Supreme Court Continues Trend of Protecting Individual Fourth Amendment Rights

imagesOn February 19, 2013, in Bailey v. United States, the Supreme Court issued an opinion limiting police officer’s authority to detain an individual incident to the execution of a search warrant.  The decision is another example in recent history of the Supreme Court’s refusal to limit the Fourth Amendment.


While police were preparing to execute a warrant to search a basement apartment, detectives conducting surveillance in an undercover police vehicle located outside the apartment observed two individuals leave the gated area above the apartment, get in a car and drive away.  The detectives waited for the men to leave and then followed the car approximately a mile before stopping it.  Keys to the apartment were found on the petitioner who initially informed police that he resided in the apartment before denying it when informed of the search.  The District Court denied the defendant’s motion to the apartment key and statements he made to the detectives under Michigan v. Summers (1).  The Second Circuit affirmed the decision and the Supreme Court granted certiorari.


The Fourth Amendment provides the right of every citizen to be secure in their persons against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.  A general rule on the Fourth Amendment is that Fourth Amendment seizures are “reasonable” only if based upon probable cause “to believe that the individual has committed a crime.  In Michigan v. Summers, the Supreme Court established an exception to this general principle and defined an important category of cases in which detention is allowed without probable cause to arrest for a crime.  The rule established in Summers, is that the law permits officers executing a search warrant “to detain the occupants of the premises while a proper search is conducted.”  This rule is unique as it extends farther than other exceptions to the Fourth Amendment in that it does not require law enforcement to have particular suspicion that an individual is involved in criminal activity or poses a specific danger to the officers.

In Summers and the cases that followed, the occupants detained were found within or immediately outside a residence at the moment the police officers executed the search warrant.  However, in the present case petitioner left the apartment before the search began and the police officers waited to detain him until he was almost a mile away.  Thus, the Court must decide whether the reasoning the Court used in Summers can justify detentions beyond the immediate vicinity of the premises being searched.

When Summers was decided, the Court reasoned that there were three important law enforcement interests that justify detaining an occupant who is on the premises during the search warrant’s execution.  (1) The safety of the officers and the need to detain the current occupants so they can search without fear that the occupants will become dangerous or frustrate the search.  (2) The facilitation of the completion of the search, if an occupant is free to move around during the search they may potentially obstruct the search or destroy evidence.  (3) The interest in preventing the flight of the occupants.


The Court addressed all three interests established in Summers and applied the facts of the present case to those interests.  The first interest, officer safety, was not at risk because petitioner was away from location of the search and further, he was not even aware that a search was being conducted.  Additionally, if he had returned to the scene and did pose a threat, he would have been able to be lawfully detained because he was on the premises.  Addressing the second interest regarding the facilitation of the search, an individual who is not on the premises when the search is being conducted cannot obstruct a search or destroy evidence.  Finally, in addressing the concern of potential flight, the court said that if law enforcement is able to use flight as an excuse to apprehend occupants without any limitations, a suspect may be able to be seized 10 miles or further away from their house.  The Court then quoted a former Supreme Court case saying “the mere fact that law enforcement may be made more efficient can never by itself justify disregard of the Fourth Amendment.” (2)

The Court also emphasized the fact that the intrusion on personal liberty of a detention away from the premises of one’s home is significantly greater than the intrusion on an individual’s liberty while they are on their premises or inside their home.  When someone is apprehended in their yard or even inside their home, it does not raise the level of the public stigma or indignity associated with the search of the home itself.  However, when one is detained away from their home there is an additional level of intrusiveness.  Even if it is not an arrest it will appear to the public as a full-fledged arrest.  This is another important reason why the decision the Court established in Summers, must be limited and not used by law enforcement as a vehicle to apprehend occupants of a home even if they are not at their home during the search.

