U.S. Supreme Court
Lange v. California
No. 20-18 6/24/21
Issue:
Under the Fourth Amendment, does pursuing a misdemeanor suspect fleeing categorically qualify as an exigent circumstance justifying a warrantless entry into a home garage?
Holding:
No. The Fourth Amendment calls for evaluating exigency on a case-by-case basis, including in deciding whether flight by a misdemeanor suspect justifies a warrantless home entry. Misdemeanors vary in seriousness, and although flight from officers typically signals a possible exigency, flight doesn’t automatically change the situation with a misdemeanor suspect “enough to justify a categorical rule.” Read opinion.
Concurrence (Roberts, C.J. joined by Alito, J.):
“We take a case-by-case approach in deciding whether a search or seizure was conducted in reaction to an exigent circumstance, such as whether an officer had an objective basis to ‘fear the imminent destruction of evidence.’ … But once faced with an exigency, our rule is clear: officers are ‘not bound to learn anything more or wait any longer before going in.’ … Today, the Court holds that hot pursuit merely sets the table for other exigencies that may emerge to justify warrantless entry, such as imminent harm. This comes as a surprise. For decades we have consistently recognized pursuit of a fleeing suspect as an exigency, one that on its own justifies warrantless entry into a home.” Read opinion.
Concurrence (Kavanaugh, J.):
“I add this brief concurrence simply to underscore that, in my view, there is almost no daylight in practice between the Court’s opinion and THE CHIEF JUSTICE’s opinion concurring in the judgment.” Read opinion.
Concurrence (Thomas, J. joined by Kavanaugh, J.):
“[E]ven if the state courts … conclude that the officer’s entry here was unlawful, the federal exclusionary rule does not require suppressing any evidence. Officers cannot chase a fleeing person into a home simply because that person is suspected of having committed any misdemeanor, but if the officer nonetheless does so, exclusion under the Fourth Amendment is improper. Criminal defendants must rely on other remedies.” Read opinion.
Commentary:
The Court, as in other recent Fourth Amendment cases, eschews clear rules for a “case by case, totality of the circumstances approach” cloaked in suave wit and smug pronouncements. In comfortable faculty lounges and executive suites this approach must seem as elegant and apparent as a fine new wine. After all, there is an endless supply of officers to sit up on homes while other officers try to get search warrants from an endless supply of judges who never sleep or take vacations. For those on a beer budget charged with apprehending suspects, prosecuting offenders, and adjudicating cases, this opinion is as clear as mud. For those on the defense side it is party time, and if the cops try to stop you on the way home, just run for it.
Texas Supreme Court
In the Interest of D.T., a Child
No. 20-0055 6/25/21
Issue:
Can parents who retain counsel of their choosing in a government-initiated suit to terminate the parent-child relationship challenge their counsel’s performance by asserting an ineffective-assistance claim?
Holding:
Yes. Although the ineffective-assistance claim failed in this case, the Court held that regardless of whether the counsel is retained or appointed, “when the state seeks to terminate a parent’s fundamental liberty interest in making decisions regarding the care of his or her child, gravely and permanently impacting both, the stakes justify affording all parents the right to effective counsel to reduce the risk of an erroneous deprivation and [an] unjust outcome.” Read opinion.
Concurrence (Boyd, J. joined by Hecht and Lehrmann, JJ.):
“If we are going to declare that parents have a right to effective assistance from the counsel they select and retain, we should be able to identify the proper source of that right. Although the Court attempts to base the right in the Family Code, there is no statute that can reasonably be construed as creating such a right. And by nevertheless declaring that parents have a right to effective assistance of retained counsel, the Court contravenes the most basic rule of statutory construction and steps beyond its judicial authority to interpret and apply statutes according to their plain meaning.” Read opinion.
Commentary:
Criminal practitioners will not be surprised by the holding because it is consistent with the law of ineffective assistance of counsel in criminal cases. The dispute among the members of the Court is about the source of the right. In criminal cases we have the Sixth Amendment that grants to right to assistance of counsel. In civil cases, however, the right is derived on a case-by-case basis from the Due Process Clause or from statute.
