cert alert
Supreme Court Cases
of Interest
BY CAROL GARFIEL FREEMAN
T
o begin the 2010 term, the court granted
cert in 10 new cases relevant to criminal
justice. One of these cases, Ashcroft v. AlKidd, No. 10-98, involves the question whether
the former attorney general can be held civilly
liable for allegedly misusing the material witness
statute as a pretext to investigate and detain terrorism suspects. The only opinion of note as of
October 18 is Justice Sotomayor’s dissent from
the denial of cert to a Louisiana state prisoner
who alleged an Eighth Amendment claim based
on punishment imposed by prison officials because
he stopped taking his HIV medication to protest
his transfer to a prison facility. (Pitre v. Cain, 2010
WL 4053955 (No. 09-9515) (Oct. 18, 2010).) The
spring issue of the magazine will cover the first
opinions issued during this term and the argument
schedules for the first months of 2011.
CERTIORARI GRANTED
Note: Questions presented are quoted as drafted by
the parties, or, in some instances, by the court.
Fifth Amendment
Bullcoming v. New Mexico, cert. granted, 2010
WL 2008002 (Sept. 28, 2010) (No. 09-10876), decision below at 147 N.M. 487 (N. Mex. 2010).
Whether the Confrontation Clause permits the prosecution to introduce testimonial statements of a nontestifying forensic
analyst through the in-court testimony of
a supervisor or other person who did not
perform or observe the laboratory analysis
described in the statements.
CAROL GARFIEL FREEMAN has been
a staff lawyer with the US District
Court for the District of Columbia,
and a deputy district public defender in
Maryland. She is a contributing editor to
Criminal Justice magazine and has been
a Section vice-chair for publications,
chair of the Book Board, and chair and
member of the editorial board of the
magazine.
Crimes and Offenses
Sykes v. United States, cert. granted, 2010 WL
2345244 (Sept. 28, 2010) (No. 09-11311), decision
below at 598 F.3d 334 (7th Cir. 2010).
Whether using a vehicle while knowingly or
intentionally fleeing from a law enforcement
officer after being ordered to stop constitutes a “violent felony” under the Armed
Career Criminal Act, 18 U.S.C. § 924(e).
Fourth Amendment
Alford v. Greene, cert. granted and consolidated
with Camreta v. Greene, No. 09-1454, for one-hour
oral argument, 2010 WL 2242774 (Oct. 12, 2010)
(09-1478), decision below at 588 F.3d 1011) (9th
Cir. 2009), reh’g denied, March 1, 2010.
This case presents a federal constitutional
question of exceptional importance concerning the scope of the Fourth Amendment’s
protections when applied to interviews of suspected child abuse victims at public schools.
Here, child protective services and a local
law enforcement agency received a report
that a nine-year old girl was being sexually
abused by her father. Based upon this report,
a child protective services caseworker and a
deputy sheriff interviewed the girl at her public school without first obtaining a warrant
or parental consent. Splitting with the Fifth
Circuit, which had held under similar circumstances that the traditional warrant/warrant
exception analysis sets too high a threshold
when investigating allegations of child abuse,
the Ninth Circuit held the interview violated
the girl’s Fourth Amendment right to be free
from ‘unreasonable’ seizures absent a warrant, court order, exigent circumstances, or
parental consent. In so holding, the Ninth
Circuit rejected the balancing-of-interests approach first established in Terry v. Ohio [392
U.S. 1 (1968)] to assess whether detentions not
amounting to an arrest are reasonable under
the Fourth Amendment. It concluded instead
that the Fourth Amendment demanded the
application of the more restrictive standard
of a warrant or an exception to the warrant
requirement to interviews of this type. 1. Does
the Fourth Amendment require a warrant,
a court order, parental consent, or exigent
circumstances before law enforcement and
child welfare officials may conduct a tempo-
Published in Criminal Justice, Volume 25, Number 4, Winter 2011. © 2011 by the American Bar Association. Reproduced
with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any
form or by any means or stored in an electronic database or retrieval system without the express written consent of the
American Bar Association.
rary seizure and interview at a public school
of a child whom they reasonably suspect
was being sexually abused by her father?
Camreta v. Greene, cert. granted and consolidated
with Alford v. Greene, 09-1478, for one hour oral
argument, 2010 WL 2191186 (Oct. 12, 2010) (No.
091474), decision below at 588 F.3d 1011 (9th Cir.
2009), reh’g denied, March 1, 2010.
The state received a report that a nine-yearold child was being abused by her father at
home. A child-protection caseworker and
law-enforcement officer went to the child’s
school to interview her. To assess the constitutionality of that interview, the Ninth Circuit applied the traditional warrant/warrantexception requirements that apply to seizures
of suspected criminals. Should the Ninth
Circuit, as other circuits have done, instead
have applied the balancing standard that this
Court has identified as the appropriate standard when a witness is temporarily detained?
