US Supreme Court

SCOTUS Hears Oral Argument in Birchfield v. North Dakota

On April 20, 2016, the Supreme Court of the United States (“SCOTUS”) heard oral arguments in Birchfield v. North Dakota, a case that consolidates Birchfield with Bernard v. Minnesota and Beylund v. Levi, where the SCOTUS will determine whether the government may, without a warrant, make it a crime for a motorist to refuse to take a blood-alcohol test. Currently, thirteen states make it a crime to refuse any form of drunk-driving tests (breathalyzer, field sobriety, etc.). Birchfield comes on the heels of the 2013 Missouri v. McNeely case, where the SCOTUS held that if police have time, they should get a warrant before taking an invasive test of a suspected drunk driver. Let’s take a look at each consolidated case to understand the big issue before the Supreme Court.

Case #1: Birchfield v. North Dakota

In Birchfield, motorist Danny Birchfield drove his car off of a North Dakota road and subsequently failed a field sobriety test and a preliminary breath test, given by the state highway patrol. At that point Birchfield was arrested, told he had to take another more invasive chemical test, and informed of North Dakota’s implied consent rule. In North Dakota, any individual who operates a motor vehicle on any public or private road in the state is deemed to have consented to a chemical test for alcohol in the blood stream. Birchfield refused to submit to any further testing and was charged with both DUI and Failure to Submit to chemical testing. Birchfield filed several appeals, arguing that North Dakota’s implied consent law is unconstitutional under the 4th Amendment of the United States Constitution. Birchfield is opposed to “refusal” being a crime all by itself.

Read the brief in Birchfield here.

Case #2: Bernard v. Minnesota

In Bernard, police confronted a man who smelled of alcohol on a public boat ramp and asked him to consent to field sobriety tests. Bernard consented to a breathalyzer test after being told of the criminal penalties for refusal. Under Minnesota’s implied consent law, it is a criminal offense for a driver who has been arrested on probable cause for driving while impaired to refuse a chemical test. Minnesota argues that a warrantless breath search is constitutional under the “search incident to an arrest” doctrine. On the other hand, Bernard argues that a breathalyzer is not a valid search incident to an arrest because the search does nothing to further officer safety or to preserve evidence.

Read the brief in Bernard here.

Case #3: Beylund v. Levi

In Beylund, law enforcement observed a car driving erratically and stopping in the middle of the road. The police asked defendant Beylund to consent to chemical testing. At trial, Beylund argued that the test imposed an unconstitutional condition on his driver’s license.

Read the brief in Beylund here.

The Big Issues—Implied Consent or Criminalization of a Constitutional Right?

The highest court will determine whether in the absence of a warrant, a state can make it a crime, in and of itself, for a person to refuse to take a chemical test (blood, breath and urine) to detect the presence of alcohol in the blood? The Supreme Court will likely be examining the following questions to determine the answer to that question:

• When drivers obtain a driver’s license from a state agency, does a driver impliedly consent to invasive chemical testing to detect the presence of alcohol?
• Is refusing an invasive chemical test criminal in and of itself?
• Do citizens have the constitutional right to refuse an invasive chemical test without penalty?
• Do states have a compelling interest in protecting public roadways from drunk driving so that they may order chemical testing for suspected drunk drivers even without a warrant?
• Can a government benefit (such as driving on public roadways) be conditioned upon search requirements, even if the search is an invasive chemical test?

Precedent Case: Missouri v. McNeely

Driving While Intoxicated and invasive chemical testing are not new topics to the SCOTUS. In 2013, the Court heard Missouri v. McNeely. Defendant McNeely had been arrested for DUI after failing field sobriety tests. He refused to take a breathalyzer, so law enforcement transported him to a hospital where his blood was removed against his will. After several appeals and suppression hearings, McNeely was heard by the SCOTUS. Chief Justice Sonia Sotomayor reiterated that a blood draw “is an invasion of bodily integrity that implicates the most personal and deep-rooted expectations of privacy.” Although the SCOTUS noted that from time to time cases may arise that will allow for a warrantless blood alcohol test, the Court ultimately held, “in drunk driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.”

What Will the Supreme Court Say About Warrantless Breath Tests?

