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February 04, 2022 Appellate Issues | Winter 2022

Supreme Court Review: Criminal

By Robert W. Smith

After speaking to those gathered in Austin for the 2021 AJEI Summit on the major civil from the October 2020 term of the U.S. Supreme Court, Jesse H. Choper Distinguished Professor of Law and the University of California Berkely School of Law Dean Erwin Chemerinsky began his discussion of the criminal cases by reminding the group that criminal cases usually represented one-third of the Court’s docket. This term, the Court only reviewed state court decisions in four cases. He noted that Congress has not been enacting new federal criminal statutes but has been increasing restrictions on federal habeas proceedings. Considering these factors, Dean Chemerinsky believes the trend will continue.

Jones vs. Mississippi concerned cruel and unusual punishment. In the 2012 Miller v. Alabama decision, the Court held that there cannot be a mandatory sentence of life without parole for juveniles who commit murder. In 2016, in Montgomery v. Louisiana, the Court made its Miller decision retroactive. At issue in Jones was the standard a court should use to determine if a life without parole sentence for a juvenile is appropriate. Brett Jones was 15 when he killed his grandfather. When he was convicted of murder, the statute dictated a sentence of life without parole. Following the Miller v. Alabama decision, the Mississippi Supreme Court granted Jones a new sentencing hearing. The trial court again sentenced Jones to life without parole. Jones appealed and, after losing in the Mississippi Court of Appeals, sought relief in the US Supreme Court. Jones argued that unless there was a showing he was beyond rehabilitation - “incorrigible” - life without parole for juveniles was cruel and unusual.

In a 6-3 decision written by Justice Kavanaugh, the Court held that Miller and Montgomery v. Louisiana do not require the sentencing judge to make a separate factual finding of permanent incorrigibility before sentencing the defendant to life without parole. The judge must only consider the age of the defendant. The dissent argued the majority overruled Miller with this decision.

Dean Chemerinsky noted that the three dissenting justices were the remaining members of the Court who were part of the majority in Miller v. Alabama. In both Roper v. Simmons in 2005 (juveniles cannot be sentenced to death) and Graham v. Florida in 2007 (juveniles cannot be sentenced to life without parole for a non-homicide crime), Justice Kennedy wrote the majority opinions for a 5-4 Court. Justice Kagan wrote the majority opinion for a 5-4 court in Miller v. Alabama. Both Justice Kennedy and Justice Ginsberg were in the majority for all three of these cases. Without Kennedy and Ginsberg, the Court has flipped to 6-3, which is an indication that a majority of the Court is retreating from Miller and this line of reasoning.

The second area Dean Chemerinsky discussed was search and seizure. The Court issued rulings in three such cases during the term and all three decisions went against law enforcement. Each of these opinions strongly emphasizes the law as it existed in 1791 – the common law when the Bill of Rights was ratified. He noted that the decisions reflect both Justice Roberts and Justice Kagan adopting an originalist approach. Dean Chemerinsky suggested having a copy of Blackstone might be a valuable tool.

In Torres vs. Madrid, the issue was whether excessive force cases fall under the Fourth Amendment after Graham. Torres believed she was being carjacked even though it was police officers approaching her and trying to get her to stop. In response, amidst a hail of bullets, she drove out of a parking deck, stole another car in an adjacent parking lot, and drove herself over 70 miles to seek medical care for her wounds. She sued the police for excessive force. Since 1989, based on Graham v. O’Connor, excessive force cases must be brought under the Fourth Amendment. The Court was called upon to determine when the seizure occurred in this case – when the defendant was shot, or when she was arrested the next day. In a 5-4 decision, the Supreme Court reversed the Tenth Circuit and found that seizure occurs when there is an application of force with the intent to restrain. Justice Roberts writing for the majority held that no actual restraint is required. To reach this decision, the Court found common law support from 1791. Justice Gorsuch’s dissent argues that no seizure occurs without detention and since Torres fled, she was not seized until the next day.

Dean Chemerinsky suggested that this case did not change the definition of seizure for Fourth Amendment purposes. For example, in California v. Adare-Dean, a fleeing suspect dropped a bag of drugs and was tackled by officers. The question presented to the Court was when was he seized? If he was seized during chase, evidence must be excluded because there was no reasonable suspicion to chase him. If he wasn’t seized until he was tackled, the evidence is allowed. Writing for the Court, Justice Scalia held that the defendant was seized when tackled. This is because a reasonable person wouldn’t feel free to leave. The application of force with the intent to restrain is the seizure.

