Tag Archives: Constitutional law

Supreme Court Delivers 2 Body Blows to Criminal Suspects

The U.S. Supreme Court recently issued two important decisions for criminal defendants. The Supreme Court (1) limited the constitutional protections of the Fourth Amendment that prohibits “unreasonable searches and seizures,” and (2) denied defendants the opportunity to contest seizure of assets intended to pay for their criminal defense attorney’s fees.

First, in Fernandez v. California, the Supreme Court ruled that police can enter and search a house without a warrant if one resident consents and any objecting residents are no longer present.  Previously, the Court held in Georgia v. Randolph that the police could not search a house when one resident objected. The Court clarified that “presence” of an objecting occupant triggers the protections of Randolph. Justice Alito writing for the majority in Fernandez, reasoned that when an objecting resident is removed from the scene, his objection expires.

The result is that officers can arrest an objecting resident — for some bogus charge like disorderly conduct or obstruction of a police officer — and then obtain consent to search the residence from another occupant. As Justice Ruth Bader Ginsburg wrote for the dissent, “Instead of adhering to the warrant requirement [of the Fourth Amendment], today’s decision tells police that they may dodge it.”

Second, the Supreme Court ruled that the federal government may freeze a defendant’s assets even when those assets are to be used for a criminal defense attorney before a case goes to trial. In Kaley v. United States, a saleswoman for Johnson & Johnson, Keri Kaley, was accused of stealing prescription medical devices and selling them with her husband on the black market in 2007.

Kaley anticipated criminal charges and took out a $500,000 home-equity line of credit to pay for the defense of her husband and her. After Kaley was indicted by a grand jury, the prosecution got a restraining order freezing the couple’s assets, including the house and funds from the line of credit, on the theory that the assets were the product of the illegal sale of medical devices. Federal law allows a trial court to freeze a defendant’s assets before trial to ensure property is available for forfeiture if there is a conviction.

Kaley requested a hearing to contest the restraining order. The Supreme Court ruled that she did not have a right to a pre-trial hearing because the grand jury had already found probable cause that she had committed the crime. In doing so, the Court held that the grand jury alone can determine whether there is probable cause and that determination cannot be reviewed by a judge. As her attorney, a law professor that likely took the case pro bono, said after the decision was issued: “I don’t know how I will explain to my students at the University of Miami Law School that the Supreme Court ruled that an innocent client cannot use her own money to hire an attorney to defend her in court.”

For more information on the Fernandez decision, check out Nina Totenberg’s story for NPR.

The Wall Street Journal covered both Fernandez and Kaley. Read more here.

Missouri v. McNeely: A Big Deal for DUIs

On Tuesday Wednesday, the US Supreme Court will hear oral arguments in Missouri v. McNeely. At issue in the case is whether a police office can require a person suspected of drunk-driving to submit to a blood test in every DUI investigation. What’s the big deal? If the Supremes grant Missouri’s request, a person would no longer be able to refuse a chemical test: a police officer would be able to arrest a suspect and physically force them to give blood without first obtaining a search warrant from a judge.

In Colorado, there are limited circumstances when a chemical test can be required without a person’s consent or a warrant. For example, when a driver is suspected of vehicular homicide and DUI, C.R.S. 42-4-1301.1(3) authorizes a police officer to physically restrain a suspect in order to collect a blood sample. The proposed rule by Missouri would apply to all DUI investigations. That’s a big deal.

Proponents of this new rule primarily argue that (1) the societal interest in obtaining evidence in DUI cases outweighs the liberty interest of the individual suspect, and (2) a blood draw is a minimal intrusion. Opponents argue that (a) the warrant requirement of the Fourth Amendment is a bulwark against unconstrained governmental intrusion, (b) technological advancements now allow the police to obtain warrants quickly, (c) an exception to the warrant requirement should be very narrow, (d) and an ad hoc/totality-of-the-circumstances test is proper for obtaining a blood sample without a warrant in a DUI investigation. However it shakes out is a big deal for DUI cases across the country.