Entries tagged with “search and seizure” from Harmfulerror

January 14, 2010, Oral Arguments

Kelly (Winston) v. State of Nevada,
Docket No. 52017
Carson City - 10:00 a.m. - Justices Cherry, Saitta, and Gibbons

In this case, Winston Kelly is appealing his convictions of first-degree murder with the use of a deadly weapon and robbery with the use of a deadly weapon.  Kelly was arrested in Elko County after a sheriff's deputy found him sleeping in the truck of a missing person.  While being interrogated by law enforcement officers about the missing person's whereabouts, Kelly requested an attorney, but no action was taken on his request.  The law enforcement officers also made numerous religious references during the interrogation, including asking Kelly if he thought God would forgive him.  Kelly eventually confessed to stabbing the victim to death and drew a map that led to the victim's body.  Before trial, Kelly made a motion to suppress the statements he made during the interrogation and all evidence obtained as a result of those statements, including the map and the victim's body.  The district court determined that Kelly's confession and the map were inadmissible at trial because law enforcement violated Kelly's Miranda rights, but evidence of the victim's body was admissible because under the totality of the circumstances, Kelly's confession was voluntary.  ISSUE:  Did the district court err in denying Kelly's motion to suppress evidence of the victim's body? 

Ritter (Matthew) v. State of Nevada Supreme Court,
Docket No. 52753
Carson City - 10:30 a.m. - Justices Cherry, Saitta, and Gibbons

Matthew Ritter is appealing his conviction in Elko County for trafficking in methamphetamine.  After Ritter was transported to jail in a police patrol car on an outstanding warrant, a police officer found almost 398 grams of methamphetamine under the front passenger seat of the patrol car.  Ritter was charged with trafficking.  At trial, the State presented evidence that no other person was transported in the patrol car between the time Ritter was taken to jail on the outstanding warrant and when the officer found the methamphetamine.  ISSUES:  Does sufficient evidence support Ritter's conviction?  Did the district court properly admit evidence of Ritter's prior methamphetamine-related convictions?

The US Supreme Court has issued two recent per curiam decisions: one today and one last week.

In Michigan v. Fisher, the Court finds that police officers acted reasonably in entering a home without a warrant based upon their belief that there was a need to render emergency assistance.  The failure to call for emergency medical assistance was not determinative because officers needed to assure that the person was not endangering someone else in the house as they had observed violent behavior inside.  Justice Stevens and Sotomayor dissented.

In Porter v. McCollum, the Court finds that trial counsel was ineffective for failing to investigate and present evidence of post-traumatic stress disorder during a capital penalty phase.  In the unanimous pc opinion, the Court noted that "Our Nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines as Porter did."  This is a must read for those defending capital cases.

In an unpublished Order of Reversal and Remand in Monroe v. State, the Nevada Supreme Court finds that a the district court erred in refusing to conduct an evidentiary hearing on a suppression motion.  The five page order includes a nice summary of the law concerning automobile searches made pursuant to an investigatory stop.

In an unpublished Order Denying Petition in Bacon v. State, the Nevada Supreme Court finds that the proper person petitioner has filed numerous, arguably frivolous documents and finds that there has been a waste of judicial resources.  The Court cautions Bacon that he may forfeit all deductions of time earned as a prisoner.

McNight v. The Public Restroom Co. is a civil appeal in which the Court finds that in lacks jurisdiction.  The order is not interesting, but I like the name of the case.

In an unpublished Order of Reversal and Remand in Brunsen v. State, the Nevada Supreme Court finds that the district court erred in failing to conduct an evidentiary hearing on the defendant's presentence motion to withdraw his guilty plea and in failing to appoint conflict-free counsel for that hearing.

Melendez-Diaz v. Massachusetts - a state forensic analyst's laboratory report prepared for use in a criminal prosecution is "testimonial" evidence and is therefore not admissible, per Crawford v. Washington, absent the opportunity to confront and cross-examine the person who prepared the report. A State may enact a "notice-and-demand" statute which allows a state to give pretrial notice of its intention to use an affidavit and places the responsibility on the defense to object by demanding that the State produce the witness. The 5-4 opinion was authored by Justice Scalia.  Justice Kennedy filed a dissenting opinion which was joined by Chief Justice Roberts and Justices Breyer and Alito.

