Review of the Supreme
Court's
1998-1999 Term
Cases of Interest to Law Enforcement
Prepared by Special Agent Jeffrey Higginbotham
Federal Bureau of Investigation
FBI Academy
Quantico, Virginia 22135
(703) 632-1100
I. Criminal Law and Procedure
A. Search and Seizure
B. Self-Incrimination
C. Confrontation Clause
II. Employment Rights/Discrimination
A. Americans with Disabilities
Act
B. Title VII
C. Collective Bargaining Agreements
III. Statutes
A. City Anti-Gang Ordinance
B. Federal Statutes
C. Habeas Corpus
IV. Civil Liability
A. Media Relations -- 42
U.S.C. §1983
B. Official State Action
C. Civil Rights
Conspiracy -- 42 U.S.C. §1985(2)
V. Evidence/Trial Practice
A. Appeal of Discovery
Sanctions
B. Jurisdictional Disputes
C. Expert Testimony
D. Sentencing
E. Brady Material
VI. Cases
Pending for Decision During the 1999 -2000 Term
A. Criminal Procedure
B. Employment/Discrimination
C. Release of Information
D. Local Government
I. Criminal Law and Procedure
A. Search and Seizure
Florida v. White, 67 U.S.L.W. 4311 (5/17/99) (J. Thomas)
White was observed on three occasions by police using
his car to deliver cocaine; it was subject to forfeiture under state law.
More than a month later he was arrested on an unrelated charge and his
car was seized by police at that time without a warrant. The Supreme Court
held that the principles that underlie the automobile search exception
to the warrant requirement also apply to the warrantless seizure of cars.
The warrantless search of a car for evidence or contraband and the seizure
of a car which is itself contraband or evidence are doctrinally indistinguishable.
Moreover, the historical need to seize contraband before it is driven away
applies with equal force to the automobile when it is the subject of the
police action. Note: This rule applies to cars found in a public place
since the court analogized to public arrests without a warrant sanctioned
in Watson and distinguished this case from Payton.
Wyoming V. Houghton, 67 U.S.L.W. 4225 (4/5/99) (J. Scalia)
Upon making a traffic stop, the police officer noticed
a driver had a syringe in his pocket, which he admitted using to take illegal
drugs. The defendant, a passenger in the car, was ordered out of the car
and provided what proved to be a false identification to the police ("In
case things went bad."). Defendant also admitted ownership of a wallet-type
container that, when searched, held drug paraphernalia and methamphetamine.
She contested the search on Fourth Amendment grounds, contending that a
search of a passenger and her belongings was illegal when the driver was
the focus of the officer's actions. The Court held that the reasonableness
of a Fourth Amendment search is tied not to the owner's/suspect's property,
but the belief that evidence of crime might be located in the place searched.
A passenger's property no-search rule would be unreasonable since the driver
and passenger likely share a common purpose, permit evidence or contraband
to be hidden purposely in the passenger's property, and dramatically reduce
the ability of police to find and seize contraband and evidence of crime.
Accordingly, police can search any container on probable cause, "...whether
or not its owner is present as a passenger or otherwise." Note: Such
a rule does not permit the search of the passenger's person, or items closely
associated with the person, unless incident to arrest.
Knowles v. Iowa, 67 U.S.L.W. 4027 (12/8/99) (J. Rehnquist)
Knowles was stopped for driving 43 mph in a 25 mph zone.
The police officer issued a citation although the state law would have
permitted an arrest. The officer then searched the car and found marijuana
and a "pot pipe; Knowles was arrested. The Court invalidated state
law which countenanced a search of the car incident to arrest since an
arrest was authorized by the traffic stop, even though not made. The Court
held that officer safety, while a substantial concern, did not justify
the intrusion of a full-field search attendant to the issuance of a traffic
citation. Nor was the need to discover and preserve evidence sufficient
to sustain a "search incident to citation." "As for the
destruction of evidence relating to identity, if a police officer is not
satisfied with the identification furnished by the driver, this may be
a basis for arresting him rather than merely issuing a citation. As for
destroying evidence of other crimes, the possibility that an officer would
stumble onto evidence wholly unrelated to the speeding offense seems remote."
Maryland v. Dyson, 67 U.S.L.W. 3770 (6/14/99) (per curiam)
Police received a tip from a reliable informant that defendant
went to New York to secure illegal drugs and would return later in the
day driving a rented red Toyota with a specific license plate. Police corroborated
the car rental information and knew the defendant to be a drug dealer.
