CRIMINAL PROCEDURE

UPDATE

Prof. Laurie L. Levenson

Loyola Law School, Los Angeles

November 19, 2014

FOURTH AMENDMENT

Maryland v. King

133 S.Ct. 158 (2013)

Arrestees may be swabbed for DNA

Part of “booking” procedures

5-4 decision

Justice Kennedy: “narrow decision”

Reactions to decision?

CODIS DNA DATABASE

As of March 2014

10,867,894 offender

profiles,

1,830,544 arrestee

profiles

Produced over

239,158 hits assisting

in more than 229,704

investigations

Judicial and Legislative Reactions

to Maryland v. King

Federal DNA Fingerprint Act of 2005

Upheld in U.S. v. Mitchell (3rd Cir. 2011) (en banc)

California DNA Act (Prop. 69)

Haskell v. Harris (9th Cir. 2014) (en banc)

Legislative limits on use of DNA databank

California AB 1697 (cannot use DNA databank for certain types of research)

Additional Reactions

Pretzantzin v. Holder, 725 F.3d 161 (2nd Cir.

2013)

Identity not limited to name alone

Includes alias, photographs, Social Security number

or DNA profile

King v. State, 434 Md. 472, 7 A.3d 1035 (2013)

Even if violation of DNA Collection Act, suppression is

not the proper remedy

Fernandez v. California

134 S.Ct. 1126 (2014)

Co-tenant can give consent even if police have removed objecting co-defendant from the building Limits Georgia v. Randolph

(2006)

United States v. Moore, No. 13-10464 (9th Cir. Oct. 23, 2014) (lazy suspects don’t get to argue no consent)

Alito, J.

“Denying someone in Rojas’ position the

right to allow the police to enter her home

would also show disrespect for her

independence. Having beaten Rojas,

petitioner would bar her from controlling

access to her home until such time as he

chose to relent. The Fourth Amendment

does not give him that power.”

Navarette v. California

134 S.Ct. 1683 (2014) (5-4)

Anonymous tip was

sufficient to provide

reasonable suspicion

for traffic stop

Thomas, J.: “Close

case”

Dissent

“The Court’s opinion serves up a freedom-destroying cocktail consisting of two parts patent falsity: (1) that anonymous 911 reports of traffic violations are reliable so long as they correctly identify a car and its location, and (2) that a single instance of careless or reckless driving necessarily supports a reasonable suspicion of drunkenness.”

Reaction to Navarette

Zabinski v. Comm’r of Public Safety (Minn. Ct. of App. 2014)

Challenge to revocation of driver’s license

Court held stop was unjustified

Lacked reasonable articulable suspicion because anonymous caller /not victim of driver’s actions

Caller claimed driver going wrong direction

2-1 decision (strong dissent) (“corroboration and indicia of reliability”)

Riley v. California

134 S.Ct. 2473 (2014)

4th Amendment does not permit police to search a cell phone incident to arrest

Police must get a warrant unless “exigent circumstances”

Reactions to Riley

1. Changes in technology creating more “exigent circumstances”

2. Courts using “good faith” exception for searches before Riley

3. Courts using third-party and plain view doctrines to allow searches

4. Case limiting searches of other devices incident to arrest, including computers

5. Limitations on police searches after private searches - People v. Evans (Cal.Ct.App. Oct. 3, 2014)

United States v. Jones

132 S.Ct. 945 (2012)

Using beeper to track car is a trespass search Need probable cause and

warrant

How about tracking without beeper? Courts split

May be able to get real-time cell site information from suspect’s mobile phone service provider

Authorities

Applying 3rd Party

Doctrine

Smith v. Maryland, 442

U.S. 735 (1979)

ECPA of 1986 allows govt.

to get info from third-party

service providers (18 USC

§ 2703(d)) (ct. order without

p/c or warrant)

In re Application of the U.S.

for Historical Cell Site Data,

724 F.3d 600 (5th Cir.

2013)

Rejecting 3rd Party

Doctrine

“Mosaic theory”

(Sotomayor, J.

concurrence)

Tracey v. State (Fla. Sup.

