We are open during COVID-19 and available to speak about your case by video conference, over the phone or in person.

Articles Posted in United States Supreme Court

The U.S. Supreme Court has agreed to hear the City of Los Angeles’ appeal of a Ninth Circuit decision holding that a city ordinance requiring hotels to maintain detailed records of each guest’s identity and personal information unconstitutional. In a split decision, the Ninth Circuit found the ordinance to violate the Fourth Amendment on its face, and prevented LA police from accessing the register without a search warrant or the hotel’s consent.

Hotel Registries and the Right to Privacy

In most jurisdictions, each hotel guest is required to provide certain personal identification information. Not only does this information serve basic record keeping functions necessary to hotel management and guest services, but it may also be used by law enforcement under a legislative enactment. For example, a current Massachusetts statute requires hotel administrators to maintain a registry of names of hotel guests, and to produce this information to law enforcement upon request. And unlike various other forms of searches and seizures, the state Supreme Judicial Court has upheld this statute as constitutional under the Fourth Amendment.

Many crimes require proof that the defendant specifically intended to cause the harm alleged by the crime. In Massachusetts, obtaining a civil harassment protective order requires the complainant to prove that the defendant intentionally placed someone in fear of harm using their words or acts. Just recently, however, the Supreme Court heard arguments to determine whether the First Amendment actually protects such expressions, if the speaker/actor did not intend to place anyone in fear.

Threats and First Amendment Protection

It is a federal offense to transmit any communication threatening to injure another person. The Supreme Court has repeatedly held the First Amendment does not protect individuals who threaten others, whether in person, by phone, email, or even social networking programs. But until today, the Court has never explained how a trial judge should determine what a “true threat” is, such that it would not be protected by the First Amendment. More specifically, the Court has not determined whether a threat is only a true threat if the speaker/actor intended to place another in fear, or whether it is enough that a reasonable person would be put in fear.

The U.S. Supreme Court will soon determine whether it will hear an appeal on the 6th Amendment Confrontation Clause rights of a defendant convicted of assault and domestic violence on his girlfriend’s children. The petition requesting Supreme Court review was filed by the State of Ohio after the Ohio Supreme Court ruled that a defendant had a 6th Amendment right to confront the child victim of his alleged criminal acts, and that testimony of teachers and physicians acting as mandated reporters violated his constitutional right to confront his accuser.

The Case of Ohio v. Clark
The case, Ohio v. Clark, stems out of a grand jury indictment against the defendant on five counts of felonious assaults on children, two counts of endangering children, and two counts of domestic violence. The child victims in this case, two and three years old at the time, were dropped off at a Head Start program by the defendant when one of the daycare teachers noticed bruises and markings on the children. After asking the children several times about the bruises, the children mentioned a name later discovered to be the defendant’s nickname.

The injuries were then reported to Ohio’s department of children and family services, where social workers conducted interviews of the children, who implicated the defendant as the abuser once again. The social worker subsequently notified law enforcement, and took both children to the hospital to be examined by a physician, who concluded that the children were victims of recent abuse. A jury convicted the defendant of all but one charge, and the defendant was sentenced to a total of 28 years.

Confrontation Clause Challenge
Defense counsel attempted to exclude any testimony about the statements made by the children incriminating the defendant as the abuser. During the trial, defense counsel successfully argued that the children were incompetent to testify because of their young age. Since the children were barred from testifying, defense counsel raised a Confrontation Clause challenge to the admission of any of the children’s statements through any of the mandated reporters who investigated this case as “testimonial,” since the declarant children would not be available for cross-examination. The trial judge overruled the objection, and allowed the daycare teachers, investigating social workers and police officers to testify to the statements made by the children incriminating the defendant.

The Ohio Supreme Court agreed with the defendant by a slim majority, finding that the testimony of all the teachers, social workers, and police officers violated the defendant’s Confrontation Clause. Under U.S. Supreme Court precedence outlined in Davis v. Washington and Michigan v. Bryant, every defendant has a 6th Amendment right to confront his accusers. This right of confrontation requires the trial court to exclude any “testimonial” out-of-court statements by a declarant incriminating the defendant, where the defendant has not had an opportunity to cross-examine the declarant on those statements.

In the case of Ohio v. Clark, the Ohio Supreme Court found that the children’s statements to the teachers, social workers, and police officers were in fact testimonial, and so barred from evidence since the children were not competent to take the stand and be subject to cross-examination. The court’s determination relied on an analysis of the function of mandated reporters and the nature and purpose of the children’s incriminatory statements to the reporters.

