Rodriguez v. United States: De Minimis Car Searches

Rodriguez v. United States

Docket Number: 13-9972

Argument Heard: TBD

ISSUE:
The Supreme Court has previously held that, during an otherwise lawful traffic stop, asking a driver to exit a vehicle, conducting a drug sniff with a trained canine, or asking a few off-topic questions are "de minimis" intrusions on personal liberty that do not require reasonable suspicion of criminal activity in order to comport with the Fourth Amendment.[1]  This case poses the question of whether the same rule applies after the conclusion of the traffic stop, so that an officer may extend the already-completed stop for a canine sniff without reasonable suspicion or other lawful justification.

Why Not to Hate Jury Duty

Jury duty.  Universally dreaded, with sympathy for a friend or colleague who has been called, communicated with a knowing roll of the eyes, and a story about how to get out of it.  There is even a wikihow page entitled, "How to Get Out of Jury Duty."  Yet, jury duty is regarded by courts and civics teachers as one of the most important civic responsibilities a citizen can perform; it has been a crucial part of our democratic system for over 200 years.  The right to a jury trial is a fundamental right afforded by the Sixth Amendment of the United States Constitution, and the Due Process Clause of the Fourteenth Amendment.  A defendant charged with anything more than a petty crime, typically a crime with a penalty of more than six months of incarceration, has a right to trial by jury, made up of between six and twelve of his or her "peers."[1]  Jurors are reflective of the community at large; there is no education requirement, though jurors must be citizens, over the age of eighteen, and fluent in English, with few other restrictions.      

Jurors are charged with deciding whether a defendant committed the crime of which he or she is accused, or in a civil trial, whether the defendant injured the plaintiff or otherwise failed to perform a legal duty, and if so, what the penalty should be.  Sometimes jurors are called upon to determine the life or death of a defendant.[2] 

Jurors must be fair and impartial.  In thoughtful deliberations, they can consider only the evidence presented to them within the confines of the jury instructions they have been given, and then apply the evidence to the law, relying on reason and common sense.  Jurors must leave questions of the law for the judge to determine.  There is no googling, tweeting, independently visiting the crime scene, or reading media coverage about the case.  Jurors are not even supposed to discuss the case with other jurors as the trial goes on.  This is to discourage the jurors from forming an opinion before all of the evidence has been presented to them.         

The role of the jury is a complicated one, marred by cases decided by prejudice, and doubts about whether jurors are capable of adequately understanding evidence or making the required factual determinations.  Individual jurors may be unpredictable, biased, or unwilling to deliberate thoughtfully.  Nonetheless, in their purest form, the jury trial provisions in federal and state constitutions reflect a fundamental decision about the limits of official power and reluctance to entrust power over the life, liberty, and property of a defendant to one judge, or a group of judges.  In an ideal world, a jury trial acts as a defense against arbitrary law enforcement.[3]

The trial of George Zimmerman brought, among other things, conversation and questions about the role and responsibilities of juries in criminal trials.  In Zimmerman's case, there were only six jurors, the minimum number of jurors constitutionally allowed in a criminal case.[4]  The jury was made up of all females, five Caucasians,and one possibly Hispanic, according to media accounts.  Perhaps it was not the most widely representative cross section of Americans, but a jury is not required to be of any particular make up, only that its members were selected pursuant to nondiscriminatory criteria.[5]

In such a widely publicized and divisive case finding jurors that could be fair and impartial was bound to be a challenge.  It is no less important, however, in any criminal case.  Attorneys on both sides have different ways of trying to glean who may be more inclined to be sympathetic to their side.  They might ask what the potential juror does for a living, if they have ever been the victim of a crime, or convicted of a crime, for example.  Potential jurors may be stricken for cause when there is a legal reason the individual may not serve, such as being a relative of the defendant, counsel, or a witness.  After that, each side has an opportunity to make preemptory challenges, effectively striking a potential juror without having to offer an explanation of why.  This does not present either side with an opportunity to eliminate any potential jurors it thinks will be unsympathetic.  For example, racial discrimination, or eliminating a juror on the basis of race because one side or the other believes a person of that race would be unable to fairly decide the case, is a violation of not only the right of a defendant to have a juror of his peers, but also of the juror.  Furthermore, the harm inflicted by such action not only affects the parties involved, but also impacts the confidence the community has in the fairness of the system.[6]

A potential juror’s ability to put aside personal feelings, experiences, biases and opinions, and to instead weigh the evidence and facts presented in a particular case is at the core of the inquiry made by the judge and attorneys during voir dire.  Zimmerman Juror B29 spoke out after the verdict and explained that they, the jurors, had to put aside their personal feelings and look at the evidence.  Though she explained the grief she experienced in coming to the non-guilty verdict, Juror B29 said there was not enough proof to convict.  B29's statement made some viewers angry, and devastated the mother of Trayvon Martin, who clearly hoped for a different outcome.  Zimmerman's attorney called her a "model juror."  No matter which side you take, what B29 described doing is perhaps the most difficult and important part of a juror’s duties.   