Ct. 10/16/14)

United States v. Davis, 754

F.3d 1205 (11th Cir.

2014)(en banc petition

granted)

STANDING ISSUES

People v. Sotelo,

2014 BL 286452

(Colo. Oct. 14, 2014)

Unauthorized driver of

rental vehicle’s

expectation of privacy

in gift wrapped

packages in car

Fourth Amendment and the

Mentally Ill

Sheehan v. City of San Francisco (9th Cir. 2014)

ADA applies to search and seizure of mentally ill suspects

UPCOMING 4TH A.

USSC CASES

Heien v. North Carolina

No. 13-604 Traffic stop based on

mistake of law

Officer thought two operative tail-lights were required

Argued Oct. 6, 2014

“Reasonable” searches and “reasonable” mistakes

Los Angeles v. Patel,

cert. granted, Oct. 20, 2014

2 key issues:

1. Facial challenges to ordinances / statutes under Fourth Amendment?

2. Does hotel have REP under the Fourth Amendment in a hotel guest registry where the guest-supplied information is mandated by law and an ordinance authorizes the police to inspect the registry?

Rodriguez v. United States

No. 13-9972 Petition Pending:

Whether an officer may extend an already completed traffic stop for a canine sniff without reasonable suspicion or other lawful justification.

Does “de minimis delay” comport with Illinois v. Caballes (2005)?

FIFTH AMENDMENT

Kansas v. Cheever

134 S.Ct. 596 (2013)

State’s use of

evidence from court-

ordered mental

evaluation does not

violate 5th Amend.

privilege

Salinas v. Texas

133 S.Ct. 2174 (2013)

Pre-Miranda silence can be used against defendant who does not expressly invoke 5th Amendment right

New Developments: People v. Tom (Cal.

2014)

Sixth Amendment

Right to Counsel

Kaley v. United States

134 S.Ct. 1090 (2014)

Courts may issue

post-indictment ex

parte restraining order

to freeze assets

defendant wants to

use to retain counsel

Hinton v. Alabama

134 S.Ct. 1081 (2014)

Counsel’s failure to

seek extra funding for

competent forensic

expert constituted

ineffective assistance

of counsel

Cross-examination

of Defense Expert

Q: Mr. Payne, do you have some problem with your vision?

A: Why, yes.

Q: How many eyes do you have?

A: One.

SIXTH AMENDMENT

Right of Cross-examination

Ohio v. Clark,

No. 13-1351 (cert. granted 10/2/14) Whether an individual's

obligation to report suspected child abuse makes that individual an agent of law enforcement for purposes of the Confrontation Clause; and

Whether a child's out-of-court statements to a teacher in response to the teacher's concerns about potential child abuse qualify as “testimonial” statements subject to the Confrontation Clause.

Sixth Amendment:

Sentencing

Alleyne v. United States

Sixth Amendment

right to trial by jury

requires a jury to

determine facts that

increase a mandatory

minimum sentence.

Breyer, J. Concurrence

“But Apprendi has

now defined the

relevant legal regime

for an additional

decade. And, in my

view, the law should

no longer tolerate the

anomaly that the

Apprendi/Harris

distinction creates.”

Reaction to Alleyne

Alleyne is not retroactive to cases on collateral review In re Moss (11th Cir.

2013)

In re Payne (10th Cir. 2013)

In re Kemper (5th Cir. 2013)

Hughes v. United States (9th Cir. Oct. 23, 2014)

JUROR MATTERS

Warger v. Shauers

(argued Oct. 8, 2014)

Whether Federal Rule of

Evidence 606(b) permits

a party moving for a new

trial based on juror

dishonesty during voir

dire to introduce juror

testimony about

statements made during

deliberations that tend to

show the alleged

dishonesty.

QUESTIONS?

THANK YOU