Supreme Court Update

Thursday, February 21, 2013

The Supreme Court decided five criminal decisions today:

In Evans v. Michigan, the Court (in an 8-1 opinion by Justice Sotomayor) resolved a circuit split regarding the Double Jeopardy clause. The Court’s prior precedents hold that procedural dismissals (based on things such as indictment errors) do not trigger double jeopardy protection, but substantive rulings generally do, even if based on a “misconstruction” of the applicable criminal statute. In this case, the state trial court directed a verdict of acquittal at the close of the prosecution’s case because the prosecution had not proven an “element” of the offense. It turned out that, according to the state appellate courts, the missing “element” was not a required element at all. The question before the Supreme Court was whether the Double Jeopardy clause protects the defendant from being retried. And the Court held that it does. In the Court’s view, there is no distinction between an acquittal based on a trial court’s “misconstruction” of a criminal statute and one based on an a court’s erroneous addition of a statutory element.

In Chaidez v. United States, the Court (in a 7-2 decision by Justice Kagan, with Justice Thomas concurring only in the judgment) determined that its prior ruling in Padilla v. Kentucky—which held that the Sixth Amendment requires defense attorneys to advise clients about the risk of deportation arising from a guilty plea—does not apply retroactively to offenders whose convictions became final before Padilla was decided.

In Henderson v. United States, the Court (in a 6-3 opinion by Justice Breyer) decided an issue of particular importance for criminal appeals. Under the federal rules, appellate courts can correct an unpreserved legal error (i.e. one to which the defendant did not object in the trial court) only if the error is “plain.” The question here was whether an error is “plain” if the law is unsettled at the time of trial but resolved in the defendant’s favor by the time of appellate review. The Court adopted the defendant-friendly position, holding that the appeals court must consider whether an error is “plain” by the time of appellate review (regardless of what its status was at the time of trial).

In Florida v. Harris, the Court (in a unanimous opinion by Justice Kagan) addressed how district courts should administer the probable-cause requirement in cases involving dog sniffs. The Florida Supreme Court had ruled that the prosecution was required in every dog-sniff case to establish the dog’s reliability by presenting “an exhaustive set of records, including a log of the dog’s performance in the field.” The Supreme Court reversed, holding that the Florida rule was inconsistent with the flexible, totality-of-the-circumstances approach that governs probable-cause determinations under the Fourth Amendment. In other words, the Court held that “a probable-cause hearing focusing on a dog’s alert should proceed much like any other.” In describing such a hearing, the Court summarized the approach that defense counsel should take:

A defendant … must have an opportunity to challenge such evidence of a dog’s reliability, whether by cross-examining the testifying officer or by introducing his own fact or expert witnesses. The defendant, for example, may contest the adequacy of a certification or training program, perhaps asserting that its standards are too lax or its methods faulty. So too, the defendant may examine how the dog (or handler) performed in the assessments made in those settings. Indeed, evidence of the dog’s (or handler’s) history in the field, although susceptible to the kind of misinterpretation we have discussed, may sometimes be relevant . . . . And even assuming a dog is generally reliable, circumstances surrounding a particular alert may undermine the case for probable cause—if, say, the officer cued the dog (consciously or not), or if the team was working under unfamiliar conditions.

In Bailey v. United States, the Court (in a 6-3 opinion by Justice Kennedy) adopted a defendant-friendly limitation to its prior decision in Michigan v. Summers, 452 U.S. 692 (1981). Summers holds that the police may “detain the occupants of [a] premises without probable cause while a proper search [of the premises] is conducted.” Today’s decision in Bailey limits Summers to cases where the occupants are detained in “the immediate vicinity of [the] premises to be searched.” Because the police in this case detained the defendant more than a mile away from the apartment being searched, the Court held that the detention could not be justified under Summers.