Fourth Amendment Blockbuster Tops Supreme Court Criminal Docket

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By Jordan S. Rubin

A relatively calm U.S. Supreme Court term will soon give way to what court watchers say could be a stormy one when the justices take the bench Oct. 2.

Among the pivotal criminal law issues in the 2017 term are the balance between surveillance and privacy in the mobile phone era, the treatment of immigrants who break the nation’s laws, and whether death row inmates can challenge legal errors they claim are grave enough to save them.

Carpenter v. United States headlines the criminal cases so far. There, the high court “will likely decide whether the government can obtain any digital information exposed to a third party service provider without a warrant,” professor Matthew Tokson, of the S.J. Quinney College of Law at the University of Utah, Salt Lake City, told Bloomberg BNA.

But the justices have other work to do before they get to Carpenter, which hasn’t even been scheduled for oral argument yet.

The first two days of the term feature arguments in two important “crimmigration” cases—at the intersection of criminal and immigration law—that were already argued last term but set down for re-argument this term. Both cases involve people facing deportation. Sessions v. Dimaya involves scrutinizing the vagueness of a law whose violation leads to removal, while Jennings v. Rodriguez deals with the right to bond hearings for non-citizens facing removal.

And on top of the big Fourth Amendment and crimmigration cases, the justices are slated to decide “hugely important” habeas corpus issues, professor Leah Litman, of the University of California, Irvine School of Law, told Bloomberg BNA, referring to Ayestas v. Davis and Wilson v. Sellers, cases brought by death row inmates seeking to clear procedural hurdles to challenge their convictions.

The high court will also hear disputes over guilty pleas in Class v. United States, criminal tax liability in Marinello v. United States, and a civil case involving the Fourth Amendment rights of “late-night partiers inside a vacant home” in District of Columbia v. Wesby.

Heading into the term, the justices have agreed to hear many more civil cases than criminal ones, but they could beef up the criminal docket after their “long conference” Sept. 25, where they’ll consider petitions for review that have piled up over the summer.

Overall, “it should be a fascinating term, one worth watching closely,” Tokson said.

Getting to Work on Carpenter

The biggest criminal law news of this past term arguably came June 5, when the justices announced they would hear Carpenter this term.

The issue in Carpenter is whether the Fourth Amendment demands a warrant for historical mobile phone location records, which placed Timothy Carpenter near the scene of several armed robberies. Law enforcement got the data from Carpenter’s wireless carrier with a court order under the Stored Communications Act, rather than with a probable cause warrant, which would have required more proof.

Courts across the country, including the Sixth Circuit in its ruling against Carpenter, have held that a warrant isn’t required for the phone data.

So a contrary ruling from the justices—that a warrant is required—would place a heavier burden on law enforcement’s investigative practices going forward.

Courts like the Sixth Circuit have condoned this warrantless law enforcement action based on the third-party doctrine, which holds that warrants aren’t needed for “cell site location information,” as it’s called, because the information is voluntarily provided by the phone user to a wireless carrier, so the user has no reasonable expectation of privacy in the information once he gives it up to the carrier.

Carpenter and his supporters argue that the doctrine, grounded in cases from the 1970s, is ill-suited to the digital age. He pins his hopes on more recent Supreme Court cases: United States v. Jones, which held in 2012 that a warrant is needed for real-time car GPS tracking, and Riley v. California, which held in 2014 that a warrant is needed to search a person’s mobile phone incident to arrest.

But his analogies to Jones and Riley are inapt, the government says. In its brief opposing Carpenter’s petition for Supreme Court review, the government argued that Jones and Riley “did not address—much less disavow—this Court’s precedents recognizing that an individual does not have a Fourth Amendment interest in a third party’s records pertaining to him or in information that he voluntarily conveys to third parties,” referencing the third-party doctrine precedents from the 1970s.

Tokson and other law professors filed an amicus brief on Carpenter’s behalf, arguing that phone users don’t voluntarily give up their location information and that a warrant should be required to get the information. The outside brief was one of over a dozen filed in support of Carpenter. None have been filed in support of the government.

“If the Fourth Amendment does not protect any information exposed to a third party’s equipment, then the Fourth Amendment is going to become increasingly irrelevant as a protector of citizens’ privacy,” Tokson said.

‘Crimmigration’ Sets the Tone

Before the justices get to Carpenter, they’ll hear arguments in the two crimmigration cases on the first two days of the term. The Ninth Circuit ruled for the immigrants in both cases.

The re-scheduling of Dimaya and Rodriguez after being argued last term likely means the justices were split 4-4 after oral arguments, Litman said.

The court only had eight justices when it heard arguments in those cases, due to a vacancy left by Antonin Scalia’s February 2016 death, coupled with the Senate’s refusal to consider Merrick Garland, then-President Barack Obama’s nominee to replace Scalia. President Donald Trump’s nominee, Neil M. Gorsuch, was confirmed by the Senate in April, toward the end of the term, and Dimaya and Rodriguez were set down for re-argument in June.

