4th Amendment, Constitution, criminal law, Due Process, Faculty Blog, Fourth Amendment, Friedman, Hansen, New England Law Review, Trump, U.S. Supreme Court

Faculty Blog: The Post-9/11 Weight of Korematsu

Associates of President-elect Donald J. Trump have suggested that the infamous Supreme Court decision upholding the internment of Japanese-Americans during World War II, Korematsu v. United States, could be used to justify measures aimed at tracking and potentially detaining Muslim-Americans and Muslim immigrants. As Professor Noah Feldman has recently noted, the Korematsu decision is widely regarded today as having been wrongly decided and it has been, as Justice Stephen G. Breyer has put it, “discredited.” But there is another reason why the precedential value of Korematsu has been diminished: its basic premise has been undermined by the Supreme Court’s more recent decisions in Hamdi v. Rumsfeld and Boumediene v. Bush.

4th Amendment, 5th Amendment, 6th Amendment, Constitution, Criminal Procedure, Exclusionary Rule, Faculty Blog, Fifth Amendment, First Amendment, Fourteenth Amendment, Fourth Amendment, Hansen, New England Law Review, Sixth Amendment, U.S. Supreme Court

Faculty Blog: SCOTUS’s Use of Exclusionary Rule Becomes A Charade in Utah v. Strieff

By: Victor M. Hansen  The Court’s opinion in Utah v. Strieff is the latest in a series of recent opinions in which the Court has significantly undermined Fourth Amendment protections by limiting the application of the exclusionary rule. As my colleague, Professor Friedman, noted in his recent post, the Court’s Fourth Amendment jurisprudence effectively allows the government to pursue policy goals in ways that conflict with individual privacy protections. The Court has been able to justify this by viewing the exclusionary rule as solely a tool to deter police misconduct. In situations where, in the Court’s view, the exclusionary rule would not deter police misconduct, the rule comes at too high a cost, and a number of exceptions have been judicially created to limit its application. Of course, the exclusionary rule is a judicially created rule to begin with, since nothing in the language of the Fourth Amendment suggests a remedy for violations. And it can certainly be argued that, since the rule is judicially created, the courts and specifically the U.S. Supreme Court should be able to modify it as it sees fit. However, on closer examination, the Court’s rationale for not applying the exclusionary rule in Strieff and other recent cases only makes sense if you adopt a rather narrow view of deterrence.

4th Amendment, 5th Amendment, 6th Amendment, Constitution, criminal law, Criminal Procedure, Exclusionary Rule, Faculty Blog, Fifth Amendment, First Amendment, Fourteenth Amendment, Fourth Amendment, Friedman, New England Law Review, Privacy, U.S. Supreme Court

Faculty Blog: Utah v. Strieff: The Court Reminds Us That Constitutional Privacy is Essentially Meaningless

By: Lawrence M. Friedman  The U.S. Constitution prohibits the government from pursuing its policy goals in ways that conflict with individual rights protections—except, as the Supreme Court reminds us in its decision in Utah v. Strieff, where the protection of privacy under the Fourth Amendment is concerned. The remedy for a Fourth Amendment violation is exclusion of the evidence obtained as a result of an illegal search or seizure. Deterrence of governmental misconduct has been the animating principle of the exclusionary rule for decades (though it was originally just one of several rationales), and the nature of the Court’s cost-benefit deterrence analysis has led it, time and again, to conclude that the costs of suppression outweigh any potentially beneficial deterrent effect. As Justice Clarence Thomas explains in the opening paragraph of his opinion for the majority in Strieff, “even when there is a Fourth Amendment violation, [the] exclusionary rule does not apply when the costs of exclusion outweigh its deterrent benefits.”

