Martinez v. Ryan, No. 10-1001, to be argued Oct. 4, 2011.
The right to effective assistance of counsel on a first state writ.

Howes v. Fields, No. 10-680, to be argued Oct. 4, 2011.
Whether an inmate, when isolated and questioned about outside conduct, is always in custody for purposes of Miranda.

This week the Scotus heard oral arguments in the Florence case. The transcript of oral arguments is here: https://tdcaa.infopop.net/eve/forums?a=prply&s=347098965&f=6050918821&m=4251011422

Petitioners seemed to have a little trouble guiding the court to a practical rule.

In the next few days, the SCOTUS will hear arguments in no less than SIX criminal cases: two on ineffective assistance of counsel during the plea bargaining process (Lefler v. Cooper & Missouri v. Frye--today--10/31); one on governmental immunity where an employee initiates a criminal case and then testifies falsely (Rehberg v. Paulk 11/1); one on the exclusion of eyewitness testimony because of unreliability (Perry v. New Hampshire 11/2); one on prosecutorial misconduct--consequences of Brady violation (Smith v. Cain 11/8); and one on the use of GPS tracking devices (United States v. Jones 11/8).

And there are a couple of others too.

SCOTUSblog reports that the majority of the Court prefers a warrant before GPS is installed. GPS is not a mere beeper!

http://www.scotusblog.com/2011/11/argument-recap-for-gps-get-a-warrant/

Odd, I read another account of the same argument that talked in great detail about how difficult it was to read anything into the argument, they weren't signaling their views very much (except for Scalia), etc. Funny how different people will read the arguments totally differently.

The transcript of oral argument in Smith v. Cain, leads me to expect some harsh words in the forthcoming opinion. It is just a term since the Court decided Connick v. Thompson, which was another case out of New Orleans involving a Brady violation.

Read the arguments at:
http://www.scotusblog.com/case-files/cases/smith-v-louisiana/?wpmp_switcher=desktop

Ouch. That was painful just on paper.

Yep, the State is clinging onto a cliff face with its shredding fingernails. Not pretty.

SCOTUSblog is reporting that in Florida v. Jardines (docket 11-564), the Court has agreed to decide whether police must have probable cause before they may use a dog sniff at the front door of a suspected �grow house,� or a site where marijuana is being grown.

Franky, the canine, is very proud.

After reading Howe I have some questions abput an interrogation about an unrelated case. My facts are that the inmate is being held, but not convicted on one case in another county jail. Police questioned him about an unrelated charge (sexual assault of daughter). Is it a custodial interrogation. In Howe it seems that elements of the rule are (1)imprisonment, (2) questioning in private, and (3) events in the outside world doe snot create a custodial interrogation. Several cases I have read seem to emphasize the imprisonment. How does that apply to being held on another charge but not imprisoned becuase not yet convicted.

That would seem to fall under Herrera, 241 SW3d 520 (CCA 2007). Being held in jail on one charge doesn't automatically make you in custody when you're questioned on another charge. It'll depend on factors like if he's still given the opportunity to leave the interview, even if he has to stay in jail.

Today, in a different Florida case, SCOTUS unanimously upheld a conviction in which a drug dog alert provided the PC to search following a traffic stop.

The issue was whether the State had to bring in a laundry basket full of specific logs and evidence regarding the dog's training & certification history before a trial court find a dog alert provides PC. SCOTUS said, that's a crazy way to determine PC.

To paraphrase Kagan's unanimous opinion, in this case, "The sniff was up to snuff." Slip op. at 9.(Wouldn't Cochran be proud?)

Florida v. Harris, No. 11-817 (Feb. 19, 2013).

Jardines has been decided. *SMH*Jardines

The problem, as I see it, is that rather than decide whether a drug dog is a search or not, Scalia decided to write on English Common Law trespass defenses.

The dog sniff was held to be improper, not because it was a search, but because the officers were trespassing, and if they were trespassing, basically opening their eyes would be a search. They were trespassing because by bringing the dog along up to the front door they exceeded the implied license the defendant granted because other people often hang door knockers. And girl scouts. And trick or treaters.

Or something like that.

There are two bottom lines to the case-

1) if you take a drug dog to the front door it's a search, whether the actually sniffing is a search or not, because Scalia says that it's a search if you take the dog to the front door. So don't do that.

