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Kirk Redmondhttp://www.blogger.com/profile/05149425706408433721noreply@blogger.comBlogger516125
Updated: 1 hour 12 min ago

Mawage, that bwessed awangment

Wed, 09/19/2018 - 18:12
Forty years ago, the Tenth Circuit held that a criminal defendant may not invoke the spousal testimonial privilege if his or her spouse is alleged to be a joint participant in the defendant's crime. United States v. Trammel, 583 F.2d 1166 (10th Cir. 1978) affirmed on other grounds by Trammel v. United States, 445 U.S. 40 (1980).

It's time to ask the Tenth Circuit to revisit this holding. This week, the First Circuit refused to adopt a joint-participation exception to the spousal testimonial privilege,* deepening a circuit split on the issue (exception: 2; no exception: 4). The First Circuit relied in part on language from Obergefell v. Hodges waxing poetic about marriage ("[n]o union is more profound," etcetera, etcetera).

Take courage from the First Circuit. The next time the government threatens to force your client's coconspirator spouse to testify,** object.

*Not to be confused with the marital-communications privilege.

**The government may still attempt to bribe (ahem, persuade) the spouse to testify voluntarily (see SCOTUS's Trammel).


When motive is central

Sun, 09/16/2018 - 16:41
The Supreme Court has repeatedly emphasized the Sixth Amendment’s confrontation clause as the principal means by which the believability of a witness and the truth of her testimony are tested.

A week ago the Seventh Circuit granted habeas to a state petitioner based on the erroneous confrontation-clause holdings of the State Court that were held contrary to and an unreasonable application of the clearly established right to cross-examine witnesses on issues central to the case.
In Rhodes v. Dittmann, the defendant had been convicted by a jury of first-degree intentional homicide. The prosecution's theory? Defendant shot and killed the victim (his sister’s then-boyfriend) to avenge the severe beating that his sister had sustained the day before, allegedly by the victim.
The prosecution emphasized the motive-theory throughout trial, and prominently featured it in the direct testimony of the sister by focusing heavily on her injuries from the beating the day before the shooting. But when defense counsel tried to cross-examine sister beyond that beating, the judge shut him down, siding with the state prosecutor that rebuttal evidence on prior incidents of domestic violence between the sister and her boyfriend (victim) would “confuse” the jury.
The Seventh Circuit agreed with the district court that the state courts’ errors were of Constitutional magnitude, but disagreed that they were harmless. In so finding, the Rhodescourt reiterated that the Confrontation Clause cannot be satisfied merely by a finding that the evidence offered by the accused might be excluded properly under Rule 403; rather, courts must always give special consideration to the defendant’s constitutional right to confront witnesses against him. And effective cross-examination requires that the defense be permitted to expose specific facts from which jurors “could appropriately draw inferences relating to the reliability of the witness.” The Sixth Amendment "is not satisfied with the defendant is permitted to ask only general questions."
Here, “[i]t was the prosecution itself that wanted the jury to focus on motive.” In essence, then, “the trial court shut down the defense’s cross-examination to rebut the prosecution’s central theory.” Given the “importance of the motive issue,” the error could not be deemed harmless.  Writ of habeas corpus granted. 
And happy Constitution Day, all. As Thomas Edison cogently expressed, “[t]he strength of the Constitution, lies in the will of the people to defend it.” Carry on, and thank you.

Arresting middle-school girls to teach them a lesson is (surprise!) not reasonable

Tue, 09/11/2018 - 14:34
Dear parents and teachers of middle-school girls:

We feel your pain. But be careful when you seek the intervention of a sheriff's deputy---even if he is a school resource officer. You don't want to risk an undifferentiated group of allegedly feuding 12- and 13-year-old girls getting arrested en masse because the officer decides that's the best course of action "to prove a point and make [them] mature a lot faster."

"The arrest of a middle schooler . . . cannot be justified as a scare tactic, a lesson in maturity, or a chastisement for perceived disrespect." And thus the Ninth Circuit affirmed the district court's grant of summary judgment to three arrested girls on Fourth Amendment grounds in their 1983 action.

