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On the Horizon: U.S. Supreme Court to Decide Another Substitute Analyst Case

In a post here, I wrote about the U.S. Supreme Court’s decision in Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011), holding that substitute analyst testimony in an impaired driving case violated Crawford. Bullcoming was no great surprise in light of the Court’s prior decision in Melendez-Diaz. However, less than one week after the … Read more

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Bullcoming and Substitute Analysts

On June 23rd, the U.S. Supreme Court decided Bullcoming v. New Mexico. As anticipated, the case turned out to be a straightforward application of Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S. Ct. 2527 (2009) (forensic laboratory reports are testimonial; absent a stipulation, the prosecution may not introduce such a report without a live witness … Read more

J.D.B., the Supreme Court, and Miranda

As I noted last week, the Supreme Court of the United States just decided J.D.B. v. North Carolina, an important Miranda case. I blogged about the case here when it was decided by the state supreme court, and it’s worth taking another look at it now. I previously summarized the facts as follows: Chapel Hill … Read more

United States Supreme Court to Review GPS Tracking Case?

Remember United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010)? That’s the drug case in which the D.C. Circuit held that “prolonged GPS monitoring [of a suspect] defeats an expectation of privacy that our society recognizes as reasonable,” and therefore typically requires a warrant. I blogged about Maynard here. The circuit court subsequently denied rehearing en banc by a divided vote. United States v. Jones, 625 F.3d 766 (D.C. Cir. 2010) (en banc).

On Friday, the Department of Justice filed this petition for certiorari, asking the United States Supreme Court to review the case. The question presented by the petition is “whether the warrantless use of a tracking device on petitioner’s vehicle to monitor its movements on public streets violated the Fourth Amendment.” (As an aside, the question contains an embarrassing mistake, which I identify after the break. Think about it for a minute before you click — you already have enough information to catch it yourself.)

Here is the introduction to, and summary of, the section of the petition that argues for the necessity of Supreme Court review:

The decision of the court of appeals conflicts with this Court’s longstanding precedent that a person traveling on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another, even if “scientific enhancements” allow police to observe this public information more efficiently. See United states v. Knotts, 460 U.S. 276, 282-284 (1983). The decision also creates a square conflict among the courts of appeals. The Seventh and Ninth Circuits have correctly concluded that prolonged GPS monitoring of a vehicle’s movements on public roads is not a “search” within the meaning of the Fourth Amendment. The Eighth Circuit, in rejecting a challenge to GPS tracking, stated that a person has no reasonable expectation of privacy in his public movements, and it upheld tracking for a reasonable period based on reasonable suspicion. At a minimum, if GPS tracking were (incorrectly) deemed a search, the tracking in this case was likewise reasonable.

Prompt resolution of this conflict is critically important to law enforcement efforts throughout the United States. The court of appeals’ decision seriously impedes the government’s use of GPS devices at the beginning stages of an investigation when officers are gathering evidence to establish probable cause and provides no guidance on the circumstances under which officers must obtain a warrant before placing a GPS device on a vehicle. Given the potential application of the court of appeals’ “aggregation” theory to other, non-GPS forms of surveillance, this Court’s intervention is also necessary to preserve the government’s ability to collect public information during criminal investigations without fear that the evidence will later be suppressed because the investigation revealed “too much” about a person’s private life. Because the question presented in this case is important, and because the court of appeals’ decision is wrong, this Court should intervene to resolve the conflict.

Perhaps the Court will prefer to let the issue percolate more in the lower courts, but there are quite a few opinions on point already, and the Court very often grants petitions by the government, so it seems to me that there’s a pretty good chance that the Court will agree to hear the case. I hope it does. It’s an interesting and important issue. You can read a little more about the petition and the case here, here, and here. And don’t forget to check the jump to see if you correctly identified the embarrassing mistake in the question presented.

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United States Supreme Court Grants Cert. in Substitute Analyst Case

In at least five prior posts on this blog (here, here, here, here, and here) I have written about the use of substitute analysts after Crawford and Melendez-Diaz. The basic issue is whether the confrontation clause is violated when an expert testifies to an opinion based on tests or analysis done by a non-testifying analyst. … Read more

Supreme Court Preview

The United States Supreme Court starts its Term each year on the first Monday in October. This year’s Term begins next Monday, October 5! The Court will start off with three straight days of oral argument. (The calendar of cases to be hear the first week is here.) More arguments will follow the next week, … Read more

News Roundup

Several recent news stories may be of interest to readers of this blog: 1. Sotomayor scuttlebutt: Judge Sotomayor’s confirmation hearings are scheduled to begin next week. There’s no reason to doubt that she’ll be confirmed, and the ABA just rated her “highly qualified,” all of which makes one wonder about the value of the Congressional … Read more

News Roundup

North Carolina has been all over the web recently. The News and Observer’s habitual felon article, which I discussed in a previous post, has made a splash on several of the most-read criminal law blogs — here and here (both links involve some scrolling) — with some of the reaction being positive, and some less … Read more

More Montejo, Mostly

Update: Another statistical analysis of Judge Sotomayor’s work in criminal cases appears here. The conclusion — that she’s pretty close to the middle of the road — is the same as the conclusion in the McClatchy story I referenced originally, but the figures are very different, showing that she has ruled in favor of the … Read more