At 1:00 A.M. the next morning, he was arrested and the Toyota searched
without a warrant. Cocaine was discovered. The Maryland appeals court suppressed
the evidence on the ground that a warrantless search of a car must be based
on both probable cause and some exigency excusing the warrant. The Supreme
Court summarily reversed, reemphasizing prior decisions holding that if
a car is readily mobile and probable cause exists that the car contains
evidence or contraband, the "...Fourth Amendment permits the search
without more." The Court added in this case that the "abundant
probable cause" lower court finding "...alone satisfies the Fourth
Amendment's warrant requirement."
Conn and Najera v. Gabbert, 67 U.S.L.W. 4222 (4/5/99)
(J. Rehnquist)
The prosecutors in the retrial of Lyle and Erik Menendez
for the murder of their parents issued a grand jury subpoena to a former
girlfriend of one of the Menendez brothers upon learning that she may have
received a letter instructing her to provide false testimony. When Gabbert,
the girlfriend's attorney, moved unsuccessfully to quash, police obtained
a search warrant for the girlfriend's apartment. During the search, she
told police she had given the letters to Gabbert. A second search warrant
was obtained for Gabbert's person and executed while his client was testifying
before the grand jury, causing him to be unavailable to consult with his
client. Gabbert brought suit under 42 U.S.C. §1983, claiming a violation
of his 14th Amendment right to practice law without unreasonable government
interference. The Supreme Court rejected the claim, noting that nothing
cited by Gabbert "...provides any more than scant metaphysical support
for the idea that the execution of a search warrant by government actors
violates an attorney's right to practice his profession." While case
law establishes some property interest in one's profession, it does not
extend to "...the sort of brief interruption which occurred here...[T]he
Fourteenth Amendment right to practice one's calling is not violated by
the execution of a search warrant, whether calculated to annoy or even
to prevent consultation with a grand jury witness." Note: Assuming, arguendo, a constitutional violation, was there any provable damage?
To whom does the right to consult belong--attorney or client?
City of West Covina v. Perkins, 67 U.S.L.W. 4058 (1/13/99)
(J. Kennedy)
Police searched the Perkins' residence for evidence of
murder believed to be committed by Marsh, a former boarder. After a month
of unsuccessful attempts to secure return of the seized property, Perkins
sued, claiming a violation of his due process rights. The lower court ruled
that the government has a duty to inform the owner of property seized of
the procedures for its return. The Court disagreed: "When the police
seize property for a criminal investigation...due process does not require
them to provide the owner with notice of state law remedies...Once the
property owner is informed that his property has been seized, he can turn
to public sources to learn about the remedial procedures available to him.
The City need not take other steps to inform him of his options."
Note: This ruling does not relieve police of their obligations under the
rules governing the execution of search warrants regarding leaving copies
of the warrant and an inventory of the items seized.
Minnesota v. Carter, 67 U.S.L.W. 4017 (12/1/98) (J. Rehnquist)
An informant notified police that he observed persons
inside a ground-floor apartment bagging cocaine. A police officer independently
corroborated the information by looking into the apartment through a gap
in the blinds. While an affidavit for search warrant was being obtained,
the defendants left and were stopped by the police some distance from the
apartment. During the car stop, police observed a black zippered pouch
and gun, and placed the defendants under arrest. A search of the car produced
pagers, scales and 47 grams of cocaine. A search of the apartment produced
additional evidence. Investigation determined that the defendants were
visitors to the apartment, had been there only 2 ½ hours, and came
only to bag the cocaine. On these facts, the Supreme Court concluded the
defendants lack standing to challenge the search of the apartment. "[A]n
overnight guest in a home may claim the protection of the Fourth Amendment,
but one who is merely present with the consent of the householder may not."
Three factors were cited by the court: (a) the commercial nature of the
defendant's purpose, (b) the relative short time at the premises, and (c)
the lack of previous connection with the homeowner. Note: Four Justices
believed that "most, if not all, social guests" have a reasonable
expectation of privacy and standing to contest a search.
Mitchell v. United States, 67 U.S.L.W. 4230 (4/5/99) (J.