The opinion is consistent with existing Nevada case authority - Las Vegas v. Walsh, 121 Nev. 899, 904-06, 124 P.3d 203, 207-08 (2005) (citing in footnote 11 of the Melendez opinion).

Safford United School District #1 v. Redding - the Fourth Amendment prohibits public school officials from conducting a strip search of a student suspected of possessing and distributing a prescription drug on campus in violation of a school policy, but the constitutional right was not clearly established at the time of the search so the girl cannot sue for damages.  Justice Souter authored the majority opinion.  Justice Stevens filed a partial dissent joined by Justice Ginsburg.  Justice Ginsburg filed an opinion concurring opinion and dissenting in part.  Justice Thomas concurred in part and dissented in part.

Atlantic Sounding Co. Inc. v. Townsend - concerns whether a seaman may recover punitive damages for the willful failure to pay maintenance and cure.  5-4 decision authored by Justice Thomas.  Justice Alito authored a dissenting opinion which was joined by Chief Justice Roberts and Justices Scalia and Kennedy.

Horne v. Flores; Speaker of the Arizona House of Representatives v. Flores - concerns an injunction against Arizona for failing to provide sufficient funding for non-English speaking school children.  5-4 decision authored by Justice Alito.  Justice Breyer authored the dissenting opinion which was joined by Justices Stevens, Souter and Ginsburg.

The remaining 3 decisions of the 2008--09 term will be released on Monday.

Ramet v. State - The State may not introduce evidence of a defendant's refusal to consent to a search of his home, and the prosecutor may not comment about the refusal to consent, but the evidence is harmless under the facts of this case.

Rivera v. Philip Morris, Inc. - NRAP 5 certification re: whether Nevada law recognizes a heeding presumption in strict product liability failure-to-warn cases.

Abuelhawa v. United States - In a unanimous decision authored by Justice Souter, the Court holds that using a cellphone to make a drug purchase when the crime would be only a misdemeanor does not "facilitate" a felony distribution crime.

Haywood v. Drown - in a 5-4 decision authored by Justice Stevens, the Court holds that it is unconstitutional for a state to bar all damage lawsuits brought under a federal civil rights law against prison officers or guards.  New York had allowed only a claim against the state itself in a special claims court.

Montejo v. Louisiana - In a 5-4 decision authored by Justice Scalia, the Court overrules Michigan v. Jackson concerning the rights of a criminal suspect in police custody after the appointment of counsel.

The facts:  Montejo was charged with first degree murder and the court ordered the appointment of counsel during a 72-hour hearing.  Later that day, the police read Montejo his rights under Miranda v. Arizona and he agreed to go along on a trip to locate the murder weapon.  During the trip he wrote an inculpatory letter of apology to the victim's widow.  After returning from the trip, he met his court appointed attorney for the first time.  Counsel objected to admission of the letter at trial, but it was admitted and Montejo was convicted.

The Court holds that stare decisis does not preclude reconsideration of Michigan v. Jackson.  The Court finds that Edwards v. Arizona provides enough protection for suspects who want to invoke their Miranda rights and that Jackson is not necessary to protect a defendant's rights.  The Court holds that a defendant has the right to waive his Sixth Amendment rights and that counsel need not be present or consulted when a client elects to waive those rights by speaking with the police after counsel has been appointed.  "Edwards and Jackson are meant to prevent police from badgering defendants into changing their minds about their rights, but a defendant who never asked for counsel has not yet made up his mind in the first instance."  The Court acknowledges that Miranda and Edwards guarantee Fifth Amendment rights, not Sixth Amendment rights, and apply only if the suspect is in custody, but find that Sixth Amendment rights for suspects not in custody are unnecessary because "when a defendant is not in custody, he is in control, and need only shut his door or walk away to avoid police badgering."

