1. Stephen Paul Maidman, Esquire 1145 Main Street, Suite 417, Springfield, Massachusetts 01103-2123 (413) 731-7300 maidman@att.net 1 2013-2014 UNITED STATES SUPREME COURT CRIMINAL PROCEDURE CASES 2015 MACDL ADVANCED POST-CONVICTION LITIGATION SEMINAR STEPHEN PAUL MAIDMAN, ESQUIRE

2. Important OT 2013 SCOTUS Criminal Procedure Cases u Riley v. California, 134 S. Ct. 2473 (2014) u Fernandez v. California, 134 S. Ct. 1126 (2014) u Navarette v. California, 134 S. Ct. 1683 (2014) u Heien v. North Carolina, 2014 WL 7010684 u Kansas v. Cheever, 134 S. Ct. 596 (2013) u Hinton v. Alabama, 134 S. Ct. 1081 (2014) Stephen Paul Maidman, Esquire 1145 Main Street, Suite 417, Springfield, Massachusetts 01103-2123 (413) 731-7300 maidman@att.net 2

3. Riley v. California, 134 S. Ct. 2473 (2013) Warrantless Searches of Digital Information Stephen Paul Maidman, Esquire 1145 Main Street, Suite 417, Springfield, Massachusetts 01103-2123 (413) 731-7300 maidman@att.net 3

4. Riley v. California, 134 S. Ct. 2473 (2013) Warrantless Searches of Digital Information u Police officer stops Δ for driving in Lexus with expired registration and suspended license; car impounded and handguns found under hood during inventory search. u Δ arrested and searched incident to arrest and Bloods gang regalia found on him. u Δ's Samsung smartphone searched without warrant and police see "CK" abbreviation for "Crip Killer" in text messages or contacts. u Police search phone for gang evidence including videos and photographs. u Police find photographs of Δ in front of car involved in recent drive by shooting. u Δ moves to suppress; unlawful warrantless search of cell phone; no exigent circumstances u Δ convicted of attempted murder and other crimes. Stephen Paul Maidman, Esquire 1145 Main Street, Suite 417, Springfield, Massachusetts 01103-2123 (413) 731-7300 maidman@att.net 4

5. Riley v. California, 134 S. Ct. 2473 (2013) Warrantless Searches of Digital Information u Held: Police must generally get a warrant before searching digital information on a cell phone seized from a person who has been arrested. u No exceptions for officer safety or destruction of data absent showing of case- specific exigent circumstances. Stephen Paul Maidman, Esquire 1145 Main Street, Suite 417, Springfield, Massachusetts 01103-2123 (413) 731-7300 maidman@att.net 5

6. Riley v. California, 134 S. Ct. 2473 (2013) Warrantless Searches of Digital Information u Distinguished smartphone case from search incident to arrest trilogy based upon officer safety and evidence preservation: –Chimel v. California (1969) – search of arrestee's person and area within immediate control – area he can reach gun or destroy evidence; –United States v. Robinson (1973) – no additional case specific justification to search arrestee's person; cigarette package with heroin; later limited in United States v. Chadwick to personal property associated with person of arrestee; –Arizona v. Gants (2009) – police can search car when arrestee is unsecured and within reaching distance of passenger compartment of car; exception when reasonable to believe evidence of crime of arrest found in car based on circumstances unique to vehicle context. Stephen Paul Maidman, Esquire 1145 Main Street, Suite 417, Springfield, Massachusetts 01103-2123 (413) 731-7300 maidman@att.net 6

7. Riley v. California, 134 S. Ct. 2473 (2013) Warrantless Searches of Digital Information u Court required to decide how search incident to arrest doctrine applies to modern cell phones, technology inconceivable a few decades ago when Chimel and Robinson decided. Majority of Americans own smart phones u Chief Justice Roberts: "[Cell phones] are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they are an important part of human anatomy." u Need to assess degree of intrusion on individual's privacy interests against need for search to promote legitimate governmental interests. Stephen Paul Maidman, Esquire 1145 Main Street, Suite 417, Springfield, Massachusetts 01103-2123 (413) 731-7300 maidman@att.net 7

8. Riley v. California, 134 S. Ct. 2473 (2013) Warrantless Searches of Digital Information u Risks of harm to officers and destruction of evidence identified in Chimel and Robinson always present in custodial arrests, but no comparable risks with digital data. u Vast amounts of personal data in smartphone; search of cellphone bears little resemblance to brief physical search in search incident to arrest trilogy cases. Stephen Paul Maidman, Esquire 1145 Main Street, Suite 417, Springfield, Massachusetts 01103-2123 (413) 731-7300 maidman@att.net 8

