The attorneys of Pietragallo’s White Collar Criminal Defense practice group are experienced in all aspects of white collar criminal defense matters and investigations.
We conclude our Supreme Court Preview with a return to one of the key questions in criminal law: when can you tell the cops to buzz off? Or, to put a finer point on it, if you tell the cops to buzz off, when do they have to listen to you?
(Note: White Collared does not advocate telling anyone to buzz off ever. It’s just rude).
Based on prior cases in this area, expect the Court to be closely (and perhaps bitterly) divided when it decides Fernandez v. California.
Argument Date: November 13, 2013
What Happened?: Police responding to a report of a robbery followed leads to the apartment of Walter Fernandez. Fernandez told them, “You don’t have any right to come in here. I know my rights.” He was arrested and taken from the scene. The police then secured the apartment and asked Fernandez’s girlfriend, who also lived there, if they could conduct a search. She consented. Inside the apartment, the officers found evidence linking Fernandez to the robbery. Fernandez moved to suppress the evidence at trial but lost and was convicted. His conviction was affirmed on appeal.
Question Presented: Whether, under Georgia v. Randolph, a defendant must be personally present and objecting when police officers ask a co-tenant for consent to conduct a warrantless search or whether a defendant’s previously stated objection, while physically present, to a warrantless search is a continuing assertion of Fourth Amendment rights which cannot be overridden by a co-tenant.
In English, Please: Generally speaking, the Fourth Amendment prevents government officials from searching someone’s home without a warrant. But there are a variety of exceptions, including when the owner (or tenant) gives consent. In Georgia v. Randolph, the Court ruled that when two people live together, police cannot use the consent of one resident as justification to conduct a warrantless search if the other resident is present at the time of the search and objects. This case raises the question whether, if one resident objects to the search but then is arrested and removed from the scene, police can go back and get permission from the remaining resident.
Court Below/Winner: California Court of Appeal/Government
What the Defendant Is Saying: “[I]f this Court’s precedent means anything, it . . . dictates that the police did not nullify the legal effect of petitioner’s invocation of his constitutional right against a warrantless search of his home simply by arresting and removing him from the scene.”
What the Government Is Saying: “The Fourth Amendment does not confer greater rights upon persons, like petitioner, who are subject to criminal investigation, over persons, like [his girlfriend],who have equal privacy interests in their own house. Inherent in shared living arrangements is the mutual understanding that in one’s absence the other may admit visitors into shared spaces.”
Why It Matters: Since Randolph came down in 2006, lower courts have grappled with how to balance the rights of criminal defendants to limit warrantless searches by police against the rights of co-tenants to consent to such searches. A win for the government here would limit Randolph’s reach and limit the privacy protection afforded by the traditional requirement that law enforcement seek a warrant before searching a home.
It’s rare that someone who sticks chemicals in someone else’s mailbox engenders much sympathy. Of course, it’s rare for someone to stick chemicals in someone else’s mailbox in the first place, so maybe we shouldn’t draw too many conclusions.
Not much about Bond v. United States is typical, including the fact that the case is heading to the Supreme Court for a second time. But by the spring, what started as a spat over an unintended pregnancy could become the defining case on the limits of Congress’s power to pass laws in support of treaties.
Argument Date: November 5, 2013
What Happened?: Carol Bond, who worked for chemical manufacturer Rohm and Haas, found out her best friend was pregnant with her husband’s baby. To get revenge, she took chemicals—some stolen from her employer, others bought over the Internet—and applied them to her friend’s mailbox, car-door handles and house doorknob. The friend suffered one chemical burn on her thumb.
Bond was clearly guilty of various state crimes, not to mention bad judgment. But the federal government took the unusual step of charging her with two counts of acquiring, transferring, receiving, retaining or possessing a chemical weapon, in violation of the Chemical Weapons Convention Implementation Act of 1998, which implements the 1993 Chemical Weapons Convention. (We’ll go out on a limb here and guess that the authors of the treaty did not have jilted wives in mind when they drafted it).
Bond pleaded guilty but reserved the right to challenge the constitutionality of the law. She lost in the Third Circuit, which said she didn’t have standing to challenge whether Congress overstepped its bounds in passing a law that applied to her conduct. The Supreme Court disagreed and sent the case back to the Third Circuit. Looking at the merits, the Third Circuit again ruled against Bond, holding that because the law implemented a valid treaty, it could not be struck down as exceeding Congress’s power. Bond appealed again.
Questions Presented: (1) Whether the Constitution’s structural limits on federal authority impose any constraints on the scope of Congress’ authority to enact legislation to implement a valid treaty, at least in circumstances where the federal statute, as applied, goes far beyond the scope of the treaty, intrudes on traditional state prerogatives, and is concededly unnecessary to satisfy the government’s treaty obligations; and (2) whether the provisions of the Chemical Weapons Convention Implementation Act, 18 U.S.C. § 229, can be interpreted not to reach ordinary poisoning cases, which have been adequately handled by state and local authorities since the Framing, in order to avoid the difficult constitutional questions involving the scope of and continuing vitality of this Court’s decision in Missouri v. Holland.
In English, Please: The Constitution created a federal government of limited powers and left all remaining powers to the states. Among the powers of the federal government, the president (with approval of the Senate) can make treaties.
Congress must sometimes pass additional laws for the United States to comply with its treaty obligations. But what happens when the laws Congress passes to ensure the United States is living up to its treaty commitments intrude into areas that are generally left to the states? If the treaty is valid, does that automatically mean the law Congress has passed to support it is also valid?
Court Below/Winner: Third Circuit/Government
What the Defendant Is Saying: “Especially in light of the broad subject matters addressed in modern treaties, the government’s argument would allow the agreement of the President, the Senate, and a foreign nation to render the Framers’ careful process of enumerating Congress’ limited powers for naught.”
What the Government Is Saying: “Petitioner’s attempt to carve out ‘local’ conduct from the scope of the Treaty Power echoes arguments that have been made—and rejected—since the Founding.”
Why It Matters: As Bond points out, treaties today cover a broad array of subjects and often include criminal provisions. This case could go a long way towards setting the boundaries of Congress’s power to criminalize conduct implicated by treaties that is usually regulated by state law. More broadly, the case could be an important test of the Roberts Court’s views on the balance between federal and state power.
The attorneys of Pietragallo’s White Collar Criminal Defense practice are experienced in every aspect of a white collar criminal defense matters and investigations.
