Weekly Case Summaries: January 27, 2012

Supreme Court of the United States

United States, v. Jones

No. 10-1259 : 1/23/12 (4+1)+4

Issue:

Does the attachment of a global positioning system (GPS) tracking device to an individual's vehicle and subsequent monitoring of the GPS constitute a Fourth Amendment search?

Holding (Scalia, J., with Roberts, C.J., Kennedy, Thomas, and Sotomayor, J.J.,):

Yes. Applying 18th-century trespass law, a vehicle is an "effect" as the term is used in the Fourth Amendment, and the physical intrusion would have been a search within the meaning of the Amendment at the time it was adopted. The Court does not reach the question of reasonableness of the search because it was not raised below.
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Concurrence (Sotomayor, J.,):

Yes, but the majority test provides little guidance where electronic monitoring is achieved without any kind of physical invasion—as where systems are already in place and the government simply captures the data.

Concurrence (Alito, Ginsburg, Breyer, and Kagan, J.J,):

Yes, under traditional Fourth Amendment analysis, the government has violated an individual's reasonable expectation of privacy.

Commentary:

The SCOTUS enters the modern, digital world with a ... 4-1-4 opinion that re-introduces ancient property law you probably haven't thought about since taking the bar exam. The bottom line is that the State presented a very poor set of facts to begin a new line of search and seizure law. The ruling is actually very narrow: there was a search. Left unanswered is what was required to conduct a constitutional search. A warrant or not? Probable cause or reasonable suspicion? Does any of this apply to laptops and cell phones? Who knows? For a good discussion on how the media generally reported this case wrongly, check out SCOTUSblog here.

Ryburn v. Huff

No. 11-208 : 1/23/12 (P.C.)

Issue:

Did officers violate the Fourth Amendment when they made entry into a home without a warrant but with a reasonable basis for concluding that there was an imminent threat of violence?

Holding (Per Curiam):

No. The Court concludes that the majority of the Ninth Circuit improperly sanitized the events.
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Commentary:

Another summary per curiam reversal of a bad Ninth Circuit decision. If a prosecutor had as many cases reversed as the Ninth Circuit does, there would be a call for someone's head. This time the SCOTUS makes it clear that two of the three Ninth Circuit panel judges fudged the facts to fit their desire for a reversal. Incredible.

Fifth Circuit Court of Appeals

United States v. Mason

No. 10-31240 : 1/19/12

Issue:

Was a defendant with retained counsel but who qualified for appointed counsel required to show good cause to substitute appointed counsel to represent him at his sentencing hearing?

Holding:

No. Contrary to the First Circuit's ruling, a defendant retains the right to choose counsel so long as he can prove financial eligibility.
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Dissent:

The defendant failed to show that he was denied effective assistance of counsel.

Commentary:

This decision, which allows a defendant with retained counsel to interrupt the proceedings with a delayed demand for appointed counsel (for no better reason than stating he isn't getting along with retained counsel) will create much mischief. And the reasoning that suggests this is a 6th Amendment right is weak. The dissent has the better legal argument and is right when the judge warns, "this decision makes trouble for judges."

United States v. Cavazos

No. 11-50094 : 1/19/12

Issue:

Did officers' early-morning entry into the suspect's home and subsequent questioning constitute custodial interrogation requiring Miranda warnings?

Holding:

Yes, because the dozen officers' entry, temporary handcuffing of the suspect, separation of the suspect from his family for questioning, and supervision of the suspect while in the bathroom and on the phone would lead a reasonable person to believe that he was not "at liberty to terminate the interrogation and leave."
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Commentary:

Just telling the defendant that it is a "non-custodial interview" doesn't necessarily insulate an officer from a finding of custodial interrogation. The circumstances surrounding the interview must reveal that a reasonable person would think those words are meaningfully true. This isn't really a close case once you read the facts.

Court of Criminal Appeals

Cornet v. State

No. PD-1067-10 : 01/25/12

Issues:

1. Was the medical care defense (PC §§22.021(d) and 22.011(d)) available when the defendant, a layperson with respect to medical science, conducted a medical inspection of a child resulting in penetration?

2. Did the trial court incorrectly refuse to instruct the jury on the medical care defense?

Holding:

1. Yes. The availability of the defense depends on the nature of the conduct, not the actor's occupation or familiarity with the science of medicine. The simple inspection of a child's anatomy, if conducted for medical purposes, constitutes "medical care" for purposes of PC §22.021(d).

2. Yes. The medical care defense is appropriate when the defendant's evidence essentially admits to every element of the offense. The defendant's written statements and trial testimony were sufficient for a trier of fact to reasonably infer that he admitted, under the doctrine of confession and avoidance, to the element of penetration.
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Dissent:

The defendant was not entitled to the jury instruction because he did not offer any evidence that his conduct was a legitimate, accepted medical methodology. The defendant's conduct was not the type of medical care envisioned by the Texas Legislature when the defense to sexual assault was enacted.
Read Dissent

Commentary:

As usual, Judge Cochran gets right to the point in her dissent: "If this description meets any common-sense description of accepted or acceptable medical care, the children of Texas are in big trouble." What in the world is the majority, especially Presiding Judge Keller, thinking? When a stepfather probes and performs oral sex on a child, that ain't medical care in Texas. Every DA in Texas should join in filing a motion for rehearing in this case. The protection of our children from pedophiles who will claim a medical defense depends upon it.