Kennedy)
Defendant was indicted and pleaded guilty to conspiracy
to distribute cocaine but reserved the right to contest the amount of drugs
with which she was involved. When asked if she was guilty of the crime,
she responded, "Some of it." At her sentencing hearing, defendant
invoked the Fifth Amendment privilege against self-incrimination. The trial
court refused to sustain the invocation of the privilege and drew an adverse
inference against her when imposing the sentence. The Supreme Court ruled
that a plea colloquy is designed to protect a defendant from an unintelligent
or involuntary plea, but is not a prosecutorial sword requiring the relinquishment
of the right to remain silent at sentencing. If a defendant were required
to waive the privilege, the "...result would be to enlist the defendant
as an instrument in his or her own condemnation, undermining the long tradition
and vital principle that criminal proceedings rely on accusations proved
by the Government, not on inquisitions conducted to enhance its own prosecutorial
power." Moreover, while adverse inferences may be drawn based on one's
silence in non-criminal proceedings (including parole or probation hearings),
no penalty in criminal cases can be extracted for the exercise of constitutional
privilege.
Lilly v. Virginia, 67 U.S.L.W. 4435 (6/10/99) (J. Stevens)
The defendant and two others were arrested following a
crime spree that included murder. One of the persons arrested told police
that the defendant was the murderer. At trial, however, that person took
the Fifth Amendment when called as a witness. The trial judge then permitted
the government to introduce the witness' statement to police under the
exception to the hearsay rule that permits statements made against one's
penal interest. In determining whether this violated the defendant's rights,
the Court resolved two issues: (a) Statements admissible under an exception
to the hearsay rule must fall within established exceptions or contain
particularized guarantees of trustworthiness. To meet this standard, the
out-of-court statements must "...have guarantees of credibility essentially
equivalent to or greater than those produced by the Constitution's preference
for cross-examined trial testimony." Statements of a criminal accomplice
accusing another of crime are inherently unreliable because of the possibility
of blame shifting. (b) The advice and waiver of Miranda rights has
no bearing on truth and reliability. The presumptive unreliability of co-defendant
statements that shift blame is particularly true when the government has
a role in producing the statement.
II. Employment Rights/Discrimination
A. Americans with
Disabilities Act
Sutton v. United Airlines, Inc., 67 U.S.L.W. 4537 (6/22/99)
(J. O'Connor)
Two sisters with uncorrected vision of 20/200 (right)
and 20/400 (left) and corrected vision in both eyes of 20/20 were refused
employment with United Airlines as global pilots. They filed suit under
the ADA claiming they were disabled and/or were regarded as disabled by
the employer.
The Supreme Court held in favor of United Airlines on
the ground that the plaintiffs did not meet the statutory definition of
a "qualified individual with a disability" because their vision
was correctable to normal standards. "[I]f a person is taking measures
to correct for, or mitigate, a physical or mental impairment, the effects
of those measures--both positive and negative--must be taken into account
when judging whether that person is "substantially limited" in
a major life activity and thus "disabled" under the Act."
This is based on three reasons: (a) the ADA requires an assessment of a
person's present limitation, not potential limitation, (b) an analysis
that omits the effect of corrective measures does not focus on individual
affects, but rather generic effects of the condition, and (c) the findings
of Congress that 43 million people may qualify under the Act suggests an
intent to not define disability without regard to corrective measures.
Moreover, the Court ruled that the major life activity
of working is not substantially limited when a person is disqualified from
a particular job. "To be substantially limited in the major life activity
of working....one must be precluded from more than one type of job, a specialized
job, or a particular job of choice. If jobs utilizing an individual's skills
(but perhaps not his or her unique talents) are available, one is not precluded
from a substantial class of jobs. Similarly, if a host of different types
of jobs are available, one is not precluded from a broad range of jobs...It
is not enough to say that if the physical criteria of a single employer
were imputed to all similar employers one would be regarded as substantially
limited in the major life activity of working only as a result of this
imputation..."
"By its terms the ADA allows employers to prefer
some physical attributes over others and to establish physical criteria.
An employer runs afoul of the ADA when it makes an employment decision
based on a physical or mental impairment, real or imagined, that is regarded
as substantially limiting a major life activity. Accordingly, an employer
is free to decide that physical characteristics or mental conditions that
do not rise to the level of an impairment...are preferable to others, just
as it is free to decide that some limiting, but not substantially limiting, impairments make individuals less than ideally suited for a job."
Olmstead v. L.C. by Zimring, 67 U.S.L.W. 4567 (6/22/99)
(J. Ginsburg)
Mentally disabled persons brought suit under the ADA claiming
discrimination by the state for failure to provide treatment in an integrated
community setting rather than the segregated facility where they were confined.
