Supreme Court Update: Bailey v. United States (11-770), Henderson v. United States (11-9307), Chaidez v. United States (11-820) and Gunn v. Minton (11-1118)
Greetings, Court fans!
We're back to clear out more of last week's deluge of decisions. This Update will wade through three criminal decisions – Bailey v. United States (11-770), considering how close is close enough to the scene of the search to allow police to seize an individual incident to the execution of a search warrant; Henderson v. United States (11-9307), addressing the scope of the "plain error" rule; and Chaidez v. United States (11-820), on whether Padilla v. Kentucky (2010) applies retroactively to collateral attacks on a conviction that was already final – as well as a patent/legal malpractice/federal jurisdiction cross-over, Gunn v. Minton (11-1118).
In Bailey v. United States (11-770), a divided Court held that police may seize persons "incident to" the execution of a search warrant only if they are in the immediate vicinity of the place subject to search. Chunon Bailey and a friend left Bailey's apartment one evening, apparently unaware that detectives were staking out the apartment, and that another group of officers were preparing to execute a warrant on it. The detectives followed Bailey's car for a little under a mile before pulling the men over. Bailey initially stated that he resided in the apartment, but he recanted once he learned that a search of the apartment was underway. During a pat-down, the detectives found a set of keys on Bailey that later matched the apartment door. The men were handcuffed and driven back to the apartment. Meanwhile, the search team had moved in and found a gun and drugs in plain view. On trial for drug and firearms charges, Bailey moved to suppress his statement and the apartment key, arguing that they derived from an unreasonable seizure. The district court rejected Bailey's argument, as did the Second Circuit. The Second Circuit held that Michigan v. Summers (1981) permitted officers to seize occupants seen leaving premises subject to a valid search warrant so long as the seizure was effected "as soon as reasonably practicable," even if that meant the seizure took place beyond the immediate vicinity of the warrant.
In an odd 6-3 split, the Court disagreed. Justice Kennedy led the majority, joined by the Chief, Scalia, Ginsburg, Sotomayor, and Kagan. One of the few categories of cases in which the Court has permitted detention without probable cause is detention incident to the execution of a search warrant. In Summers, the Court identified three law enforcement interests that, together, justified such detention: officer safety, facilitating completion of the search, and preventing flight. Here, the Court found that those interests didn't justify detention once the occupants had left the area. While officers must detain persons already on the premises so that they won't become violent or try to destroy evidence, officers can guard against interference by persons off the premises by erecting barricades around the search area. As for preventing flight, the Court clarified that Summers was not concerned with the danger of flight itself, but the risk that officers, fearing flight, would rush or otherwise compromise the search. Preventing flight could not itself justify detention, lest that be used as a rationale for detaining all regular occupants, regardless of where they were at the time of search. Responding to the Second Circuit's (and the dissent's) argument that law enforcement should not be forced to detain departing occupants just outside the premises if it would be dangerous to do so, the Court observed that officers don't have to stop the occupants at all. And if the officers have a reasonable suspicion that the departing occupants are dangerous or involved in criminal activity, the officers can detain them instead, for brief questioning, under Terry v. Ohio (1968). Indeed, the District Court had relied on Terry as an alternative justification for the stop in this case. The Court remanded the case for further consideration under Terry.
Justice Scalia, joined by Ginsburg and Kagan, filed a concurring opinion for good measure. They emphasized that Summers "embodies a categorical judgment that in one narrow circumstance—the presence of occupants during the execution of a search warrant—seizures are reasonable despite the absence of probable cause," and accused the dissent of adopting an interest-balancing approach that was incompatible with this categorical rule.
The dissenters – Justice Breyer, joined by Thomas and Alito – responded that they, too, sought a "categorical form of detention authority." The question was where to draw the line: at the "immediate vicinity" of the house, as the majority would have it; or where "reasonably practical" as the Second Circuit and most appellate courts had done. In the dissenters' view, the majority's test invited case-by-case litigation as to what "immediate vicinity" encompasses, whereas the "reasonably practical" test can be tied to the law enforcement interests motivating Summers in the first place.
Next, the Court considered the scope of the "plain error" rule in Henderson v. United States (11-9307). Ordinarily, a federal court of appeals will review only those errors preserved at trial; other errors are forfeited. However, under Federal Rule of Criminal Procedure 52(b) a "plain error that affects substantial rights" may be considered on appeal even if it was not raised below. Here, the district court imposed on Henderson a lengthier sentence so he could participate in a drug rehabilitation program. Henderson's counsel did not object notwithstanding that the law in the Fifth Circuit was not settled as to whether a longer sentence could be lawfully imposed solely for rehabilitative purposes. While Henderson's appeal was pending, the Court decided Tapia v. United States (2011), holding that a court could not increase a sentence solely for rehabilitative purposes. The Fifth Circuit, however, rejected Henderson's appeal because the district court's error was not "plain" at the time that Henderson was sentenced.
