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High court accepts five criminal cases


High court accepts five criminal cases


Boston (Dolan) –  Among the 14 cases accepted for review by the U.S. Supreme Court are five criminal cases.

In Kentucky v. King, No. 09-1272, the court agreed to clarify when police may enter a home without a warrant when pursuing a suspect.

The Court will review a decision from the Kentucky Supreme Court that involves the exigent circumstances exception to the warrant requirement.

Police were conducting a drug sting at an apartment complex, in pursuit of a drug trafficker who sold cocaine to an undercover informant.

They heard a door slam, but weren’t certain which of two apartments the trafficker had fled into. Police smelled burnt marijuana from one of the apartments, prompting them to believe the trafficker was inside the apartment. The officers knocked on the door, and then heard noises that led them to believe that evidence was being destroyed.

The officers made a forced entry into the apartment.

They found Hollis King and two others with marijuana and crack cocaine.

King argued that his arrest and the search of his apartment were illegal, and therefore that the evidence should have been suppressed.

The Kentucky Supreme Court agreed, ruling that the exigent circumstances exception to the warrant requirement did not apply because the officers created the exigency by knocking on the door.

“While probable cause existed for police to obtain a warrant to enter the apartment occupied by [the defendant], police did not have proper exigent circumstances to justify a warrantless entry. Police were not in hot pursuit of a fleeing suspect,” the court said.

“Further, the entry was not justified by imminent destruction of evidence. The odor of marijuana alone did not provide a justification, and any exigency arising from the sounds of movement inside the apartment was created by police, and therefore cannot be relied upon as a justification.”

On July 15 of this year, the Wisconsin Supreme Court adopted a much broader exception for exigent circumstances than did the Kentucky court. State v. Robinson, 2010 WI 80.

Confrontation Clause

The court also agreed to decide whether a blood-alcohol test admitted without the live testimony of the officer who prepared the results violates a criminal defendant’s Sixth Amendment rights under the Confrontation Clause, in Bullcoming v. New Mexico, No. 09-10876.

Last year, the Court held in Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), that a certificate prepared by a forensic lab fell within the definition of “testimonial statements” subject to the Confrontation Clause.

This time, the Court will review a New Mexico Supreme Court ruling that applied Melendez-Diaz to a blood-alcohol test in a DUI case.

In that case, the prosecution admitted the test results without making available for cross-examination the analyst who prepared them.

The state Supreme Court said that in light of Melendez-Diaz, the results no longer fell under the business records exception to the hearsay rule. But the court upheld the conviction anyway because it said that the analyst was a “mere scrivener” and the prosecution presented other live witnesses.

“Although the analyst who prepared [the results] was not present at trial, the evidence revealed that he simply transcribed the results generated by the gas chromatograph machine. He was not required to interpret the results, exercise independent judgment, or employ any particular methodology in transcribing the results from the … machine to the laboratory report. Thus, the analyst who prepared [the results]  was a mere scrivener, and [the] defendant’s true ‘accuser’ was the gas chromatograph machine which detected the presence of alcohol in [the] defendant’s blood, assessed [the] defendant’s BAC, and generated a computer print-out listing its results,” the court said.

“In this case, [an analyst] provided live, in-court testimony and, thus, was available for cross-examination regarding the operation of the gas chromatograph machine, the results of [the] defendant’s BAC test, and the … established laboratory procedures. … Because [the analyst] was a competent witness who provided live, in-court testimony, we conclude that the admission of [the test results] did not violate the Confrontation Clause.”

No published Wisconsin opinion since Melendez-Diaz was decided addresses the issue.


In a third case, the court will decide whether a federal judge has the authority to reduce a federal criminal sentence after the U.S. Sentencing Commission amended the Sentencing Guidelines for crack cocaine, if the judge had already accepted a plea deal with the defendant, in Freeman v. United States, No. 09-10245.

The U.S. Supreme Court has agreed to answer this question, reviewing a decision from the 6th Circuit which held that case law precluded modification of a sentence imposed pursuant to a plea deal.

In that case, the defendant was charged with one count of crack possession, among other charges. He entered a plea agreement that included a sentence of 106 months.

After his agreement was accepted by the trial judge and his sentence was entered, the U.S. Sentencing Commission amended the Sentencing Guidelines to reduce the disparity in the treatment of crack and powder cocaine, and made the amendment retroactive.

The defendant then sought to reduce his sentence accordingly.

But a U.S. District Court refused to do so, and the 6th Circuit affirmed.

“[T]he district court did not indicate that failing to resentence [the defendant] resulted in a miscarriage of justice. … [The defendant’s] original 106-month sentence remained inside the guidelines range for his crime, even after the amendment,” the court said.

His 106-month sentence fell at the bottom of the range before the amendment and at the top of the range after the amendment, it noted.


In a fourth case, arising within the Seventh Circuit, the court will decide whether a conviction for resisting arrest counts as a violent felony under the Armed Career Criminal Act, in Sykes v. U.S., No. 09-11311.

The Seventh Circuit concluded it was, finding that eluding a police officer is “purposeful, violent and aggressive.” U.S. v. Sykes, No. 08-3624 (7th Cir., Mar. 12, 2010).

The court also granted review in U.S. v. Tinklenberg, No. 09-1498, concerning application of the Speedy Trial Act in federal courts.


Should Justice Protasiewicz recuse herself on gerrymandering cases that go before the Wisconsin Supreme Court?

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