On Point: 44. SCOTUS

On March 5, 2018, the Supreme Court decided U.S. Bank N.A. v. Village at Lakeridge, USSC No. 15-1509, 2018 WL 1143822, a bankruptcy case that we note here solely because it addresses a narrow issue that can matter to appellate litigators, civil and criminal: What is the standard of appellate review of mixed questions of law and fact? The answer: Well, it “depends,” though less so in the kind of constitutional questions criminal litigators often face.

Rodney Class v. United States, USSC No. 16-424, 2018 WL 987347 (February 21, 2018), reversing United States v. Class, (unreported) (D.C. Cir. 2016); Scotusblog page (inlcuding links to briefs and commentary)

“The question [in this case] is whether a guilty plea by itself bars a federal criminal defendant from challenging the constitutionality of the statute of conviction on direct appeal. We hold that it does not. Class did not relinquish his right to appeal the District Court’s constitutional determinations simply by pleading guilty.” (Slip op. at 3).

District of Columbia v. Wesby, USSC No. 15-1485, 2017 WL 491521 (January 22, 2018), reversing Wesby v. District of Columbia, 765 F.3d 13 (D.C. Cir. 2014); Scotusblog page (including links to briefs and commentary)

The probable-cause determination in this case is quite fact-specific, and the qualified immunity issue is of little interest to criminal practitioners. Perhaps more interesting is Justice Ginsburg’s concurrence, which signals she is open to reconsidering whether the existence of probable cause necessarily validates an arrest.

Hughes v. United States, USSC No. 17-155, certiorari granted 12/8/12

Questions presented:

1. Whether this Court’s decision in Marks v. United States, 430 U.S. 188 (1977), means that the concurring opinion in a 4-1-4 decision represents the holding of the Court where neither the plurality’s reasoning nor the concurrence’s reasoning is a logical subset of the other.

2.Whether, under Marks, the lower courts are bound by the four-Justice plurality opinion in Freeman v. United States, 564 U.S. 522 (2011), or, instead, by Justice Sotomayor’s separate concurring opinion with which all eight other Justices disagreed.

3. Whether, as the four-Justice plurality in Freeman concluded, a defendant who enters into a Fed. R. Crim. P. 11(c)(1)(C) plea agreement is generally eligible for a sentence reduction if there is a later, retroactive amendment to the relevant Sentencing Guidelines range.

At least three justices of the Supreme Court of the United states think so. 

Currier v. Virginia, USSC No. 16-1348, certiorari granted 10/16/17

Question presented:

Whether a defendant who consents to severance of multiple charges into sequential trials loses his right under the double jeopardy clause to the issue-preclusive effect of an acquittal.

Dahda v. United States, USSC No. 17-43, certiorari granted 10/16/17

Question presented:

Whether Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510–2520, requires suppression of evidence obtained pursuant to a wiretap order that is facially insufficient because the order exceeds the judge’s territorial jurisdiction.

United States v. Microsoft Corp., USSC No. 17-2, certiorari granted 10/16/17

Question presented:

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.

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.

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.