Supreme Court Update

G. Alan DuBois
Patrick L. Bryant
 Fourth Amendment
 Fifth Amendment
 Sixth Amendment
 Sentencing
Florida v. Harris
Florida v. Harris
Is an alert by a trained, certified
narcotics dog by itself sufficient to establish
probable cause?
Florida v. Harris
Holding: YES – in a dog of an opinion!
 Field results “have relatively limited
 Dog doesn’t even have to be
 Trusts police to design
accurate/effective training
Florida v. Harris
Throw us a bone?
 Defendant can challenge adequacy of
 Field results “may sometimes be relevant”
 Can challenge the alert itself
 Probably requires discovery/expert
Florida v. Jardines
Florida v. Jardines
Issue: Is a dog sniff at the front door
of a suspected grow house a Fourth
Amendment search requiring probable
Holding: ??? (Argued October 31)
Misc. Fourth Amendment cases
 Bailey v. United States: The rule from Michigan v.
Summers that police can seize occupants during
execution of a search is limited to occupants in the
immediate vicinity. (Good language on exceptions to
warrant requirement.)
 Missouri v. McNeely: Is the dissipation of alcohol in the
blood, by itself, an exigent circumstance permitting a
warrantless blood draw?
 Maryland v. King: Does the Fourth Amendment permit the
collection and analysis of DNA taken from arrestees?
Salinas v. Texas
Salinas v. Texas
Issue: Whether, and under what circumstances,
does the Fifth Amendment protect a defendant’s
refusal to answer law enforcement questions
before he has been arrested or read his Miranda
Or, does the Fifth Amendment permit prosecutors
to comment on post-arrest, pre-Miranda silence?
??? (to be argued April 17)
Misc. Fifth Amendment cases
 Blueford v. Arkansas: Double Jeopardy Clause
does not bar retrial on greater offenses when the
jury says it is hung on lesser-included, if the
verdict is not yet final.
 Evans v. Michigan: Double Jeopardy Clause
does bar retrial if judge grants motion for acquittal
because prosecutor failed to prove an “element,”
even if that factor is not really an element. An
erroneous acquittal is still an acquittal!
Missouri v. Frye/Lafler v. Cooper
Missouri v. Frye/
Lafler v. Cooper
Issues: Does the right to effective assistance of
counsel apply to the plea bargaining process?
Is there prejudice if the defendant accepts a
subsequent, less-favorable plea? (Frye)
Is there prejudice if the defendant is later convicted
after a fair trial? (Lafler)
Missouri v. Frye/
Lafler v. Cooper
Holding: Counsel has a duty to
communicate plea offer to the defendant
(Frye), and to provide accurate advice about
it (Lafler).
But: How to show prejudice?
What is the remedy?
Missouri v. Frye/
Lafler v. Cooper
Prejudice: Reasonable probability that defendant
would have accepted the plea, AND a reasonable
probability that the plea would have been entered.
Remedy: Up to court's discretion -- sentence from
plea, sentence after trial, or "something in
between." Can order govt to re-offer plea.
Missouri v. Frye/
Lafler v. Cooper
Burt v. Titlow (cert granted Feb. 25) -- (1) is
defendant's testimony he would have accepted
plea enough to show reasonable probability? (2) if
so, must court resentence defendant in a way that
remedies the violation?
Setser v. United States
Setser v. United States
Can a district court order a federal
sentence to run consecutively to a state
sentence that has yet to be imposed?
Setser v. United States
Holding: Yes, even though 18 U.S.C. 3584
does not mention this.
Peugh v. United States
Peugh v. United States
Does the Ex Post Facto Clause
require the court to use the Guidelines in
effect at the time of the offense, if the current
Guidelines create a "substantial risk" of a
higher sentence?
Holding: ??? (argued Feb. 26)
Descamps v. United States
Descamps v. United States
Issue: Under ACCA, can a court use
the "modified categorical approach"
when a state burglary offense is
broader than generic burglary?
Holding: ??? (argued Jan. 7)
Alleyne v. United States
Alleyne v. United States
Issue: Do facts establishing
mandatory minimums have to be
charged in the indictment and proven to
a jury beyond a reasonable doubt?
Holding: ??? (argued Jan. 14)
Alleyne v. United States
What's next?
• Retroactivity?
• Prior convictions (Almendarez-Torres)
• Acquitted conduct (Watts)
• Stat max? (fixed terms vs. implied life max)
Alleyne v. United States
• Preserve, preserve, preserve!
• Help is available!
• Paul Rashkind’s outline
[email protected]

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