SCOTUS Sniffs Out Fourth Amendment Issue

Amidst all the excitement of the same-sex marriage arguments, SCOTUS on Tuesday issued another drug-sniffing dog decision. Last month in Florida v. Harris, the Justices approved use of a drug-sniffing dog to find probable cause for a vehicle search, but in the new case Florida v. Jardines, in an opinion by Justice Scalia, the Court rejected warrantless use of a drug-sniffing dog at the curtilage of a home to support a warrant for an interior search of the home. The problem is not the dog itself, but that use of the dog constitutes a search and therefore intrudes on the residents Fourth Amendment rights. And, by the way, as noted on this blog, when Jardines was argued, while police need a warrant under these circumstances, Girl Scouts selling cookies are free to approach a residence without fear of running afoul of the Fourth Amendment . . .

SCOTUS: First Sale doctrine applies to foreign-made publications

The US Supreme Court today decided Kirtsaeng v. John Wiley & Sons (U.S. March 19, 2013), holding that the "first sale" copyright doctrine applies to publications made and purchased outside the United States.

First Circuit removes Bulger trial judge

In an opinion by Justice Souter, the First Circuit today ordered District Judge Richard Stearns removed from the Whitey Bulger trial, based on a possible perception of bias. Stearns was in several supervisory roles in the U.S. Attorney's office during the period covered by the indictment. In re James Bulger (1st Cir. Mar. 14, 2013).

SCORI: Retirement Board cannot withhold retirement contribution of convicted (former) N.P. Councilman

The Supreme Court has held that convicted former North Providence City Council member John Zambarano is entitled to the return of over $35,000 that he contributed to the State system while in public employ. Zambarano was sentenced to federal imprisonment, and the federal court also ordered him to forfeit some $46,000, representing the amount he and confederates received in bribes. Ordinarily, a person leaving state service has the right to withdraw funds contributed, but the statute also allows the Retirement Board to refuse the withdrawal under some circumstances when the former public official is guilty public corruption. Reading the statute precisely, our Supreme Court held that the Rhode Island pension statute allows the Retirement Board to withhold funds when the contributing member has been ordered to make restitution to an injured party, but that language does not encompass an order of forfeiture, which benefits not the victim, but the federal government. Zambarano v. Retirement Board. The Supreme Court's decision does not relieve Zambarano of the federal forfeiture, but it does prevent the Retirement Board from holding onto his employee contribution.

SCOTUS: Judge-granted acquittal -- even if erroneous -- bars retrial

SCOTUS today released its decision in Evans v. Michigan first discussed here on the day of argument. In an arson case, the Michigan trial judge granted a judgment of acquittal at the close of the state's case, finding that the state had missed an element. The state appealed within the state system, and the Michigan Supreme Court held that the "missing element" was not really an element of the offense. Because the trial judge had added an extra element, the acquittal was error and the state supreme court, finding no double jeopardy bar, ordered retrial. Not so fast, says the U.S. Supreme Court in an 8-1 opinion by Justice Sotomayor (Alito, J., dissents). A judge-ordered acquittal bars retrial, the Court said, even if the trial judge's decision is "based upon an egregiously erroneous foundation." (quoting Fong Foo v. U.S.).

SCOTUS: Hague Convention case not mooted by order to return child

The Supreme Court held today in Chafin v. Chafin, that a case brought under the Hague Convention on the Civil Aspects of International Child Abduction is not rendered moot in the United States by a District Court's order for return of the child to another country (in this case, Scotland). In a unanimous opinion, Chief Justice Roberts noted that the parties continue to contest issues related to residence of the child and related issues.

SCOTUS gives pat on the head to Aldo, the drug sniffing dog

The United States Supreme Court has held that a Florida's police officer's reliance on the olfactory powers of Aldo, the drug-sniffing dog, was enough to constitute probable cause to search the defendant's vehicle. Florida v. Harris (Feb. 19, 2013). Reversing the Florida Supreme Court, the Justices held -- in the words of Justice Kagan -- that Aldo's sniff was "up to snuff."