Drug conspiracies and jury-determined drug quantities

Sun, 09/09/2018 - 19:31
As we find ourselves once again on the cusp of a new season, a quick recap on a notable decision issued early this summer seems worthy lest it pass under the radar.
Over the past two decades, the US Supreme Court has made certain that the Constitution requires the jury to find beyond a reasonable doubt any facts that increase either (1) the prescribed range of penalties to which a criminal defendant is exposed (Apprendi v. New Jersey), or (2) the mandatory minimum sentence to which a criminal defendant is exposed (Alleyne v. United States; Burrage v. United States).  
In United States v. Stoddard, the D.C. Circuit applied these principles to address whether an individualized jury finding as to the quantity of drugs attributable to (i.e., foreseeable by) an individual defendant is required to trigger a mandatory-minimum sentence, or if it is sufficient for the jury to find that a conspiracy as a whole resulted in the distribution of the mandatory-minimum-triggering quantity. After acknowledging the circuit split on the issue (including a discussion of Tenth Circuit decisions calling its own precedent into question), the Stoddard court decisively concluded that that the conspiracy-wide approach could not stand muster after Alleyne. Rather, for a defendant’s sentence to be based on a mandatory minimum triggered by a certain quantity of drugs, a jury must find the drug quantity attributable to that defendant on an individualized basis.
Hence the remand for resentencing in Stoddardwhere the district court unlawfully determined that the defendants had conspired to distribute 100 grams or more of heroin, which increased their mandatory-minimum sentences beyond the crime for which the jury found each one of them individual liable—that is, entering into a conspiracy to distribute an indeterminate quantity of heroin.

"The mere taking of photographs of children . . .

Wed, 09/05/2018 - 16:14
. . . cannot suffice as probable cause to believe defendant was in possession of child pornography"---at least when there's no suggestion that those photographs were lewd or lascivious.
And neither can allegations of child molestation alone provide probable cause to search a suspect's computer for child pornography.

And neither can boilerplate recitations about the assumed proclivities of pornographers and child molesters.

So says E.D. Calif. District Court Judge Drozd, in an order granting the defendant's motion to suppress thousands of child-pornography images found on his computer during the execution of a search warrant. The warrant was tainted by numerous Franks violations, and their excision left an already questionable affidavit wanting.

Read this opinion for its excellent analysis of Franks claims, boilerplate cut-and-paste affidavits, and what does and doesn't constitute probable cause to search for child pornography. United States v. Kastis, No. 1:08-cr-00260, 2018 WL 4183267 (E.D. Cal. Aug. 30, 2018).
 

A reasonable officer should have known . . .

Mon, 08/27/2018 - 16:03
. . . that touching a young woman who is trying to make a sexual-abuse report, photographing her breasts and buttocks with the officer's personal cellphone, and badgering her into exposing her vagina would violate her Fourteenth Amendment right to bodily integrity. Yeah, no kidding. And yet in Kane v. Barger, the Second Circuit had to disagree with two other circuits to hold that the officer's conduct was sufficiently shocking to violate the constitution. The district court should not have dismissed this woman's 1983 suit on qualified-immunity grounds.

. . . that the Fourth Amendment prohibits "unduly tight or excessively forceful handcuffing during the course of a seizure." So warned the Sixth Circuit in Hansen v. Aper, affirming the district court's refusal to grant qualified immunity to an officer who handcuffed a driver after a traffic stop and, when the driver complained, told him "handcuffs are supposed to hurt."

. . . that Brady and Giglio obligated an officer to disclose to a murder defendant the fact that the state's key witness's law-enforcement sister called the witness "the biggest liar" she had "ever met," said that she would not believe anything her sister said, and noted that her sister had previously filed over 20 unsubstantiated reports with the local police department. This murder defendant was convicted and served 17 years before her exoneration. The district court erred in dismissing her 1983 suit against the officer on qualified-immunity grounds, held the Ninth Circuit in Mellen v. Winn.