(2) The Ninth Circuit addressed the constitutionality of the interview in order to provide
“guidance to those charged with the difficult
task of protecting child welfare within the
confines of the Fourth Amendment[,]” and
it thus articulated a rule that will apply to all
future child-abuse investigations. Is the Ninth
Circuit’s constitutional ruling reviewable,
notwithstanding that it ruled in petitioner’s
favor on qualified immunity grounds?
Ashcroft v. Al-Kidd, cert. granted limited to questions 1 and 2 presented by the petition, 2010 WL
2812283 (Oct. 18, 2010) (No. 10-98), decision below at 580 F.3d 949 (9th Cir. 2009), reh’g denied,
March 18, 2010. Justice Kagan took no part in
the consideration or decision of this petition.
Respondent was arrested on a material witness warrant issued by a federal magistrate
judge under 18 U.S.C. 3144 in connection
with a pending prosecution. He later filed a
Bivens action [Bivens v. Six Unknown Named
Agents, 403 U.S. 388 (1971)], against petitioner, the former Attorney General of the United
States, seeking damages for his arrest. Respondent alleged that his arrest resulted from
a policy implemented by the former Attorney
General of using the material witness statute
as a “pretext” to investigate and preventively
detain terrorism suspects. In addition, respon-
dent alleged that the affidavit submitted in
support of the warrant for his arrest contained
false statements. The questions presented are:
1. W
hether the court of appeals erred in denying petitioner absolute immunity from
the pretext claim.
2. W
hether the court of appeals erred in denying petitioner qualified immunity from
the pretext claim based on the conclusions
that (a) the Fourth Amendment prohibits
an officer from executing a valid material
witness warrant with the subjective intent
of conducting further investigation or preventively detaining the subject; and (b) this
Fourth Amendment rule was clearly established at the time of respondent’s arrest.
Kentucky v. King, cert. granted limited to question 1 presented by the petition, 2010 WL 1607485
(Sept. 28, 2010) (No. 09-1272), decision below at
302 S.W.3d 649 (Ky. 2010).
Police officers entered an apartment building
in hot pursuit of a person who sold crack cocaine to an undercover informant. They heard
a door slam, but were not certain which of two
apartments the trafficker fled into. A strong
odor of marijuana emanated from one of the
doors, which prompted the officers to believe
the trafficker had fled into that apartment. The
officers knocked on the door. They then heard
noises which indicated that physical evidence
was being destroyed. The officers entered the
apartment and found large quantities of drugs.
The Kentucky Supreme Court held that this
evidence should have been suppressed, ruling
that (1) the exigent circumstances exception to
the warrant requirement did not apply because
the officers created the exigency by knocking on
the door, and (2) the hot pursuit exception to the
warrant requirement did not apply because the
suspect was not aware he was being pursued.
The two questions presented are: 1. When does
lawful police action impermissibly “create” exigent circumstances which preclude warrantless
entry; and which of the five tests currently being
used by the United States Courts of Appeals is
proper to determine when impermissibly created
exigent circumstances exist?
Standing to Contest Jurisdiction
Bond v. United States, cert. granted, 2010 WL
1526520 (Oct. 12, 2010) (No. 09-1227), decision
Published in Criminal Justice, Volume 25, Number 4, Winter 2011. © 2011 by the American Bar Association. Reproduced
with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any
form or by any means or stored in an electronic database or retrieval system without the express written consent of the
American Bar Association.
below at 581 F.3d 128 (3d Cir. 2009), reh’g denied,
December 10, 2009.
Petitioner admitted that she tried to injure
her husband’s paramour by spreading toxic
chemicals on the woman’s car and mailbox.
Instead of allowing local officials to handle
this domestic dispute, the federal prosecutor indicted petitioner under a federal law,
18 U.S.C. § 229(a), enacted by Congress to
implement the United States’ obligations
under a 1993 treaty addressing the proliferation of chemical and biological weapons.
Facing a sentence of six years in prison,
petitioner challenged the statute and her
resulting conviction as exceeding the federal government’s enumerated powers and
impermissible under the Tenth Amendment. Declining to reach petitioner’s constitutional arguments, and in acknowledged
conflict with decisions from other courts of
appeals, the Third Circuit held that, when
the state and its officers are not party to the
proceedings, a private party has no standing
to challenge the federal statute under which
she is convicted as in excess of Congress’s
enumerated powers and in violation of the
Tenth Amendment. The question presented
is: Whether a criminal defendant convicted
under a federal statute has standing to challenge her conviction on grounds that, as applied to her, the statute is beyond the federal
government’s enumerated powers and inconsistent with the Tenth Amendment.