(1)    Michigan v. Summers, 452 U.S. 692 (1981)

(2)    Mincey v. Arizona, 437 U.S. 385, 393 (1978)

Probe Into US Attorney’s Prosecution of Swartz Continues

The power of government prosecutors has been heavily scrutinized recently following the suicide of internet activist Aaron Swartz.  Swartz, who co-founded the social news website Reddit and was the founder of internet activist group Demand Progress, was found dead on January 11.  In July of 2011 Swartz was indicted on federal charges including wire fraud, computer fraud, unlawfully obtaining information from a protected computer, recklessly damaging a protected computer and several other charges.  However this was not the typical hacking case in which a hacker broke into an online system to seek financial gain or cause havoc and shutdown the website.  Swartz managed to download more than four million documents from the not for profit website JSTOR, a digital library that provides academic journals, books, and primary sources to its users.  Swartz intended to distribute these documents to the public, but before he could do so they were returned to JSTOR without any damage being done.

Following Swartz’s arrest, it was evident that JSTOR was not pressing the government to indict Swartz, and actually appears to be against any legal charges being brought against Swartz; following the indictment JSTOR released a statement on the matter which read in part,

“We stopped this downloading activity, and the individual responsible, Mr. Swartz, was identified.  We secured from Mr. Swartz the content that was taken, and received confirmation that the content was not and would not be used, copied, transferred, or distributed.

The criminal investigation and today’s indictment of Mr. Swartz has been directed by the United States Attorney’s Office. It was the government’s decision whether to prosecute, not JSTOR’s. As noted previously, our interest was in securing the content. Once this was achieved, we had no interest in this becoming an ongoing legal matter.”

However, despite JSTOR’s position, the United States Attorney’s office refused to drop charges, with US Attorney Carmen Ortiz being quoted as saying, “Stealing is Stealing, whether you use a computer command or a crowbar, and whether you take documents, data or dollars.” Rep. Darrell Issa (R-Vista) and Elijah Cummings (D-MD.), on behalf of the committee on oversight and government reform, recently requested a briefing from the United States Attorney General seeking clarity about the decisions of the US Attorney’s office to bring criminal charges against Swartz.  In the request, the committee questions the tactics of the prosecutors, which allegedly included offering a 7-8 month sentence if a guilty plea was accepted and a statement to Swartz that if he did not accept and was convicted, then the government would seek a prison sentence of 7-8 years.

Among the specific questions that the committee has requested in the briefing by the Attorney General are

  1. Was Mr. Swartz’s opposition to SOPA or his association with any advocacy groups among the factors considered?
  2. What specific plea offers were made to Mr. Swartz, and what factors influenced the decisions by prosecutors regarding plea offers made to Mr. Swartz?
  3. Why was a superseding indictment necessary?

The full text of the committee’s request can be found here.

Part of the problem of prosecutorial overreach stems from the pressure of the prosecutors to secure convictions, and this often includes the tactic used against Swartz of offering plea deals and indicating to defendants that if they do not accept the plea deal and go to trial, the time spent in prison could be significantly higher if convicted.  As mentioned earlier, in the Swartz case prosecutors allegedly offered a plea deal of 7-8 months with the threat of a 7-8 year prison sentence if convicted.  Even a completely innocent person would have to double question themselves in this position with nothing being certain in jury trials.

Scholar Glenn Harlan Reynolds, a Beauchamp Brogan Distinguished Professor of law, makes several convincing arguments in his essay on prosecutorial overreach.  One potential response could be to analyze the grand jury process as it is in place now.  The grand jury is meant to be a major bar, or a hurdle to prosecutorial overreach, but as Reynolds states, the historic phrase that “a good prosecutor could persuade a grand jury to indict a ham sandwich” establishes that this process needs to be revamped.  Another cause of this is prosecutorial immunity, which Reynolds describes as a “judicial invention.”  Reynolds argues that while this immunity may prevent prosecutorial misconduct, it also in a way enables it because it removes one form of accountability.  Reynolds’s essay provides great insight on this topic and the full text can be found here.

The US Attorney’s response to the Committee’s request will hopefully provide answers that many have been asking since the death of Mr. Swartz.

Massachusetts Extends Padilla Protections for Noncitizen Criminal Defendants to Include Trial Convictions


In Commonwealth v. Marinho, although the Massachusetts Supreme Judicial Court denied a non-citizen defendant’s request for a new trial, it significantly increased a non-citizen defendant’s protection under the Sixth Amendment.


