Nonmutual Collateral Estoppel In The Criminal Context

Is that the best headline you've ever seen, or what?

So here's the situation: you and your pal are stopped by the police and they find drugs in the car. You and your pal hire separate lawyers. Your pal's lawyer moves to suppress the drug evidence because it was based on an illegal search. He wins and walks. You then file a similar motion, claiming that the Commonwealth is bound by the earlier determination that the search was illegal. Must the judge find in your favor?

Yesterday, in Commonwealth v. Stephens, SJC No. 9943, the Supreme Judicial Court said no. Interestingly, if you'd been pulled over in New York, the answer would have been yes.

Given that there are two schools of thought on this, don't be surprised if it goes all the way.

October 30, 2007

Show Your Work, Please

Appellate Courts occasionally leave critical logical steps unexplained.

When you get beyond the titillating facts, this case presents an interesting question of logic. Officer X did not have an adequate basis for conducting a search of the Suspect. Officer Y may or may not have had such a basis, but did not communicate that basis to Officer X. The trial court suppressed evidence recovered from a search based on Officer X’s inadequate basis, but did not consider Officer Y’s basis. The First Circuit vacates the trial court’s decision, saying that the trial court should have considered Officer Y’s basis for conducting the search, Officer Y hadn’t provided sufficient testimony about the facts supporting his basis, but – and this is the key – leaves it to the trial court to determine whether such additional evidence is necessary.

Forget about Officer X. Officer Y has not provided enough testimony to support the search. But the First Circuit leaves it to the trial court to determine whether even to take evidence regarding Officer Y’s basis for wanting to conduct the search in question. That doesn’t make sense. The First Circuit should have either affirmed the trial court or vacated its decision and ordered the trial court to take more evidence from Officer Y. That is, unless the First Circuit is implicitly telling the trial court that it can disregard Officer Y’s testimony based on his lack of credibility. But if that’s what it’s staying, why doesn’t it say that?

October 24, 2007

There Are Limits Out There Somewhere

In the current political and constitutional climate, it’s easy to forget on occasion that we have some fairly significant protections, at least nominally, within the bill of rights. One of these protections, found in the Fourth Amendment, is the right to be free from unreasonable searches and seizures. That right applies to good folks and bad folks, alike. And it makes everybody uncomfortable.

Earlier this week, three judicial celebrities on the D.C. Circuit (Ginsburg, Sentelle, and Tatel, JJ.) reversed the gun charge conviction of Ronnell Holmes. D.C. police officers saw Holmes visiting with an unsavory member of the opposite sex in a dark alley in the middle of the night. They detained him after a brief foot pursuit, took his car keys from him, handcuffed him, and then, after obtaining his permission, searched his car and found a gun under the front seat. The problem with the government’s case was the decision to take Mr. Holmes’s car keys from him. They weren’t a weapon and they weren’t contraband, so under the caselaw interpreting the Fourth Amendment, the police had no business with them.

The prosecution argued that the taint on the keys issue was mitigated by Holmes’s consent to the search. But the Court held that Holmes’s consent to the search had been coerced, that he’d only agreed to let them search the car (which they located by clicking the little remote unlock button) because he thought it was his only way of avoiding an arrest.

So Holmes, who admitted that he had been offering to pay his female friend for her entertainments, ran away from police when they approached him, and kept a gun under the front seat of his car, goes free. Imagine this though, what if instead of finding a gun under the front seat, the police found a dirty bomb? Same result? If the answer is no, that’s a problem. Isn’t it?