The Court held that Title II of the ADA requires both a determination that
there was discrimination and that the relief requested does not fundamentally
alter the nature of the government service. "Unjustified isolation...is
properly regarded as discrimination based on disability. But we recognize,
as well, the State's need to maintain a range of facilities for the care
and treatment of persons with diverse mental disabilities...Accordingly,
we further hold the District Court must consider, in view of the resources
available to the State, not only the cost of providing community-based
care to the litigants, but also the range of services the State provides
others with mental disabilities, and the State's obligation to mete out
those services equitably." In determining whether a requested action
is reasonable or would be a fundamental alteration of the program, a court
must look beyond the cost of individual treatment to the state's resources
and responsibilities as a whole.
Albertson's Inc. v. Kirkingburg, 67 U.S.L.W. 4560 (6/22/99)
(J. Souter)
A driver for a grocery chain was incorrectly given a DOT
certification despite his impaired eyesight. The error was discovered a
year later in a physical examination in response to a job injury. The plaintiff
sought a waiver from DOT, but before it was issued, he was fired from his
job. He sought relief through a suit under the ADA. The Supreme Court held
that "...the Act requires monocular individuals, like others claiming
the Act's protection, to prove a disability by offering evidence that the
extent of the limitation in terms of their own experience, as in loss of
depth perception and visual fields is substantial." Thus, a person's
ability to cope with or compensate for the disability is relevant to determining
if the person is covered by the ADA. Moreover, an employer who imposes
a hiring standard predicated on a federal statute or regulation is entitled
to make its hiring decisions based on it without resort to individualized
determinations. Note: The Government argued and the Court seemed to accept
the notion that when an employer imposes a safety qualification standard
that tends to screen out persons based on disability, the standard must
satisfy the "direct threat" criterion of the ADA.
Murphy v. United Parcel Service, 67 U.S.L.W. 4549 (6/22/99)
(J. O'Connor)
A mechanic for UPS lost his job when it was learned he
had blood pressure readings in excess of the DOT's hypertension standards
for commercial drivers. The employer defended the subsequent ADA suit by
arguing that it did not regard him as a person with a disability and unable
to work, but only as a person unable to secure the required certification
from DOT. The Supreme Court ruled in favor of the employer: "Petitioner
was fired from the position of UPS mechanic because he has a physical impairment--hypertension--that
is regarded as preventing him from obtaining DOT health certification..."
Cleveland v. Policy Management Systems Corp., 67 U.S.L.W.
4375 (5/24/99) (J. Breyer)
Cleveland suffered a stroke and lost her job. She applied
for and secured payments from Social Security for a total disability. She
also sued her employer under the ADA claiming a failure to provide reasonable
accommodation. The trial court dismissed the ADA claim on the ground that
plaintiff's application for Social Security Disability Insurance benefits
for a total disability made her, per se, unable to prove that she
could perform the essential functions of her job. The Supreme Court reversed,
holding that there was not a per se conflict in plaintiff's positions.
"[D]espite the appearance of a conflict that arises from the language
of the two statutes, the two claims do not in reality conflict to the point
where courts should apply a special negative presumption...That is because
there are too many situations in which an SSDI claim and an ADA claim can
comfortably exist side by side." To avoid dismissal of his/her case,
an ADA plaintiff who alleges an SSDI total disability must offer a sufficient
explanation to avoid the conflict.
West v. Gibson, 67 U.S.L.W. 4462 (6/14/99) (J. Breyer)
Gibson won an EEO complaint against his agency and was
awarded back pay and a promotion. He then filed suit in federal court seeking
enforcement of the administrative ruling and compensatory damages. His
suit was dismissed by the lower court because he had not requested compensatory
damages at the administrative level and, therefore, had not exhausted his
administrative remedies. The Supreme Court ruled that EEOC has the authority
to award compensatory damages under Title VII's broad authority to award
"appropriate relief" as that term is informed by the Civil Rights
Act of 1991 that made compensatory damages available for the first time.
Accordingly, the trial court was correct in its dismissal of the action.
C. Collective Bargaining Agreements
Wright v. Universal Maritime Service Corp., 67 U.S.L.W.
