On Point

Fernandez v. California, USSC 12-7822, 2/25/14, affirming People v. Fernandez, 145 Cal Rptr.3rd 51 (Cal Ct. App. 2012).

Docket here; SCOTUSblog analysis of decision here; Orin Kerr’s “Five Thoughts on Fernandez” here; On Point analysis of cert grant here

Police officers may, without a warrant, search a jointly occupied premises if one of the occupants consents to the search.  U.S. v. Matlock, 415 U.S. 164 (1974).  There is an exception, however, where multiple occupants standing on the doorstep of the premises disagree about whether to allow a warrantless police search.  In this situation, tie goes to the objector.  Georgia v. Randolph, 547 U.S. 103 (2006).

Here, Fernandez and his girlfriend/co-occupant stood on their doorstep facing the police when he objected to a search.  Suspecting that Fernandez had just assaulted his girlfriend, the police arrested him and took him to the police station.  An hour later, they returned and obtained his girlfriend’s consent to search the premises without a warrant.  The Court held the search complied with the Fourth Amendment based upon the girlfriend’s consent.  In the majority’s view, “an occupant who is absent due to lawful detention or arrest stands in the same shoe as an occupant who is absent for any other reason.” Slip op. at 10.

Justice Ginsburg dissented (joined by Sotomayor and Ginsburg) and argued that this case looks like Randolph in that the objecting occupant was in fact physically present at the door when he objected to the search.  The difference is that the police arrested Fernandez, hauled him away and then returned an hour later, which was more than enough time to get a search warrant.  In her view, the majority opinion shrinks Randolph to “petite size.” Slip op., Ginsburg, J. at 2.

The majority admits uncertainty as to how Randolph applies where the objecting co-occupant is in close proximity to, but not at, the doorstep to the residence.  Slip op. at 13 (“if, as we conclude, Randolph requires presence on the premises to be searched, there may be cases in which the outer boundary of the premises is disputed”). State v.  St. Martin, 2011 WI 44, 334 Wis. 2d 290, 899 N.W.2d 858, presented facts kind of like that.  St. Martin’s girlfriend, who was present at their dwelling, consented to the search, while St. Martin, who was sitting in a squad car outside their dwelling, objected to the search.  SCOW, taking a hard-nosed view, upheld the search because St. Martin was not physically present at the threshold of the dwelling when he objected.  See On Point analysis here.  So, if you don’t like St. Martin’s rule, or you have one of these “outer boundary of the premises” situations, or  your client objected to the search at the door but stepped away momentarily to call his lawyer (or blow his nose or use the facilties or . . . ) thereby allowing the police to rush in sans warrant, by all means keep knock, knock, knocking on SCOTUS’s door with cert petitions.  See SCOTUSblog’s “Five Thoughts on Fernandez v. California.”  There’s plenty of ambiguity left for a follow-up case.

Kaley v. United States, USSC 12-464, 2/25/14

United States Supreme Court decision, affirming United States v. Kaley, 677 F.3d 1316 (11th Cir. 2012)

In a 6-to-3 decision, the Supreme Court holds that when a post-indictment, ex parte restraining order under 18 U.S.C. § 853(e) freezes assets that are potentially subject to forfeiture but which the defendant needs to retain counsel, the defendant is not entitled to a pretrial hearing to challenge whether there is probable cause for the underlying charges. The decision changes the rule in the Seventh Circuit, which has long held that due process requires a pretrial hearing where the defendant may test probable cause as to both the predicate offense and the forfeitability of the property. United States v. Michelle’s Lounge, 39 F.3d 684 (7th Cir. 1994).