Caution: Don't think an open plea gives your client an open appeal

Tue, 08/21/2018 - 16:58
We blogged a while back about the Supreme Court's decision last term in Class v. United States. Class held that a guilty plea does not itself implicitly waive an appellate attack on the constitutionality of the statute of conviction (though explicit waivers within a plea agreement might).

Last week, the Eleventh Circuit reminded us how limited Class's holding is. In United States v. Thomas, the Eleventh Circuit held that the defendant's open plea (a guilty plea without a plea agreement) did itself implicitly waive an appellate attack on the district court's pre-plea denial of his motions to compel discovery and to suppress. Unlike a challenge to the constitutionality of the statute of conviction, these are ordinary non-jurisdictional claims that will always be waived by a guilty plea unless that plea is a Rule 11(a)(2) conditional plea with consent of the court and the government.

But wait! No plea agreement = no waivers, right? No explicit written waivers, that's true, but valid guilty pleas have long been understood to implicitly waive all kinds of claims, including constitutional claims. Class simply recognized one narrow category of constitutional claim that, if not explicitly waived, remains on the appellate table.

No officers, you may not ignore plainly exculpatory evidence when making a seizure

Sun, 08/19/2018 - 17:24
One angry teenager accuses his parents of bizarre acts of child abuse.

But five younger siblings deny abuse and say they love their parents; a doctor who examines the children finds them healthy with no signs of abuse; and a month earlier an investigator had "unsubstantiated" the teenager's claim of abuse.

Can officials seize the children anyway?

Of course not. This was "a child abuse situation that cried out for investigation and confirmation." But "[a]n officer contemplating an arrest is not free to disregard plainly exculpatory evidence, even if substantial inculpatory evidence (standing by itself) suggests that probable cause exists." And "[l]ike probable cause, suspicion to seize children must exist at the moment of the seizure, and an official is not free to disregard plainly exculpatory evidence when it undermines substantial inculpatory evidence that reasonable suspicion exists."

So says the Eighth Circuit, in an opinion affirming the district court's denial of one official's motion to dismiss the parents' 1983 action on qualified-immunity grounds.

20 seconds of questioning unlawfully extends traffic stop

Sun, 08/12/2018 - 16:22


When does unrelated questioning “measurably extend” a traffic stop such that it becomes unlawful under United States v. Rodriguez
In United States v. Lujan, 2018 WL 3742452, 2018 U.S. Dist. LEXIS 132229, the District Court for the Eastern District of Tennessee found that 20 seconds of unrelated questioning is enough. An officer had stopped defendant's vehicle because the officer was unable to read the vehicle’s tag. As the officer approached the vehicle, however, he learned the tag was “legal.” (Note: the Lujan court recognized that under Tenth Circuit precedent the officer “would have been permitted to merely explain the reason for the stop but then let Defendant ‘continue on [his] way without requiring [him] to produce [his] license and registration.’”). But under the circumstances here, the traffic stop quickly turned into a 20 second “roadside interrogation”: “why are you nervous?”, “where do you work?”, are the van’s passengers “legal”?  The Lujan court acknowledged that those 20 seconds of investigative questioning unrelated to the stop’s purpose were “brief.” But “Rodriguez is not focused on vaguely assessing time, measuring it against arbitrary notions of what constitutes promptness.” Rather, “Rodriguez requires that courts look at the officer’s actions and determine whether he inevitably prolonged the stop beyond its original mission.” Hence the Court’s conclusive holding that those 20 seconds of unrelated, investigative questioning unlawfully, "measurably extended” the traffic stop. 
Motion to suppress granted. 

No nexus? No good faith.

Thu, 08/09/2018 - 15:43
A 17-year-old drug conviction on the part of the homeowner.

A 4-month-old anonymous tip about the home.

A recent stop of unclear duration in the driveway by a suspected drug dealer.

These were the core allegations in an affidavit for a search warrant of Curtis Tucker's home. The district court agreed that these allegations did not provide a minimally sufficient nexus between suspected drug dealing and the home, and further agreed that the agents who executed the search warrant lacked good faith. The district court suppressed the fruit of both this search and the execution of a second search warrant that was based in large part on the fruits of the first one.

