The United States Supreme Court issued its decision in Bailey v. United States on February 19, 2013 holding that its precedent in Michigan v. Summers does not allow the police to seize an individual that has left the premise prior to a search. You can read the Bailey decision here.

Background of the Bailey Case

The Bailey case involved police officers detaining an individual one mile from the premise to be searched. Police officers were given information through an informant that crack cocaine was being sold at a residence. A warrant was obtained. While the officers were conducting surveillance prior to executing the warrant, officers witnesses the target of the search leaving the premise and detailed the individual and brought him back to the premise. During the detention, police seized incriminating evidence, recovering the keys to the premises along with drugs and firearms.

As a Massachusetts criminal defense lawyer, the issue surrounding Miranda rights often arises in felony and misdemeanor cases. Recently, in the case of New Mexico vs. Herring, a defendant successfully argued at appeal that they did not understand the Miranda rights read to them by a detective during a custodial interrogation. This case in particular brings up several issues of Miranda rights that may be further explored in the United States Supreme Court. You can read the filing from the Herring case on the Scotus Blog.

The defendant was held in custodial interrogation for the death of her 3-year-old child. T

The defendant argued that prior to her interrogation, the detective read her Miranda rights in such a hurried and garbled manner that it was unintelligible and therefore she did not understand them. The State argued that the respondent never indicated any difficulty understanding her rights because she indicted she was familiar with Miranda rights from “television” and that she further implied agreement by proceeding to talk with the detective for 5 hours after her rights were given. During this time she admitted to the detective that prior to her son’s death she “slapped him twice and punched him in the head with a closed fist.”

As a Massachusetts criminal lawyer, search and seizure issues frequently arise in defending drug crimes. One issue is when can the police detain individual when executing a search warrant. The case of Bailey v. United States raises this issue and the defense lawyers are seeking review in the United States Supreme Court. You can read the filings of the Bailey case on the Scotus Blog.

In 1981 the United States Supreme Court decided the case of Michigan v. Summers, 452 U.S. 692 (1981) and held that individuals in a house that is being lawfully searched may be detained, without arrest, for the duration of the search.

The Bailey case involved the following facts. Prior to the execution of a search warrant, police waited outside the premises and observed two men leaving the home, both of which fit the description they had of a suspect. The officers followed the men as they drove off. Upon stopping the men five minutes later, the men were brought back so that they were present during the search. At the motion hearing, the defense lawyer sought to suppress all evidence found on the defendant as well as statements he made as the fruit of the unlawful detention in violation of the Fourth Amendment.

The Second Circuit Court of Appeals found that the search was proper under Summers and interpreted the case as not imposing a bright line rule as to whether the defendant leaves the premise, but allows for a detention if it is made as soon as practical. The Second Circuit relied on decisions from the Fifth, Sixth and Seventh Circuits which reached similar holdings. The Second Circuit also stated that the intrusion is permissible as a de minimis intrusion. The Second Circuit acknowledged contrary rulings from other circuits but found those decisions misinterpreted the holding of Michigan v. Summers.

In Michigan v. Summers, it was determined that individuals in a location that is being lawfully searched may be detained, without arrest, for the duration of the search. (452 U. S. 692) The detainment in Summers was allowed based on three reasons:

• To prevent individuals from fleeing once paraphernalia is seized;
• to provide safety for the officers
• and to aid in the search, an individual may be detained.

The Bailey case does not involve any of these three situations. The individuals were off of the premises, therefore could not be a threat to the officers; they did not know the location was being searched and therefore, would not have fled upon the discovery of contraband.

As a Massachusetts criminal defense lawyer, the Second Circuit improperly expanded the scope of the Summers decision and should be reversed by the United States Supreme Court. I would expect the Court to grant certiorari given the split of authority among the Circuit Courts of Appeal.

The Court’s statement that the detention is a de minimis intrusion is inconsistent with the Fourth Amendment that protects an individuals liberty interest from being infringed without reasonable suspicion or probable cause by a police officer. To transport an individual back to the location of the search has only one purported purpose to obtain incriminating statements during the search, as which occurred in the Bailey case.
Since the justification for the seizure present in Summers was not present in Bailey, I would expect the Court to reject the Second Circuit’s expansion of Summers which allows for a seizure if done as soon as practical.
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A recent case pending a decision from the United States Supreme Court has raised issues concerning a defendant’s constitutional right to a speedy trial. In Boyer v. Louisiana, the indigent defendant was not offered any form of defense counsel until five years after the charges were brought fourth. The state of Louisiana has suffered a severe lack of funding, resulting in many cases involving indigent defendants being delayed due to a lack of counsel. The United States Supreme Court granted certiorari on the issue of whether the delay in the defendant receiving appointed counsel should count against the State in determining whether the defendant’s 6th Amendment right to a speedy trial was violated. The complete court filings before the United States Supreme Court can be found on the Scotus Blog.

The trial resulted in the defendant being convicted by a jury of second-degree murder. Although the defendant appealed a variety of issues, his main concern was that his right to a speedy trial was violated by the state of Louisiana.

The Sixth Amendment to the United States Constitution contains the speedy trial clause, along with other fundamental rights, such as the right to confront and cross examine witnesses and the right to an impartial jury.

The case of Ricky Lee Allshouse v. Pennsylvania is on petition for certiorari before the United States Supreme Court raising the issue of whether the defendant was denied his right of confrontation under the Sixth Amendment by the admission into evidence at trial of his statements to a child protection worker.

