Vol. 13, Nos. 7 & 8
Covering Cases Published in the Advance Sheets through Feb. 20, 2006

Fourth Amendment Issues

Two For the Price of One - The Wonderful World of Inconsistent Theories of Prosecution


A Bird's Eye View of the Futility of Asylum Cases


U.S. v. Randolph, No. 04-1067 (U.S.S.C. Mar. 22, 2006) (Justice Souter)

In U.S. v. Matlock, 415 U.S. 164 (1974), the Supreme Court held that the consent of one who possesses common authority over a premises or its effects is valid as against the absent, nonconsenting person with whom that authority is shared. In the instant case, the Court addressed a slightly different issue - namely, whether such an evidentiary seizure is likewise lawful when one occupant agrees to the search but the other occupant, who is also present, expressly refuses to consent to the search. Under those circumstances, a majority of the Court, by a 5-to-3 vote, held that “a physically present co-occupant's stated refusal to permit entry prevails, rendering the warrantless search unreasonable and invalid as to him.”

The Court’s ruling in this case featured the first written dissenting opinion by Chief Justice Roberts; and, in the eyes of some, that dissent was “pointed, personal and acerbic in tone.” See, “Roberts Dissent Reveals Strain Beneath Court’s Placid Surface,” by Linda Greenhouse, The New York Times, March 23, 2006.

This case involved a warrantless police search in July 2001 of the of Scott Fitz Randolph in Americus, Ga. Randolph and his wife had been having marital problems, and they were separated. However, he continued to live in the home. On the day of the incident, the wife had returned and was staying, at least temporarily, in the home. She called police about a domestic disturbance

When the police officers arrived, the wife stated that she and her husband had taken her child and left. She also accused her husband of using cocaine, causing financial problems for the family. Randolph soon returned, without the child, stating that the child had been taken to a neighbor's house. One officer asked Randolph about his wife's statements about cocaine use, and asked for permission to search the house. Randolph refused, but his wife consented. Based on the wife’s consent, the officers searched the house and found a straw apparently containing cocaine residue, in an upstairs bedroom.

That piece of evidence was taken in, and formed the basis for a search warrant application. The police returned to the house and made anther search, this time finding a number of drug-related items. After Randolph was charged with illegal drug possession, he moved to suppress the evidence that had led to a charge of illegal drug possession. The trial court rejected that motion; but Randolph appealed and won in higher state courts. The state of Georgia then appealed to the Supreme Court.

The Supreme Court granted certiorari in order to resolve a split of authority in the lower courts on “whether one occupant may give law enforcement effective consent to search shared premises, as against a co-tenant who is present and states a refusal to permit the search.”

Writing for the majority, Justice Souter wrote: “We have to admit we are drawing a fine line . . . [but] we think the formalism is justified." He stressed that Matlock “not only holds that a solitary co-inhabitant may sometimes consent to a search of shared premises, but stands for the proposition that the reasonableness of such a search is in significant part a function of commonly held understanding about the authority that co-inhabitants may exercise in ways that affect each other's interests.”

Thus, the majority held that if the individual who may be at legal risk of prosecution and thus does not want the police to enter "is in fact at the door and objects," the other occupant's consent to search will not suffice. On the other hand, he added, if the objector is nearby, and not at the door, an objection by him will not block the search.

Much of Justice Robert’s dissent was aimed at undercutting the majority's reliance on "social expectations" about privacy that justified the distinction drawn by the ruling; but he also exposed an acerbic side of his personality with comments such as: “The scope of the majority's rule is not only arbitrary but obscure as well.”

The normally placid Justice Souter quickly responded in kind. He shot back and accused Justice Roberts of "a deliberate intent to devalue the importance of the privacy of a dwelling place. The same attitude that privacy of a dwelling is not special underlies the dissent's easy assumption that privacy shared with another individual is privacy waived for all purposes including warrantless searches by the police."


