Two SCOTUS Decisions Trample Defendants' Rights

You have the right to an attorney of your choosing, if you can afford one. Unfortunately, you can't, because your assets were just seized. Want to challenge the seizure? Not happening.

You also have the right to refuse to allow the police to search your home. Unfortunately, they may drag you away in cuffs and pressure your cohabitant into overriding your refusal. So, there's that. Just make sure you don't give them an "objectively reasonable" reason to slap on the iron bracelets.

Kaley v. United States: No Right to Challenge Factual Basis for Pre-Trial Asset Restraints

The Kaleys were arrested, a grand jury handed down an indictment, and their assets were seized.

The district court allowed them to challenge the traceability of the assets to the alleged criminal conduct, but did not allow them to challenge the factual basis for the indictment.

The majority's opinion, penned by Kagan and joined by Scalia, Kennedy, Thomas, Ginsburg, and Alito (an odd combination), noted that our system entrusts grand juries to find a factual basis and probable cause for indictments. Under the Court's precedent in Monsanto, it is perfectly acceptable to deprive a defendant of assets once such a probable cause determination is made.

As we noted in our preview, nearly every circuit besides the Eleventh (the source of this case) required an adversarial pre-trial hearing on the basis of due process classic Mathews v. Eldridge. The Court wasn't swayed, and held that under the third prong of the Mathews test, the possible benefits of a hearing did not outweigh the substantial cost, noting that neither the parties, nor the amici could point to a single case where a court found, contrary to the grand jury, that probable cause was lacking.

Chief Judge Roberts' dissent, joined by Breyer and Sotomayor (again, an odd combo), states the unfortunate impact of the majority's holding: the government can "initiate a prosecution and then, at its option, disarm its presumptively innocent opponent by depriving him of his counsel of choice --without even an opportunity to be heard."

Fernandez v. California: Ability to Object to Searches is Now Meaningless

In Georgia v. Randolph, the Supreme Court held that one co-tenant's objection to a search cannot be overridden by another's permission:

"If [past] cases are not to be undercut by today's holding, we have to admit that we are drawing a fine line; if a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant's permission does not suffice for a reasonable search ... So long as there is no evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection, there is practical value in the simple clarity of complementary rules ..."

"At the door and objects ..." That's exactly what we had here, until the police arrested Fernandez.

Justice Alito, joined by Roberts, Kennedy, Thomas, Breyer, and Scalia, held that his objection is only valid while he is present, and that once the police removed him for "objectively reasonable" reasons (the screams coming from the apartment, the bruises on his cohabitant baby momma, etc.), his cohabitant was free to consent.

Justice Thomas, as always, wrote a solo concurrence because he disagrees with Randolph and would make a co-tenant's permission always valid.

Justice Ginsburg penned the dissent, joined by Sotomayor and Kagan. She's tired of making exceptions to exceptions to exceptions to the warrant requirement. (You need consent, unless consent is overridden, but the override only lasts until arrest, if the arrest is reasonable. Explaining the rule takes longer than obtaining a warrant.)

Related Resources:

• Kaley v. United States (Supreme Court)
• Fernandez v. California (Supreme Court)
• Many Notable Denials on the Court's First Day Back (FindLaw's U.S. Supreme Court Blog)
• What Will the Fourth Amendment Mean After Fernandez? (FindLaw's Cal. Case Law Blog)