Mandated Reporters as Agents of Law Enforcement

First, the court found that mandated reporters are effectively agents of law enforcement. By statute, teachers and social workers (among others) are obligated by law to report child abuse and neglect primarily to protect children. However, the court found that the legislature contemplated an inherent obligation to identify the perpetrators to law enforcement so that they may be prosecuted and prevented from causing more harm to the victim children. When mandated reporters identify such perpetrators to law enforcement, they are effectively acting as agents of law enforcement with the primary purpose of prosecuting the perpetrator. Therefore, any statements obtained by mandated reporters are testimonial and subject to the Confrontation Clause.

Testimonial vs. Non-Testimonial

Second, the court also found that the statements of the child victims to the teachers and social workers were in fact testimonial. A statement is testimonial if its primary purpose was to assist law enforcement in the investigation of a possible crime. Non-testimonial statements, which do not trigger the Confrontation Clause, are distinguishable in that their primary purpose is to assist law enforcement in meeting an ongoing emergency. Supreme Court case law emphasizes the importance of timing in these types of analyses – when viewed objectively, the circumstances surrounding a testimonial statement indicate that the statement serves a future goal of apprehending and prosecuting a criminal offender, whereas a non-testimonial statement is primarily relevant to an imminent and ongoing emergency.

The teachers and social workers did questioned the children both to determine the cause of their injuries and to identify their abusers in order to prevent them from causing the children more harm. In other words, the reporters were acting out of their statutory reporting duties when they questioned the children about their injuries. They did not question the children in order to provide emergency medical attention, and the children neither needed nor requested medical attention. Therefore, since the children made their statements in response to the repeated questioning of the mandated reporters acting as agents of law enforcement, the statements were testimonial.

To date, the U.S. Supreme Court has not determined whether the Confrontation Clause applies to statements made to non-law enforcement. To avoid infringing on the Supreme Court’s federal constitutional law jurisdiction, the Ohio Supreme Court interpreted the state legislation on mandatory reporting broadly so as to find mandatory reporters to be agents of law enforcement. By doing so, the Ohio court was able to apply Confrontation Clause review – which is applicable to only law enforcement personnel – to mandatory reporters as well. If the U.S. Supreme Court chooses to hear arguments in this case, defense attorneys will expect the Court’s decision to substantially impact a defendant’s Sixth Amendment rights, and possibly trigger changes in mandatory reporting legislation all across the country.
Continue Reading ›

On October 6, the U.S. Supreme Court heard arguments from defense counsel, the North Carolina State Attorney General, and the U.S. Solicitor General regarding the matter of Heien v. North Carolina. The question initially posed before the Court was whether a traffic stop premised on an officer’s mistaken understanding of a state statute violates the defendant’s Fourth Amendment rights. But as arguments proceeded, the issue became much more complicated, leaving some Justices concerned that this case raises more serious implications than initially anticipated.

The defendant in this case was a passenger in his own vehicle as it was operated by a friend down an interstate highway in North Carolina. A highway patrol officer noticed that only one of the defendant’s two brake lights was functioning. While the state statute only requires that vehicles have only one functioning break light, the officer interpreted the statute incorrectly and stopped the defendant’s vehicle to issue a warning to the defendant. The defendant then consented to the officer’s request to search the vehicle. And after forty minutes, the officer discovered a plastic sandwich bag containing cocaine. The defendant was charged and convicted on the charge of trafficking cocaine.


Often times, what initially begins as a traffic stop for a civil offense (such as speeding) unexpectedly becomes an investigation into a criminal offense, ultimately leading to criminal charges. Under Fourth Amendment law, police officers conducting a traffic stop can investigate for criminal activity so long as the investigation was reasonably derived from the officer’s initial suspicion that a traffic offense had been committed. Very recently, the Illinois State Attorney General filed an appeal with the U.S. Supreme Court to determine whether an officer can continue to hold the defendant even after the officer’s initial suspicion had already dissipated.

The case of Illinois v. Cummings

The petition for appeal was filed under Illinois v. Derrick Cummings, earlier this past summer. This case arose out of a traffic stop where a driver was charged with operating a vehicle without a license. The officer who conducted the traffic stop testified that he initially suspected the vehicle registration had expired. But after running the registration number through the database, the officer discovered that the registration was not expired but that the car was registered under a woman who had an arrest warrant issued against her. The officer then pulled the vehicle over and approached the driver. The driver was not a woman, but was the defendant, Mr. Derrick Cummings.

The United States Supreme Court will soon consider the case of Yohe v. Pennsylvania involving a DUI arrestee’s right to confront the lab technicians who analyzed his blood sample. The petition for writ of certiorari was filed by Attorney Justin McShane and is scheduled for conference later this week.

