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In August, 2010, the D.C. Circuit Court of Appeals became the first federal appeals court to rule that prolonged GPS tracking of a suspect's vehicle without a warrant violated the Fourth Amendment. In doing so, it reversed a conviction and life sentence of an alleged major drug trafficker.
This week, the Obama Administration petitioned the Supreme Court for a writ of certiorari in the case, asking it to find neither probable cause nor a warrant is required. You can read the petition, which has the circuit court's opinion attached, here. [More...]
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The Aspen Daily News reports that Aspen resident Devin Schutter won his challenge to the police search of his iPhone in the Colorado Supreme Court.
The Colorado Supreme Court on Monday upheld by a 6-1 vote the suppression of evidence against a man accused of selling cocaine, saying Aspen police exceeded “permissible limits” in trying to identify who owned a cell phone.
...In their ruling, the state justices said the “district court found that Schutter had not abandoned the iPhone, and even assuming it could be characterized as lost or mislaid property, the police invaded Schutter’s reasonable expectation of privacy in the contents of his phone without a search warrant or an appropriate exception to the Fourth Amendment warrant requirement.”
Devin had left the phone in the restroom of a gas station, along with the key to the bathroom. The door locked when he exited. He asked the clerk to retrieve it, but the clerk said he was busy. About an hour later, a cop came into the store and the clerk turned the phone over to him. The officer then answered the phone when it rang, and somene asked for Dev, whom they figured was Devin Shutter. Devin was already in their cross-hairs for allegedly selling cocaine.
When Devin went to the police station seeking the return of his phone, the police refused to give it to him. Then they searched through the text messages and calls, and based on that data, got a search warrant for Devin's mother's residence, where they discovered drugs. (Devin had been staying at his mother's home.) [More...]
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Here's just another example of the difference it makes who gets appointed to the Supreme Court. In 2009, the 5th Circuit Court of Appeals upheld a $14 million judgment for former death row inmate John Thompson against the New Orleans District Attorney's office for prosecutorial misconduct. The opinion was written by Judge Edward Prado.
Back in 2005, TalkLeft strongly endorsed Judge Prado for the Supreme Court. Instead, we got Justice Alito and then Chief Justice Roberts.
Today, the Supreme Court, in a 5-4 opinion with the conservative justices carrying the day, reversed the award. Justice Ginsburg's dissent is longer than the majority opinion. The opinions are here. Had Judge Prado or another judge with non-conservative views on criminal justice been appointed instead, the opinion would likely have gone the other way.
Judge Prado was appointed to the federal bench by President Reagan in 1984. Prior to that he had been both a prosecutor and a public defender and a state court judge. In 2003, then President Bush nominated him to the 5th Circuit Court of Appeals, where he was confirmed by a vote of 97 to 0.
In today's decision, Justice Ginsberg was joined in her dissent by Justices Breyer, Sotomayor and Kagan. Justice Ginsburg wrote: [More...]
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Former Qwest CEO Joe Nacchio, still serving a 70 month sentence on his insider trading conviction, has sued his chief defense counsel, ex-U.S. District Court Judge Herb Stern and his firm, Stern & Kilcullen LLC (including partner Kilcullen) for negligence in representing him and for overbilling.
The firm billed Nacchio more than $25 million to defend criminal and civil matters, charging tens of thousands of dollars for staff breakfasts, attorney underwear and in-room movies during the trial in federal court in Denver, according to the complaint in state Superior Court in Newark, New Jersey.
On the negligence, Nacchio alleges: [More...]
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The Supreme Court, in an opinion by Justice Ginsburg, has ruled that Hank Skinner, a Texas inmate, can sue under the federal civil rights act , for refusal to grant his request for DNA testing. The case is Skinner v. Switzer, and the opinion is here. The dissenting justices were Thomas, Scalia and Kennedy.
Texas enacted a law in 2001 allowing post-conviction DNA testing in certain circumstances. Skinner's request was refused by prosecutors who said he should have asked earlier.
Skinner sued under the Civil Rights Act (Section 1983) alleging Texas's statute violated his due process rights. The TX appeals court said his only remedy was a habeas petition. Today, the Supreme Court disagreed, stressing their ruling was narrow and would not open any floodgates (or as Justice Ginsburg put it, even cause any rainfall.) [More...]
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The Supreme Court ruled today, in Pepper v. United States (opinion here) that when a defendant's sentence has been set aside, the court, in resentencing defendant, may consider his post-sentence rehabilitation to impose a lower sentence. It also ruled the court can grant a greater downward departure than it ordered when orginally sentencing defendant.
We hold that when a defendant’s sentence has been set aside on appeal, a district court at resentencing may consider evidence of the defendant’s postsentencing rehabilitation and that such evidence may, in appropriate cases, support a downward variance from the now-advisory Federal Sentencing Guidelines range. Separately, we affirm the Court of Appeals’ ruling that the law of the case doctrine did not require the District Court in this case to apply the same percentage departure from the Guidelines range for substantial assistance that had been applied at petitioner’s prior sentencing.
The only dissenters were Clarence Thomas and Samuel Alito (the latter dissented only in part.)
The Supreme Court ruled against AT&T in a privacy rights case today, holding that since it is a corporation and not a person, it does not have a right to privacy. The case involved a Freedom of Information request seeking documents pertaining to an FCC investigation of AT&T and possible overbilling.
Lyle Denniston at Scotus Blog has more in "A Word Game Over Privacy."
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In a split decision today, the Supreme Court has ruled a dying man's identification of his killer is admissible evidence and does not violate the Sixth Amendment's Confrontation Clause. The opinion (available here) was written by Justice Sotomayor.