4th Amendment, 5th Amendment, 6th Amendment, criminal law, Criminal Procedure, Due Process, Faculty Blog, Fifth Amendment, First Amendment, Fourteenth Amendment, Hansen, New England Law Review, Sixth Amendment, U.S. Supreme Court

Faculty Blog: Williams v. Pennsylvania Raises Major Concerns About U.S. Justice System

Professor Eldred wrote that this latest decision is a missed opportunity by the Court that could undermine the long-term value of the decision, particularly when, as Professor Eldred notes, there was significant literature and research in this area available to the Court. Here, I want to address another issue raised by the facts of the case that should alarm anyone concerned about the fairness of our criminal justice system—namely, the role of the prosecutor. While I can’t say that this was another missed opportunity by the Court to address the question since it was not directly before the Court, the troubling story recounted by the facts of the case serves as an important backdrop and raises important questions about the quality of justice in death penalty and other cases. In its recounting of the facts of the case, the Court noted that the prosecutor assigned to the murder case against Williams sent a two-page memorandum to the district attorney requesting approval to seek the death penalty. The then-district attorney, later Chief Justice of the Pennsylvania Supreme Court, approved the request by writing: “Approved to proceed on the death penalty.” The case before the Court was about whether the district attorney who penned that approval could some 30 years later sit as one of the justices on the court called upon to vacate William’s stay of execution. The Supreme Court also noted a number of Brady violations that the prosecuting attorney allegedly committed in the case, as well as the fact that none of this information—the prosecution memo and approval by the district attorney or the possible Brady violations—came to light until the Philadelphia Court of Common Pleas ordered the district attorney’s office to produce previously undisclosed files, many years after Williams’ trial.

4th Amendment, criminal law, Criminal Procedure, Faculty Blog, Fourth Amendment, Friedman

Faculty Blog: Recent Supreme Court Term: Los Angeles v. Patel

Students in constitutional law come to learn what seasoned constitutional lawyers know: many cases implicating the Constitution do not turn on the document’s text. Which is not to say the text isn’t important, just that, in certain areas of constitutional law, the doctrinal tests the court has devised to implement textual commands often take precedence over the words themselves. Consider the Fourth Amendment, as demonstrated by the recent decision in Los Angeles v. Patel, involving the scope of protection afforded business records. The case concerned a challenge to a Los Angeles ordinance that compelled hotel operators to keep records containing specified information provided by guests, and to make these records available to police officers “for inspection” on demand. The law made the failure to make the records available for inspection punishable by up to six months in jail and a $1,000 fine.

4th Amendment, Criminal Procedure, Editor Blog, Mass. Crim. Dig.

Mass. Crim. Dig.: Commonwealth v. Sheridan

Contributing Editor: Rachel Murray

Commonwealth v. Sheridan, 25 N.E.3d 875 (2015)

I. Facts

Early one morning, the defendant, Matthew J. Sheridan, was pulled over by Officer Sean Glennon for an unilluminated headlight. While Glennon was conducting the stop, Sheridan appeared nervous, his hands shaking as he “fumbled” around for his license and registration. A second officer, Scott Walker, was patrolling the area, stopped at the scene, and approached the passenger window. Walker looked in the car’s passenger window and saw a small plastic sandwich bag sticking out from under a t-shirt on the floor; the bag appeared to contain about one-ounce of marijuana. Walker indicated the presence of marijuana to Glennon, who then ordered Sheridan out of the car; a pat frisk revealed a cell phone and $285.00 cash. Glennon handcuffed Sheridan and searched the car, recovering two additional bags of marijuana. Sheridan was transported to the police station where, during booking for possession with the intent to distribute marijuana, the officers seized the cell phone and cash. Glennon proceeded to read the text messages in the cell phone, some of which appeared to be orders to purchase marijuana.

4th Amendment, Criminal Procedure, Due Process, Editor Blog, Fourteenth Amendment, Fourth Amendment, Mass. Crim. Dig., Surveillance

Mass. Crim. Dig.: Commonwealth v. Guzman

Contributing Editor: Wendy Hansen

Commonwealth v. Guzman, 469 Mass. 492 (2014)

I. Issues

There are three main issues in this case:
  1. Whether the imposition of the Global Positioning System (“GPS”) is mandatory under chapter 265, section 47 of the Massachusetts General Laws;
  2. Whether the statutory mandate violates substantive and procedural due process under the Fourteenth Amendment of the U.S. Constitution and Articles 1, 10, 11, and 12 of the Massachusetts Declaration of Rights; and
  3. Whether the statutory mandate constitutes unreasonable search and seizure under the Fourth Amendment of the U.S. Constitution and Article Fourteen under the Massachusetts Declaration of Rights.