Federal forfeiture law authorizes a district court, upon an ex parte motion of the government, to freeze assets of an indicted defendant that are subject to forfeiture upon conviction. In Caplin & Drysdale, Chartered v. United  States, 491 U.S. 617 (1989), and United States v. Monsanto, 491 U.S. 600 (1989), the Court rejected a Fifth and Sixth Amendment challenge to the freezing of an indicted defendant’s assets needed to pay counsel of choice. While Monsanto held that a freeze order must be based on probable cause to believe both that the defendant committed an offense permitting forfeiture and that the property at issue has a connection the crime, it explicitly left open the question whether there is a due process right to a hearing before a pretrial restraining order can be imposed. Id. at 615 n.10. Since Monsanto most federal courts have permitted hearings on the connection-to-the-crime issue, but have divided on whether the defendant can challenge the probable cause underlying the charges. The Court now holds that the grand jury’s determination of probable cause is the last and inviolable word on the matter:

If judicial review of the grand jury’s probable cause determination is not warranted (as we have so often held) to put a defendant on trial or place her in custody, then neither is it needed to freeze her property. The grand jury that is good enough—reliable enough, protective enough—to inflict those other grave consequences through its probable cause findings must needs be adequate to impose this one too. Indeed, Monsanto already noted the absence of any reason to hold property seizures to different rules: As described earlier, the Court partly based its adoption of the probable cause standard on the incongruity of subjecting an asset freeze to any stricter requirements than apply to an arrest or ensuing detention….

And indeed, the alternative rule the Kaleys seek would have strange and destructive consequences. The Kaleys here demand a do-over, except with a different referee. They wish a judge to decide anew the exact question the grand jury has already answered—whether there is probable cause to think the Kaleys committed the crimes charged. But suppose the judge performed that task and came to the opposite conclusion. Two inconsistent findings would then govern different aspects of one criminal proceeding: Probable cause would exist to bring the Kaleys to trial (and, if otherwise appropriate, hold them in prison), but not to restrain their property. And assuming the prosecutor continued to press the charges,.. the same judge who found probable cause lacking would preside over a trial premised on its presence. That legal dissonance, if sustainable at all, could not but undermine the criminal justice system’s integrity—and especially the grand jury’s integral, constitutionally prescribed role. (Slip op. at 9-11).

Anthony Ray Hinton v. Alabama, USSC 13-6440, 2/24/14 (per curiam), vacating Hinton v. State, __So. 3d__, 2013WL 598122 (2/15/13).

Docket here.

Trial lawyers, listen up.  Check your expert witness funding cap before settling for an “expert” you know is sub par.

In 1985, managers of 3 different restaurants were robbed and shot—each with two .38 caliber bullets.  The first two managers died.  The third survived and identified Hinton as his assailant.  At trial, the State sought to prove that Hinton not only shot the third manager, he also murdered the other two.  The only physical evidence linking the three crimes was: (a) the .38 caliber revolver, which belonged to Hinton’s mom and was found at his house, and (b) the 6 bullets.  The State put on toolmark experts who testified that all 6 bullets were fired from Hinton’s gun.  The defense put on an elderly, on-eyed, civil engineer, who had almost no experience with firearms and toolmark identification, who had trouble operating the microscope at state forensic lab, and who testified that it would be impossible to say with certainty whether a particular bullet had been fired from Hinton’s gun.

Defense counsel thought the statutory maximum amount he could pay for an expert was $500 per murder case (1,000 total).  For that price, the one-eyed civil engineer was the only expert willing to take the case.  In fact, the statute had been amended a year earlier and allowed counsel to be reimbursed for “any expenses reasonably incurred in such defense to be approved in advance by the trial court.”  The attorney’s ignorance of what the law allowed met the “deficient performance” prong of a claim for ineffective assistance of counsel.

We wish to be clear that the inadequate assistance of counsel we find in this case does not consist of the hiring of an expert who, though qualified, was not qualified enough.  The selection of an expert witness is the paradigmatic example of the type of “strategic choic[e]” that, when made “after thorough investigation of [the]law and facts,” is “virtually unchallengeable.” Strickland, 466 U.S., at 690.  We do not today launch federal courts into examination of the relative qualifications of experts hired and experts that might have been hired.  The only inadequate assistance of counsel here was the inexcusable mistake of law–the unreasonable failure to understand the resources that state law made available to him–that counsel counsel to employ an expert that he himself deemed inadequate. (Emphasis in original).

The court remanded the case for a determination of whether counsel’s “deficient performance” was prejudicial to Hinton under Strickland.

