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February 05, 2019

Supreme Court Criminal Review

By Raffi Melkonian

Erwin Chemerinsky—Professor and Dean of the University of California Berkeley School of Law—is a justly famed speaker. For one thing, he has an encyclopedic knowledge of Supreme Court jurisprudence, both today and in the past. Simply put, he understands the Supreme Court, its cases, and its personalities in a way few others can match, and for that reason alone deserves his audience’s rapt attention.

On top of that, his presentations are always part bravura performance. He can seemingly speak about nearly any case decided in the last century at the drop of a hat. And he always does so without so much as a single post-it note, speaking for more than an hour at a time entirely extemporaneously. That’s a feat of memory that most lawyers can only envy.

That is part of why I (and many other attendees) was excited to hear what Dean Chemerinsky had to say in his magisterial survey of the Supreme Court’s 2017 October Term criminal procedure cases. The session was especially interesting because the Supreme Court has been unusually active in criminal procedure in recent terms. It might even be fair to say that the Court’s criminal docket is more important and changes more people’s lives than its more famous civil decision. Dean Chemerinsky’s talk didn’t disappoint those high expectations. Although summarizing his whole talk is beyond the scope of this article, I have chosen three cases that stood out from his broader discussion. 

Carpenter v. United States: Dean Chemerinsky started his talk with what he called the most important criminal case of the year, Carpenter v. United States. Carpenter is about cellular tower data. As Dean Chemerinsky crisply explained, every time we use our cellphone, the phone connects to a cell tower. These connections generate records. The records can include the GPS coordinates of each tower and the day and time the phone tried to make that connection. Thus, the police can potentially use this data to determine our rough location at almost any time and track our movements historically. “Did John commit that murder?” Well, the cell tower records say he was around the murder victim’s house at the time of the crime. “Did Sally participate in that drug deal?” No, because her cell phone was two counties away.

The question presented by Carpenter was whether the police need a warrant under the Fourth Amendment to access this information. In other words, can the police simply send a subpoena to a cellular phone company and ask for this potentially extremely invasive information, or do they need to ask a judge and demonstrate probable cause in order to get a warrant? As Dean Chemerinsky noted, this was potentially a blockbuster legal question. Given the rapidly advancing frontiers of technology, permitting the police to seek this data without a warrant might have opened the floodgates for wide intrusions into privacy years from now.

The Supreme Court—with Chief Justice Roberts writing and joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan—held that a request for cell-site data is a search under the Fourth Amendment and therefore requires a warrant. Thus, Carpenter, whose conviction for a series of robberies was based in part of this data, would get another chance to overturn the judgment against him.

Dean Chemerinsky called this an “enormously significant decision” with potential consequences for decades as technology advances and as technology companies gain access to ever more of our personal data. The Court, however, “left open many questions,” according to Dean Chemerinsky. For example, what if the police needed “live” data to catch a fleeing criminal? What if the police want a list of all phone numbers connected to a particular cell tower at a specific time? Does Carpenter apply retroactively, to cases that have already been adjudicated? What about the future of the third-party doctrine, which traditionally held that information held by third-parties can be acquired by subpoena without a warrant? These and many other questions remain for the Supreme Court to decide—but for now, Dean Chemerinsky told us that the Court has definitively come down on the side of broader protections for digital data from police searches.

District of Columbia v. Wesby: This, Dean Chemerinsky said, was one of the most colorful criminal-adjacent cases of the term, and yet had an important lesson for observers on the increasingly controversial doctrine of “qualified immunity”—which protects police from civil consequences for some of their actions unless those actions clearly violate well-established constitutional law. 

Here, the Washington D.C. police received complaints about loud music and illegal activities at an apparently abandoned house in a relatively poor part of the city. When officers arrived, they approached the house, knocked, and entered. Inside, they found a debauched scene—strippers in the living room, people smoking marijuana inside, and guests having sex upstairs. The police found the hostess, who was named “Peaches.” The police surmised that Peaches was not the owner of the house. Crucially, they also decided that the partygoers must have known that Peaches was not authorized to invite them there. So they arrested everyone under the D.C. unlawful entry statute, which requires the prosecution to prove that the partygoers “knew or should have known that they were entering the house against the owner’s will.” 