     

This past week, as an intern in a prosecutor's office, I sat through my first trial of the summer.  The jury was unable to reach a verdict.  After the trial, I was allowed to return to the jury room with defense counsel and the Assistant United States Attorney where the jurors agreed to speak about the case, and their deliberation.  I was struck by how seriously the jurors took their role; the questions and concerns they had, made clear how closely they listened over the two days of trial.  They knew the names of all the witnesses, and street addresses of the relevant locations.  They wrestled with the same issues we anticipated might be the sticking points, and ultimately they could not overcome a few remaining questions.  They mostly seemed to think the defendant had done the crime, but just needed something more than what the government had to offer to find guilt beyond a reasonable doubt.

For all the popular groaning about the pains of jury duty, the majority of Americans still think that a jury trial is the fairest way to determine guilt or innocence in a criminal trial.  Jury duty can be inconvenient, boring to some, and even feel like a responsibility you would not want to bear, but the right to a jury trial is a fundamental part of our criminal justice system and requires the serious and thoughtful participation of us all.

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[1]See Strauder v. West Virginia, 100 U.S. 303, 308 (1880).

[2]See Ring v. Arizona, 536 U.S. 584 (2002).

[3]See Duncan v. Louisiana, 391 U.S. 145 (1968).

[4]Ballew v. Georgia, 435 U.S. 223 (1978).

[5]Batson v. Kentucky, 476 U.S. 79 (1986).

[6]Id. at 87.

Sarah Tynan

Managing Editor, Criminal Law Brief

Image from Boston Public Library, Flickr

Due Process in the Context of Jones-Farmer Hearings: Implications of Kaley v. United States

On March 18, 2013, the United State Supreme Court granted certiorari in Kaley v. United States.  Docket No. 12-464.  The case represents a complicated but narrow legal issue regarding the scope of a defendant’s right to challenge an order seizing property that the government claims is subject to forfeiture when the defendant asserts that the property is necessary to pay legal fees.  Typically, these seizure orders come during an ex-parte hearing where the government needs to show property is subject to forfeiture based on probable cause.  Those assets are then frozen until the conclusion of an underlying criminal proceeding.  The Federal Circuits permit defendants to challenge the traceability of those assets in post-indictment, pretrial Jones-Farmerhearings.  The Circuits are split, though, as to whether a defendant may challenge the evidentiary support and legal theory of the underlying charges or only the traceability of the property the government claims is subject to forfeiture.  

Forfeiture law is designed to combat the profit motive created by illegal activity by “[confiscating] property used in violation of the law, and to require disgorgement of the fruits of illegal conduct.”[1]  When the government chooses to pursue forfeiture against a suspect, there are three methods available – criminal, civil, and administrative.  Criminal forfeiture is a form of punishment that attaches following the conviction of a criminal offense.  The relevant procedures controlling criminal forfeiture, enacted in 1984, states “any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as a result of” specified offenses are subject to forfeiture.[2]  The federal courts under the Relation Back Doctrine have determined that the property becomes vested in the government upon the commission of an act giving rise to forfeiture.[3]  Thus, property subject to forfeiture may be frozen by court order to prevent the dissipation of assets before conviction.[4]

Civil forfeiture is an in rem proceeding against the “proceeds” and items that “facilitate” criminal activity.[5]  The government must show by a preponderance of the evidence that the property is proceeds of criminal activity.  This permits the government to pursue two causes of action for the same underlying offense – criminally against the person and civilly against the property – and can seize property pursuant to a grand jury’s probable cause determination.  It provides a valuable and necessary resource in complex cases where the human perpetrator is unknown, fled, or otherwise not within the jurisdiction of the United States.  This is an acute problem in prosecuting large criminal enterprises for crimes such as money laundering, bulk cash smuggling, and counterfeit good cases.  In situations where property has been wrongly seized, a claimant may present the affirmative defense of being an innocent owner or a bona fide purchaser for value.[6]

The forfeiture statute in question does not provide a right to a hearing following an indictment.  However, the legislative history indicated that Congress intended to permit a court to hold a hearing to decide whether the court should “modify the order or vacate an order that was clearly improper (e.g., where information presented at the hearing shows that the property restrained was not among the property named in the indictment).”[7]  The Senate Report, though, contemplated a limited hearing wherein the court was not entitled to review challenges to the validity of the indictment itself.[8]  The parameters of that post-indictment, pretrial hearing is the question the Supreme Court is set to resolve in Kaley.