9. Riley v. California, 134 S. Ct. 2473 (2013) Warrantless Searches of Digital Information u Chimel concern regarding destruction of evidence not present. –Once seized, arrested cannot destroy evidence –Remote wiping by third parties –Data encryption by device –If now or never situation, police can rely on traditional exigent circumstances exception Stephen Paul Maidman, Esquire 1145 Main Street, Suite 417, Springfield, Massachusetts 01103-2123 (413) 731-7300 maidman@att.net 9

10. Riley v. California, 134 S. Ct. 2473 (2013) Warrantless Searches of Digital Information u Diminished privacy interests when arrested does not mean Fourth Amendment falls out of picture, especially when privacy-related concerns are weighty enough. u Court rejects Government claim data stored on cell phone is indistinguishable from searches of physical items upon arrest u Search of cell phone exposes Government to far more than the most exhaustive search of a house. u Arizona v. Gant exception rejected for evidence of crime of arrest found on phone. u Consequences to combatting crime but privacy comes at a cost; need to balance interests of privacy and law enforcement. Stephen Paul Maidman, Esquire 1145 Main Street, Suite 417, Springfield, Massachusetts 01103-2123 (413) 731-7300 maidman@att.net 10

11. Fernandez v. California 134 S. Ct. 1126 (2013) Co-Tenant Consent to Search of Home u Two co-tenants of shared apartment. u Δ refuses consent to search of apartment, arrested and removed from scene; police return to scene and get consent to search from co-tenant girlfriend. u Brigham City v. Stuart (2006) – Warrant generally required for search of a home; ultimate standard is reasonableness. u Schneckloth v. Bustamone (1973) – Sole occupier of home can consent to warrantless search. u United States v. Matlock (1940) – Consent by one occupant who possesses common authority over premises valid against absent non-consenting occupant who shares that authority. u Tenant, occupier, etc. – All interchangeable terminology. Stephen Paul Maidman, Esquire 1145 Main Street, Suite 417, Springfield, Massachusetts 01103-2123 (413) 731-7300 maidman@att.net 11

12. Fernandez v. California 134 S. Ct. 1126 (2013) Co-Tenant Consent to Search of Home –Georgia v. Randolph (2006) – physically present Δ's refusal to permit warrantless search despite co-tenant's consent renders warrantless search unreasonable and invalid as to him. Court emphasizes physical presence of non-consenting co-tenant. –Fernandez Issue – Whether under Georgia v. Randolph, Δ must be personally present and objecting when police officers ask a co-tenant for consent to conduct warrantless search or whether Δ's previously stated objection, while physically present, to a warrantless search is a continuing assertion of his Fourth Amendment rights which cannot be overridden by co- tenant? Stephen Paul Maidman, Esquire 1145 Main Street, Suite 417, Springfield, Massachusetts 01103-2123 (413) 731-7300 maidman@att.net 12

13. Fernandez v. California 134 S. Ct. 1126 (2013) Co-Tenant Consent to Search of Home u Held: SCOTUS declines to extend Randolph; co- occupant must be on premises to object to search. u Occupant who is absent because of lawful arrest or detention stands in same shoes as occupant who is absent for any other reason. u Strict construction of Randolph; any other result is slippery slope for police and courts; situations considered. u Only possible exception, what does "on the premises" mean. Stephen Paul Maidman, Esquire 1145 Main Street, Suite 417, Springfield, Massachusetts 01103-2123 (413) 731-7300 maidman@att.net 13

14. Navarette v. California, 134 S. Ct. 1683 (2014) Reasonable Suspicion Based on Anonymous Tips u Motorist run off road by truck calls 911 u Anonymously reports description of truck and license plate and direction of travel. u Truck spotted by police 15 minutes later and stopped. u Police smell marijuana as approach truck. u Δ's arrested for transporting 30 pounds of marijuana. Stephen Paul Maidman, Esquire 1145 Main Street, Suite 417, Springfield, Massachusetts 01103-2123 (413) 731-7300 maidman@att.net 14

15. Navarette v. California, 134 S. Ct. 1683 (2014) Reasonable Suspicion Based on Anonymous Tips u Terry v. Ohio (1968), United States v. Cortez (1981) – brief investigative stops including traffic stops permitted when police have "a particularized and objective basis for suspecting the particular person stopped of criminal activity". u Alabama v. White (1990) – Reasonable suspicion depends on content of information possessed by police and degree of reliability. u Reasonable suspicion based on totality of circumstances, no police hunches of criminal activity. u Standard of proof less than preponderance of evidence and less than probable cause Stephen Paul Maidman, Esquire 1145 Main Street, Suite 417, Springfield, Massachusetts 01103-2123 (413) 731-7300 maidman@att.net 15