The second case is Caniglia v. Strom which addresses the scope of the community caretaking exception to the search warrant requirement. In Cady v. Dombrowski, a police officer was arrested under suspicion of DUI. Without probable cause, another officer looked in the detained officer’s car for his service weapon. While looking for the service weapon, officers found evidence of a murder. The Supreme Court allowed the search because the gun might have been a danger to others. In Caniglia, the defendant’s wife called police based on concerns for her husband’s mental health. Caniglia agreed to go with officers on a mental health hold, but he did not agree to give up his guns. Police took him to a facility, but then returned without a warrant and removed his guns from the house, aided by his wife whom law enforcement allegedly misinformed about her husband’s wishes. The First Circuit invoked the community caretaking exception and allowed the search. Justice Thomas, writing for a unanimous Supreme Court, reversed in a 4-page opinion. Cady involved an automobile and relied on the distinction that automobiles are simply different than homes. Justice Alito’s concurrence suggests that exigent circumstances would have allowed the search.

The third case, Lang v. California, involved the hot pursuit exception to search warrants. Prior cases had always involved felonies. This case concerned hot pursuit of an offender suspected of committing a misdemeanor. Lang was driving his car and honking his horn causing excessive noise. A police officer attempted to stop him, but Lang drove into his garage and closed the door. The officer followed him and arrested him. Justice Kagan, writing for a unanimous court, found that police can enter a home when the underlying crime is a misdemeanor, sometimes. It is not an always or a never rule. It depends on context and circumstances. Some factors to consider include the underlying crime, the harm to others, the potential destruction of evidence, and the likelihood the suspect is going to flee. In her decision, Justice Kagan relied upon the common law in 1791. Justice Robert’s concurrence reads like a dissent. He did not agree that the Court should force officers to weigh multiple factors in a split second. Instead, he advocated for a bright line rule that police can always enter a home in hot pursuit.

The third area is of cases Dean Chemerinsky discussed concerned habeas corpus and the Edwards v. Vannoy case. In 2020, in Ramos v. Louisiana, the Court held the Sixth Amendment requires unanimous jury verdicts. In Ramos, the question presented was whether the Court should overturn Apodaca v. Oregon. During the litigation in Ramos, evidence showed that non-unanimous jury verdicts were often rooted in racial bias. The only question left unresolved was whether to make the decision retroactive. The Edwards case considered whether Ramos was retroactive. In Teauge v. Lane, the Supreme Court held that habeas courts must look at retroactivity as a threshold inquiry. When someone asserts a new right, the court must conduct a retroactivity analysis: is the conduct beyond the reach of criminal law or does the decision create a watershed rule of criminal procedure. Justice Kavanaugh wrote the 6-3 majority opinion holding that Ramos does not apply retroactively. Neither of the two requirements for retroactivity are present. Since 1989, there have been no watershed rulings; i.e. essentially that part of Teauge has been overruled. The only time a case would be applied retroactively is when the conduct is beyond the reach of criminal law. Justice Kagan’s fiery dissent expounded that the Ramos case was a watershed ruling and should have been applied retroactively.

Dean Chemerinsky does not see a large impact from this case, but he does see a trend. Like Jones v. Mississippi, Edwards involves the Court looking at a recent decision and giving very little weight to stare decisis.

The fourth case, Van Buren v. United States, involved a federal statute prohibiting computer fraud. The majority’s opinion turns on the meaning of the word “so.” The defendant, a state police officer, accepted a bribe to go on a computer system and get DMV information about people that was only available to law enforcement. Van Buren had the legal authority to access the information, in the proper set of circumstances. The Court considered whether it was computer fraud for him do to what he could do, just not what he was allowed to do under the circumstances presented in the case. Justice Barrett, writing for the 6-3 majority, found that it was not a violation. A literal reading of the statute would mean any authorized use would be a crime. The statute should be read to prevent access to information that the person does not have the authority to access. In dissent, Justice Thomas focused on the literal meaning of the words in the statute. As Dean Chemerinsky noted, there were only a handful of cases to discuss from the recent Term of Court, but the impact of those cases will be significant on American jurisprudence for years to come.

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Robert W. Smith


Robert W. Smith is General Counsel for the Prosecuting Attorneys’ Council of Georgia. He is lead counsel for over 100 reported decisions of the United States Court of Appeals for the Eleventh Circuit, Supreme Court of Georgia, and the Court of Appeals of Georgia and has presented oral argument more than twenty-five times to those courts. Currently, he teaches young prosecutors on appellate matters and coordinates the amicus briefs filed on behalf of prosecutors in the appellate courts of Georgia. He is a 1995 graduate of Wake Forest University and a 1998 graduate of the Mercer University School of Law.