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September 28, 2017

SCOTUS grants cert on a bunch of criminal cases, including at least one possibly exciting sentencing case

Over the weekend in this post, I flagged a bunch of interesting criminal cases flagged in this lengthy In Justice Today accounting of cert petitions to watch as the Supreme Court got back in action with its end-of-the-summer "long conference."  Today, via this short order list, the Supreme Court reported out some of the results of its work at the long conference.  Specifically, the court granted certiorari in 11 cases (three of which about military courts are consolidated).  Interestingly, though I did not see any of the cases I have been watching on the "certiorari granted" order list, it seems at least five of the case that do appear on the latest order list involve criminal issues:



16-1466 HAYS, KS V. VOGT, MATTHEW JACK D. (N.B.: "Justice Gorsuch took no part in the consideration or decision of this petition.")

16-8255 McCOY, ROBERT L. V. LOUISIANA (N.B.: the "a writ of certiorari [is] limited to Question 1 presented by the petition")


Based on a too-quick bit of Google searching, it appears that the first two cases above deal with Fourth Amendment car searches, the Vogt case deals with Fifth Amendment procedure, McCoy is a state capital case seemingly dealing with right to counsel issues, and Rosales-Mireles is a federal sentencing appeal!  I am hopeful that SCOTUSblog will soon have their usual terrific coverage of all of today's grants with links to the filings.  I suspect that hard-core sentencing fans will be most interested in the final two cases listed above, but I will need to see the filings before I will know just how excited to get about these new cases on the SCOTUS docket.

Meanwhile, for all the cases in the cert pool being watched by others, we will need to wait until at least Monday morning to know more about their fate.  For those rooting for cert grants, not being on today's order list is not a good sign.  But a lot of cases get relisted after the long conference, and thus there is still a decent chance at least a handful more criminal cases of note will be added to the docket in the coming weeks.

UPDATE Not minutes after I finished this post, I see Amy Howe has this long post reviewing all of today's cert grants, and here is part of her accounting of the criminal cases:

The Fifth Amendment’s “self-incrimination clause” provides that no one “shall be compelled in any criminal case to be a witness against himself.” In City of Hays, Kansas v. Vogt, the justices will consider the scope of that clause – specifically, whether the Fifth Amendment is violated when statements are used at a probable cause hearing but not at a criminal trial.... 

In Collins v. Virginia, the justices have agreed to clarify the scope of the “automobile exception” to the warrant requirement – specifically, whether it applies to a car parked on private property, close to a home....

Byrd v. United States: Expectations of privacy in rental car for someone who is not an authorized driver;

Rosales-Mireles v. United States: Standard for the court of appeals to correct a plain error;

McCoy v. Louisiana: Whether it is unconstitutional for defense counsel to concede a defendant’s guilt over the defendant’s objection.

Today’s grants are likely to be argued in either January or February.

September 28, 2017 at 10:41 AM | Permalink


I am a little shocked that the Justices did not rewrite the question in Hays. The question as framed by the City obscures the issue in the case by vaguely referring to the Fifth Amendment and use of a statement at the probable cause hearing but not the trial.

The real issue -- on which the Tenth Circuit allowed the case to proceed against the City -- is whether the City is liable its officers obtaining of an allegedly compelled statement from the plaintiff and whether that liability depends upon the stage of the proceeding at which the plaintiff got the charges dismissed. The statement was only used at the probable cause hearing because the magistrate found that there was insufficient evidence to bind the plaintiff over for trial. The damages are probably less because the charges got dismissed at an early stage of the case (but the issue of how to measure damages is premature as the case is at the "dismissal/immunity" stage. However, the alleged violation of rights occurred when law enforcement took the statement and at every proceeding where the statement was used. Maybe, I am missing something, but I just don't see how the fact that the criminal case never went to trial is material to the issue of liability. (Given the way that the City framed the question it is implicitly conceding that plaintiff alleged sufficient facts to hold the city liable for the acts of its officers, notwithstanding the officers having qualified immunity.)

Posted by: tmm | Sep 28, 2017 1:46:58 PM

My take FWIW having skimmed through all the briefs.

Hays: Yes the 5A applies, duh!
Collins: Yes, the 4A applies, duh.
Byrd: No expectation of privacy.
Rosales: This is a difficult one. I think she should win but the government has a strong case under current law.
McCoy: Oh HELL no. The attorney serves the client.