Here in Wisconsin, § 977.05(4r)(a) says that the SPD may not provide reimbursement for investigative or expert services unless the appointed attorney “has received authorization from the state public defender to retain an investigator or expert.”  Per § 977.05(4r)(b), that authorization shall state the maximum amount that may be reimbursed and the SPD can’t pay more unless allowed by rules promulgated under  §977.03(2).

Village of Little Chute v. Ronald A. Rosin, 2013AP2536, District 3, 2/25/14; court of appeals decision (1-judge; ineligible for publication); case activity

Rosin argues that field sobriety tests are searches under the Fourth Amendment because “[a]n inherent right as a human being is to control and coordinate the actions of [his or her] own body[,]” and, therefore “a fundamental expectation of privacy is implicated when a person is subject to the performance of [field sobriety tests].” (¶12). The  Village doesn’t respond to this argument, so the court of appeals deems it to be conceded. (¶13).

But treating FSTs as a Fourth Amendment search doesn’t change the quantum of evidence needed before an officer may request a driver to do them because the “probable cause” standard Rosin advances is nothing more than the “reasonable suspicion of impairment” standard already in effect, which requires some evidence beyond that supporting the initial traffic stop. (¶¶14-18, citing County of Jefferson v. Renz, 231 Wis. 2d 293, 310, 603 N.W.2d 541 (1999)). To the extent Rosin argues for the “probable cause to arrest” standard adopted by People v. Carlson, 677 P.2d 310, 317-18 (Colo. 1984), the court rejects that standard as “inconsistent with our jurisprudence.” (¶19).

Applying the “reasonable suspicion of impairment” standard here, the court concludes the officer had sufficient basis to ask Rosin to perform FSTs. (¶¶22-24).

Review of an unpublished court of appeals opinion; case activity; prior On Point post here.

Issue:

Whether ordering a defendant to open his mouth and reveal his platinum teeth to the jury violated his Fifth Amendment right against self-incrimination?

So, this case may boil down to whether forcing the defendant to show his platinum teeth is any different from forcing him to give fingerprints or a blood sample.  In other words, is showing platinum teeth testimonial evidence or physical evidence?  SCOTUS says the Fifth Amendment doesn’t protect a suspect from being compelled to produce physical evidence.  See Pennsylvania v. Muniz, 496 U.S. 582, 588-89 (1990).  But the idiom “show one’s teeth” (i.e. “to become menacing; reveal one’s hostility”) suggests the evidence at issue here may be testimonial.   No doubt the answer depends upon the circumstances of the case (Gonzalez was convicted of battery to another prisoner) and one’s viewpoint. (Juror:  “Wow, this guy’s chops are really scary.” DA: “These teeth are just physical evidence.”  4 out of 5 dentists: “Hmm.  This guy’s got cavities.”) The initial brief is sure to be “armed to the teeth” with interesting precedent–hopefully enough to persuade 4 out of 7 justices to reverse.  🙂

Review of a summary disposition, case activity

Issues (lifted from the State’s PFR here)

Did Wilson satisfy the opportunity requirement for presenting third-party-perpetrator evidence under State v. Denny, 120 Wis. 2d 614, 357 N.W.2d 12 (Ct. App. 1984) with respect to Willie Friend?

If the answer to the first question is “yes,” was the error in excluding the Denny evidence harmless beyond a reasonable doubt.?

If you’re expecting a big battle over State v. Denny, you probably will be disappointed.  The State does not challenge the Denny test.  It contends that the court of appeals applied it incorrectly.  (Think “error correction.”)  However, the State’s really big beef is with the court of appeals’ “harmless error” analysis, which necessarily focuses on the facts of just this case.  The State does not challenge the “harmless error” test itself. (Think “error correction” again).  When you’re the State, that’s all it take to get your petition granted.  Seriously, this unpublished, summary disposition doesn’t meet the criteria for review.  Our best guess as to why the Supremes took it is that Wilson, who was convicted of 1st-degree intentional homicide, has been sitting in prison for 20 years.  The court of appeals decision would require the State to retry his case, which could prove difficult.  That is not, however, one of § 809.62’s criteria for supreme court review.  High fives, Attorney Anne Kearney, for taking Wilson’s case via the Appellate Section’s pro bono appeals program.