The government appealed, and the Sixth Circuit affirmed, finding the problems with the first affidavit "so glaringly obvious that the Leon exception does not apply"---either to the first or the second search.



Legal protections do not hang on the whims of government officials

Sun, 08/05/2018 - 10:00
In United States v. Ochoa-Oregal last week, the Ninth Circuit reversed the defendant’s unlawful-reentry conviction because his prior removal orders (the latter being an expedited removal order contingent upon the first) were deemed “fundamentally unfair” and as such, could not serve as the requisite predicate removal order for the offense.  In 2008, at the time he was first ordered removed based on a California battery conviction, Mr. Ochoa-Oregal was a legal permanent resident (LPR). The removal order was entered in absentia, however, which deprived Mr. Ochoa-Oregal of opportunity to exhaust or seek judicial review. What’s more, 2008 Circuit precedent established that a California battery conviction was not a categorical crime of violence. Hence, the 2008 removal order was erroneous and could not serve as a predicate for an unlawful-reentry conviction. Neither could the latter expedited removal order in 2011 serve as a predicate for the unlawful reentry conviction. The Ninth Circuit determined that expedited removal order was “infect[ed]” and thereby invalidated by the erroneous 2008 removal order; Mr. Ochoa-Oregal had been removed in 2011 for presenting invalid entry documents, but if Mr. Ochoa-Oregel was a lawful permanent resident, then his entry documents were not invalid. Notably, the Ninth Circuit rejected the government’s argument that Mr. Ochoa-Oregal could not demonstrate prejudice despite the erroneous removal order because he was an aggravated felon who could have been removed anyway, and he would have been denied discretionary relief. The Court held that “even if the government might have been able to remove him on other grounds through a formal removal proceeding, his removal on illegitimate grounds is enough to show prejudice.” In so finding, the Ninth Circuit cogently concluded that the “important legal protections of lawful permanent resident status do not hang on the whims of government officials, they stand on much more secure footing of lawful due process.”

Being a migrant is not a crime

Sun, 07/29/2018 - 19:46


“The Constitution protects citizens and non-citizens.” That means, as the Second Circuit was required to remind us in Zuniga-Perez v. Sessions, that the contours of the Fourth and Fifth Amendments do not bend on the basis of one’s race or citizenship. 
Zuniga-Perez took place in upstate New York. Law enforcement went to a home late at night in search of a fugitive, as well as “known Hispanic migrants.” Law enforcement surrounded the home, shone flashlights through windows, and demanded the residents open the door and windows. A resident finally lets the authorities in because “they gave him no choice.” And once inside, law enforcement questioned the residents for the whereabouts of this alleged fugitive. Come to find, he’s not there. But also come to find, two residents are citizens of Mexico residing in the United States. Those two are arrested, and removal proceedings commence.  
But, the Second Circuit notes, “it is not a crime for a removable alien to remain present in the United States.” And thus, being a “Hispanic migrant is not a crime.” Where law enforcement exceed the scope of a warrant (or alleged warrant in this case), or where that warrant fails to state with particularity the place to be searched and items to seized, it violates the Fourth Amendment. A protective sweep that last longer than necessary also violates the Fourth Amendment. When a person is subjected to random or gratuitous questioning related to his immigration status, it violates the Fourth Amendment. And, Miranda protects citizens and non-citizens alike.
To permit such unconstitutional conduct by law enforcement against non-citizens would be, as the Second Circuit reiterated, to “condone ethnic harassment” and to rubber-stamp an immigration policy that “teeters on the verge of ‘the ugly abyss of racism.’” Hence the reversal in Zuniga-Perez where a reasonable fact-finder could conclude that an “egregious constitutional violation” had occurred—that is, that authorities had targeted petitioners "merely because they appeared to be Hispanic migrants." 

How to preserve a confrontation objection

Thu, 07/26/2018 - 13:48
In a cautionary tale from the Tenth Circuit this week, the Court held that a defendant forfeited any confrontation-clause challenge to limits on his cross-examination of a government witness because he failed to preserve the issue properly for appeal.