The majority view, colloquially known as Jones-Farmerhearing, provides a defendant a post-indictment, pretrial hearing with the opportunity to present evidence that the property subject to seizure is not traceable to criminal activity.[9]  Procedurally, this precludes the defendant from attacking the basis for the underlying indictment.  The government, in its petition for certiorari, argued that to permit otherwise would undermine the grand jury system that presumes an indictment is facially valid for calling a trial, which may not be attacked.[10]  In the forfeiture context, nothing more is necessary and is less intrusive when the same standard is applied to seize a person pending trial.  Also, the ability to attack the merits creates a “mini-trial” between the grand jury’s probable cause determination and the trial itself.  Effectively, the defendant gets two bites at the apple in an attempt to defeat the charges against him or her.  Finally, such a “mini-trial” would prejudice the government’s interest in the case by requiring premature disclosure of the government’s case and trial strategy that may jeopardizes the identity of testifying witnesses, victims, and confidential informants.

The minority view permits a defendant to present evidence undermining the underlying indictment.[11]  This position reasons that assets subject to a seizure represent a deprivation of property subject to the Fifth Amendment limitation.  By nature of the consequence of possibly restraining all of a person’s assets, a person is effectively denied the opportunity to exercise their Sixth Amendment conditional right to counsel of their choice.  While a person has no right to use assets that are forfeitable, the nature and position of the proceedings requires that pursuant to the Fifth and Sixth Amendments, an adversarial hearing permitting review of the probable cause determination provides procedural safeguards of substantial value that outweigh the government’s interests.[12]

The Kaley case has the potential to create new due process standards for Jones-Farmer hearings.  The government’s position that seizure of assets is necessary pending the outcome of a case is reasonable, especially given the availability of federal public defenders to assure a person will receive effective assistance of counsel.  However, assets that are subject to a seizure order require only a showing of probable cause, which in an ex-parte hearing permits the government to show evidence that would normally be highly prejudicial at trial while casting a wide net.  The right to manage one’s own defense with all available resources becomes subjugated or rendered impossible.  These two positions are very far apart and represent a gray area for the Supreme Court to build in new protections.  This may include permitting defendants to use evidence that would seemingly attack the probable cause determination but not actually allow the court to use those arguments for throwing out an indictment.  Instead, the grand jury’s determination remains valid pending trial but the permissible scope of evidence to confront the traceability issue expands.  Under such a rule, the government preserves its position to protect the grand jury’s determination while creating additional procedural protections for the defendant.

Joe Hernandez

Executive Editor, Criminal Law Brief

Let us know what your thoughts are before the Supreme Court makes its decision and be sure to check back with the Criminal Law Brief Blog for the Supreme Court's decision in Kaley v. United States.

Image by John L Marino [Public domain or Public domain], via Wikimedia Commons.

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[1] United States v. Ursery, 518 U.S. 267, 284 (1996).

[2] See 21 U.S.C. § 853(a)(1). 

[3] U.S. v. A Parcel of Land, Blgds., Appurtenances and Imprivements, Known as 92 Buena Vista Ave., Rumson, N.J., 507 U.S. 111 (1993); See U.S. v. $84,740.00 Currency, 981 F.2d 1110 (9th Cir. 1992). 

[4] See 21 U.S.C. § 853(e)(1).

[5] See generally 18 U.S.C. § 981. 

[6] See 21 U.S.C §§ 853(n)(6)(A)-(B).

[7] S. Rep. No. 225, 98th Cong., 1st Sess. 203 (1983) (hereinafter “Senate Report”). 

[8] Id.at 201-03. 

[9] U.S. v. Jones, 160 F.3d 641 (10th Cir. 1998); U.S. v. Farmer, 274 F.3d 800 (4th Cir. 2001). 

[10] See Costello v. United States, 350 U.S. 359, 362-63 (1956) (holding that an indictment by an unbiased grand jury is valid and sufficient for calling a trial of the charge and “the Fifth Amendment requires nothing more.”). 

[11] See US v. Monsanto, 924 F.2d 1186 (2^nd Cir. 1991); United States v. E-Gold, Ltd., 521 F.3d 411 (D.C.C. 2008).

[12] Id.