In re Facebook
No. 20-0434 6/25/21
Issue:
Does 47 U.S.C. §230 of the federal Communications Decency Act (CDA) bar suits under Tex. Civ. Prac. & Rem. Code §98.002(a), which creates a civil cause of action against anyone who intentionally or knowingly benefits from participating in a venture that traffics another person?
Holding:
No. The Court, interpreting the “Allow States and Victims to Fight Online Sex Trafficking Act” (FOSTA) and its statutory construction, concluded that §230 of the CDA does not bar plaintiff claims alleging Facebook’s affirmative acts violated §98.002. Common law tort claims are barred. Read opinion.
Commentary:
This decision will mainly be of interest to plaintiff’s lawyers. The statute the Court evaluates is substantially similar to the human trafficking section of the Penal Code.
Ferguson v. Department of Public Safety
No. 20-0452 6/25/21
Issue:
Does the Second Amendment protect the right to carry a handgun in public, and was a defendant’s right to procedural due process violated when his license to carry was suspended after being charged with a Class A misdemeanor?
Holding:
The Court denied the petition for review.
Concurrence (Busby, J. joined by Boyd, J.):
The court of appeals correctly determined the defendant waived his Second Amendment arguments because he failed to raise them at the trial court level. Regarding his procedural due process challenge, the Concurrence noted that “legislative events that reduce the importance of deciding this case” have taken place. “Beginning September 1, 2021, Texans who are at least 21 and have not been convicted of certain crimes may carry a handgun in public without a license.” Read opinion.
Dissent (Blacklock, J. joined by Devine, J.):
“A defendant deprived of Second Amendment rights based solely on a prosecutor’s unilateral say-so has received little that can rightly be called the ‘process of law.’ The State may well be within its rights in depriving [the defendant] of his right to bear arms under these circumstances, but I doubt that a prosecutor’s unfettered exercise of discretion is all the process [he] was ‘due’ in conjunction with this deprivation of liberty. I would grant his petition and decide these questions.” Read opinion.
Commentary:
Sniping side opinions in a Second Amendment civil case that will soon be meaningless. Nothing to see here.
Court of Criminal Appeals
Wexler v. State
No. PD-0241-20 6/30/21
Issue:
Were a defendant’s statements to police the product of custodial interrogation when officers asked the defendant while in a police vehicle where the drugs were located in her house?
Holding:
No. Because the defendant’s detention was short and in a public setting, and because there was no evidence the defendant was aware of “an overwhelming police presence,” the defendant did not prove that she experienced the functional equivalent of a formal arrest. Read opinion.
Dissent (Walker, J.):
“The court of appeals got it wrong, and we should reverse. … [P]olice made a show of force and commanded [the defendant] to leave the residence. Once she did so, the police placed her in a police vehicle, told her they were searching the residence for drugs, and wanted her to tell them where the drugs were. Any reasonable person in Appellant’s position would not feel free to leave. This constitutes custody.” Read opinion.
Commentary:
This is an interesting and helpful case that must be applied cautiously. If a defendant adduces different testimony at a suppression hearing, the result could easily be different. But, you will often encounter arguments that conflate 4th Amendment detentions with 5th Amendment custody, and this case is your new friend.
Ex parte Lanclos
No. PD-0243-21 6/30/21
Issue:
Was a defendant entitled to a bond reduction to an amount he could afford or release on personal bond after he had been detained for more than 90 days without having been indicted?
Holding:
Yes. The Court held it was irrelevant whether the defendant proved how much bond he could afford. The requirement in Art. 17.151 is mandatory. If the State is not ready for trial within 90 days of the beginning of the defendant’s detention, a defendant accused of a felony must be released on personal bond or by reducing the required bail amount. Merely coming up with a lower number, here from $2,250,000 to $1,500,000, did not satisfy Art. 17.151’s mandate. Read opinion.
