Smith: Warrantless GPS surveillance in good faith pre-Jones

In U.S. v. Smith, No. 12-11042 (Dec. 23, 2013), the Court rejected the argument that evidence should have been suppressed because it was obtained by warrantless GPS surveillance, finding that, at the time the officers installed GPS trackers on Smith’s vehicle they acted in reasonable reliance upon this Court’s then-binding precedent. After the GPS surveillance at issue in Smith’s case, the United States Supreme Court decided U.S. v. Jones, 132 S.Ct. 945 (2012), which held that placing a GPS tracking device on a suspect’s car constituted a “search” for purposes of the Fourth Amendment. Invoking Jones, Smith asked the Court to hold that the search in his case was unreasonable – an issue the Supreme Court had not reached in Jones. The Court noted that in Davis v. U.S., 131 S.Ct. 2419 (2011), the Supreme Court had held that the good faith exception to the exclusionary rule applies to searches conducted in objectively reasonable reliance on binding appellate precedent that is subsequently overruled. The Court noted that in U.S. v. Michael, 645 F.2d 252 (5th Cir. 1981) (en banc), the Court’s predecessor Court had held that the warrantless use of a beeper to track a suspect’s movements on public roads involved neither a search nor a seizure under the Fourth Amendment. The Court rejected Smith’s attempt to distinguish between a beeper and a GPS tracking device, citing other cases that had rejected this same argument, and stating: “Michael [in 1981] established the constitutionality of warrantless GPS surveillance.” The police officers were not mistaken in relying on Michael “as binding precedent.” The Court acknowledged conflict with U.S. v. Katzin, 732 F.3d 187 (3rd Cir. 2013). Turning to sentencing, the Court rejected the challenge to the district court’s reliance on acquitted conduct in enhancing Smith’s sentence, noting that even after Booker sentencing courts may consider such conduct in determining the appropriate sentence.

Downs: No habeas relief for 1977 murder

In Downs v. Sec., Fla. Dep’t of Corrections, No. 12-14248 (Dec. 5, 2013), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1977 murder. The Court rejected a Brady claim, finding that the state habeas courts reasonably credited a detective testimony that he only learned after Downs’ trial of a statement by an accomplice, Johnson, that he, Johnson, not Downs, was the killer. The Court also rejected a Brady violation based on the State’s failure to disclose the identity of a jailhouse informant, pointing out that Downs knew the information that this informant also knew, and that this informant did not witness the murder. The Court also rejected an ineffective assistance of counsel claim, finding that defense counsel’s advice that Downs not take the stand in his defense not to be constitutionally incompetent. Finally, the Court found that a contingency fee arrangement in which defense counsel agreed to receive $10,000, if Downs was acquitted of all felony charges, did not create a conflict of interest that affected the adequacy of representation. Downs claimed that the contingency fee arrangement gave defense counsel an incentive not to call any witnesses at trial, thus defeating possible conspiracy charges. The Court found no prejudice in the arrangement, crediting defense counsel’s statement that it would have taken “a miracle” to get Mr. Downs acquitted of all felony charges.

Martinez: Rejecting 1st Amendment Challenges to 875(c)

In U.S. v. Martinez, No. 11-13295 (Nov. 27, 2013), the Court affirmed a conviction for knowingly transmitting a threatening communication, in violation of 18 U.S.C. § 875(c), rejecting First Amendment challenges to this statute. The Court noted that, under Supreme Court caselaw, the First Amendment does not protect “true threats.” The Court rejected the argument that a defendant’s “subjective intent” is an essential element to establishing the existence of a “true threat.” The Court held that a true threat is a statement that contains a serious expression of violent intent, and the speaker need not subjectively intend her statement to be a threat. The Court noted the “fear of violence” that true threats engender, regardless of subjective intent. The Court also rejected an overbreadth challenge to § 875(c). Because the statute is limited to “true threats,” it criminalizes no protected expressive activity. The Court distinguished true threats from cross burning, which is expressive activity that can receive First Amendment protection in certain circumstances.

Gissendaner: Counsel not ineffective

In Gissendaner v. Seaboldt, No. 12-13569 (Nov. 19, 2013), the Court denied habeas relief to a Georgia inmate sentenced to death for conspiring with her lover in 1998 to murder her husband. The Court rejected the argument that counsel was ineffective during plea negotiations, pointing out that Gissendaner herself turned down the State’s offer of a minimum 25-year sentence. The Court also rejected a Brady claim, agreeing with the state habeas court that the undisclosed notes of a witness’s statements would not have changed the outcome. Finally, the Court rejected the argument that counsel was ineffective for failing to investigate Gissendane’s alleged history of sexual abuse, noting counsel’s thorough investigation, and the unsubstantiated nature of the abuse claim. The Court also discounted the recent findings of mental health professionals, noting that Gissendaner had no history of psychiatric treatment, and the fact that they were “unpersuasive.”