Covington’s identification and description of the shooter and the location of the shooting were not testimonial statements because they had a “primary purpose . . . to enable police assistance to meet an on-going emergency.”
Justices Ginsberg and Scalia were among the dissenters. Scalia's dissent is particularly harsh. He points out that the statement was not taken for safety in an emergency situation, but for investigation of a crime:
"Today's tale...is so transparently false that professing to believe it demeans this institution,"
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Adam Liptak of the New York Times reports on yesterday's Supreme court oral argument in Kentucky v. King, about when the police can enter your home without a warrant, claiming exigent circumstances.
police officers in Kentucky were looking for a suspect who had sold cocaine to an informant. They smelled burning marijuana coming from an apartment, knocked loudly and announced themselves.
Then they heard sounds from inside the apartment that they said made them fear evidence was being destroyed. They kicked the door in and found marijuana and cocaine but not the original suspect, who was in a different apartment.
Orin Kerr points out the facts of the case are not quite clear. [More...]
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A judge in Delaware has ruled police may not use GPS devices to track a suspect 24/7 without a warrant. The ruling is based on Delaware's state constitution, which like those in many states, provides greater protection than the federal counterpart. In suppressing the evidence obtained from the surveillance, the Judge wrote:
"The advance of technology will continue ad infinitum....An Orwellian state is now technologically feasible. Without adequate judicial preservation of privacy, there is nothing to protect our citizens from being tracked 24/7."
Though police can follow a suspect in public, there are limits to how long officers can keep up the tail, whereas a GPS device never sleeps and "provides more information than one reasonably expects to be 'exposed to the public,' " the judge wrote....
....if no warrant is required for such surveillance, "any individual could be tracked indefinitely without suspicion of any crime. ... No one should be subject to such scrutiny by police without probable cause,"
There is a split among courts on the issue. While the decision may be appealed, for now Delaware joins New York, Oregon and Massachusetts which say a warrant is required.
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Jeffrey Toobin has a new article in the New Yorker on the tenth anniversary of the Supreme Court decision in Bush v. Gore.
This month marks ten years since the Court, by a vote of five-to-four, terminated the election of 2000 and delivered the Presidency to George W. Bush. Over that decade, the Justices have provided a verdict of sorts on Bush v. Gore by the number of times they have cited it: zero.
Jeffrey says the "echoes" of the case are "clearest when it comes to judicial activism."
Judicial conservatism was once principally defined as a philosophy of deference to the democratically elected branches of government. But the signature of the Roberts Court has been its willingness, even its eagerness, to overturn the work of legislatures.
...This, ultimately, is the tragedy of Bush v. Gore. The case didn’t just scar the Court’s record; it damaged the Court’s honor
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The Supreme Court today announced it will review the case of former detainee and material witness Abdullah al-Kidd against former Attorney General John Ashcroft. Al-Kidd is a U.S.-born American citizen:
Al-Kidd, a one-time University of Idaho football star who converted to Islam, was arrested at Dulles International Airport in 2003 as he was boarding a plane for Saudi Arabia, where he planned to study.
He was held for 15 nights as a material witness in a broader terrorism probe. But he claims that was simply a pretext for a larger plan approved by Ashcroft to sweep up Muslim men it could not prove had any ties to terrorism.
The 9th Circuit rejected personal immunity for Ashcroft. En Banc hearing was denied.
The Obama Administration is representing Ashcroft and asking the Supreme Court to overturn the decision. The ACLU says more than 70 people have similar complaints about their detention as material witnesses. More on the abuse of the material witness statute is here.
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Remember the "Denver Three" who were kicked out of a Colorado campaign event for George Bush? The Tenth Circuit ruled the officials had qualified immunity. They petitioned for cert and the Supreme Court denied their request today. The question presented:
Whether clearly established First Amendment law prohibits government officials who are speaking at events that are open to the public and paid for by taxpayers from excluding people from the audience on the basis of viewpoint
Justice Ginsburg dissented, joined by Justice Sotomayor:
I cannot see how reasonable public officials, or any staff or volunteers under their direction, could have viewed the bumper sticker as a permissible reason for depriving Weise and Young of access to the event. Nevertheless, the Court of Appeals held respondents entitled to qualified immunity because “no specific authority instructs this court . . . how to treat the ejection of a silent attendee from an official speech based on the attendee’s protected ex-pression outside the speech area.” 593 F. 3d 1163, 1170 (CA10 2010).
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For the third time, the 9th Circuit Court of Appeals today upheld the suppression of records in the Balco lab case.
A full 11-judge panel of the appeals court agreed to reconsider its August 2009 three-judge decision that the government violated the rights of players not covered by the search warrant and must return the confiscated drug-testing records to the Major League Baseball Players Assn. The appellate judges also upheld the lower-court rulings that all subpoenas issued as a result of the excessive seizure had to be quashed.
The illegally obtained evidence included results indicating that 104 Major League Baseball players had tested positive for steroid use during a 2003 confidential screening.
The opinion is here. [More...]
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The Third Circuit Court of Appeals today released its long-awaited decision on whether the law and the Constitution require a warrant based on probable cause (rather than a court order issued under a lesser standard) when the Government wants cell phone providers to turn over data showing the location of the cell phone. Wired gets the import right: Court OKs Warrantless Cell-Site Tracking."
The Third Circuit is the first appeals court in the country to address the issue. The decision is here. EFF and the ACLU submitted Amicus Briefs. Disappointingly, the Obama Administration argued probable cause and a warrant are not needed for historical CSLI, and refused to say it wouldn't go the same route when seeking prospective (real-time) data.
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