As for Nevada, the Court has cited to Michigan v. Jackson in two opinions but has not indicated whether it found the rule established in Jackson to be sound. The Court could hold that the protections provided for by Jackson should be recognized by our state constitution.

I initially thought that the quick fix here is for counsel to consult with the client and invoke the right to counsel at the first court appearance for all interrogations and interactions with the police or other state agents.  Such action should guarantee that the client receives the assistance of counsel at every stage of the proceedings, including questioning by police officers.  After a long, and good, discussion with Chip Siegel, I'm not sure that my initially thought on a remedy was correct.  It may be that the client will have to invoke the right to counsel at the time of the interrogation and that a blanket waiver during the first court appearance will not be sufficient, although it probably wouldn't hurt either.  Advice to the client is therefore critical in making sure that he is not interrogated by officers following the appointment of counsel.  I'll keep an eye our for analysis by others following this issue.

In Hannon v. State, the Court reverses a conviction, entered pursuant to a plea of nolo contendere, of one count of possession of a controlled substance.  The Court finds that an "emergency" search of a home was unlawful because there was no objectively reasonable basis to believe that the two occupants or any undisclosed third party may have been in danger inside. The opinion brings Nevada case law into conformity with the decision of the United States Supreme Court in Brigham City v. Stuart, 547 U.S. 398, 404 (2006).

Hannon involves a call to an apartment based upon a 911 call of a neighbor concerning a domestic disturbance.  Both the adult male and the female stated that they were okay and refused permission for the police officers to enter the apartment.  Officers stated that they pushed their way into the apartment to protect the safety of the occupants and then saw pot and paraphernalia once they were inside.  The district court denied the suppression motion, even though the police officer admitted that he did not have any evidence that another occupant may have been inside who needed emergency assistance, but "just had suspicions."  The Nevada Supreme Court reversed.  The officer's subjective motivations are irrelevant.  An objective standard applies.  Under the facts here, there was no objectively reasonable basis to believe that a third party was injured inside.

In Arizona v. Gant, a 5-4 opinion authored by Justice Stevens, the Court holds that Arizona police officers violated a defendant's Fourth Amendment rights by searching his car for narcotics after he was arrested for driving on a suspended license.  Police may search the passenger compartment of a vehicle incident to a recent occupant's arrest only if it is reasonable to believe that the arrester person might have access to the vehicle at the time of the search or that vehicle contains evidence of the offense for which the person was arrested.  The Court distinguishes New York v. Belton on the ground that in this case the scene had been secured and in Belton it had not.  Here, the search incident to arrest was not justified by an interest in officer safety or the interest of preserving evidence concerning the offense for which the occupant was under arrest.

The majority opinion was joined by Justices Scalia, Souter, Thomas and Ginsburg.  Justice Scalia filed a concurring opinion.  Justice Breyer filed a dissenting opinion.  Justice Alito filed a dissenting opinion which was joined entirely by Chief Justice Roberts and Justice Kennedy and joined in part by Justice Breyer.

The opinion should not be a major change in Nevada as the Nevada Supreme Court has already rejected a broad reading of Belton on state constitutional grounds.  See Camacho v. State, 119 Nev. 395, 399-400, 75 P.3d 370, 373-74 (2003).

The Court also issued opinions in two civil cases - Ministry of Defense and Support for the Armed Forces of the Islamic Republic of Iran v. Elahi (collection of debt against Iran by attachment of a judgment in the US) and Shinseki v. Sanders (standard for assessing harmlessness for failure to provide proper notice in Veterans Administration cases for claims of disability).

Apparently there's a lot of consensus at the United States Supreme Court lately, as today's five opinions are all unanimous as to the judgment and there's only one concurring opinion in the group.

Van de Camp v. Goldstein - Prosecutors are absolutely immune from liability in section 1983 civil rights suits brought against prosecutorial actions that are "intimately associated with the judicial phase of the criminal process," and this includes a District Attorney's supervision, training and information-system management claims associated with providing discovery and impeachment information to a defendant in a criminal case.   Absolute immunicty may not apply when a prosecutor is not acting as "an officer of the court," but is instead engaging in investigative or administrative tasks, but discovery issues are directly connected with a trial's conduct and therefore absolute immunity applies.  Justice Breyer authored the opinion.