In another 6-3 split, this time along more traditional lines, the Court reversed. Led by Justice Breyer, the Court explained that whether "plainness" should be assessed at the time of trial or the time of appeal brings into play two important, but conflicting, legal principles. The first principle, that errors are ordinarily forfeited if not timely asserted, favors assessing "plainness" at the time of trial. The second principle, that an appellate court must generally apply the law in effect at the time it renders its decision, favors assessing "plainness" at the time of review. In Johnson v. United States (1997), the Court considered whether Rule 52(b) permitted an appellate court to consider an error where the law at the time of trial was settled and clearly contrary to the law at the time of appeal – i.e., the trial court's actions were clearly "correct" at the time of trial under existing circuit precedent, but incorrect at the time of appeal. Johnson found that in that circumstance, it was enough that the error be plain at the time of appeal. In light of Johnson, the Court found that a "time of error" rule for assessing "plainness" would be unfair and anomalous. Imagine three defendants in three different circuits—all three go to trial and are sentenced to longer sentences for exclusively rehabilitative purposes. In one circuit, the court of appeals had previously held that such a sentence was improper, so the defendant is entitled to review under the plain error rule. In the second circuit, the court of appeals has found that sentencing for rehabilitative reasons is perfectly appropriate – that defendant also gets review under Johnson. Why should the third defendant, who happens to be tried in a circuit that has not yet considered the issue, be treated differently? In the Court's view, he should not be. All three defendants should receive the benefit of the rule at the time of their appeals.
Justice Scalia, joined by Justices Thomas and Alito, dissented, arguing that Rule 52(b) must be considered in context. Rule 51(b) provides that a "party may preserve a claim of error by informing the court – when the court ruling or order is made or sought – of the action the party wishes the court to take, or the party's objection to the court's action…." Implicit in this rule is the bedrock principle that any objection not raised is forfeited. Rule 52(b) provides an exception to forfeiture, permitting review of a "plain error . . . even though it was not brought to the trial court's attention." The text alone, in the dissenters' view, compels the conclusion that errors must be plain at the time made. This interpretation is consistent with the purpose of Rule 51 in that "it permits reviewing courts to correct error where doing so will not thwart the objective of causing objections to be made." An objection is not as critical where the law is established and the trial court and prosecution – in addition to the defense – bear some responsibility for the error. Similarly, the Johnson exception to the contemporaneous objection rule makes sense given that, where the law is settled against the defendant, it would be futile and inefficient to require counsel to object. That is not so where the law is unclear. Indeed, this is exactly when objections are most critical. "Fair trial will suffer from the ensuing disregard of the now unenforceable contemporaneous-objection rule."
Chaidez v. United States (11-820) prompted the Court to wade into another area of criminal procedure, this time to determine whether the rule announced in Padilla v. Kentucky (2010) – holding that the Sixth Amendment requires an attorney for a criminal defendant to advise his client about the potential risk of deportation arising from a guilty plea – applies retroactively, such that a person whose conviction became final before Padilla may nevertheless benefit from the rule. Roselva Chaidez pled guilty to mail fraud and her conviction became final in 2004. When she applied for citizenship, her convictions were revealed to immigration authorities, who initiated removal proceedings in 2009. Chaidez filed a petition for writ of coram nobis seeking to overturn her conviction on the ground that her former defense counsel had provided ineffective assistance of counsel in failing to advise her of the immigration consequences of her plea. (A writ of coram nobis is similar to a writ of habeas corpus, but is used when a person is no longer in custody.) The Court decided Padilla while Chaidez's petition was pending, answering the substantive legal question in Chaidez's favor. However, the district court had to answer two questions: the easy question (in light of Padilla) as to whether counsel's performance was deficient (yes, it was); and the hard question (at issue here) as to whether Chaidez was entitled to the benefit of the Padilla decision. Under Teague v. Lane (1989), "new rules" do not apply in collateral challenges to an already final conviction. The district court, however, found that Padilla did not announce a new rule, but simply applied the test announced in Strickland v. Washington (1984) for assessing ineffective assistance of counsel claims to a new factual circumstance. The Seventh Circuit reversed, finding that, before Padilla, the Supreme Court had never held that the Sixth Amendment requires criminal defense counsel to provide advice about matters not directly related to the criminal prosecution.
