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November 1, 2012

Seeking input and insights concerning recent SCOTUS criminal procedure arguments

As detailed in this SCOTUSblog round-up post, yesterday and today has had notable criminal justice action in the Supreme Court:

The Court heard argument yesterday in two cases involving the use of drug-detection dogs.  In Florida v. Jardines, the Court considered whether a dog sniff at the front door of a suspected marijuana grow house by a trained narcotics detection dog constitutes a Fourth Amendment search. In Florida v. Harris, the Court considered whether an alert by a trained drug-detection dog provides sufficient probable cause to search a vehicle....

After postponing Tuesday’s oral arguments because of Hurricane Sandy, the Court [also has heard] arguments in two cases this morning.  In Bailey v. United States, the Court will consider whether police executing a search warrant can detain someone who left the premises to be searched before the search began.  At The Atlantic, Daniel Epps argues that the case “should tell us something about just how interested Justice Scalia is in rethinking Fourth Amendment law in his remaining years on the Court.”

The Court [also now has heard] argument in Chaidez v. United States, in which it will consider whether Padilla v. Kentucky, in which it held that criminal defendants receive ineffective assistance of counsel when their attorneys fail to advise them that pleading guilty to an offense will subject them to deportation, applies retroactively.

I have left out a bunch of links and commentary from the SCOTUSblog round-up, though I urge anyone interested in these issues to click through to see what others are already saying about these cases. Not surprisingly, Chaidez has garnered the least attention so far, even though it is probably the only case from these two days of argument likely to get hard-core sentencing fans excited.  The oral argument transcript from Chaidez is available at this link, and I hope to find time late tonight to read and comment upon what the Justices had to say about Padilla and retroactivity.

November 1, 2012 at 03:41 PM | Permalink


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Chaidez would be more interesting if it was a 2254 case.

Padilla reads as if it is a straightforward application of Strickland. That would suggest that it is not a new rule, but rather a simple question of applying Strickland to the details of the representation in that case.

If this were a 2254 state habeas, you would have the question of whether failure by the state courts to anticipate that competent representation included advice about immigration (and possibly other collateral consequences) was an unreasonable application of Strickland.

Posted by: tmm | Nov 2, 2012 9:59:58 AM

Well i figure if the court screws it up and allows the illegal drug dog searches.

We can always use the same fallback positon the police use.

See dog on your property ....shoot the damn thing!

It made a fertive movement and i feared for my life....so i killed it.

Same one the cops use DAILY recently.

Works for them!

Posted by: rodsmith | Nov 2, 2012 10:29:15 AM

Chaidez is very high on the radar of those of us who follow the intersection of criminal law and immigration law. To meet that interest, several academics and practitioners have been sharing their thoughts on Chaidez through an online symposium I'm running on my blog, crImmigration.com. The symposium features six pre-argument contributions with another five coming Monday morning recapping oral arguments. The symposium will resume after a decision is issued. My introduction to the symposium and links to all the contributions to date are available here: http://crimmigration.com/2012/10/31/online-symposium-on-chaidez-v-us-is-padilla-retroactive.aspx

César | crImmigration.com

Posted by: César Cuauhtémoc García Hernández | Nov 3, 2012 2:43:37 PM

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