Kirsch v. State

No. PD-0245-11 : 01/25/12

Issue:

Did the trial court incorrectly include a definition of the statutorily undefined term "operate" as used in PC §49.04(a) (DWI)?

Holding:

Yes. The instruction, although facially neutral and legally accurate, constituted an improper comment on the weight of the evidence. Defining "operate" as "to exert personal effort to cause the vehicle to function" improperly focused the jury on the type of evidence that would support a finding that the defendant was operating his motorcycle.
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Commentary:

A judge should know better. The courts have consistently told judges not to invent written definitions that aren't in the Penal Code. Let jurors use their common sense understanding of such words. This is likely to be held harmless on remand, though.

Pecina v. State

No. PD-1095-10 : 01/25/12

Issue:

Did the trial court properly deny the defendant's motion to suppress statements made during custodial interrogation?

Holding:

Yes. The defendant told the magistrate during the CCP art. 15.17 hearing that he wanted an attorney and to also talk with the police waiting outside. Under Montejo, the defendant's invocation of the right to counsel at the hearing had no impact on his possible invocation of his right to counsel during later police-initiated custodial interrogation. After proper Miranda warnings, the defendant waived both his 5th and 6th Amendment rights to counsel during custodial interrogation.
Read Opinion 

Concurrence:

Judge Alcala observed that a different outcome might result because the magistrate violated CCP art. 15.17 by failing to provide an attorney for interrogation after one was requested.
Read Concurrence 

Dissent:

Based on the facts of the case, Judge Price believed that the defendant's invocation of the right to counsel in front of the magistrate was for assistance of counsel during custodial interrogation, not trial counsel.
Read Dissent 

Commentary:

This case provides an expected and entirely appropriate conclusion to the litigation that began with Rothgery v. Gillespie County (6th Amendment right to counsel begins at magistration) and ended recently with Montejo v. Louisiana (5th Amendment right to counsel begins with Miranda warnings) as to whether the defendant's personal right to invoke counsel (and silence for that matter) depends upon whether the 5th or the 6th Amendment is involved. Answer: no it does not. That is very good news for officers, who no longer have to guess whether some magistrate, unknown to them, has triggered a right to counsel such that the defendant can't talk to police even after waiving his Miranda rights. This is a case that needs to be shared with police officers throughout Texas. P.S., Judge Alcala should avoid issuing advisory statements about the application of CCP art. 15.17.

State v. Sanavongxay

No. PD-1809-10 : 01/25/12

Issue:

Did the court of appeals have jurisdiction over the State's appeal of the trial court's oral ruling on a motion to suppress that was never memorialized in writing?

Holding:

No. The State is entitled to appeal an order of a court in a criminal case if the order grants a motion to suppress, jeopardy has not attached, and the State certifies the appeal is not taken to delay and the evidence is of substantial importance. The order must be in writing. When a trial court refuses to issue a written ruling, the remedy is a petition for a writ of mandamus.
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Commentary:

Lesson: get a mandamus to make the judge do his job and enter a written order if the State wants to appeal an order suppressing evidence.

Johnson v. State

No. PD-0527-11 : 01/25/12

Issue:

Was the defendant coerced to testify against his will during punishment after the trial judge stated, "I would like to know what he's been doing the last 18 years?"

Holding:

No. The defendant forfeited his 5th Amendment right to remain silent when he voluntarily took the stand in his own defense. There was no evidence that he took the stand because he feared the trial court would penalize him for remaining silent. A reasonable person would perceive the court's statement as a request to offer mitigating evidence.
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Commentary:

The better practice is for the trial judge not to make any comment about what he would like to hear at punishment. On the other hand, the defendant didn't help himself by lying.

Texas Court of Appeals

Bautista v. State – 4th COA

No. 04-11-00054-CR : 1/18/12

Issue:

Did the cumulative effect of several instances of prosecutorial misconduct render the defendant's trial fundamentally unfair?

Holding:

No. While the defendant failed to object to most of the alleged conduct, there was no pervasive prosecutorial misconduct excusing his lack of preservation and denying him a fair trial. "Although the prosecutors may have stretched the limits of permissible advocacy in this case, we cannot say, considering the entire record, that their conduct rose to the level of reversible error—in large part because the trial court immediately addressed the borderline behavior from the beginning of the trial."
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Commentary:

Prosecutors should avoid making a trial into a personal contest. Comments made in the heat of the moment or with a sarcastic tone can often generate accusations of misconduct. More than once, the trial judge appropriately reigned in the prosecutor's statements. Win on the facts not on emotion.

Texas Attorney General

Opinion for Bell County Attorney

Opinion No. GA-0909 : 01/23/12

Issue:

May a mentally ill person, detained under Health and Safety Code §573.021, be transported to Austin State Hospital or another appropriate facility after a preliminary examination is conducted by a mental health facility?

Opinion:

No. Health and Safety Code §574.045 does not authorize transportation of a person who has been detained under §573.021. Once a preliminary examination under §573.021 has been conducted and a physician has made the written statement containing his or her findings required by §573.022, an initial mental health facility would be authorized to transport the patient to another mental health facility under §§573.022 and 574.045.
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