Review of a published court of appeals decision; case activity

Issues (composed by On Point)

Whether Dillard is entitled to withdraw his plea because the primary feature of the plea bargain he accepted was the state’s dismissal of a persistent repeater enhancement, which would have mandated a sentence of life imprisonment without release, when in fact the persistent repeater enhancement never applied to him.

Whether Dillard is entitled to withdraw his plea on the alternative ground that his trial lawyer was deficient in failing to discern that Dillard was not subject to the persistent repeater enhancement.

As detailed in our post on the court of appeals decision, Dillard accepted a plea bargain under which a persistent repeater allegation was dismissed, thus apparently reducing his maximum penalty exposure by avoiding a mandatory life sentence without prospect of release. But Dillard was not in fact subject to the persistent repeater law, so the mandatory life sentence never applied to him. When he discovered that, he moved to withdraw his plea. The court of appeals concluded Dillard’s plea was not knowing and voluntary because he struck a plea deal in the face of the significant–but illusory–threat of life behind bars.

A very common sense conclusion, but the state’s petition for review complains that the court of appeals allowed Dillard to withdraw his plea even though he did not allege that anything about the plea he actually entered was unknowing or involuntary, identified no defect in the plea colloquy, and misunderstood only a penalty enhancer that was not part of his plea because it was dismissed. To the state that means the court of appeals erred in relying on the reasoning in State v. Cross, 2010 WI 70, 326 Wis. 2d 492, 786 N.W.2d 64 (erroneously advising a defendant during the plea colloquy that he faced a maximum sentence that is higher than what is actually authorized by law isn’t grounds for plea withdrawal unless the misstated maximum was “substantially” higher), and misapplied State v. Denk, 2008 WI 130, 315 Wis. 2d 5, 758 N.W.2d 775 (misinformation about the maximum penalty of a dismissed charge didn’t make the plea agreement illusory).

The court of appeals, however, dealt very logically and effectively with the difference between Denk and Dillard’s situation, in particular noting the fact that in Denk the charge about which the defendant was informed was dismissed entirely, while here Dillard pled to the charge to which the enhancer was originally attached, 350 Wis. 2d 331, ¶¶17-19. Moreover, the state’s narrow focus on what happened during the plea colloquy ignores the fact that a defendant’s decision to plead is determined not just by the colloquy, but also–if not more so–by his understanding of his legal situation without a plea bargain and how the bargain improves his situation. Thus, manifest injustice entitling a defendant to plea withdrawal may be based on mistakes outside the plea colloquy, e.g., State v. Dawson, 2004 WI App 173, 276 Wis. 2d 418, 688 N.W.2d 12 (plea was not knowing and voluntary where defendant entered plea that called for legally unenforceable reopen-and-amend disposition); State v. Woods, 173 Wis. 2d 129, 496 N.W.2d 144 (Ct. App. 1992) (finding manifest injustice when the plea was entered under the mistaken belief that the sentence for the charge being pled to could run concurrently with juvenile sentence); State v. Riekkoff, 112 Wis. 2d 119, 332 N.W.2d 744 (1983) (permitting withdrawal where bargained-for benefit, preserving the right to appeal a particular issue, was legally unenforceable). The court of appeals recognized this, and now we will see whether the supreme court does.

As to the second issue, the state complains the court of appeals failed to apply the standard from State v. Bentley, 201 Wis. 2d 303, 548 N.W.2d 50 (1996). Because the state effectively conceded that trial counsel was deficient, the remaining issue was whether it is reasonably probable that, but for the deficiency, Dillard wouldn’t have entered his plea, id. at 312. This is a question of law, and beyond the state’s disagreement with the court of appeals’ conclusion it’s hard to see why this issue meets the criteria for review. Be that as it may, the supreme court will have to say something about it if they conclude Dillard is not entitled to plea withdrawal on grounds of manifest injustice.