Several national organizations, such a Mothers Against Drunk Driving (see the MADD brief here) and the American Civil Liberties Union (read the ACLU brief here), have filed amicus “friends of the court” briefs for this case arguing for and against the constitutionally of implied consent laws. In the past decade, 112,998 people have been killed in alcohol-impaired driving crashes. With grim statistics underpinning many of the individual states’ implied consent laws, will the Supreme Court overturn or add to McNeely? It will be very interesting to see how the SCOTUS squares this case with the precedent case law and which legal theory they will select to reach a conclusion.

In Luis v. United States, the Supreme Court Addressed Whether and to What Extent, Federal Authorities Can Seize Assets Unrelated to Criminal Activity.

Many federal defendants have been in the position of needing to hire an attorney but having all of their assets frozen.  Not anymore.  The United States Supreme Court ruled this week that the federal government cannot, before trial, seize the assets of the defendant if those assets are unrelated to the criminal allegation and are needed to fund a defense attorney.

See Luis v United States (US S.Ct. 2016)

Luis v. United States - Case Background

In Luis, a Miami woman named Sila Luis was accused of Medicare and banking fraud. The criminal charges alleged that she illegally used kickbacks and other criminal schemes to fraudulently obtain over $45 million. Luis only had $2 million left when federal prosecutors obtained a court order seizing all of her assets — both those assets related to the crime and those unrelated to it. She challenged the federal seizure order arguing that she needed the unrelated (untainted) assets in order to retain an attorney for her trial.

A majority of Supreme Court justices agreed with Luis. that allowing the government to take her untainted assets would violate her Sixth Amendment right to counsel of her choice.

When Can the Federal Government Seize a Defendant's Assets?

18 U.S. Code Section 1345(a)(2) provides that a court may freeze before trial certain assets belonging to a defendant accused of violations of federal health care or banking laws. Those assets include (1) property “obtained as a result of” the crime, (2) property “traceable” to the crime, and (3), as relevant here, other “property of equivalent value.”

Writing for four of the justices, Justice Stephen Breyer explained that the frozen assets

belongs to the defendant, pure and simple." He added that, as a practical matter, to accept the government's position could have grave consequences for a defendant who is actually innocent, whose assets are all untainted and, if seized, would leave the defendant without her lawyer of choice to defend against meritless charges.

He went on, "[t]o permit the Government to freeze Luis' untainted assets" in this case, Breyer wrote, "would unleash a principle of constitutional law that would have no obvious stopping place."

Chief Justice Roberts, Justice Ginsburg, and Justice Sotomayor joined the Justice Breyer's opinion. Justice Thomas wrote separately, with a slightly different analysis, explaining that the 6th Amendment right to counsel of choice would be meaningless if we did not allow a defendant to use his or her property to pay for that attorney.

Justices Kennedy and Alito dissented and would hold that there is no real way to distinguish between tainted and untainted assets since money is fungible.

TAKEAWAY: The government may not seize assets in a federal case if the assets are not connected to the alleged criminal activity and if those assets are needed to hire an attorney for the defense.

Statements by Child Victim to Teacher Were Admissible "Non-Testimonial" Under the Supreme Court's Confrontation Clause Jurisprudence.

The Sixth Amendment's Confrontation Clause protects a defendant's right to confront witnesses against him and raises the issue of how-to-treat admissibility of out-of-court statements.  In a landmark 1980 case, the Supreme Court adopted a standard allowing out-of-court statements to be admitted if they are deemed reliable and trustworthy.

In 2004, the Court adopted what this Court called a "different approach," adopting the position that testimonial statements--out-of-court statements as a substitute for in-court testimony--are inadmissible unless the witness is unavailable to testify in court and the defense had an earlier opportunity for cross-examination.

In 2006, the Court adopted the "primary purpose" test, under which statements made during the course of police interrogation for the primary purpose of meeting an ongoing emergency are not testimonial and are therefore admissible. Only statements made in the course of an investigation for the primary purpose of proving facts relevant to later prosecution are potentially inadmissible.

In 2011, the Court expanded the primary purpose test by requiring the determination of whether a statement is testimonial to consider all the relevant circumstances. Specifically, the Court said statements made to police officers in an informal setting are less likely to be testimonial than a police station interrogation.

All of the cases up to this point had one fact in common--the statements were made to law enforcement officers. The Court had declined to decide the issue of whether the same rules would apply to statements made to individuals other than police officers.