4013 (11/16/98) (J. Scalia)
In 1992, Wright filed a claim with his union and employer
for a total disability as a longshoreman. He settled his bad back claim
for $250,000 and $10,000 in attorney fees. In 1995 he sought re-employment
but was denied under the collective bargaining agreement which prevented
giving work to people certified as disabled. He sued, on the advice of
the union, claiming an ADA violation. His suit was dismissed based on the
collective bargaining agreement's arbitration provisions. The issue before
the Court was whether ADA claims were subject to mandatory arbitration
under a collective bargaining agreement. The Court reviewed four cases:
(a) Alexander v. Gardner-Denver which held that Title VII
claims were not subject to contractual arbitration since there could be
"...no prospective waiver of an employee's rights under Title VII;"
(b) McDonald v. West Branch which held that a contract could
not act as a waiver of an employee's §1983 claim; (c) Barrentine v. Arkansas Best Freight System which held that a contract's arbitration
clause did not waive individual FLSA claims; and (d) Gilmer v. Interstate/Johnson
Lane which held that ADEA claims could be subject to contractual arbitration.
Noting this conflict in cases, the Court ruled that questions of federal
law should not be presumed to be included in contractual arbitration provision.
A collective bargaining agreement that seeks to include such issues must
be clear and unmistakable and a general arbitration clause referring to
all matters in dispute was ineffective to bar a court claim under a federal
statute.
City of Chicago v. Morales, 67 U.S.L.W. 4415 (6/10/99)
(J. Stevens)
A city ordinance was passed to curb street gang activity.
It required proof of four elements: (a) presence of a criminal gang member
in a public place, (b) loitering with one or more other persons [defined
as remaining in place with no apparent purpose], (c) the order of a police
officer to disperse, and (d) failure to obey the officer's dispersal order.
Over three years, police gave 89,000+ dispersal orders and made over 42,000
arrests. The Supreme Court held the ordinance unconstitutionally vague
in that it failed to inform citizens of the conduct that was criminal and
prohibited. "It is difficult to imagine how any citizen of the city
of Chicago standing in a public place with a group of people would know
if he or she had an 'apparent purpose.'" If the loitering was harmless
and innocent, the dispersal order would be an unjustified impairment of
one's liberty. The ordinance also suffered the fatal flaw of not establishing
minimal guidelines to govern law enforcement in that it required an order
of dispersal without first an inquiry by the police of a suspect's possible
purpose; it was inherently and fatally subjective. Note: The Court suggested
that a better drafted gang ordinance could survive constitutional challenge:
"...a law that directly prohibited intimidating conduct would be constitutional..."
The Court also suggested the ordinance must apply only to those who were
loitering with a harmful purpose and apply only to criminal gang members,
not those with whom they were present.
Neder v. United States, 67 U.S.L.W. 4404 (6/10/99) (J.
Rehnquist)
The defendant was an attorney indicted on a series of
frauds involving real estate transactions and financing. The judge at trial
refused his instruction to the jury that it must find materiality in his
false statements. The Supreme Court reviewed the history of the false statement
statutes and concluded that each was based on the "concealment of
material fact." Accordingly, the federal mail fraud, wire fraud and
bank fraud statutes require proof of the materiality of a defendant's false
statements.
Richardson v. United States, 67 U.S.L.W. 4381 (6/1/99)
(J. Breyer)
A defendant was convicted under the Continuing Criminal
Enterprise drug statute. He appealed the trial court's jury instruction
that allowed the jury to convict without specifically agreeing on the particular
three or series of federal drug offenses committed. The Supreme Court found
this unconstitutional. The jury must agree on the specific series of criminal
acts, otherwise it "...imposes punishment on a defendant for the underlying
crimes without a fact finder having found that the defendant committed
those crimes."
United States v. Sun-Diamond Growers of California, 67
U.S.L.W. 4265 (4/27/99) (J. Scalia)
The federal bribery/illegal gratuity statute prohibits
giving gratuities to public officials "for or because of an official
act." The trial court held this statute does not require the government
to prove the gift was made in response to a specific official act, but
rather because of one's official position. In other words, it prohibited
the giving of gifts for goodwill purposes. The Supreme Court disagreed.
The statute's use of "'official act'...seems pregnant with the requirement
that some particular official act be identified and proved." A contrary
rule would prohibit the giving of traditional items like mugs, hats, jerseys,
lunches, etc.
