May 20, 2011

Supreme Court of the United States

Kentucky v. King (8-1)

05/16/11 : Cite No. 09-1272


Was the exigent circumstances exception to the search warrant requirement invalidated by police action because officers should have foreseen that their conduct would prompt the occupants of the residence to destroy the evidence?


No. So long as police gain entry lawfully—not by an actual or threatened violation of the 4th Amendment—the exigent circumstances exception applies. Here, the police did not create the exigency when they smelled marijuana outside an apartment door, announced their presence, heard noises consistent with the destruction of evidence, and kicked in the door. Moreover, the lower courts’ “exceptions” to the exigent circumstances exception, namely, (1) bad faith, (2) reasonable foreseeability, and (3) probable cause and time to secure a warrant, are rejected as inconsistent with 4th Amendment jurisprudence. Read Opinion.


(Ginsburg, J., alone) “The Court today arms the police with a way routinely to dishonor the 4th Amendment’s warrant requirement in drug case.”


The most striking element of this case is the 8-1 vote. Justice Alito does a fine job of working through all the 4th Amendment tests that could have been adopted and landing on the one that is objective and reasonable. Next up is litigation over what is the sound of evidence being destroyed? Is mere scrambling and the flush of a toilet enough? Will criminals learn to answer the door politely and decline consent to enter? Who knows. Stay tuned to As The World is Searched.

Texas Court of Appeals

State v. Golding – 1st COA

05/12/11 : Cite No. 01-10-00685-CR


Was the trial court correct to hold that the defendant’s Padilla claim was not barred by the doctrine of laches, lack of jurisdiction, or failure to show ineffective assistance of counsel.


Yes, the defendant’s claim that he had not been properly admonished of the immigration consequences of his plea was a collateral consequence providing jurisdiction; the State failed to show prejudice and the defendant was diligent; Padilla is retroactive; and counsel was deficient and the defendant was prejudiced. Read Opinion.


Here is the money sentence from this long opinion: “Where adequate representation reasonably would have led criminal defense counsel to advise against entering a guilty plea, the general admonition about the risk of adverse immigration consequences in the court’s plea papers did not put Golding on notice that his plea of guilty to the misdemeanor charged would absolutely render him deportable and ineligible for naturalization.” WHAT UTTER NONSENSE! Since when do we reverse cases because some judge, in hindsight (decades of hindsight) thinks that a slightly more serious admonition would have avoided a guilty plea (and no doubt have resulted in a guilty verdict from a jury and a higher punishment)? This is the sort of second-guessing that SCOTUS has, until now, been careful to avoid. The opinion should also note that immigration law changes a LOT, in both directions, making accurate legal opinions difficult.

(Note that newest CCA Justice Alcala won’t be participating in PDR, as she was on the panel. There are lots of reasons for the CCA to take up this case.) If the Texas written admonition is not sufficient, then there is no safe guilty plea unless every alien defendant is told that conviction WILL result in deportation (even if it won’t, as is the case for Golding and most aliens).

Prediction: Padilla will be reversed someday. Extending a defense attorney’s duties to include researching and advising on collateral consequences was a big mistake. There is no end to this sort of mischief, but the ultimate outcome of these cases will largely depend on the ruling of the trial court judge. 

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