As the semester ramps up, I thought it would be useful to look at several of the cases pending before the U.S. Supreme Court which are likely to alter (or reaffirm) the landscape of Criminal Procedure.
The Court’s year runs from October to June; as such, all of the below cases are pending in the “October 2013 term,” although the decisions in the cases will be announced anytime between now (for the cases which have already heard oral argument) and sometime in 2015 (for the cases which have not yet been briefed). The Court considers 100+ cases each term (out of more than 8000 Petitions), of which a few this term are relevant to Criminal Procedure as follows:
Fernandez v. California – A Fourth Amendment Case addressing issues of “consent” in the context of housemates – if the police come to someone’s door and are denied consent to enter by one occupant, can they later get consent from a co-occupant, or is the initial denial of consent a “continuing assertion of 4th Amendment rights which cannot be overridden?” The case addressing this issue up to now is Georgia v. Randolph – Fernandez will refine the decision reached in that case.
The case has been fully briefed and argued; a decision is forthcoming.
Navarette v. California – A Fourth Amendment Case addressing issues of “reasonable suspicion” in the context of automobile stops – if the police receive an anonymous tip about a drunken or reckless driver, do they need to corroborate the dangerous driving before stopping the vehicle? There are an existing constellation of cases addressing what amount of suspicion the police need in order to effect a traffic stop; this case will refine the doctrine.
The case has been fully briefed but has not yet been scheduled for oral argument.
Kaley v. United States – This case lies at the intersection of the 4th, 5th, and 14th Amendments in the context of “civil forfeiture.” Under existing law, the Government may, upon motion to the court, “restrain” the assets of a Defendant which they claim will be subject to later forfeiture (under existing laws allowing for the forfeiture of certain monies obtained through criminal activity). The effect of this process is that an individual accused but not yet convicted of a crime may find their assets seized such that they cannot retain Counsel of their choice.
The Court has previously allowed this procedure against 5th and 6th Amendment challenges in U.S. v. Monsanto, but left open the question as to whether “Due Process” demands a hearing before the pre-trial seizure. The different Federal Circuits are split on this issue; Kaley will resolve the split, and thus the question.
This case has been fully briefed and argued; a decision is forthcoming.
Two other cases have been “taken up” by the Court but have not yet been briefed, both on timely topics of interest to students of Criminal Procedure. The first, Riley v. California, arises out of California while the second, U.S. v. Wurie, is a Federal Case. Both cases involve searches of defendants’ cell phones. The taking of these cases together suggests a potential willingness on the part of the Court to begin to address the myriad questions of privacy in the face of changing technology left open by U.S. v. Jones, as alluded to in Justice Sotomayor’s concurrence in that case.
As I say, the Court only recently announced that it would consider these two cases; no briefs have been filed in either, and so given the case of the Court it is likely that an opinion will not issue until Spring of 2015, in time for our consideration that semester.