Johnson v. Dretke, No. 03-51102 (5th Cir. Mar. 13, 2006) (Judge DeMoss)

The State of Texas charged two different men with a single shooting. One man, David Vest, pled guilty to the shooting and stipulated that he was the shooter. Vest was then the star witness at the subsequent trial of Michael Johnson. After Vest testified that Johnson was the shooter, a jury convicted him and sentenced him to death. The prosecution never disclosed Vest’s earlier stipulation to the defense.

After unsuccessfully pursuing a first habeas petition based on different claims, Johnson filed a second habeas petition shortly before his scheduled execution. Johnson argued that he was entitled to a new trial due to prosecutorial misconduct (a) because the prosecution failed to disclose Vest's factual stipulation to Johnson's counsel, in violation of Brady v. Maryland, 373 U.S. 83 (1963), and (b) because the prosecution knowingly presented false testimony to the jury in the form of Vest's testimony, contradicting his factual stipulation, that Johnson was the shooter, in violation of Giglio v. United States, 405 U.S. 150 (1972).

The district court ultimately denied habeas relief under AEDPA, finding that Johnson could have raised these claims in his initial habeas petition. On appeal, the Fifth Circuit affirmed the denial of habeas relief. It concluded that, in order to be eligible to file a successive petition under 28 U.S.C. § 2244(b)(2)(B), Johnson had to show that he could not have learned the information about Vest despite due diligence.

Here, because Johnson did not explain how he ultimately learned of this information, the Court assumed that he could have discovered it in time for his first habeas petition. In addition, the Court found that a reasonable attorney would have investigated the issue under the circumstances. Besides, the Court intoned, “One purpose of AEDPA is to enforce the preference for the state's interest in finality of judgment over a prisoner's interest in additional review.”

Finally, the Court reasoned that, although AEDPA also allows habeas relief in cases involving a "manifest miscarriage of justice," it concluded that Johnson failed to meet that high standard. It noted that three other witnesses testified that Johnson confessed the crime to them. Accordingly, the Court concluded that a reasonable jury could have convicted Johnson notwithstanding Vest’s stipulation that he was the shooter.

Ah, well. It was, after all, just another routine capital case from Texas!


U.S. v. Ogles, No. 03-10439 (9th Cir. Mar. 20, 2006) (en banc) (Judge McKeown)

The lone dissenter in this 10-to-1 en banc decision was Judge Reinhardt, and one need only read a few passages from his decision to understand why he was so “disturbed” by the “judicial shell game” played by the prosecution in this case:

“The government indicted Ogles, a gun dealer federally licensed in California, for selling a firearm to an Arizona resident at a gun show in Arizona. It indicted him on two counts, each based on a different provision of the same statute, but each relating to the same act: each count charged him with selling the same firearm at the same gun show. Remarkably, in one count, the government charged Ogles with being a licensed dealer and alleged that he violated the provision of the statute governing the conduct of licensed dealers, § 922(b)(3). In the other count, it charged him with being an unlicensed dealer and alleged that he violated the provision of the statute governing the conduct of unlicensed dealers, § 922(a)(1)(A). As should have been obvious, even to the government, Ogles could not have been guilty of both offenses.”

After stumbling through a series of complex and technical arguments involving principles of criminal procedure and double jeopardy, the majority affirmed Ogles “pick-one” conviction, even though it was forced to admit that the Government’s theory of prosecution was “distasteful.”

Judge Reinhardt quickly responded: “[W]hat the government has done in this case is not just a matter of bad ‘taste’." More to the point, he reminded his brethren, “the government is not free to seek an affirmance of a conviction that it believes to be contrary to law.” He also expressed his disgust about the Government’s tactics by stating: “The judicial shell game the government has played with the court in this case is, in my view, wholly inappropriate and entirely unacceptable.”


Scorecard Of Published Federal Criminal Cases Reviewed By Our Staff:

Court
This Week
Year to Date
Since 1996
Courts of Appeal
101
359
24,197
District Courts
64
215
13,657

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