Great News for Due Process!

On April 19, the Supreme Court of the United States (SCOTUS) issued their decision in Nelson v. Colorado, a challenge by two individuals who had been convicted of a crime, but had their convictions overturned.  Despite the overturned convictions, the State of Colorado refused to return the costs, fees, and restitution that had been paid as a result of the convictions, to the individuals.  The U.S. Supreme Court, in a concise opinion, held that this violated the fundamental American principle of “innocent until proven guilty.”

Two individuals brought the challenge: Shannon Nelson and Louis Madden.  Both had initially been convicted of crimes and sentenced to prison sentences (Nelson was given 20 to life and Madden was awaiting his prison sentence determination).  Both were ordered to pay costs, fee, and restitution in the thousands of dollars.  Nelson appealed, the appeals court found trial error and ordered a new trial, and Nelson was acquitted on all charges at the new trial.  Madden’s conviction was overturned on appeal, as well, and the State of Colorado opted not to appeal.  At the end of the day, neither individual had a criminal conviction to their name (in the cases at issue, at least).

Nevertheless, Colorado refused to return the money paid by both individuals (money neither would have paid if they had not been wrongfully convicted).  In Nelson’s case, the court dismissed the petition for refund in its entirety.  Madden was refunded costs and fees, but not the money paid in restitution.

In order to be eligible for and receive a refund, Colorado requires an individual to file an action under the State’s Compensation for Certain Exonerated Persons statute (Exoneration Act, in short).  Under the Exoneration Act, an individual who has (1) been convicted, (2) served part of their sentence, and has (3) had their conviction(s) overturned on reasons other than insufficient evidence or legal error can petition the court for a refund of any money (fines, costs, restitution, etc., but not legal fees) paid because of the wrongful conviction.  In order to be successful, however, the individual must prove by “clear and convincing evidence,” that he or she was actually innocent.  (Clear and convincing evidence is the highest burden in civil cases).  Thus, in order to get a refund for money paid to the State solely due to a wrongful conviction, the individual must prove that they were not, in fact guilty (never mind the fact that the State could not reach its burden in proving them guilty in the first place).

Rightly, the U.S. Supreme Court found this a clear violation of due process.  In order to be afforded due process, one must (1) possess a right or property interest which is (2) deprived by the government (3) without due process of law.  Like many cases, the Supreme Court used a balancing test to determine the outcome of this case.  Unlike many cases, however, the Court, by a 7-1 vote* found that the Colorado statute met none of the balanced factors.

In short, the Court found that the individuals could only have been made to pay the money in costs, fines, fees, and restitution if they were guilty of a crime.  Without a conviction, there was no right for the State to demand the payment.  Thus, when the convictions were thrown out, there was no longer a conviction.  Under the law, the individuals were not guilty of any criminal activity.  Therefore, the State had no right to the money and could not place a large burden in the path of the individuals seeking refund of the money.  As the Court succinctly put it: “Colorado has no interest in withholding from Nelson and Madden money to which the State currently has zero claim of right.”   (The Court did note that small, procedural inconveniences could take place, likely referring to filling out paperwork demonstrating the overturned convictions and requesting the money back, etc)

Also of note, the Court expressly found that the, for smaller amounts of money, “the cost of mounting a claim under the Exoneration Act and retaining a lawyer to pursue it would be prohibitive.”  While further litigation on this matter would be necessary, it at least opens the door to the argument that many post-deprivation procedures enacted by states to retrieve property and rights lost to the state are too burdensome and violate real due process.

*Justice Alito concurred in the opinion, believing that the Court used the wrong test to reach its conclusion.  Ultimately, however, he also believed that Colorado’s statute violated due process.

Justice Thomas, however, dissented from the ruling, primarily because he wasn’t convinced that the individuals had established a property interest in the money at issue.  This is primarily a procedural issue that Thomas believed was not fully explored – in his dissent, he notes the differing opinions between the petitioners and the State.  The petitioners argued that without a conviction in place, the money reverted back to them, as it never should have been taken in the first place.  The State argued that the funds became “public funds” once they were taken and so the individual no longer had a property right in them.  He ultimately turned to Colorado’s statutory law to determine that there was no statutory right to the money and, as the Due Process Clause only protects pre-existing, substantive rights, there was no right to protect.  To him, the majority determined, out-of-hand, that the petitioners had a right to the money, without any legal exploration.

As Justice Gorsuch was not nominated in time to hear the case, he took no part in the decision.

Thompson Law Offices Now Accepting New Constitutional Law Clients!

Thompson Law Offices is happy to announce that it is now taking on civil and constitutional rights defense cases!

The case law surrounding the Constitution is vast and often complex, having developed and redeveloped over the span of the nation’s 226 years. In an attempt to interpret the Constitution in a manner that can be applied uniformly in various circumstances, the U.S. Supreme Court (and the federal circuit courts of appeal) have developed doctrines and rules, each with various factors and defenses. Navigating these doctrines, rules, and cases, which often seemingly contradict each other, can be time-consuming, confusing, and frustrating.

In addition, the courts at all levels tend to defer to the government and its agents, creating defenses and immunities for officials and government entities. In order for a claim to be successful, it must anticipate these defenses and immunities from the start.

THOMPSON LAW OFFICES, LLC provides FREE CONSULTS and a FREE CASE ANALYSIS for Constitutional Law cases.  If you feel that you have been deprived of a constitutional right, call (888) 866-6947 to schedule a consultation or submit a consultation request online HERE.

Constitutional Brief: SCOTUS Condones Illegal Searches and Seizures

In a 5-3 decision Monday, the U.S. Supreme Court held that evidence seized after a search incident to arrest could be used to convict an individual, even though the initial stop was unlawful.