Breaking Confrontation Clause Caselaw | Fort Worth Criminal Defense Attorneys

In Ohio v. Clark, the Court finally had the opportunity to address the question regarding statements made to individuals other than police officers. In Clark's child abuse trial, statements made by the three-year-old victim to his teachers that Clark had caused his injuries were admitted into evidence. The three-year-old did not testify because of an Ohio law that generally determined children younger than ten years of age incompetent to testify.

The trial court ruled the child's statements were not testimonial and allowed them to be admitted. Clark was convicted and sentenced to 28 years imprisonment.

A state appellate court reversed the decision. The Ohio Supreme Court upheld the decision of the Appeals Court, concluding the primary purpose of the teachers' questioning was gathering evidence, not addressing an ongoing emergency. The court considered the teachers agents of the state under the state's mandatory reporting law and found the child's statements functionally equivalent to live in-court testimony that was inadmissible.

The United State Supreme Court disagreed and decided the child's statements were made in the context of an ongoing emergency regarding suspected child abuse. The teachers needed to know who might have abused the child so they would know whether it was safe to release the child to his guardian and to help prevent future attacks. During the spontaneous and informal questioning, the teachers never told the child his statements might be used to punish Clark. The Court found it unlikely the child intended his statements to be a substitute for trial testimony.

The Court declined to adopt a categorical rule that all statements to persons other than law enforcement officers are testimonial, but considered the identity of the questioners in this case and concluded that statements made to individuals not principally charged with uncovering and prosecuting criminal behavior, such as teachers, are less likely to be testimonial.

The Court rejected the argument that the mandatory reporting law transformed teachers into agents of the state, concluding the teachers would have taken steps to protect the child even in the absence of the law. The Court also rejected Clark's claim that the child's statements should have been inadmissible because the jury perceived them to be testimonial, noting that theory would render almost all out-of-court statements offered by the prosecution inadmissible.

The Court concluded that because the child's statements were not made for the primary purpose of creating an out-of-court substitute for trial testimony, they were not testimonial and were therefore admissible.

Although the ruling in the case was unanimous, in an unlikely pairing, Justices Scalia and Ginsburg argued the 2004 decision regarding testimonial statements was adequate to decide this case. They argued the majority's characterization of the 2006 and 2011 cases as different approaches or alternative tests was an attempt to return to the 1980 standard of reliability when the only issue is whether the statement is made by a witness and is unconfronted.

Justice Thomas argued the Court should in fact return to the 1980 standard of trustworthiness and reliability and apply the same standard to statements made to private individuals and those made to police officers. Thomas characterized the primary purpose test as an "exercise in fiction" and concluded in this case, the child's statements did not meet the standards of reliability and trustworthiness to fall under the prohibition of the Confrontation Clause

Everyone seems to use social media today. Videos of kittens and puppies and comments about people or events are common. However, some use of social media involves threats by a user against others. The U.S. Supreme Court recently considered a case regarding how far such threats can go without violating the law.

Anthony Elonis was a Facebook user. When his wife left him, Elonis began posting violent, self-composed "rap" lyrics. Elonis's posts included references to co-workers, his wife, law enforcement, an unidentified kindergarten class and an FBI agent who visited his home. Based on these Facebook posts, the Government charged Elonis with violating a federal statute, referred to as 875(c), that criminalizes communication that contains a threat to harm another person.

Elonis's defense attorney moved to dismiss the charges because Elonis had not actually intended to threaten anyone. The court denied the motion, holding that the Government was not required to prove that Elonis actually intended to make a threat; it must only prove that Elonis intended to make the communication. At trial, the Government called several witnesses who testified they viewed the posts as serious threats.

Elonis argued for a jury instruction requiring the Government to prove Elonis "intended to communicate a threat." Instead, the judge instructed the jury that a true threat requires only that the defendant make a statement that a reasonable person would interpret as a serious expression of intent to harm or kill an individual.

Elonis was convicted on four counts. He appealed to the Third Circuit Court of Appeals, which affirmed the lower court's verdict. Elonis then appealed to the Supreme Court.

No one disputed Elonis had posted the Facebook entries. The issue was whether Elonis's posts contained any threats.

The language of 875(c) contains no provision regarding intent or state of mind. Elonis argued that every definition of threat requires an intent to harm. The Government argued that the use of "intent" language in sections surrounding 875(c) demonstrated that Congress did not intend to impose an intent standard in 875(c).