The Court agreed with the Seventh Circuit in an opinion penned by Justice Kagan. The analysis was simple. A "new rule" is not created if a decision merely applies an existing rule of general applicability to a new fact situation. However, that is not all that happened in Padilla. Before the Court could apply Strickland, it had to first determine whether counsel's advice concerning "collateral consequences" had to satisfy Sixth Amendment requirements at all. That threshold issue of law had never been addressed by the Court and, indeed, the lower federal courts had virtually unanimously rejected the notion that defense counsel had a constitutional obligation to advise clients regarding the immigration consequences of a plea. Accordingly, Padilla broke "new ground" and established a "new rule," for Teague purposes, that did not apply retroactively to Chaidez's petition. Justice Thomas concurred in the judgment only as he continues to believe that Padilla was wrongly decided. Justice Sotomayor, joined by Justice Ginsburg, dissented, based on their view that Padilla simply applied the Strickland test to a new factual setting.
Finally, in Gunn v. Minton (11-1118), the Court waded into the thicket of the federal courts' exclusive jurisdiction, pursuant to 28 U.S.C. § 1338(a), over cases "arising under any Act of Congress relating to patents." In the 1990s, Vernon Minton developed a computer program and network called TEXCEN and leased it to a securities brokerage. Over a year later, he obtained a patent on a securities trading system based substantially on TEXCEN. Now armed, he enlisted the help of attorney Jerry Gunn and the other petitioners to sue the National Association of Securities Dealers and NASDAQ for patent infringement. NASD and NASDAQ argued that the patent was invalid under the "on sale" bar, which provides that an invention cannot be patented if it was "on sale" in the U.S. more than a year before the patent application was filed. Although Minton claimed TEXCEN and the patented system were different, the district court granted summary judgment for NASD and NASDAQ and invalidated the patent. Minton filed for reconsideration, arguing for the first time that he leased TEXCEN as part of ongoing testing, and that would bring the lease within the "experimental use" exception to the on-sale bar. The District Court held that Minton had waived the experimental use exception, and the Federal Circuit affirmed.
Minton brought a malpractice action against Gunn and his other attorneys in Texas state court. The lawyers said the TEXCEN lease was not for experimental use, so Minton's claims would have failed even had they timely raised the experimental use claim. The trial court agreed, granting summary judgment in favor of the lawyers. On appeal, Minton tried a new tack: he claimed that because he alleged his attorneys erred in a patent case, his claim arose under federal patent law and was subject to exclusive federal jurisdiction. Thus, he reasoned, the state court (where he had filed suit) lacked jurisdiction to decide the malpractice case. The Supreme Court of Texas agreed.
In a unanimous opinion written by the Chief, the Court considered the scope of "arising under" jurisdiction under 28 U.S.C. § 1338(a) and reversed. Section 1338(a) provides that "[n]o State court shall have jurisdiction over any claim for relief arising under any Act of Congress relating to patents." A case can "arise under" federal law either when federal law creates the cause of action asserted – for example, in Minton's original suit against NASD and NASDAQ – or if it is part of a "special and small category" of cases grounded in state law but in which arising under jurisdiction is still appropriate. In Grable & Sons Metal Products, Inc. v. Darue Engineering & Mfg. (2005), the Court articulated the relevant test: federal jurisdiction will lie over a state law claim only if a federal issue is "(1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress." Applying Grable's test, the Court had no trouble concluding that Minton's claim did not arise under patent law and thus did not belong in federal court.
The Justices acknowledged that Minton satisfied the first two prongs of the test. But the Court concluded that the federal issue in Minton's case was not "substantial." Although it was important to Minton's own case, "[t]he substantiality inquiry under Grable looks instead to the importance of the issue to the federal system as a whole." Here, the inquiry was necessarily backward-looking, asking whether the outcome of the patent case would have been different. No matter how the court answered that hypothetical question, it would have no effect on the result of the prior patent litigation – Minton's patent would remain invalid. Nor would the state court's ruling on a hypothetical patent issue affect "the development of a uniform body of [patent] law." In the end, resolution of the case would affect only Minton's interests, and the patent question was thus not sufficiently substantial to implicate the broader federal system. Finally, the Court also concluded that consigning cases like Minton's to the exclusive jurisdiction of the federal courts would disrupt the federal-state balance, and thus fun afoul of Grable's final requirement. States have a "special responsibility for" and "interest . . . in regulating lawyers," and the Justices found no reason to find that Congress "meant to bar from state courts state legal malpractice claims simply because they require resolution of a hypothetical patent issue."
We'll be back again soon with the final two decisions from last week. Until then, thanks for reading!
Kim, Jenny & Julie