How should such a challenge be preserved? The Tenth Circuit offers clear advice:

First, make a proper proffer by describing the evidence with specificity and what it tends to show.

Second, make a proper objection by identifying the grounds for admitting the evidence. If there are multiple grounds (statutory and constitutional, say), identify them all. Invoking an evidentiary rule won't work to preserve a constitutional claim (or vice versa).

Third, explicitly link the two (the evidence with the grounds for admission).

Sounds simple, right?

Trial penalties and the Sixth Amendment

Sun, 07/22/2018 - 20:54

To penalize an individual because he chooses to exercise his fundamental right to trial by his peers violates the Sixth Amendment.
Hence the remand for resentencing by the Ninth Circuit in United States v. Hernandez, this month where the record reflected that the district court penalized the defendant “by increasing his sentence based on his decision to go to trial.” Writing for the majority, Judge McKeown quipped that a district court merely reciting a boilerplate statement regarding its consideration of Section 3553(a) factors, while “chastising” the defendant for going to trial, cannot “cure the infirmities” in the sentence imposed.   
Importantly, the Hernandez court recognized, too, that “a judge cannot rely upon the fact that a defendant refuses to plead guilty and insists on his right to trial as the basis for denying an acceptance of responsibility adjustment.” It’s a good reminder that a defendant may neither be penalized for exercising his fundamental right to a jury trial nor automatically precluded from receiving an acceptance-of-responsibility reduction after going to trial.
In remanding for resentencing in Hernandez, Judge McKeown aptly noted that “[e]nhancing a sentence solely because a defendant chooses to go to trial risks chilling future criminal defendants from exercising their constitutional rights. And imposing a penalty for asserting a constitutional right heightens the risk that future defendants will plead guilty not to accept responsibility but to escape the sentencing court’s wrath.”
We must continue to jealously safeguard these axiomatic principles upon which our liberty is founded. NACDL’s recent report, The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It (worthy of a full read) reiterates what we well know: we are functioning within a system in which over 97% of defendants—including those innocent of the crimes charged—choose to plead guilty to avoid the risk of an astronomically increased sentence if convicted after trial. As a result, society is being deprived (at an ever-increasing and alarming pace) of necessary and vital checks on the excesses of prosecutorial power and the criminal justice system as a whole. “When the risk of exercising this crucial human right are too great for all but 3% of federal criminal defendants, the system is in need of repair.”
Hernandez and NACDL’s Report may be used to combat post-trial sentencing practices that undermine the Sixth Amendment's right-to-trial guarantee--that is, challenge on Sixth Amendment grounds unwarranted sentences, sentencing disparities, and denial of acceptance-of-responsibility reductions for those increasingly rare clients who do choose to exercise the fundamental right to a trial by their peers. 

The Fourth Amendment: Have we mentioned it's not dead yet?

Thu, 07/19/2018 - 16:26
"Border search" six years after border crossing? Um, no.  

The year is 2012. Border agents seize a traveler's cellphone and analyze it without a warrant---which is okay under the border-search exception. They don't search the cellphone's contents. They do, however, hang on to the phone (and to the traveler, for that matter).

Fast forward to 2018. The traveler is about to stand trial for sex trafficking and other crimes. A week before jury selection, the government reveals that it has, just this month, searched the cellphone's contents. Without a warrant. And, according to Southern District of Texas Chief Judge Lee Rosenthal, without any applicable warrant exceptions:
The government’s second, warrantless search of Gandy’s phone did not occur at a border or at the time of the crossing. It happened six years after Gandy returned to the United States . . . . Gandy and his phone have both been in custody since 2012, within the United States. Searching Gandy’s phone had no connection to the government’s interest in preventing illegal entry or contraband smuggling at an international border. Extending the border-search exception to the government’s warrantless search would both undervalue the core Fourth Amendment protection afforded cell phones under Riley and untether the border-search exception from the justifications underlying it. United States v. Gandy, No 12-cr-00503, 2018 WL 3455534 (S.D. Tex. July 17, 2018) (rejecting as well government's independent-source, inevitable-discovery, attenuation, and good-faith arguments).

