve Neavling
ticklethewire.com

Two Democratic senators are accusing the Obama administration of trying to “ignore or justify” factual misrepresentations to the Supreme Court about warrantless surveillance by the National Security Agency.

The New York Times reports that the senators, Mark Udall of Colorado and Ryan Wyden of Oregon, complained in a letter to Solicitor General Donald B. Verrilli Jr. that the Obama administration was contributing to a “culture of misinformation.”

The issue is over the legality of permitting warrantless NSA surveillance.

The Justice Department is reviewing the complaints.

Supreme Court to Consider Warrantless Cell Phone Searches

 
 
By Ross Parker
ticklethewire.com

The U. S. Supreme Court will hear argument today on two cases involving warrantless searches of cell phones. The case is probably the most important and most difficult 4th Amendment case of the term. Lower courts are split on the issue, and the number and tone of the appellate briefs in the cases illustrate the future ramifications of the case in the Cyber Age.

In U.S. v. Wurie the Court of Appeals threw out drug and firearm convictions for a defendant whose cell phone was searched incident to his arrest. The California Court of Appeals went the other direction in Riley v. California, upholding the police search of a man’s cell phone when he was arrested on firearms charges. The search produced data linking him to a gang shooting, and he was convicted of attempted murder.

Warrantless searches of all materials on the person of one lawfully arrested have traditionally been upheld without serious controversy. Isn’t the cell phone just a 21st Century version of a personal notebook or photo album? That is why many, perhaps most, commentators are predicting that the conservative majority of the Court will hand down a decision sometime before the end of the term in June which upholds the law enforcement position in these cases.

However, several factors seemingly unconnected to traditional 4th Amendment theory make this a much closer question. First, everyone including Supreme Court Justices has a cell phone and increasingly relies on it for a variety of purposes. Second, the latest cell phone technology has an ever-expanding capacity to store all kinds of private information. Finally, the Court has shown an increasing propensity to rein in law enforcement’s use of advanced technology. Thermal imaging, DNA, and transponders are a few of the techniques found to be “unreasonable searches” without prior judicial authorization. Traditionally conservative Justice Anton Scalia has surprised many by his views in this area.

Prediction: 5-4 vote requiring warrants for cell phone searches incident to arrests.

Parker: Supreme Court to Consider Warrantless Cell Phone Searches

Ross Parker was chief of the criminal division in the U.S. Attorney’s Office in Detroit for 8 years and worked as an AUSA for 28 in that office. 
 
By Ross Parker
ticklethewire.com

The U. S. Supreme Court will hear argument today on two cases involving warrantless searches of cell phones. The case is probably the most important and most difficult 4th Amendment case of the term. Lower courts are split on the issue, and the number and tone of the appellate briefs in the cases illustrate the future ramifications of the case in the Cyber Age.

In U.S. v. Wurie the Court of Appeals threw out drug and firearm convictions for a defendant whose cell phone was searched incident to his arrest. The California Court of Appeals went the other direction in Riley v. California, upholding the police search of a man’s cell phone when he was arrested on firearms charges. The search produced data linking him to a gang shooting, and he was convicted of attempted murder.

Warrantless searches of all materials on the person of one lawfully arrested have traditionally been upheld without serious controversy. Isn’t the cell phone just a 21st Century version of a personal notebook or photo album? That is why many, perhaps most, commentators are predicting that the conservative majority of the Court will hand down a decision sometime before the end of the term in June which upholds the law enforcement position in these cases.

However, several factors seemingly unconnected to traditional 4th Amendment theory make this a much closer question. First, everyone including Supreme Court Justices has a cell phone and increasingly relies on it for a variety of purposes. Second, the latest cell phone technology has an ever-expanding capacity to store all kinds of private information. Finally, the Court has shown an increasing propensity to rein in law enforcement’s use of advanced technology. Thermal imaging, DNA, and transponders are a few of the techniques found to be “unreasonable searches” without prior judicial authorization. Traditionally conservative Justice Anton Scalia has surprised many by his views in this area.

Prediction: 5-4 vote requiring warrants for cell phone searches incident to arrests.