Posted by: Daniel | Sep 28, 2017 3:46:28 PM

Where is my microscope, I am looking for legal significance? How much more trivial, unimportant, and time wasting can these certs get?

Posted by: David Behar | Sep 28, 2017 4:02:12 PM


Byrd is significant as lots of people rent cars and these cars are often driven by people who are not an "authorized driver". I recognize that people like yourself who are doctors and lawyers get around in your private jet plane and chauffeured driver but for ordinary folk rental cars are a big deal.

Posted by: Daniel | Sep 28, 2017 4:37:50 PM

Daniel. We are always told to not mix law subjects. An unauthorized driver has violated a contract. Contract law prohibits punishment. I do not even see any contractual damage requiring mitigation.

That driver should be treated as authorized drivers are in the unrelated criminal law. Equal treatment is implicit in the procedural due process right to a fair hearing. This is an explicit right, and not part of the substantive due process right.

These drivers are also protected by the Interstate Commerce Clause, and by the Full Faith and Credit Clause, requiring respect for the rules of other states. The Supreme Court should sanction the federal judges that ruled against the self evident rights. All legal costs should be assessed to their personal assets. They also be made to pay for wasting time and effort to generate lawyer jobs.

Here is the problem. These claims result in the denial of the reality of the contraband that was found in the car, and the crime that took place.

In a world of reality, the public would not be punished by denial of a crime The police would be fined for violating the constitutional rights, and would be better deterred from future violations, by themselves and by all other officers learning of the sanction. The Exclusionary Rule is nuts, truly delusional.

Posted by: David Behar | Sep 28, 2017 10:37:46 PM

David, one small problem, the Fourth Amendment implicitly incorporates property rights as a rule of criminal procedure. It references the right to be secure in "my effects" which presumably includes my car. In other words, government keep your hands off my property. My rights are not violated if the government searches your property -- even if your property includes evidence, say a photograph of me committing a crime, that supports criminal charges against me. (Additionally, it is impossible to separate criminal law from property rights. A good chunk of criminal law is about protecting property rights -- theft, burglary, vandalism, etc.)

Leases mix property law and contract law. The lease transfers for a defined time period some of the property rights of the owner to the lessee (property law) transforming Hertz's car into lessee's car (at least for some purposes). Contract law is used to interpret what property rights were transferred and to whom. The issue is whether the limitations of Hertz's contract with the lessee prohibits the lesser from transferring property rights to lessee's friend/relative who is not a party to the lease.

As an aside, the lower court never addressed the issue of whether the search was improper. It stopped at the "no property rights = no standing" stage of the analysis and did not go to the merits of whether there was consent to the search or probable cause supporting the search.

Posted by: tmm | Sep 29, 2017 12:40:39 PM

The car was not stolen. The driver benefited the leasing company by using their car. It may not have been leased, otherwise.

Is there any property right from lawful possession, albeit in violation of a contract? The driver lawfully possessed the car. Doesn't that lawful possession suffice to confer the property right relevant to the Fourth Amendment, as you so well described it? The contract violation is not within the jurisdiction of the police.

What do you think about repealing the Exclusionary Rule, by federal statute, and punishing the police, rather than the innocent public by dropping charges against and releasing dangerous criminals, based on a procedural mistake by the police. The police does not care if a criminal is released. They care about personal punishments, and assessments to their personal assets. Do that one time, I predict, all over-reaching and violation of possessory rights by police will end immediately, and across the country. Do you want appellate lawyer employment, or do you want to end violation of possessory right by the police? The question is a sincerity check.

Posted by: David Behar | Sep 29, 2017 1:07:40 PM

"Doesn't that lawful possession suffice to confer the property right relevant to the Fourth Amendment"

Under current law the answer to this question is "no". The unauthorized driver in this situation is in no different a position than a passenger in a car who has his bags stowed in the trunk. He may be in lawful possession of his bags but so what? The police have a right to search the car and all the possessions in it, assuming the circumstances allow the police to search the car. So the mere fact that one has possession of an object doesn't mean that one has a property right in that object for 4A. Another example would be the case of a bag left in the common area of a group house.