16. Navarette v. California, 134 S. Ct. 1683 (2014) Reasonable Suspicion Based on Anonymous Tips u Anonymous tip can demonstrate sufficient indicia of reliability to provide reasonable suspicion to make investigatory stop. –Use of 911 system records calls and allows tracing of callers; but not per se reliable. –Tipster gave description of specific vehicle showing eyewitness knowledge of alleged dangerous driving –Timely reporting by Tipster soon after incident. –More than minor traffic violation or isolated example of recklessness; paradigmatic of drunk driving. –Police need not follow car to personally observe suspicious driving before stopping car. Stephen Paul Maidman, Esquire 1145 Main Street, Suite 417, Springfield, Massachusetts 01103-2123 (413) 731-7300 maidman@att.net 16

17. Navarette v. California, 134 S. Ct. 1683 (2014) Reasonable Suspicion Based on Anonymous Tips u But compare STRICTER Article 14 analysis for reasonable suspicion based on informant tips: –Commonwealth v. Lyons, 409 Mass. 16 (1990) Traditional Aguilar-Spinelli test (evaluation of informant's reliability and basis of knowledge) used to determine whether informant tips amount to reasonable suspicion under Article 14 rejecting totality of circumstances test for reasonable suspicion. »Commonwealth v. Lyons: Reasonable suspicion not provided by anonymous tip and police corroboration of description of car, its direction, and race and gender of occupants. Stephen Paul Maidman, Esquire 1145 Main Street, Suite 417, Springfield, Massachusetts 01103-2123 (413) 731-7300 maidman@att.net 17

18. Heien v. North Carolina, 2014 WL 7010684 (12/15/14) Reasonable Suspicion to Stop & Reasonable Mistakes of Law u Police follow and stop suspicious vehicle with one faulty brake light based on statute that car must be "equipped a stop lamp on rear of vehicle." u Police search of car and discover cocaine. u Trial court rules reasonable suspicion to stop car; trial court refuses to suppress evidence; Δ enters conditional guilty plea subject to appeal of suppression motion. u North Carolina Court of Appeals reverses conviction and suppresses evidence; invalid stop because driving with only one working brake light is not unlawful under statute. u North Carolina Supreme Court assumed lower court interpretation of statute correct, but reverses lower court on basis that stop valid since officer's mistake of law was reasonable. Stephen Paul Maidman, Esquire 1145 Main Street, Suite 417, Springfield, Massachusetts 01103-2123 (413) 731-7300 maidman@att.net 18

19. Heien v. North Carolina, 2014 WL 7010684 (12/15/14) Reasonable Suspicion to Stop & Reasonable Mistakes of Law u Held: Valid stop; conviction affirmed: –Reasonable suspicion required for traffic stop or investigatory stop can rest on reasonable mistake of law. –Officer's mistake of law in stopping vehicle for which only one brake light was working was reasonable. –Brake light statute had never been previously construed by any North Carolina appellate court. Stephen Paul Maidman, Esquire 1145 Main Street, Suite 417, Springfield, Massachusetts 01103-2123 (413) 731-7300 maidman@att.net 19

20. Heien v. North Carolina, 2014 WL 7010684 (12/15/14) Reasonable Suspicion to Stop & Reasonable Mistakes of Law u Reasonable suspicion, as required for traffic stop or investigatory stop, can rest on reasonable mistake of fact. Illinois v. Rodriguez (1990). u Ultimate touchstone of Fourth Amendment is reasonableness. –To be reasonable one need not be perfect. –Fourth Amendment allows for some mistakes by police, giving them fair leeway for enforcing the law for protection of public. Brinegar v. United States (1949). Stephen Paul Maidman, Esquire 1145 Main Street, Suite 417, Springfield, Massachusetts 01103-2123 (413) 731-7300 maidman@att.net 20

21. Heien v. North Carolina, 2014 WL 7010684 (12/15/14) Fourth Amendment & Reasonable Mistakes of Law u The Fourth Amendment tolerates only reasonable mistakes, and those mistakes – whether of fact or law – must be objectively reasonable. u "[O]fficer gets no Fourth Amendment advantage through sloppy study of the laws he is duty-bound to enforce." Stephen Paul Maidman, Esquire 1145 Main Street, Suite 417, Springfield, Massachusetts 01103-2123 (413) 731-7300 maidman@att.net 21

22. Heien v. North Carolina, 2014 WL 7010684 (12/15/14) Fourth Amendment & Reasonable Mistakes of Law u No SJC case has addressed under Article 14 whether reasonable suspicion can be based on a mistake of law. –See Commonwealth v. Rivas, 77 Mass. App. Ct. 210, 216 (2010) Stephen Paul Maidman, Esquire 1145 Main Street, Suite 417, Springfield, Massachusetts 01103-2123 (413) 731-7300 maidman@att.net 22