Dissent (Yeary, J.):
“Perhaps there is a good reason we have never before addressed whose burden it is to establish an inability to make bail in the set amount. In every case that has come before us up until now, there was evidence in the record that showed that the accused could not meet the bail amount even as reduced. … In the face of a record that simply does not speak to whether Appellant could afford bail in the reduced amount, I cannot fault the court of appeals for concluding that the trial court did not abuse its discretion. I therefore respectfully dissent.” Read opinion.
Commentary:
One argument the Court did not address is the Emergency Orders of the Texas Supreme Court suspending deadlines in all cases. That seems to be the key argument in a 17.151 writ now—how can anyone get ready safely during COVID?
Anderson v. State
No. PD-0279-20 6/30/21
Issue:
Is an incarcerated defendant entitled to the 10-day grace period for filing a notice of appeal when he omitted the words “district clerk” from the envelope he used to send his notice of appeal?
Holding:
No. As the Court has previously held, the prisoner mailbox rule is subject to Rule 9.2(b) requirements that (1) notice be sent to the proper clerk, (2) in an envelope properly addressed and stamped, and (3) deposited in the mail before the last day for filing. Because the defendant’s notice of appeal does not satisfy the mailbox rule or the prisoner mailbox rule, the notice was untimely. Read opinion.
Dissent (Yeary, J.):
“Because [the defendant] addressed his notice of appeal to the trial court, and it was in fact deposited in the mail, he has satisfied all of Rule 9.2(b)(1)’s criteria. Therefore, even assuming that the ‘prisoner mailbox rule’ is subject to all the same requirements as Rule 9.2(b)(1), [the defendant] has properly invoked it, and his notice of appeal should be deemed to have been filed at least as of the date of the postmark on the envelope, namely, November 4th. This was timely.” Read opinion.
Dissent (Walker, J.):
“Although it was not addressed to the ‘Clerk,’ the envelope containing [the defendant’s] notice of appeal was properly addressed, sent to the proper clerk, and delivered to prison authorities before the date notice of appeal was due. Under the prisoner mailbox rule, [the defendant’s] notice of appeal was timely. I respectfully dissent to the Court shutting the door on [the defendant’s] appeal simply because the envelope did not have the magic word ‘Clerk’ on it.” Read opinion.
Commentary:
Mainly of interest to appellate nerds.
Herron v. State
No. PD-0853-19 6/30/21
Issue:
Can a defendant be charged with failure to register as a sex offender in the county where he was expected to reside if he never physically resided or intended to reside there, but instead absconded to another county?
Holding:
No. If a person being released from custody fails to move to the expected residence listed on his pre-release notification form, instead of registering his address with local law enforcement at his expected home, he instead must report to his parole officer or the local law enforcement agency where he temporarily lives. “[A]though we recognize that the facts of this case strongly suggest [the defendant’s] failure to fulfill his registration obligations in some other way (e.g., by failing to register his address in Aransas County after he absconded there), we cannot uphold [his] conviction under that alternative theory because the State’s indictment alleged only a failure to register in El Paso [County].” Read opinion.
Commentary:
A rare victory for a sex offender on appeal.
Ex Parte Sanchez
No. PD-1039-20 6/30/21
Issue:
Did a court of appeals correctly apply the de novo standard in reviewing a trial court’s ruling in an Art. 11.072 proceeding?
Holding:
No. Under Article 11.072, the trial court is the sole finder of fact, and the reviewing court acts only as an appellate court. A trial court’s findings of historical fact must be given deference on appeal even if the findings are based solely on affidavits. “That does not change simply because the habeas judge was not the trial judge. The habeas judge was still a trial level finder of fact to whom deference on certain issues—such as those involving historical fact—is required.” Read opinion.
Commentary:
This opinion highlights some of the differences between regular post-conviction writ proceedings under Article 11.07 and probation writ proceedings under Article 11.072.