United States v. Rodriguez-Moreno, 67 U.S.L.W. 4219 (3/30/99)
(J. Thomas)
The defendant was hired to find a man who stole 30 kilos
of cocaine from a drug dealer in Texas. He kidnaped the middle man and
took him to New Jersey and Maryland in search of the other man. While in
Maryland, the defendant held a gun to the kidnaped man's head and threatened
to kill him. The defendant's subsequent trial was held in New Jersey. At
trial he claimed the court lacked venue over the gun charge since there
was no proof that he had used a gun in any state other than Maryland. The
Supreme Court held that to determine the "locus delicti" of an
offense, the trial court must identify the conduct constituting the defense
and discern the location of the commission of the criminal act. In this
case, the defendant was charged with a federal firearms charge that prohibits
the use or carrying of firearms during and in relation to any crime of
violence. "A kidnaping once begun does not end until the victim is
free. It does not make sense, then, to speak of it in discrete geographic
fragments."
Jones v. United States, 67 U.S.L.W.4204 (3/24/99) (J.
Souter)
At trial for car jacking, the defendant was told that
he faced 15 years in prison if convicted. After conviction, however, the
presentence report recommended 25 years in prison because he stuck a gun
in the victim's ear causing bleeding, a perforated ear drum and some loss
of hearing. The issue before the Supreme Court was whether serious bodily
injury is an element of the car jacking or a sentencing enhancer. The Court
answered: "Congress probably intended serious bodily injury to be
an element defining an aggravated form of the crime..."
Francois Holloway, aka Abdu Ali v. United States, 67 U.S.L.W.
4148 (3/2/99) (J. Stevens)
Federal law prohibits car jacking "with the intent
to cause death or serious bodily injury." In this case, the defendant
had a gun, but the evidence showed that he did not use it, but was prepared
to do so if the drivers of the cars gave him a hard time. The Court rejected
the defendant's argument that the statute required an unconditional intent
to harm or kill. "Congress intended to criminalize the more typical
car jacking carried out by means of a deliberate threat of violence, rather
than just the rare case in which the defendant has an unconditional intent
to use violence regardless of how the driver responds to his threat."
O'Sullivan v. Boerchel, 67 U.S.L.W. 4389 (6/7/99) (J.
O'Connor)
Defendant was convicted of the rape, burglary and aggravated
battery on an 87 year old woman. He was sentenced to 20 to 60 years in
prison and filed an appeal. The appellate court, which had discretionary
jurisdiction, rejected the appeal. Fourteen years later, defendant filed
a petition for habeas corpus. The issue before the Court is whether a habeas
petitioner is required to exhaust even discretionary state remedies. "Since
the exhaustion doctrine is designed to give state courts full and fair
opportunity to resolve federal constitutional claims before they are presented
to federal courts, state prisoners must give state courts one full opportunity
to resolve any constitutional issues by invoking one complete round of
the State's established appellate review process." Where a defendant
has the right to raise claims, he must attempt to do so. If this inundates
the state courts with claims, the state has a right to amend to rule to
eliminate some claims or appeal rights.
A. Media Relations
-- 42 U.S.C. §1983
Wilson v. Layne, 67 U.S.L.W. 4322 (5/24/99) (J. Rehnquist)
USMS went to the parent's home of a fugitive. They were
accompanied by a Washington Post reporter and photographer pursuant
to the agency's ride-along program. The parents were wakened and the father
was forced to the floor. The search did not result in the location of the
fugitive. The parents brought suit under 42 U.S.C. §1983 alleging
a Fourth Amendment violation based on the press's presence during the attempted
arrest. The Court noted that the Fourth Amendment "...embodies this
centuries-old principle of respect for the privacy of the home." In
addition, the Fourth Amendment requires "...that police actions in
execution of a warrant must be related to the objectives of the authorized
intrusion." While noting that it may be permissible under some circumstances
for police to allow third parties to accompany them during warrant executions,
for example to help identify property, reporters bear no legitimate relationship
to police functions. None of the three interests argued by the government
were sufficient to outweigh the privacy interests of the homeowner: (a)
law enforcement interests were not furthered, except in a general sense,
and there was no beneficial effect on the execution of the warrant; (b)
publicizing the police's action is a legitimate goal, but not important
enough in the context of an intrusion into one's home, and; (c) the use
of reporters and photographers to minimize police abuse of authority and
protect the rights of the suspect can be accomplished by the police department
itself, if it is thought necessary. Nonetheless, no liability attaches
for this Fourth Amendment violation since it was not unreasonable for a
police officer to believe that the conduct was permitted under the law.