Motion to suppress granted.  

No current or corroborated nexus? No probable cause.

An affidavit that relies on speculation, stale information, old criminal history, and uncorroborated informant tips does not supply probable cause for a search warrant. So said the Sixth Circuit last month in United States v. Christian, 893 F.3d 846 (6th Cir. 2018). And the Court declined to apply Leon's good-faith exception: "By suppressing the evidence in this case, we will incentivize the police to take such corroborative action in the future."

Motion to suppress should have been granted.

"It doesn't hurt to ask" is not reasonable suspicion.

Officer stops car for illegal left turn; completes traffic stop; continues to question driver even when driver indicates he wishes to leave; ultimately gets driver's exasperated "consent" to search ("I mean, shit, I don't care"). But officer can't seem to articulate why he wanted to search. He had a "suspicion," a "feeling," "I guess you would call it something"---what the heck, "it doesn't hurt to ask." This was (duh) not reasonable suspicion. In the words of Northern District of Alabama Judge Madeline Hughes Haikala, "[t]he ‘it doesn't hurt to ask’ standard is not even ‘unparticularized suspicion.’ At best, Officer Long had a hunch." United States v. Wilson, No. 17-cr-00428, 2018 WL 3428635 (N.D. Ala. July 16, 2018) (also explaining why driver's consent not consensual, why passenger was also illegally detained, and why evidence found during passenger pat-down was fruit of illegal detention).

Motion to suppress granted.

Supervised release: rehabilitation, or trap?

Tue, 07/10/2018 - 13:28
A must read from E.D.N.Y. District Court Judge Weinstein last week, in United States v. Trotter. Here is the introduction to Judge Weinstein's 42-page decision terminating Mr. Trotter's supervision not despite, but because of his marijuana addiction:

-----
This case raises serious issues about sentencing generally, and supervised release for marijuana users specifically: Are we imposing longer terms than are needed for effective supervised release? Should we stop punishing supervisees for a marijuana addiction or habit?

After revisiting and reconsidering these issues, I conclude: (1) I, like other trial judges, have in many cases imposed longer periods of supervised release than needed, and I, like other trial judges, have failed to terminate supervised release early in many cases where continuing supervision presents such a burden as to reduce the probability of rehabilitation; and (2) I, like other trial judges, have provided unnecessary conditions of supervised release and unjustifiably punished supervisees for their marijuana addiction, even though marijuana is widely used in the community and is an almost unbreakable addiction or habit for some. As a result of these errors in our sentencing practice, money and the time of our probation officers are wasted, and supervisees are unnecessarily burdened.

In summary, in this and my future cases I will: (1) impose shorter terms of supervised release as needed; (2) give greater consideration to the appropriateness of conditions; (3) provide for earlier termination where indicated; and (4) avoid violations of supervised release and punishment by incarceration merely for habitual marijuana use.

-----
Lots of important stuff in this opinion. I'll just note three basic points here that are good starting places: 1. "Supervised release is required by statute in less than half of all federal cases, but imposed as a part of nearly every sentence." We need to reverse this trend. 2. "A district court may terminate supervised release before the expiration of a mandatory minimum period." Don't be shy about asking for early termination. 3. Conditions of supervised release may be modified at any time. 18 U.S.C. 3583(e)(2). Your client may have completely different needs upon release than at sentencing. Don't be shy about moving to modify conditions that were imposed months or years ago.

No probable cause from an officer-induced traffic violation

Sun, 07/08/2018 - 11:34
The District Court of the Eastern District of Michigan reminds us this last week that an officer cannot himself create the alleged traffic violation to justify a traffic stop.  

In United States v. Belakhdhar, 2018 WL 3239625, 2018 U.S. Dist. LEXIS 110514 (E.D. Mich. July 3, 2018), the defendant challenged a traffic stop as pretextual for a criminal investigation where law enforcement allegedly stopped him for driving 2 mph below the speed limit. 