2) Hunker down and wait for enterprising defense attorneys to find some oddball combination of factors to make the police officers presence knocking on their door a trespass.

Katz is dead! Long live Olmstead!

The most aggravating part of it is that Kagan's concurrence gets to the same holding in a way that at least makes sense in light of Kyllo.

(So what about running a drug dog through the hallways of an apartment complex? What if you've got the complex owners permission? WHO KNOWS!)

The apartment hallway situation may go one way, but a condo or co-op situation another. Better see if you have that old Gilbert's Property Law book in a box somewhere...

Lets throw another monkey wrench into the works- Suspect lives in a trailer home out in the country. Trailer is rented, but the rest of the land is in agricultural production by the lessor, to which lessee has no right other than access. How much of the land surrounding the trailer is "curtilage" for the purposes of the trespass analysis?

What if the condo association gives permission to run a drug dog through the hallway, but an individual resident opposes it?

Police shouldn't be required to do title searches prior to walking up to someone's door.

Trailer - Having lost 3 years of my life living in Iowa, I would argue that (a) the driveway to the trailer falls within the curtilage and (b)the area immediately around the trailer that doesn't have corn, wheat, or cotton growing on it would qualify as reasonable "curtilage." Thus, if the human police position "Deputy Ollie" (the olfactory wonder hound) amidst the first row of corn and down-wind from the trailer, wouldn't the open-air sniff be okay? See United States v. Dunn, 480 U.S. 294, 301 (1987) (listing 4 factors for resolving curtilage questions, including proximity and nature of uses to which area is put); and cf. United States v. Whitmore, 345 F.2d 28 (6th Cir. 1965) (officers didn't trespass when they saw moonshine still running in chicken coop located outside curtilage).

Condo - Two options. In the first alternative, could you argue the condo hallway is a public place pursuant to Tex. Penal Code Ann. 1.07(a)(40) (West 2011) because -- arguably -- a substantial portion of the public has access to the common hallway? In the second alternative, could you argue a condo hallway falls under a traditional "joint property ownership" analysis such that anyone with ownership rights apparently equal to the marijuana-grower could grant police consent to run "Ollie" through that portion of the condo property (the hallway) for which the consentor has equity ownership (aka maintenance liability)? See Harney v. City of Chicago, 702 F.3d 916, 924 (7th Cir. 2012) (no reasonable expectation of privacy in common area of condo building);Commonwealth v. Thomas, 267 N.E.2d 489, 491 (Mass. 1971) (tenant's 'dwelling' cannot reasonably be said to extend beyond his own apartment and perhaps any separate areas subject to his exclusive control).

Alan Curry (Harris County) argues this upcoming case. The case in the CCA is at 319 S.W.3d 176 (Tex. Crim. App. 2012). The following summary is courtesy of the LII Supreme Court Bulletin:

FIFTH AMENDMENT, MIRANDA WARNINGS, PRE-ARREST SILENCE, SELF-INCRIMINATION
Salinas v. Texas
Oral argument: April 17, 2013
Court below: Texas Court of Criminal Appeals
Police in Houston, Texas questioned Genovevo Salinas in 1992 during a murder investigation. Salinas answered all of their questions until the police asked whether he thought that casings found at the murder scene would match the shotgun the police found in his house. In response, Salinas remained silent. Later, he was charged with murder, tried, and convicted partially on the basis of evidence that he had remained silent during police questioning before he was arrested and given his Miranda warnings. Salinas claims that the Texas trial court should not have admitted evidence of his silence because of the Fifth Amendment privilege against self-incrimination. He argues that allowing evidence of his silence would violate the Fifth Amendment by forcing him to speak or have his silence used against him. The State of Texas argues that the evidence was appropriately admitted and outside the protection of Fifth Amendment privilege because Salinas’s silence was non-testimonial and the police questioning was non-coercive. The Supreme Court’s decision will determine the scope of the Fifth Amendment protection against self-incrimination and, more specifically, whether it extends to the protection of a defendant’s pre-arrest, pre-Miranda statements to the police.
Continues... http://www.law.cornell.edu/supct/cert/12-246

Alan is very prepared. He will do an awesome job.

An outstanding argument by Alan:

http://www.supremecourt.gov/or...ipts/12-246-41y0.pdf