So after a lackluster 2016 term, Dimaya and Rodriguez will kick off the 2017 term with two likely 5-4 decisions.

In Dimaya, the question is whether the definition of a “crime of violence” incorporated into the Immigration and Nationality Act is too vague and thus violates the Constitution. The Supreme Court previously struck down similar crime of violence language in a criminal statute for being too vague.

James Dimaya, a lawful permanent resident, appealed an immigration court’s ruling that his two burglary convictions were “aggravated felonies” that could get him deported because they fell under the “crime of violence” definition incorporated into the immigration act.

Rodriguez, a class action brought by non-citizens detained pending removal proceedings, asks the high court to consider their right to bond hearings after six months.

Even before the case was set down for re-argument, it was noteworthy for the fact that, after oral argument, the justices asked for additional briefing on the constitutional issues presented by the case (statutory arguments were the initial focus).

Outside parties filed amicus briefs both before oral argument and after the justices called for more briefing on the constitutional issues. Most of these briefs supported the immigrants.

One such brief, filed by a group called Americans for Immigrant Justice, argues that the government’s position against bond hearings “gravely undervalues the serious liberty interests at stake,” “ignores the unique harms caused by prolonged detention,” and “effectively permits the punitive conditions of prolonged detention to coerce people into giving up their meritorious claims.”

But the government has some amicus support, too, by way of a brief from several members of Congress, including Sen. Ted Cruz (R-Texas), and the Washington Legal Foundation, a non-profit firm whose mission is “to preserve and defend America’s free-enterprise system by litigating, educating, and advocating for free-market principles, a limited and accountable government, individual and business civil liberties, and the rule of law,” according to its website.

Their brief claims that those requesting bond hearings actually “hold the keys to unlock their jail cells,” because a “criminal alien can regain his liberty instantly by agreeing to return to his native country.”

‘Hugely Important’ Habeas

Wilson and Ayestas, the habeas cases, are scheduled for back-to-back oral argument Oct. 30.

Given that both defendants received death sentences, their cases fit a pattern that has emerged at the Supreme Court, Robert Dunham, executive director of the non-profit Death Penalty Information Center, told Bloomberg BNA.

The justices “haven’t taken on the big questions when it comes to the death penalty,” Dunham said. “But they have taken on some technical procedural issues, when the cases involve outlier practices that have denied important review to the death row prisoner or have applied rules of law in a manner that is inconsistent with what the rest of the country is doing, and, as a result of that, people are being executed,” he said.

Dunham recalled Buck v. Davis, a Supreme Court case decided last term in favor a death row inmate. Buck also involved a technical procedural issue, Dunham pointed out, but at bottom the case was about the fact that Buck was sentenced to death in a case in which his own expert witness said he was more likely to be dangerous because he was black.

The “Davis” from Buck v. Davis—Lorie Davis, the head of Texas’s department of corrections—is back at the court this term defending the judgment against Carlos Ayestas.

Ayestas’s case presents the justices with a situation that is “all too common,” Litman said. That is, a situation “where a capital defendant’s state habeas counsel didn’t develop the evidence necessary to support the defendant’s claim,” she said.

Ayestas said his state habeas lawyer should have investigated his mental health and other “mitigating” factors that may have spared him from a death sentence.

But the federal habeas court wouldn’t appoint an expert to investigate the issue, reasoning that Ayestas couldn’t show ahead of time that such an investigation would be fruitful.

Ayestas asks the justices to reject that “logical circularity.”

The government responded that there’s nothing wrong with that standard, approved by the Fifth Circuit, and that Ayestas’s investigative quest is all for naught anyway, because it’s unlikely that the jury that sentenced Ayestas to death “would have given him a life sentence rather than the death penalty, given the brutality of the murder” he committed and other aggravating factors.

Wilson also presents a procedural question in a capital case.

Marion Wilson’s post-conviction motion was denied in Georgia state court and the state Supreme Court summarily denied his application to appeal it in a one-sentence decision.

The question presented by Wilson’s case, then, is which state court decision should the federal habeas court evaluate: the detailed one from the lower state court or the one-sentence state Supreme Court decision?

It’s the latter, a closely divided U.S. Court of Appeals for the Eleventh Circuit held.

That created a split with other circuits that held federal courts on habeas review should “look through” a state summary decision to the state decision detailing the reasons for denying the prisoner’s claim.

If the Supreme Court agrees with the Eleventh Circuit, it “would significantly constrict federal post-conviction review of state court convictions, even more than it already is,” Litman said.

That’s partly because if a federal court looks only to the summary decision, it can uphold it based on any reasoning that it can find, rather than having to look at the detailed lower court decision to determine whether that specific decision was reasonable.

Wilson has the support of retired state Supreme Court justices who take issue with the Eleventh Circuit’s decision. They filed an amicus brief arguing the decision disrespects state courts, because it allows federal courts to speculate about what an unexplained state decision might have been based on, rather than examining the more detailed opinion that state courts actually spent time crafting.

To contact the reporter on this story: Jordan S. Rubin in Washington at

To contact the editor responsible for this story: C. Reilly Larson at

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