Qualified immunity protected the officers since the law was not clearly
established at the time. Plaintiffs "...have not brought to our attention
any cases of controlling authority in their jurisdiction at the time of
the incident which clearly established the rule on which they seek to rely,
nor have they identified a consensus of cases of persuasive authority such
that a reasonable office could not have believed that his actions were
lawful."
Hanlon v. Berger, 67 U.S.L.W. 4329 (5/24/99) (per curiam)
U.S. Fish and Wildlife Service officers and an Assistant
United States Attorney were accompanied on a search by CNN reporters. The
warrant authorized the search of the plaintiffs 75,000-acre ranch "with
appurtenant structures," but excluded the residence. The Supreme Court
summarily concluded that a Fourth Amendment violation occurred, but found
the officers were entitled to qualified immunity.
American Manufactures Mutual Insurance Co. v. Sullivan,
67 U.S.L.W. 4158 (3/3/99) (J. Rehnquist)
Insurers providing worker's compensation coverage to employers
are not state actors for purposes of §1983. The Court noted that it
has never held that "...the mere availability of a remedy for wrongful
conduct, even when the private use of that remedy serves important public
interests, so significantly encourages the private activity as to make
the State responsible for it." Moreover, a person has no property
interest in worker's compensation medical payments until the employer is
found to be liable and the medical claim is reasonable and necessary to
treat the injury.
C. Civil Rights
Conspiracy -- 42 U.S.C. §1985(2)
Haddle v. Garrison, 67 U.S.L.W. 4029 (12/14/99) (J. Rehnquist)
An employee of a heath care firm was subpoenaed to a grand
jury and scheduled to be a witness for the government He claimed that his
employers conspired to fire him because of his cooperation with the government
investigators and his possible testimony. His employers moved to dismiss
his claim under 42 U.S.C. §1985(2), which proscribes conspiracies
to interfere with or injure witnesses in U.S. Courts, on the ground that
plaintiff was an at-will employee. The Supreme Court reinstated the claim,
holding "...that the sort of harm alleged by petitioner here--essentially
third-party interference with at-will employment relationships--states
a claim for relief under §1985(2). Such harm has long been a compensable
injury under tort law, and we see no reason to ignore this tradition in
this case."
A. Appeal of Discovery
Sanctions
Cunningham v. Hamilton County, Ohio, 67 U.S.L.W. 4459
(6/14/99) (J. Thomas)
Plaintiff's lawyer in a §1983 lawsuit violated several
discovery orders and was sanctioned by a fine of $1494. She appealed the
sanction before the case had been heard at trial. The Court ruled that
a sanction under FRCP 37(a)(4) is not immediately appealable, even where
the attorney sanctioned is no longer the attorney of record.
Ruhrgas AG v. Marathon Oil Co., 67 U.S.L.W. 4315 (5/17/99)
(J. Ginsburg)
A federal court has the latitude to decide personal jurisdiction
issues before subject matter jurisdiction. "[I]n cases removed from
state court to federal court, as in cases originating in federal court,
there is no unyielding jurisdictional hierarchy. Customarily, a federal
court first resolves doubts about its jurisdiction over the subject matter,
but there are circumstances in which a district court appropriately accords
priority to a personal jurisdictional inquiry."
Kumho Tire Co. v. Carmichael, 67 U.S.L.W. 4179 (3/23/99)
(J. Breyer)
The rule announced in Daubert v. Merrell Dow
Pharmaceutical concerning the admissibility of scientific testimony
applies to non-scientific testimony based on technical or other specialized
knowledge. A trial judge must determine whether the testimony is relevant
and reliable. To make those findings, a court may consider whether
the theory or technique underlying the testimony (a) has been tested, (b)
has been subjected to peer review and/or publication, (c) has a known or
potential error rate and has standards controlling the techniques operation,
and (d) is generally accepted in the scientific community. These factors,
however, do not constitute a definitive checklist or test. They are flexible
depending on the nature of the issue, the particular expertise and the
subject of the testimony. A "...trial judge must have considerable
leeway in deciding in a particular case how to go about determining whether
particular expert testimony is reliable. That is to say, a trial court
should consider the specific factors identified Daubert where they
are reasonable measures of the reliability of expert testimony."
Peguero v. United States, 67 U.S.L.W. 4154 (3/2/99) (J.