In the matter of Yohe, the defendant was arrested for operating under the influence during a traffic stop. The defendant subsequently provided a blood sample which was shipped to a 3rd party forensic lab for analysis for blood alcohol content. The lab then reported its findings to the prosecutor’s office, which offered them into evidence during trial through the testimony of an assistant director at the lab.

The forensic lab’s analysis consisted of three tests on three different portions of the defendant’s blood sample. The first analysis was an enzymatic assay test, conducted by one lab technician; another technician retrieved two more portions from the blood sample and conducted a Headspace Gas Chromatography test on each. The results of all three tests were reported to an assistant lab director who compared the results against certain lab protocols and electronically signed the reports certifying their accuracy.

The United States Supreme Court has before it several pending petitions that could clarify the scope of the Sixth Amendment right of confrontation. Until today lower courts have been completely split in their reasoning in their attempts to resolve Confrontation Clause challenges.

In the case of Turner v. United States, the defendant is appealing his conviction in the United States District Court for a drug distribution charge based on the fact that the chemist that performed the analysis of the cocaine at issue did not testify.

To prove that the substance was cocaine, the Government called a lab supervisor who reviewed the report of the original forensic analyst and concluded that he would have reached the same conclusion even though he did not personally conduct any of the testing. In the Turner case, the technician who actually tested the cocaine was on maternity leave.

The United States Supreme Court’s decision in Navarette v. California, decided today, diminishes Fourth Amendment protections of everyone on the road by allowing police to make stops based on uncorroborated 911 tips alleging erratic driving. While the goal of prosecuting drunk driving is worthy, it does not justify setting aside Constitution protections.

How do 911 Calls typically arise in an DUI case?

Anonymous 911 calls are extremely common in DUI cases and this decision provides for greater leeway among officer to make stops based on anonymous tips.

The United States Supreme Court is scheduled to issue landmark decisions early this summer regarding the constitutionality of a warrantless search of a suspect’s cell phone under the Fourth Amendment. The nation’s highest court has recently announced that it will be hearing arguments and deciding on two criminal cases – one from Boston, Massachusetts, and the other from California – that touch on the issue of warrantless searches of mobile devices. Arguments are scheduled for April, and the court is set to issue its decisions in June.

One of the cases to be examined by the court is U.S. v. Brima Wurie, which was litigated here in the U.S. District Court in Boston, MA. In the matter of Wurie, police officers arrested Wurie after allegedly observing him sell two bags of crack cocaine out of his car. When the officers were booking Wurie, they seized more than one thousands dollars cash, keys, and two cell phones, all of which were found in Wurie’s pockets. One of the cell phones – a flip phone – was repeatedly receiving calls from a number labeled “my house.” The officers opened the phone and checked the call log for the phone number making the calls to Wurie, and copied the number from the phone. The officers did not access either cell phone again.

Instead, the officers entered the phone number corresponding with the “my house” label into an online directory and discovered a street address associated with the number. Wurie denied living at that address. The officers then obtained a search warrant and went to the address on the assumption that Wurie had lied to them in order to protect a stash of cocaine at the home. When they executed the warrant, the officers discovered more crack cocaine, marijuana, cash, a firearm, and ammo inside the house. Wurie was charged with three federal offenses – possessing a firearm and ammo, possessing cocaine with intent to distribute, and distributing cocaine.

The United States Supreme Court is currently considering to hear another appeal that addresses the issue of whether surrogate expert testimony violates the Sixth Amendment Confrontation Clause. The appeal, titled Turner v. United States, was filed after a defendant was indicted and convicted in a federal drug distribution case on three counts. If the Court chooses to hear this appeal, the Justices may finally provide much needed direction and clarification following the Court’s problematic 2012 opinion in Williams v. Illinois.

Turner was indicted by a federal grand jury after he sold a mixture containing crack cocaine to an undercover police officer on three different occasions. Samples of the mixture obtained by the police officer from Turner were sent to the Wisconsin State Crime Lab, where an analyst issued a report identifying Turner and confirming the presence of crack cocaine in the mixture. The government initially notified Turner that the analyst would be called to testify to her findings on the compound, but then the government informed Turner that the analyst’s supervisor would testify in her place as the analyst was on maternity leave. This second notice came after the court’s deadline for expert witness discovery.

During trial, Turner’s counsel objected to admission of the supervisor’s testimony on the methods and procedures of the analyst who handled the cocaine mixture. The supervisor testified that although he did not conduct the analysis, he did review the data and notes generated by the actual analyst, and agrees with the analyst’s conclusion that the mixture contained crack cocaine. The supervisor also testified that it is the general practice and procedure of the Wisconsin Crime Lab for lab supervisors to review the work of their analysts and peers, and to sign off on final reports prior to release.

Contact Information