Sentencing
DePierre v. United States, cert. granted, 2010 WL
2420999 (Oct. 12, 2010) (No. 09-1533), decision
below at 599 F.3d 25 (1st Cir. 2010).
Section 841(b)(1)(A) of Title 21 requires the
imposition of a ten-year mandatory minimum sentence upon persons who engage in a
drug-related offense involving either (a) five
kilograms or more of “coca leaves” or “cocaine,” or (b) fifty grams (.05 kilograms) or
more of those substances, or of a mixture of
those substances, “which contain[ ] cocaine
base.” The question presented is whether the
term “cocaine base” encompasses every form
of cocaine that is classified chemically as a
base – which would mean that the ten-year
mandatory minimum applies to an offense involving 50 grams or more of raw coca leaves
or of the paste derived from coca leaves, but
that 5000 grams of cocaine powder would be
required to trigger the same ten-year minimum – or whether the term “cocaine base” is
limited to “crack” cocaine.
Freeman v. United States, cert. granted, 2010 WL
132401 (Sept. 28, 2010) (No. 09-10245), decision
below at 355 Fed. Appx. 1 (6th Cir. 2009), reh’g
denied, January 12, 2010.
Section 3582(c)(2) of Tit1e 18 of the United
States Code provides that a district court
may reduce a term of imprisonment after it
has been imposed if the defendant “has been
sentenced to a term of imprisonment based
on a sentencing range that has subsequently
been lowered by the Sentencing Commission.” Under Federal Rule of Criminal Procedure 11(c)(1)(C), the Government and the
defendant may enter into a plea agreement in
which they “agree that a specific sentence or
sentencing range is the appropriate disposition of the case” and “such a recommendation or request binds the court once the court
accepts the plea agreement.” The question
presented is whether a defendant is ineligible
for a sentence reduction under 18 U.S.C.
§3582(c)(2) solely because the district court
accepted a Rule 11(c)(1)(C) plea agreement.
United States v. Tinklenberg, cert. granted, 2010
WL 2300512 (Sept. 28, 2010) (No. 09-1498),
decision below at 579 F.3d 589 (6th Cir. 2009),
reh’g denied, January 12, 2010. Justice Kagan
took no part in the consideration or decision of
this petition.
Whether the time between the filing of a pretrial motion and its disposition is automatically excluded from the deadline for commencing trial under the Speedy Trial Act
of 1974, 18 U.S.C. 3161(h)(I)(D) (Supp. II
2008), or is instead excluded only if the motion actually causes a postponement, or the
expectation of a postponement, of the trial.
ARGUMENTS SCHEDULED
November 2:
Sossamon v. Texas, 130 S. Ct. 3319 (No. 08-1438),
Cert. Alert, 25:3 Crim. Just. at 42 (Fall 2010)
(whether state or state official can be sued for
damages for violations of Religious Land Use
and Institutionalized Persons Act).
Published in Criminal Justice, Volume 25, Number 4, Winter 2011. © 2011 by the American Bar Association. Reproduced
with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any
form or by any means or stored in an electronic database or retrieval system without the express written consent of the
American Bar Association.
November 9:
Cullen v. Pinholster, 130 S. Ct. 3410 (09-1088),
Cert. Alert, 25:3 Crim. Just. at 41 (Fall 2010)
(standard for review on habeas and for granting
habeas relief; capital case).
November 29:
Wall v. Kholi, 130 S. Ct. 3274 (09-868), Cert. Alert, 25:3
Crim. Just. at 41 (Fall 2010) (whether a state court
sentence reduction motion based on leniency will toll
AEDPA’s one-year limitation for filing habeas).
Walker v. Martin, Cert. Alert, 25:3 Crim. Just. at 41
(Fall 2010) (effect on federal habeas of state prohibition on “substantially delayed” collateral attacks).
November 30:
Schwarzenegger v. Plata, 130 S. Ct. 3413 (No.
09-1233), Cert. Alert, 25:3 Crim. Just. at 41 (Fall
2010) (power of three-judge federal court to order release of prisoners as part of its supervision
of state prisons).
December 6:
Pepper v. United States, 130 S. Ct. 3499 (No. 096822), Cert. Alert, 25:3 Crim. Just. at 42 (Fall
2010) (whether postsentencing rehabilitation can
support a downward variance; whether second
judge on remand is bound by findings of first
judge affirmed on appeal). n
Published in Criminal Justice, Volume 25, Number 4, Winter 2011. © 2011 by the American Bar Association. Reproduced
with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any
form or by any means or stored in an electronic database or retrieval system without the express written consent of the
American Bar Association.