Kennedy)
Defendant pleaded guilty to conspiracy to distribute cocaine
and was sentenced to 274 months' imprisonment. The trial court did not,
however, tell him that while his guilty plea waived his right to trial,
he did not waive his right to appeal his sentence. Four years later, he
filed a motion to set aside his sentence based, inter alia, on the
trial court's failure to notify him of his appeal rights. F.R.Cr.P. 32(c)(2)
requires a trial court to "...advise the defendant of any right to
appeal the sentence." This obligation is mandatory since (a) an in-custody
defendant may find it difficult to contact his attorney after conviction,
(b) a defendant may have a strained relationship with his attorney following
conviction, (c) attorneys may forget post-trial to follow up, (d) a defendant
knows that the judge's feeling will not be hurt by the filing of an appeal,
and (e) it provides the defendant with the clear chance to ask for an appeal.
However, the violation of Rule 32 (c) does not provide a defendant with
the grounds for a collateral attack on his conviction where he knows of
his appeal rights despite the judge's failure and, therefore, was not prejudiced
by the court's error. Here, the proof demonstrated the defendant was aware
of his right to appeal since he claimed he asked his attorney to do so
and his lawyer discussed with him the merits of an appeal versus cooperation
with the government.
Strickler v. Green, 67 U.S.L.W. 4477 (6/17/99) (J. Stevens)
Despite a prosecutor's "open file" discovery
policy, notes, letters, and documents pertaining to the credibility of
an eye witness' testimony were withheld from the defense at trial and through
part of the habeas corpus proceedings. They were discovered only when the
defense obtained a court order allowing the copying of all police records.
The Supreme Court reviewed the rules for establishing a Brady claim:
"There are three components of a true Brady violation: The
evidence at issue must be favorable to the accused, either because it is
exculpatory, or because it is impeaching; that evidence must have been
suppressed by the State, either willfully or inadvertently; and prejudice
must have ensued." Because the first two prongs of this test were
met by the facts here, the Court focused on the third element. In determining
materiality, the defendant is required to show that the suppressed documents
would have produced a reasonable probability that the trial result would
have been different if the documents were disclosed. "[T]he materiality
inquiry is not just a matter of determining whether, after discounting
the inculpatory evidence in light of the undisclosed evidence, the remaining
evidence is sufficient to support the jury's conclusions...Rather the question
is whether 'the favorable evidence could reasonably be taken to put the
whole case in such a different light as to undermine confidence in the
verdict.'"
VI. Cases
Pending for Decision During the 1999 -2000 Term
Illinois v. Wardlow, 701 N.E.2d 484
Is a person's sudden and unprovoked flight from a police
officer who is patrolling in a high-crime area sufficiently suspicious
to justify a temporary detention under Terry v. Ohio?
Portundo v. Agard, 117 F.3d 696 (2d Cir.)
May prosecutor comment on the credibility of the defendant's
own testimony by noting he had the advantage of attending the entire trial,
whereas other witnesses were subject to the sequestration rule?
United States v. Martinez-Salazar, 146 F.3d 653 (9th Cir.)
Is a defendant who used a peremptory challenge to strike
a juror entitled to a reversal of his conviction if it is determined that
he was entitled to strike the juror for cause?
Martinez v. California, (unpublished)
Does a defendant have the constitutional right to self-representation
on appeal following conviction?
Kimel v. Florida Board of Regents
United States v. Florida Board of Regents, 139 F.3d 1426
(11th Cir.)
Does the 11th Amendment prevent a private cause of action
under the Age Discrimination in Employment Act against the state?
Christensen v. Harris County, Texas, 158 F.3d 241 (5th
Cir.)
May an employer covered by the Fair Labor Standards Act
require employees to use accrued compensatory time off?
Los Angeles Police Department v. United Reporting Publishing Corp., 146 F.3d 1133 (9th Cir.)
Does state statute authorizing police to release arrest
and crime victim information for "scholarly, journalistic, political,
or governmental purpose" violate the First Amendment because it prohibits
its release for commercial purposes?
Erie, Pennsylvania v. Pap's A.M., 719 A.2d 273
Did the Pennsylvania Supreme Court willfully disregard
the Supremacy Clause by striking a nude dancing ordinance that fully complied
with U.S. Supreme Court precedent?
Reno v. Condon, 155 F.3d 435 (4th Cir.)
Does the Driver's Privacy Protection Act, which bars state
motor vehicle departments from disclosing "personal information,"
except under the conditions of the statute, violate the 10th Amendment
and the autonomy of the States?
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