 Arizona v. Johnson - Terry v. Ohio -- which authorizes "stop and frisk" searches if the temporary detention is lawful (the officer reasonably suspects that the person apprehended is committing or has committed a crime) and the officer reasonably suspects that the person is armed and dangerous -- applies to passengers during a traffic stop.  Based on the "same weighty interest in officer safety," a passenger may be frisked for weapons if an officer reasonably concludes that the passenger might be armed and dangerous.  Justice Ginsburg authored the opinion.

Crawford v. Metropolitan Government of Nashville - The antiretaliation provisions of Title VII of the Civil Rights Act extend to an employee who speaks out about discrimination in response to answering questions during an employer's internal investgation, not just claims made on her own initiative.  Justice Souter authored the majority opinion.  Justice Alito authored a concurring opinion that was joined by Justice Thomas.

Kennedy v. Plan Administrators for Dupont Savings - ERISA, divorce, assignment and alienation.

US v. Eurodif - uranium and anti-dumping 

On Friday the United States Supreme Court granted certiorari in six cases, three of which involve criminal law related issues:

Bobby v. Bies:  Whether the holding of a state post-conviction hearing to determine the mental capacity of a capital defendant whose death sentence was affirmed before Atkins v. Virginia (2002), which barred the execution of mentally retarded defendants, violates the Double Jeopardy clause where the issue of mental capacity has already been addressed at trial and on direct appeal.

Safford United School District #1 v. Redding: Whether the Fourth Amendment prohibits public school officials from conducting a strip search of a student suspected of possessing and distributing prescription strength ibuprofen on campus in violation of school policy.

Nijhawan v. Mukasey:  Whether the petitioner's conviction for mail, bank and wire fraud qualified as an aggravated felony under the immigration laws, the penalty for which is lifetime banishment from the country.

The other three cases are the following:

Forest Grove School District, Petitioner v. T. A.: Whether parents of a student who has never previously received special education services from a school district may be eligible under the Individuals with Disabilities Education Act for reimbursement of private school tuition.

Cuomo v. The Clearing House Ass'n, L.L.C.,:  Whether 12 USC § 484 and 12 CFR § 7.4000 prohibit measures taken by a state prosecutor to enforce state fair lending law against national banks by subjecting those entities to "visitorial powers."

U.S. ex rel. Eisenstein v. City of New York: Whether the 30-day time limit in Federal Rule of Appellate Procedure 4(a)(1)(A) for filing a notice of appeal, or the 60-day time limit in Rule 4(a)(1)(B), applies to a qui tam action under the False Claims Act.

Scotusblog provides links to the lower court opinions, petitions, oppositions, replies and amicus briefs.  Briefing will be expedited so the cases may be ruled upon in this term.

This morning the United States Supreme Court issued opinions in two criminal cases.

In Oregon v. Ice, the Court issues a 5-4 decision in which it holds that there is no constitutional violation based upon a judge's imposition of consecutive sentences based upon facts that were not found by the jury.  An Oregon statute provides that sentences for multiple crimes are to be served concurrently unless the trial judge finds that the crimes did not occur as part of the same course of conduct or resulted in separate harms.  The majority opinion is authored by Justice Ginsburg and joined by Justices Alito, Breyer, Kennedy and Stevens. Justice Scalia authored a dissenting opinion which was joined by Chief Justice Roberts and Justices Souter and Thomas. 

In Herring v. U.S., the Court issues a 5-4 decision in which it holds that evidence of a crime is not subject to the Exclusionary Rule if police obtained it while relying on erroneous information supplied by another police officer, unless the situation involves a systemic error or reckless disregard of constitutional requirements.  The majority opinion is authored by Chief Justice Roberts and joined by Justices Alito, Kennedy, Scalia and Thomas.  Justice Ginsburg authored a dissenting opinion which was joined by Justices Breyer, Souter and Stevens.  Justice Breyer filed another dissenting opinion that was joined by Justice Souter.