On February 17, 2010, the defendant, Allesandro Marinho was convicted of assault and battery causing serious bodily injury. He was sentenced to two and one-half years in a house of correction, nine months to serve with the balance suspended.  The defendant was not a United States citizen and was deported after being convicted.

The defendant filed a motion for a new trial alleging ineffective assistance of counsel, claiming that his lawyer failed to (1) advise him of the immigration consequences of an assault and battery conviction, (2) explore a plea resolution, and (3) advocate for a sentence that might have mitigated such immigration consequences.


In order for a defendant to successfully claim ineffective assistance of counsel, a two-prong test, known as the Saferian test, must be satisfied.  First, the defendant must show serious incompetency, inefficiency, or inattention of counsel– behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer.  If that is found, the defendant must then show that the claimed ineffective assistance has deprived him of an otherwise available, substantial ground of defense.[1]

As the number of deportable offenses has continued to increase in recent history, the United States Supreme Court recently addressed the issue of a noncitizen defendant’s Sixth Amendment rights with respect to assistance of counsel.[2]  The Supreme Court, in Padilla v. Kentucky, held that constitutionally competent counsel would have advised the defendant that a guilty plea for drug distribution made him subject to automatic deportation.  The Court’s reasoning focused mainly on the landscape of federal immigration law and the significant changes that have occurred.

“These changes to our immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction.  The importance of accurate legal advice for noncitizens accused of crimes has never been more important.  These changes confirm our view that, as a matter of federal law, deportation is an integral part-indeed, sometimes the most important part- of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.”[3]

In light of Padilla, the SJC held that defense counsel is required to inform a non-citizen client that a conviction at trial may carry immigration consequences.  In announcing their holding on this issue, the SJC expanded on Padilla and now provides additional protection to non-citizen defendants.  Thus, as defense counsel was required to inform the defendant of any consequences resulting from a conviction, the first prong of the Saferian test was not met.

The SJC also stated defense counsel’s failure to discuss plea resolution with the defendant and failure to advocate for a lesser sentence also failed the first prong of the Saferian test.

After concluding that defense counsel’s performance fell below the standard set out in Saferian, the SJC then had to determine whether the second prong was met; whether the defendant was prejudiced by the ineffectiveness of defense counsel.  The SJC determined that while satisfying the first prong, the defendant failed to provide sufficient proof of prejudice and therefore, the defendant is not entitled to a new trial.

While defense counsel’s failure to discuss the possibility of a plea with the defendant falls below the level of professionalism for attorneys, in order to show prejudice the defendant must:

“Demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel.  Defendants must also demonstrate a reasonable probability the plea would have been entered without the prosecution cancelling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law.”[4]

The SJC reasoned that the evidence provided by the defendant only establishes that defense counsel failed to engage in plea negotiation or discussing that option with the defendant and there is no evidence to suggest that the prosecutor would have offered the defendant a plea deal.  Finally, the SJC held that had the defendant been given a lesser sentence, there is nothing to suggest that it would have resulted in the defendant “flying under the radar” and avoiding deportation.

[1] Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

[2] Padilla v. Kentucky, 130 S.Ct. 1473, 1476 (2010).

[3] Id. at 1480.

[4] Missouri v. Frye, 132 S.Ct. 1399, 1410 (2012).

President Obama Extends Four Key Immigration Programs

On September 28, 2012, President Obama extended four immigration programs administered by the Department of Homeland Security which will now be in effect until September 30, 2015.  Below are the four programs that were extended as a part of S-2345 and a brief description of each.

EB-5 Visa Program

EB-5 was created by Congress in 1990 in an attempt to boost the United States economy through attracting job creation and capital investment from foreign investors.  The standard capital investment requirement for an EB-5 investor is $ 1 million dollars.  However, the requirement for an investment in a targeted employment area or a rural area, the requirement is $500,000.

The Pilot Program that was extended by President Obama has the same requirements as an investor in the EB-5 investor program described above; the only difference is that the pilot program enables investors that invest in a “Regional Center,” are required to fulfill less restrictive job creation requirements due to the creation of “indirect” and “direct” jobs.  A regional center is a business entity that deals with foreign investment within a specific area and complies with the EB-5 framework discussed above.

