DEFENDER SERVICES OFFICE
TRAINING DIVISION





The Defender Services Office Training Division furthers the right to effective assistance of counsel by providing training and other resources to attorneys appointed under the Criminal Justice Act.





Supreme Court Issues Opinions on Warrantless Search of Premises, Pre-Trial Restraint on Forfeitable Property, and Crime of Reentering a Miltiary Installation

This week, the Supreme Court issued opinions in Fernandez v. California (No. 12-7822 ) (limiting the exception to the rule permitting warrantless searches of jointly occupied premises upon consent of one of the occupants); Kaley v. United States (No. 12-464) (permitting the pre-trial restraint on an indicted defendant's forfeitable property without a post-indictment judicial finding of probable cause), and United States v. Apel (No. 12-1038) (interpreting the term "military installation" under 18 U.S.C. §1382). 

In Fernandez, the Court limited the application of Georgia v. Randolph, which had held that the consent of one occupant is insufficient to authorize the police to search a premises without a warrant if another occupant is present and objects to the search. The majority refused to extend this rule to Fernandez's case: "Our opinion in Randolph took great pains to emphasize that its holding was limited to situations in which the objecting occupant is physically present. We therefore refuse to extend Randolph to the very different situation in this case, where consent was provided by an abused woman well after her male partner had been removed from the apartment they shared."   For more on the facts and reasoning of the opinion, see this opinion analysis and this commentary on SCOTUSblog. 

The Court in Kaley addressed the extent to which a criminal defendant can challenge the pre-trial seizure of forfeitable assets under 21 U. S. C. §853(e). The defendants argued that they should be able to challenge the grand jury's finding of probable cause underlying the asset freeze, because they otherwise could not afford to retain their counsel of choice.  The Court rejected that argument.  Justice Kagan, for the majority, wrote:  "In United States v. Monsanto, 491 U.S. 600, 615 (1989), we approved the constitutionality of [an order freezing assets] so long as it is 'based on a finding of probable cause to believe that the property will ultimately be proved forfeitable.'  And we held that standard to apply even when a defendant seeks to use the disputed property to pay for a lawyer."  
 

"The Kaleys little dispute that proposition; their argument is instead about who should have the last word as to probable cause. A grand jury has already found probable cause to think that the Kaleys committed the offenses charged; that is why an indictment issued. No one doubts that those crimes are serious enough to trigger forfeiture. Similarly, no one contests that the assets in question derive from, or were used in committing, the offenses . . . . The only question is whether the Kaleys are constitutionally entitled to a judicial re-determination of the conclusion the grand jury already reached: that probable cause supports this criminal prosecution . . . .  And that question, we think, has a ready answer, because a fundamental and historic commitment of our criminal justice system is to entrust those probable cause findings to grand juries."

For an analysis of the opinion see this SCOTUSblog post.

In Apel, the Court held that for the purposes of 18 U.S.C. § 1382, which makes it a crime to re-enter a “military installation” after having been ordered not to do so, a portion of an Air Force base that contains a designated protest area and an easement  for a public road qualifies as a “military installation.”  The Court did not address whether the statute would be unconstitutional as applied to the protester in this case.  For an analysis of the opinion see this SCOTUSblog post.

 

 

       Latest News Archives