1. SUPREME COURT UPDATE G. Alan DuBois Patrick L. Bryant

2. SUPREME COURT UPDATE  Fourth Amendment  Fifth Amendment  Sixth Amendment  Sentencing

3. FOURTH AMENDMENT

4. Florida v. Harris

5. Issue:Is an alert by a trained, certified narcotics dog by itself sufficient to establish probable cause?

6. Florida v. Harris Holding: YES – in a dog of an opinion!  Field results “have relatively limited import”  Dog doesn’t even have to be “certified”  Trusts police to design accurate/effective training

7. Florida v. Harris Throw us a bone?  Defendant can challenge adequacy of training  Field results “may sometimes be relevant”  Can challenge the alert itself  Probably requires discovery/expert

8. Florida v. Jardines

9. Issue:Is a dog sniff at the front door of a suspected grow house a Fourth Amendment search requiring probable cause? Holding:??? (Argued October 31)

10. Misc. Fourth Amendment cases  Bailey v. United States: The rule from Michigan v. Summers that police can seize occupants during execution of a search is limited to occupants in the immediate vicinity. (Good language on exceptions to warrant requirement.)  Missouri v. McNeely: Is the dissipation of alcohol in the blood, by itself, an exigent circumstance permitting a warrantless blood draw?  Maryland v. King: Does the Fourth Amendment permit the collection and analysis of DNA taken from arrestees?

11. FIFTH AMENDMENT

12. Salinas v. Texas

13. Issue: Whether, and under what circumstances, does the Fifth Amendment protect a defendant’s refusal to answer law enforcement questions before he has been arrested or read his Miranda rights? Or, does the Fifth Amendment permit prosecutors to comment on post-arrest, pre-Miranda silence? Holding:??? (to be argued April 17)

14. Misc. Fifth Amendment cases  Blueford v. Arkansas: Double Jeopardy Clause does not bar retrial on greater offenses when the jury says it is hung on lesser-included, if the verdict is not yet final.  Evans v. Michigan: Double Jeopardy Clause does bar retrial if judge grants motion for acquittal because prosecutor failed to prove an “element,” even if that factor is not really an element. An erroneous acquittal is still an acquittal!

15. SIXTH AMENDMENT

16. Missouri v. Frye/Lafler v. Cooper

17. Issues: Does the right to effective assistance of counsel apply to the plea bargaining process? Is there prejudice if the defendant accepts a subsequent, less ‑ favorable plea? (Frye) Is there prejudice if the defendant is later convicted after a fair trial? (Lafler)

18. Missouri v. Frye/ Lafler v. Cooper Holding:Counsel has a duty to communicate plea offer to the defendant (Frye), and to provide accurate advice about it (Lafler). But:How to show prejudice? What is the remedy?

19. Missouri v. Frye/ Lafler v. Cooper Prejudice: Reasonable probability that defendant would have accepted the plea, AND a reasonable probability that the plea would have been entered. Remedy: Up to court's discretion ‑‑ sentence from plea, sentence after trial, or "something in between." Can order govt to re ‑ offer plea.

20. Missouri v. Frye/ Lafler v. Cooper Burt v. Titlow (cert granted Feb. 25) -- (1) is defendant's testimony he would have accepted plea enough to show reasonable probability? (2) if so, must court resentence defendant in a way that remedies the violation?

21. SENTENCING

22. Setser v. United States

23. Issue:Can a district court order a federal sentence to run consecutively to a state sentence that has yet to be imposed?

24. Setser v. United States Holding:Yes, even though 18 U.S.C. 3584 does not mention this.

25. Peugh v. United States

26. Issue:Does the Ex Post Facto Clause require the court to use the Guidelines in effect at the time of the offense, if the current Guidelines create a "substantial risk" of a higher sentence? Holding:??? (argued Feb. 26)

27. Descamps v. United States

28. Issue:Under ACCA, can a court use the "modified categorical approach" when a state burglary offense is broader than generic burglary? Holding:??? (argued Jan. 7)

29. Alleyne v. United States

30. Issue:Do facts establishing mandatory minimums have to be charged in the indictment and proven to a jury beyond a reasonable doubt? Holding:??? (argued Jan. 14)

31. Alleyne v. United States What's next? Retroactivity? Prior convictions (Almendarez ‑ Torres) Acquitted conduct (Watts) Stat max? (fixed terms vs. implied life max)

32. Alleyne v. United States Lessons: Preserve, preserve, preserve! Help is available !

33. RESOURCES Paul Rashkind’s outline http://www.rashkind.com/supct.pdf SCOTUSBlog http://www.scotusblog.com/ Alan/DSCRAP Alan_Dubois@fd.org http://www.fd.org/