On Point blog, page 60 of 81
SCOTUS will decide whether Microsoft has to provide emails sought under warrant when the emails are stored overseas
United States v. Microsoft Corp., USSC No. 17-2, certiorari granted 10/16/17
Whether a United States provider of email services must comply with a probable-cause-based warrant issued under 18 U.S.C. § 2703 by making disclosure in the United States of electronic communications within that provider’s control, even if the provider has decided to store that material abroad.
SCOW will address whether mandatory DNA surcharge violates ex post facto clause
State v. Jamal L. Williams, 2017 WI App 46, cross petitions for review granted 10/10/17; case activity (including briefs)
Issues (composed by On Point)
1. Is the imposition of a single mandatory $250 DNA surcharge an ex post facto violation with respect to a defendant who committed his offense when the surcharge was discretionary and who previously had provided a DNA sample in another case?
2. Is Jamal Williams entitled to resentencing because the circuit court sentenced him based on an improper factor, namely, the fact that Williams refused to stipulate to restitution for which he was not legally responsible?
SCOW to review IAC, sentencing, and cross-appeal issues
State v. Anthony R. Pico, 2015AP1799-CR, petition for review granted 10/10/17; case activity (including briefs)
Issues (composed by On Point):
1. Did the Court of Appeals apply the proper standard of review to the trial court’s findings of fact regarding trial counsel’s conduct and strategy?
2. Did trial counsel perform deficiently by failing to investigate Pico’s serious head injury, and did that deficient performance prejudice Pico in pretrial proceedings and at trial?
3. Did the sentencing court impermissibly burden Pico’s privilege against self-incrimination?
4. Did the Court of Appeals err in concluding that Pico waived issues not raised by cross-appeal?
5. Is it permissible for a postconviction court to admit and consider expert testimony by another criminal defense attorney regarding the conduct of trial counsel?
SCOTUS to address scope of 4th Amendment’s automobile exception
Collins v. Virginia, USSC No. 16-1027, cert granted 9/28/17; lower court opinion; USSC docket; SCOTUSblog page
Question presented: Whether the Fourth Amendment’s automobile exception permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house.
SCOTUS to consider driver’s expectation of privacy in a rental car when he isn’t on the rental agreement
Byrd v. United States, USSC No. 2016-1371, cert granted 9/28/17; 3rd Circuit’s opinion; docket; SCOTUSblog page
Question presented:
A police officer may not conduct a suspicionless and warrantless search of a car if the driver has a reasonable expectation of privacy in the car–i.e., an expectation of privacy that society accepts as reasonable. Does a driver have a reasonable expectation of privacy in a rental car when he has the renter’s permission to drive the car but is not listed as an authorized driver on the rental agreement.
SCOTUS will review concessions of guilt by trial counsel
McCoy v. Louisiana, USSC No. 16-8255, cert granted 9/28/17
Is it unconstitutional for defense counsel to concede an accused’s guilt over the accused’s express objection?
SCOTUS will decide whether Fifth Amendment bars use of statements at pretrial hearings, or only at trial
City of Hays, Kansas v. Vogt, USSC No. 16-1495, cert granted 9/28/17
Whether the Fifth Amendment is violated when statements are used at a probable cause hearing but not at a criminal trial.
SCOTUS to clarify plain error review standard
Rosales-Mireles v. United States, USSC No. 16-9493, cert granted 9/28/17
In United States v. Olano, this Court held that, under the fourth prong of plain error review, “[t]he Court of Appeals should correct a plain forfeited error affecting substantial rights if the error ‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” 507 U.S. 725, 736 (1993). To meet that standard, is it necessary, as the Fifth Circuit Court of Appeals required, that the error be one that “would shock the conscience of the common man, serve as a powerful indictment against our system of justice, or seriously call into question the competence or integrity of the district judge?”
September 2017 publication list
On September 27, 2017, the court of appeals ordered the publication of the following criminal law related decisions:
SCOW to address whether warrantless blood draw of unconscious motorist violates 4th Amendment
State v. Gerald Mitchell, 2015AP304-CR; certification granted 9/11/17; case activity (including briefs)
Issue:
Whether the warrantless blood draw of an unconscious motorist pursuant to Wisconsin’s implied consent law, where no exigent circumstances exist or have been argued, violates the Fourth Amendment.