Regional Centers are expected to promote economic growth through improving regional productivity, creating new jobs, and increasing domestic capital investment.  Further, the Regional Centers are required to dedicate sufficient funds to promote and oversee capital investment opportunities in the regional center as well as provide a detailed plan of how the jobs will either be created indirectly, or directly.  As of today there are currently 90 Regional Centers in 34 states with 70 more Regional Centers proposed and pending approval.

Conrad 30

The Conrad 30 is a program in which physicians who work for three or more years in an area that has been designated as having a shortage of health professionals or a medically underserved area are given a waiver of the J-1 visa foreign residence requirement.  Under the J-1 visa requirement, the individual must return to their home country and share what the individual learned while in the United States and may not apply for an immigrant visa for two years.

Immigrant Non-Minister Religious Worker Program

The Special Immigrant Non-Minister Religious Worker Program is an opportunity for individuals who are non-ministers in religious vocations or other occupants who intend on performing religious work if they are able to have their status adjusted or immigrate to the United States.  Further, this program also enables spouses or children of non-ministers to accompany them and receive the special status as well.


E-Verify is a program used by businesses and it allows them to confirm the eligibility of workers on an Internet-based system.  According to the U.S. Citizenship and Immigration Services website, more than 400,000 employers currently use E-verify to check the eligibility of their employees.  E-Verify also provides companies with features such as secure 24 hour access, error checking, training for large companies, usage reports and many others that are designed to provide companies with an easy way to ensure their employees are working legally.  While many states offer employers this service as an option, several states such as Arizona requires that all businesses verify that their employees are legally allowed to work in the United States.

Proposed Changes in Patent Litigation E-discovery Rules

The United States International Trade Commission (ITC) is an independent federal agency who provides information and data to the Executive Branch, the Office of the United States Trade Representative, and Congress to assist with U.S. trade policy.   One of the areas that the ITC focuses on is patent litigation.  Electronic discovery, or E-discovery, has been the forefront of proposed changes with the ITC rules of practice and procedure.  Perhaps more than any other part of the law, E-discovery is a major part of patent litigation.  After researching and analyzing the process of E-discovery, the ITC came up with a proposed set of rule changes involving E-discovery in an attempt to stop the unnecessary requests from opposing parties which are rarely used at trial and are financially and time costly to the party providing the discovery.

The current rule on discovery lists the scope of discovery as any matter, not privileged, that is relevant to a claim or defense of any party.  Making the process even more arduous for parties is that even if the request from the opposing party is concerning inadmissible evidence, no objection may be made as long as the request appears “reasonably calculated to lead to the discovery of admissible evidence.”  The commission notes that while most electronic information is easy to access, there is some electronically stored information that is difficult and costly for the party to obtain.  For this reason, the proposed rule change would be that a party does not have to provide the requested discovery if it “is not reasonably accessible because of undue burden or cost.”  While this may seem as a disadvantage to parties requesting information, the ITC included a section where parties who are denied the information can file a motion to compel the information that is being denied.  The party whom the information is being requested from must then show that the information is not reasonably accessible because of undue burden or cost.  After this the administrative judge will then decide the issue on whether to order discovery or deny the request.  The judge also has the power to order the party requesting the information to pay the cost reasonably necessary for the other party to obtain the information.

Another aspect of the proposed rule changes deals with the attorney-client privilege and electronic communication.  From the beginning of a lawsuit until a settlement is reached or the jury reads the verdict, the attorneys on both sides of the case are in constant communication.  With electronic communication between opposing counsel becoming increasingly more common, the concept of inadvertent disclosure has also become increasingly more common in recent years.  Inadvertent disclosure is where an attorney, in the process of communicating electronically with the opposing attorney, inadvertently sends information to the opposing attorney that is privileged and cannot be used at trial.  However, when that information is sent to a third party the privilege may be waived and the information can then be used at trial.  Jurisdictions have taken one of three approaches to this issue; the privilege is always waived, never waived, or the most recent trend among jurisdictions is that it depends on the facts of the specific case.  If the proposed rule changes applied, the Commission would expect administrative judges to apply an approach similar to the third approach discussed above in which the judge would examine the circumstances and analyze factors such as steps the party took to reasonably prevent disclosure of the information, how important the information was and several other factors.