What was interesting to me about the court taking this case is that in some ways the unauthorized driver of the car is in the same position as a cell phone Company in Carpenter (the cell phone data collection case). In both cases a third party has possession of something (a car, cell phone data) but what right does that give them to object to the collection of the data by the government? One way to distinguish these two cases is based upon the idea of authorization. That cell phone company have a right to protect user data because they are in the position of an authorized driver while Byrd doesn't have any standing because he is not authorized. Don't know if it will play out that way but I'd insist that the two cases have more in common than one might think.

Posted by: Daniel | Sep 29, 2017 4:32:11 PM

Probably not stolen, at least as stealing is defined in my state which requires a purpose of keeping the stolen property permanently. On the other hand, a good argument could be made that it was being operated without the consent of the owner (the rental company) which is a crime in my state.

The question (which derives from property law and contract law) is whether Byrd was in lawful possession of the property. My lease for property --whether an apartment or a rental car -- defines my ability to convey lawful possession to another. If my lease to my apartment bars from from subletting or otherwise assigning the lease to a third party, a sublessee does not have any legally recognized interest in that apartment and is essentially a squatter. That is essentially, Byrd's position, he was in possession without the consent of the owner, and thus, not in lawful possession. Whether the owner would have consented if consent had been requested is a hypothetical question which would require us to speculate. At least as written by the lower court, nothing in the record seems to address that issue.

Daniel, I actually think that the more comparable case to Byrd is the DC case on the docket this month. I receive an invitation to go to a home from somebody who does not have permission from the owner to invite me. Am I illegally on the property such that the police can detain me for trespass without confirming whether that third party gave me an invitation?

Posted by: tmm | Sep 29, 2017 5:10:21 PM

I would think the DC case is even more complicated as with the number of people involved (more than twenty) I could well see some being present who were not even directly invited by the original trespasser but instead by people that trespasser invited. Or even party crashers.

As for the car rental case I have a hard time seeing a non-authorized driver having any privacy interest in the car's contents. I would think the agency _could_ even contractually waive the 4A even for authorized drivers let alone others.

Posted by: Soronel Haetir | Sep 29, 2017 6:27:32 PM


I don't see the DC case that way. That case is a straight forward case of "what is probable cause?" What makes the case unique is that the probable cause analysis turns on the credibility determination by the officer at the scene. The suspect says X. The police officer thinks the suspect is lying about X. Is it reasonable to seize the person, with nothing more, because the officer thinks the suspect is lying about X? The ownership issue is a red herring. To see why the ownership issue is a red herring imagine the hypothetical where the owner did give permission but the officer didn't believe the testimony of a third party to that effect... I don't see how the officers ability to arrest in that situation can turn on whether or not the officer can get in touch with the homeowner and decide who really owns the house. The fact that the police in the DC case got in touch with the home owner is happenstance, nothing more.

The DC case is a difficult case. I don't know that I know the right answer to it.

Posted by: Daniel | Sep 29, 2017 6:40:59 PM

Are the party crashers committing a crime, especially if the owner has not objected to their entry into the party? Should all 20 be put in prison? Are the apartment lessee and the sublessee committing a crime by unauthorized subleasing? Should these people be arrested or sued? I will await the legal analysis of the Supreme Court, since we are not going to resolve that question.

Daniel, I admit, I did not appreciate the importance of Byrd.

My Nissan leased car has a screen with a picture of a little car with a wifi arcs attached to its hood. It is transmitting information from the black box in the car. Nissan informed me that a black box has been in its cars since 2006. They also informed me that they would share that information with governmental officials, when "appropriate." They would not even need a court order, they indicated. That little car with the wifi symbol coming out of it is there despite my declining to share information, every time the car is started.

Speeding is called a summary offense, but is a crime. The Rules of Criminal Procedure apply to traffic court. The legal speed limit in PA is the reasonable one. So going the posted 55 on an icy night could be crime, in the judgment of the police. Close to 100% of drivers are speeding exceeding the posted speed. Go the speed limit, you may get killed.

That means that the police can stop currently speeding individuals, which is everyone. They may get the data from Nissan, and come after everyone for past speeding. If you have your laptop, cell phone or tablet in the car, I can find 3 federal felonies, just in copyright infringement, never mind the hundreds of other crimes contained in them. So get stopped for speeding. Have your crime ridden electronic device seized in every case.

I do not know if other car makers have black boxes, if they collect driving data at headquarters, if they share it with the government without a court order.

We are all Byrd.

Posted by: David Behar | Sep 29, 2017 9:09:00 PM

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