4th Amendment, criminal law, Editor Blog, Fourteenth Amendment, Fourth Amendment, Mass. Crim. Dig.

Mass. Crim. Dig.: Commonwealth v. Thomas

Contributing Editor: Eric Gillespie

Commonwealth v. Thomas, 469 Mass. 531 (2014)

I. Facts

In the early morning of July 6, 2006, a three-story Brockton house erupted in flames. The first-floor occupants were unharmed; however, second-floor residents and guests threw the children out the window to a passerby and then jumped themselves. Those on the third floor could not escape on their own. While firefighters saved three people, including the one-month-old baby, the baby’s mother was trapped in the bathroom and later died of smoke inhalation at the hospital. Michelle Johnson rented the first-floor apartment. The defendant, Chiteara M. Thomas, and her boyfriend, Cornelius Brown, stayed in the first-floor apartment with Johnson. Prior to the fire, Johnson demanded that Thomas move out. The defendant, angry at being tossed out, repeatedly threatened “to kill Johnson and burn the house down.”

4th Amendment, Article Preview, Criminal Procedure, Editor Blog, Fourth Amendment

Article Preview: Letting the Exception Swallow the Rule

Contributing Editor: Matthew Ezepek
The Fourth Amendment of the United States Constitution and Article Fourteen of the Massachusetts Declaration of Rights protect criminal defendants from unreasonable searches and seizures. To protect these rights, police officers are generally required to obtain an arrest warrant before a suspect can be arrested or a search warrant before a suspect or his property can be searched. One of the most highly protected areas under the Fourth Amendment is an individual’s home, and courts are extra cautious to ensure an individual’s rights are not infringed upon in his or her home. Two seminal Supreme Court decisions discuss the warrant requirements to arrest suspects in private dwellings. In New York v. Payton, the Supreme Court ruled that police can lawfully enter a suspect’s home with a valid arrest warrant and a reasonable belief that the suspect is inside. A later case, Steagald v. United States, held that the rule in Payton did not extend to the homes of third parties and held a search warrant, in addition to the arrest warrant, is necessary to enter a third party’s home. What did not appear to be answered was who has standing to challenge such a violation.

4th Amendment, criminal law, Editor Blog, Fourth Amendment, Mass. Crim. Dig.

Mass. Crim. Dig.: Commonwealth v. Vacher

Contributing Editor: Catherine S. Flaherty

Commonwealth v. Vacher, 469 Mass. 425 (2014)

I. Facts

On December 16, 2008, sixteen year-old Jordan Mendes’s body was found burning in a pit in Hyannis. Mendes was stabbed in the neck and face twenty-one times, and was shot in the chest. The previous day, he went to his half-brother Charlie’s home on Arrowhead Drive after school. The defendant, Robert Vacher, was dropped off at Charlie’s home with Charlie and John R. around the same time as Jordan. That evening, Charlie arranged to test drive a black Nissan Maxima that a classmate was selling for $11,000. Charlie, John R., and the defendant test drove the vehicle and had it in their possession for approximately four hours, returning it at 8:00 p.m. At that time, Jordan’s friend Diana had expected to see him at the Arrowhead Drive house; he did not arrive, and she telephoned him throughout the night but was ultimately unable to reach him. The next morning, Diana drove Charlie and the defendant to a car dealership in Hyannis, where they purchased a silver BMW for $10,995 in cash. Charlie, John R., and the defendant were later seen at a gas station with the BMW and a red gasoline can. Jordan’s grandmother became concerned about his whereabouts because she had not seen him since the previous day. She and Jordan’s sister went to look for him, ultimately arriving at a place in the woods where Jordan and his sister often played as children. Jordan’s grandmother and sister noticed a fire burning in a pit, and found Jordan’s body at the bottom. A certified accelerant detection dog twice alerted to the presence of gasoline.