The arrested partygoers sued the police for false arrest, alleging the police lacked probable cause to arrest them because there was no reason to believe the partygoers intended to commit unlawful entry. They had simply been invited to and attended a party. The plaintiffs prevailed in the lower courts. Those courts agreed that the police lacked probable cause to arrest them, and that their decision to arrest the plaintiffs was unprotected by qualified immunity.

The Supreme Court reversed. In Justice Thomas’s view, the party-goers must have known they were not authorized to enter the house. The home had been notoriously abandoned for months. Further, any reasonable person, in Justice Thomas’s view, would have noticed that the house had no furniture, except for a few padded metal chairs and a bare mattress, and further would have realized they were unauthorized when they saw how unlawful the party was.

Dean Chemerinsky found this case interesting from two perspectives. First, the oral argument exposed some amusing details about the Justices’ personal lives. Justice Sotomayor pointed out that when she is invited to a party, she “[doesn’t] ask to look at a lease” before she goes in. And Justice Gorsuch pointed out that he too had used temporary furniture in his life: “We all live with folding chairs for a time when we move.”

Second, on the merits, Dean Chemerinsky explained that this case gives us a clue about the future of the so-called “qualified immunity” doctrine, which broadly protects police from the consequences of their actions in civil court. There has been substantial agitation in the academy and among various federal judges to limit qualified immunity, which ultimately is a judge-made doctrine with no direct sanction in the Constitution. But Chemerinsky said the “Peaches” case shows that this trend is much weaker than some academics might like—right now, there is no “real appetite” to get rid of qualified immunity. We will have to live with it for some time to come. 

McCoy v. Louisiana: Chemerinsky then addressed McCoy v. Louisiana, an important case Sixth Amendment case. There, Robert McCoy was indicted for triple murder in Louisiana. He was initially assigned a public defender. Then, his family hired a new lawyer who advised McCoy to confess to the killings and argue that he should not be convicted of first-degree murder (but of some lesser offense for which the death penalty was not available). McCoy had no intention of doing that—he strongly believed he was innocent. He even moved to have the attorney removed from the case. The trial court denied the motion and told the lawyer that trial strategy was his choice, not McCoy’s. Counsel took the court’s instructions to heart, and conceded that McCoy had killed the victims, in both his opening statement and in closing argument. McCoy was convicted and sentenced to death.

The Supreme Court held, 6-3, that McCoy had a Sixth Amendment right to prevent his counsel from conceding guilt. To be sure, as Justice Ginsburg explained, some decisions are within counsel’s discretion, such as “what arguments to pursue, what evidentiary objections to raise, and what agreements to conclude regarding the admission of evidence.” But others—the key decisions—must stay with the client. And, crucially, the Court held—unlike most ineffective-assistance-of-counsel claims—that this was so-called “structural error” which does not require a showing of prejudice. As Dean Chemerinsky went on to explain, McCoy is one of the term’s “sleeper” cases, which did not attract much media attention when decided, but is likely to have a major effect on criminal law and litigation going forward.


The Supreme Court’s criminal procedure docket promises to be in flux as practitioners begin to understand how Justices Gorsuch and Kavanaugh will rule on criminal matters. Dean Chemerinsky’s presentation gave attendees a wonderful analysis of what happened this past year, and where the law might be headed in the future.

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Raffi Melkonian

Raffi Melkonian handles trial and appeals in the United States Court of Appeals for the Fifth Circuit, the Southern District of Texas, the Texas Supreme Court, and numerous other appellate courts around the United States. He is a 2005 graduate of Harvard Law School, and a former law clerk to Stephen Lamb of the Delaware Court of Chancery, and Jennifer Walker Elrod of the Fifth Circuit.