The Court rejected both arguments, concluding that 875(c) did not address the issue of "intent" or "mental state" at all. The Court looked elsewhere for an answer and found one in decisions in previous cases: Only conscious wrongdoing can be prosecuted as a crime. When a statute includes no provision regarding the required mental state, the Court said it implies only the state of mind which is required to distinguish wrongful conduct from conduct that would otherwise be innocent. For example, if an individual robs a bank, even under a good-faith belief the money was his, the "forceful taking" (stealing) does not constitute "otherwise innocent conduct." The Court said the Government's position in this case would punish a defendant who takes money without force, believing it to be his.

The court characterized the Government's position as a standard of negligence, which asks what a reasonable person would do in the situation. The Court said a negligence standard had been rejected in criminal statutes, stating "what [Elonis] thinks does matter." On that basis, the Court overturned Elonis's conviction.

In a separate opinion, Justices Alito and Thomas took issue with the Court holding that a negligence standard was insufficient while not determining what standard would be sufficient. Judge Alito argued for a recklessness standard (acting in conscious disregard of the risk). Justice Thomas chastised the majority for rejecting the opinion of nine out of eleven Circuit Courts of Appeals and leaving nothing in its place. Justice Thomas did commend the majority for not imposing an intent-to-threaten requirement but believed the Court should have gone further and adopted the negligence or general intent standard put forward by the Government.

Elonis v. U.S. raises more questions than it answers. Clearly, something more than making a threatening statement with knowledge of what it says is required to violate federal law. But how much more? Was Justice Alito correct that making the statement with no consideration of its effect on the recipient is enough? Or was Elonis right that an individual must affirmatively intend the communication as a threat for it to be illegal? Setting aside moral or ethical concerns, until this question is answered, social media users should be cautious of making statements threatening other individuals, serious or not.

United States Supreme Court case highlight: Blueford v. Arkansas

The case dealt with the double jeopardy clause and whether it applies to partial or informal verdicts.

In Blueford, the defendant was being tried for capital murder.  The trial judge instructed the jury that if it did not find the defendant guilty of capital murder, it should consider the lesser included offense of first degree murder.  The court further instructed that if the jury did not find the defendant guilty of first degree murder, it should consider manslaughter...and so on and so forth.  After several hours of deliberations, the jury reported that it could not reach a unanimous verdict.  The judge inquired into how the voting was going and the jury reported that it had decided that the defendant was not guilty of capital murder or first degree murder, but that it could not agree on manslaughter.  The judge instructed the jury to go back and keep trying, but they were unable to break the impasse.  Accordingly, the trial judge declared a mistrial.

During the retrial for the same offense, the defendant objected on double jeopardy grounds to the charge of capital murder, arguing that the jury's informal verdict that he was not guilty of capital or first degree murder precluded him being retried for that same charge at a later trial.  The trial court disagreed, as did the appellate courts.

In a 6-3 opinion (Majority: Roberts, Scalia, Kennedy, Thomas, Breyer, Alito), the Supreme Court held that :

The Double Jeopardy Clause does not bar retrying Blueford on charges of capital murder and first-degree murder.  The jury did not acquit Blueford of capital or first-degree murder.  Blueford contends that the foreperson's report that the jury was unanimous against guilt on the murder offenses represented a resolution of some or all of the elements of those offenses in his favor.   But the report was not a final resolution of anything.  When the foreperson told the court how the jury had voted on each offense, the jury's deliberations had not yet concluded.  The jurors in fact went back to the jury room to deliberate further, and nothing in the court's instructions prohibited them from reconsidering their votes on capital and first-degree murder as deliberations continued.  The foreperson's report prior to the end of deliberations therefore lacked the finality necessary to amount to an acquittal on those offenses.  That same lack of finality undermines Blueford's reliance on Green v. United States, 355 U. S. 184, and Price v. Georgia, 398 U. S. 323.  In both of those cases, the verdict of the jury was a final decision; here, the report of the foreperson was not.

This holding appears to be consistent with Texas law, in that a jury foreperson must sign a verdict form and the court must accept the verdict, before it is given any legal significance.

Justices Sotomayer dissented (joined by Ginsberg and Kagan), and would hold that partial verdicts should be required before a mistrial is granted on the grounds of a deadlock.