23. Kansas v. Cheever, 134 S. Ct. 596 (2013) Court Ordered Mental Examinations u Δ claims unable to premediate murder because of drug use and offers expert psychiatric pharmacy testimony to claim diminished capacity (crystal meth had cooked his brain). u After Δ rests, Government offers rebuttal testimony from its psychiatric expert based upon court-ordered examination. u Δ objects to Government's expert's testimony because Δ did not consent to the examination and his testimony was compelled in violation of the Fifth Amendment. u Government expert testifies that Δ shot victim because of his antisocial personality and not because his brain was impaired by drugs. u Δ convicted of capital murder and sentenced to death. Stephen Paul Maidman, Esquire 1145 Main Street, Suite 417, Springfield, Massachusetts 01103-2123 (413) 731-7300 maidman@att.net 23

24. Kansas v. Cheever, 134 S. Ct. 596 (2013) Court Ordered Mental Examinations u Fitzpatrick v. United States (1900) – If Δ testifies in criminal case, Fifth Amendment does not allow him to refuse to answer related questions on cross-examination. u Estelle v. Smith (1981) – Under 5th Amendment where criminal defendant neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, his compelled statements to a Government psychiatrist cannot be used against him. u Buchanan v. Kentucky (1987) – Fifth Amendment allowed the prosecution to present evidence from psychiatric evaluation to rebut Δ's defense of extreme emotional disturbance where examination jointly requested by both Δ and Government. Stephen Paul Maidman, Esquire 1145 Main Street, Suite 417, Springfield, Massachusetts 01103-2123 (413) 731-7300 maidman@att.net 24

25. Kansas v. Cheever, 134 S. Ct. 596 (2013) Court Ordered Mental Examinations u Held: When Δ presents expert mental health evidence through his own psychological expert who has examined him, Government permitted under Fifth Amendment to present testimony from its own expert who has also examined Δ. u This is the only effective means for the Government to challenge the Δ's expert's testimony is with its own expert testimony. –Rationale: Any other rule would undermine the adversarial process, allowing Δ to provide the jury through an expert operating as his proxy with one-sided and potentially inaccurate view of Δ's mental state at time of crime. –Broad ruling covers mental status defenses (not just mental disease and defects but temporary intoxication affecting mens rea). Stephen Paul Maidman, Esquire 1145 Main Street, Suite 417, Springfield, Massachusetts 01103-2123 (413) 731-7300 maidman@att.net 25

26. Kansas v. Cheever, 134 S. Ct. 596 (2013) Court Ordered Mental Examinations u But expert testimony based on court-ordered psychiatric evaluation is admissible under Fifth Amendment only for a "limited purpose" – to rebut the Δ's expert's testimony. u Here Δ claimed Government expert went beyond the impact of drug use on Δ's brain. –Government expert insinuated that Δ had a personality disorder and discussed his alleged infatuation with criminals. –SCOTUS declines to address scope of rebuttal testimony issue because inadequate state record. u So scope of rebuttal testimony is potential litigation opportunity in difficult LCR cases. u Focus the rebuttal or start objecting! Stephen Paul Maidman, Esquire 1145 Main Street, Suite 417, Springfield, Massachusetts 01103-2123 (413) 731-7300 maidman@att.net 26

27. Hinton v. Alabama, 134 S. Ct. 1081 (2014) Ineffective Assistance of Counsel u Defense counsel in murder case did not request additional funds to replace an inadequate ballistics expert because he did not know correct statutory cap for funds. –Counsel incorrectly thought he had maxed out on available funds for experts. –Counsel failed to make even cursory investigation of state statute that provided funding for indigent defendants. Stephen Paul Maidman, Esquire 1145 Main Street, Suite 417, Springfield, Massachusetts 01103-2123 (413) 731-7300 maidman@att.net 27

28. Hinton v. Alabama, 134 S. Ct. 1081 (2014) Ineffective Assistance of Counsel u Deficient attorney performance under Strickland v. Washington (1984). –"An attorney's ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland." Stephen Paul Maidman, Esquire 1145 Main Street, Suite 417, Springfield, Massachusetts 01103-2123 (413) 731-7300 maidman@att.net 28

29. Hinton v. Alabama, 134 S. Ct. 1081 (2014) Ineffective Assistance of Counsel u Remand for prejudice determination under Strickland v. Washington (1984) –"We have recognized threat to fair criminal trials posed by the potential for incompetent or fraudulent prosecution forensic experts..." –In one study, invalid forensic testimony contributed to 60% of wrongful convictions, citing Melendez Diaz v. Massachusetts (2009). –Threat minimized when defense retains competent forensic experts; threat maximized when defense fails to understand resources available by law. Stephen Paul Maidman, Esquire 1145 Main Street, Suite 417, Springfield, Massachusetts 01103-2123 (413) 731-7300 maidman@att.net 29