Allshouse involves a case of child abuse on an infant where the infant’s brother told a child protection case worker about the abuse committed by the infant’s father. At trial, the State of Pennsylvania admitted the statements pursuant to a Pennslyvania statute authorizing the admission of the testimony as long as the judge finds it reliable.

The criminal defense lawyer objected arguing that the Sixth Amendment to the Constitution precludes the admission of these statements. The Pennsylvania Court affirmed holding that the purpose of the child protection worker was investigatory. The Pennsylvania Supreme Court held that the statements were nontestimonial because in response to an ongoing emergency.

The United States Supreme Court heard arguments in a case raising the issue of whether GPS monitoring violates an individuals Fourth Amendment right to be free from unreasonable searches and seizures under the Constitution. The case is United States v. Antoine Jones, and the filings from the case can be found on the Scotus Blog.

The criminal defense lawyers in the case allege that Jones’ Fourth Amendment right to be free from unreasonable searches and seizures was violated when federal agents put a GPS tracking device on his car without his consent. The tracking resulted in the defendant being charged with federal drug charges. To read an excellent commentary on the case click here to read Shannon Bream’s Article for Fox News.

The case addressed the issue of whether a warrant must be obtained under the Fourth Amendment before the State can monitor someone through GPS surveillance. In the case, the police obtained a warrant to monitor the activity of defendant Jones; however, the warrant expired, meaning that no valid search warrant authorized the GPS monitoring. The federal agents in the case installed a GPS tracking device on the defendant’s car without his knowledge or consent.

The United States Supreme Court is scheduled to hear arguments on October 31 2011 in the case of Lafler v. Cooper and Missouri v. Frye, that raises the issue of whether an a criminal defense attorney in Massachusetts, or any other state, can provide ineffective assistance of counsel during a plea negotiation when a defendant later receives a fair trial.

In the case of Cooper, he received ineffective assistance of counsel because his attorney told him that he could not be convicted of assault with the intent to murder, because the shots he fired were below the victim’s waist. Based on this advice, Cooper claims that he went to trial and received a sentence eight years greater than the sentence he would have received had he accepted the original plea offer and was given proper advice as to the elements of the offense. To read the brief of Defendant Cooper you can click here.

In the Frye case, the defendant claimed he received ineffective assistance of counsel because his attorney did not communicate a plea offer to him which expired; the defendant received a harsher sentence when he entered an open plea in court. Under the proposed plea offer, that was not communicated, the prosecutor offered to allow the defendant to plea to a misdemeanor with a ninety day jail sentence recommendation. The defendant ultimately received three years as part of an open plea but claimed prejudice in being deprived the opportunity to plea to the misdemeanor offense as a result of counsel ineffective assistance in not communicating the offer. You can read the filings in the Frye case by clicking here.

The United States Supreme Court’s decision in Michigan v. Bryant, decided today, diminishes the Sixth Amendment right of confrontation. The Court held that statements are nontestimonial and thus not covered by the Sixth Amendment confrontation clause when the primary purpose of the statement is to allow the police to respond to an ongoing emergency. The Court’s opinion represents a substantial departure from the Court’s recent cases of Crawford v. Washington, 541 U.S. 36 (2004) and Melendez Diaz v. Massachusetts, 557 U.S. __ (2009) both affirming that the Constitution requires face to face confrontation under the Sixth Amendment.

Four justices joined in this reasoning with Justice Thomas joining the majority based on the fact that the statement was not sufficiently formal to be testimonial. Accordingly, Justice Thomas defines the right of confrontation based on whether the statement is similar to the historical practices that the framers of the Constitution intended to curtail when drafting the confrontation clause.

The Bryant case is an unusual case as the police came upon a victim who was dying from a gun shot wound. The police asked the victim what happened and he identified the defendant as the shooter. The victim died, leaving his statements as the only evidence identifying the defendant is the shooter. The Court held that the circumstances of the emergency indicated that the primary purpose of the victim’s statement was to help the police respond to an ongoing emergency of capturing the assailant. The Court held that a person in the victim’s position would not have a purpose of identifying his shooter for future prosecution, but to assist the police in responding to the emergency. Further, the Court stressed that the primary purpose of the police was to respond to the medical emergency facing the victim. Additionally, the Court stated that the defendant’s medical condition and the informal nature of the questioning was relevant in determining the primary purpose of the statement.

The United States Supreme Court declined to hear an appeal from Louisiana in the case of Barbour v. Louisiana which raises the issue of whether the Constitution requires a unanimous jury verdict to support a criminal conviction. Click on this link to read the filings from the case on the Scotus Blog.

Only two states Louisiana and Oregon allow a criminal conviction without a unanimous jury verdict. Massachusetts requires a unanimous jury verdict of all six jurors in district court and twelve jurors in superior court. Accordingly, if a Massachusetts criminal lawyer obtains a verdict that is not unanimous a mistrial results and the case can be brought to trial again.

The defendant in Barbour asserts that the Sixth and Fourteenth Amendment require a unanimous jury verdict. The petitioner in the case is represented by Jeffrey L. Fisher. The petitioners argue that the United States Supreme Court should overrule its decision in Apodaca v. Oregon, 406 U.S. 404 (1972) where the United States Supreme Court held that the Constitution does not require a unanimous jury verdict.