South Salt Lake City, Utah’s police department received an anonymous tip that drug activity was occurring at a particular residence.  Narcotics detective Douglas Fackrell was dispatched to investigate, and observed the residence at various times over the course of a week.  It became Officer Fackrell’s opinion that drug deals were occurring at the residence, as he observed frequent visitors staying for only a few minutes at a time.

During the stop in question, Fackrell observed Edward Strieff leave the house and walk to a nearby convenience store.  Fackrell had not observed Strieff enter the house, however, and so had no idea if Strieff was one of the short-term visitors Fackrell believed was involved in drug deals, or not.  Fackrell stopped Strieff in the convenience store parking lot and demanded his identification, which he provided, and asked him a few questions about his visit at the house.  Fackrell then ran Strieff’s information, discovered that he had a warrant, and subsequently arrested him, conducting a search of his person at the time of the arrest.

The courts in Utah were conflicted on the admissibility of the evidence, since the State conceded that the initial stop of Strieff was unlawful, as there was no reasonable suspicion that Strieff was engaged in criminal activity (in order to establish that, Officer Fackrell would have had to know how long Strieff was in the house; merely being present in a place where past or future criminal activity has or will take place is not reasonable suspicion under the law).  To clarify the law, the Supreme Court granted cert to hear the case.

The Court analyzed the relevant precedents, concluding that the “attenuation doctrine” was the relevant analysis here.  That doctrine holds that where the connection between the unconstitutional conduct and the evidence is too attenuated, the evidence should not be suppressed.  Intervening circumstances can contribute to that attenuation.

Here, the Court found that the discovery of the warrant requiring Strieff’s arrest constituted an intervening circumstance, and so the search incident to the arrest was a valid search.  A search incident to arrest has long been held to be a valid search, so long as the arrest is valid.  The Court did not seem particularly concerned that the warrant was only discovered as a direct result of the illegal stop (and therefore quite connected to the illegal stop).  Rather, the Court viewed the warrant as correcting the illegality of the stop and, essentially, creating an entirely new basis for a new, lawful stop.

In addition to the connection between the unconstitutional stop and the evidence seized, the Court looked to see whether Officer Fackrell’s actions were “purposeful and flagrant.”  His actions were “at most negligent,” according to the court.  While he did not have reasonable suspicion based on his observations and, as such, could not have demanded Strieff speak with him, the Court excused the admittedly unlawful stop.  “While Officer Fackrell’s decision to initiate the stop was mistaken, his conduct thereafter was lawful.”  The warrant check was, according to the Court, simply precautionary for “officer safety.”  And because Fackrell’s actions were not “purposeful and flagrant,” the evidence found at the stop – illegal though it may have been – should not be suppressed.

The Court thus appears to be taking a “no harm, no foul” approach to the Constitutional protections of the 4th Amendment.  Because Officer Fackrell acted unlawfully “in good faith” all the way up to the point at which he began acting lawfully, his unlawful mistakes should be ignored.  And because a warrant already existed, Strieff essentially should have been arrested anyways.

What the Court conveniently dismisses, however, is that 4th Amendment was written and ratified precisely to protect against this type of unreasonable (read: illegal) search and seizure.  The 4th Amendment was a direct response to the British Writ of Assistance, or general warrant, which allowed searches of property in order to determine whether cause existed to bring charges.  In short, the Writ of Assistance was a legitimized government fishing expedition and the 4th Amendment was a direct prohibition of that.

Here, however, the Court has seemingly condoned the same practice.  While the Court briefly addressed the fishing expedition argument, it just as briefly dismissed it.  And while Officer Fackrell may, indeed, have been sincere in his desire to question Strieff solely on the activities of the house, the end result was that a warrant check was conducted on an individual solely based on an unlawful stop.  Had Officer Fackrell not illegally detained Strieff, he would not have conducted the warrant check and thus would not have arrested him and conducted the search.  (Also of note: the Court found that the warrant check was conducted for “officer safety,” despite the fact that there is no mention of any resistance or violence on Strieff’s part).

In short, Justices Thomas, Kennedy, Alito, Breyer, and Chief Justice Roberts chose to penalize Edward Strieff for his ignorance of judicial interpretation of the 4th Amendment, rather than the detective who actually violated Strieff’s rights.  Officer Fackrell admittedly made mistakes and violated Strieff’s 4th Amendment rights.  Strieff’s mistake, according to the Court, was in listening to Fackrell’s demands.  One wonders how the incident may have played out had Strieff followed the Court’s advice and ignored Fackrell’s demands.

At the end of the day, the Court chose to side with a narcotics detective who, though supposedly trained in the basic precepts of the 4th Amendment, made several basic mistakes.  Those mistakes led to the unlawful seizure of an American citizen, which ultimately led to the incarceration of that individual.

The constitutional rights of the individual are not contingent upon the good faith of the government or its agents.  They are inherent to in the individual. Whether the violation of the rights were mistaken or purposeful does not make the right any less violated.  While that may matter when determining whether to penalize the violator, it should not matter at all in determining whether the individual’s right have been violated.

In this instance, the correct remedy was to suppress the evidence unlawfully seized (whether to find civil liability with Officer Fackrell would be an entirely different case).  In failing to suppress the evidence, the Supreme Court has essentially told the citizens of the United States that they have no 4th Amendment protections, so long as the police officer thought he was acting according to the law.  At least until the next case . . .


R.I.P. Justice Antonin Scalia

We are deeply saddened to learn of the death of Justice Antonin Scalia. Throughout his nearly 30 years on the U.S. Supreme Court, Justice Scalia championed the U.S. Constitution and the system of government established and envisioned by our founders.  He will be sorely missed.