The court agreed with Mr. Belakhdhar that the officer lacked probable cause to conduct the traffic stop because, for one, the officer himself caused Mr. Belakhdhar to slow down when he pulled out behind and then drove next to Mr. Belakhdhar, eerily "peering into his vehicle." (Not to mention driving 2 mph below the speed limit did not actually violate any law.)

The government's argument in the alternative--that law enforcement had reasonable suspicion of criminal activity justifying the stop--fell just as flat. Mere propinquinity (or in this case, "tandem driving"), "with a vehicle suspected of drug activity, alone, is an insufficient basis for reasonable suspicion." The fact that Mr. Belakhdhar's car had a temporary Illinois plate didn't change the equation since, as the court noted, "vehicles with temporary Illinois plates travel on I-94 every day." 

Accordingly, motion to suppress granted.

Happy Fourth of July

Wed, 07/04/2018 - 10:08
 "True patriotism hates injustice in its own land more than anywhere else."
 ---Clarence Darrow 

Cert grant: dual sovereignty

Sun, 07/01/2018 - 23:19
Under the doctrine of “dual sovereignty,” the Supreme Court has long held that a successive prosecution of an individual for the same act will not trigger the Fifth Amendment’s protections against double jeopardy if it is brought by a “separate sovereign”—that is, an entity that derives its power to prosecute from a wholly independent source.  Because the states’ authority to prosecute originally derived not from the federal government but rather from the “inherent sovereignty” belonging to them before their admission to the Union, the High Court has deemed states separate sovereigns from the federal government (and from one another) under this doctrine, which is seemingly alive and well. See, e.g., United States v. Morales.
But is it?  
Last Thursday the Supreme Court granted certiorari in Gamble v. United States to squarely address whether the Court should overrule the “separate sovereigns” exception to the Fifth Amendment’s safeguard against double jeopardy. The murmurs have already begun to reverberate that the Court is poised to overrule the exception. Indeed, the groundwork has been laid for the Court to do just that. Most recently, in Puerto Rico v. Sanchez Valle, Justice Ginsburg wrote a concurrence, in which Justice Thomas joined, to express concern that the separate-sovereigns exception “hardly serves” the double jeopardy’s proscription “to shield individuals from the harassment of multiple prosecutions for the same misconduct.”
Perhaps soon, at least when it comes to state and federal courts, the Fifth Amendment will again mean what the Framers intended--that no person shall be “twice put in jeopardy of life or limb” for “the same offence.”

Digital is different. Where do we go from here?

Tue, 06/26/2018 - 17:24
Supreme Court Chief Justice Roberts doesn't like the idea of the government having easy access to five years' worth of his personal location data ("this newfound tracking capacity runs against everyone"---not just suspected criminals!). So we learned last week in Carpenter v. United States, which held that the government violated the Fourth Amendment when it accessed 127 days of Mr. Carpenter's cell site location information (CSLI) without a warrant.

This was a search because it invaded Mr. Carpenter's reasonable expectation of privacy in "the whole of his physical movements." Mr. Carpenter's expectation was reasonable despite the third-party doctrine (that is, despite the fact that he knowingly shared his location information with the phone company). The doctrine takes a pretty hard hit in this opinion, though it remains the law at least in some limited arenas for now.

The bottom line:

"Before compelling a wireless carrier to turn over a subscriber's CSLI, the government's obligation is a familiar one---get a warrant."

That's all good news, but how far does it go? It's not easy to tell from the opinion. The majority emphasizes the "deeply revealing nature" of historical CSLI and explicitly says that its decision "is a narrow one." But there's plenty of food for thought in both the majority's opinion and Justice Gorsuch's dissent (Justice Gorsuch would scrap the Katz reasonable-expectation-of-privacy analysis, and suggests that our property interest in our digital information is sufficient to give it Fourth Amendment protection).

Want to dive deeper? Here are links to some worthy early analyses:

Orin Kerr

Concurring Opinions

Harvard Law Review Blog

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