The One-Month Anniversary of Arizona v. Gant: A Sign of Things to Come

Although we have not yet seen the flurry of end-of-term opinions sure to emerge from the Supreme Court in June, few are likely to gain as much immediate attention as Arizona v. Gant, in which the Court imposed new Fourth Amendment limitations on the ability of police officers to search vehicles.  The CrimProf listserve has been buzzing about Gant since the opinion came out, and now we are beginning to see the first signs of fallout in the lower courts.  Rising 3L Brent Simerson sent me the following insightful comments about the significance of Gant, for which I am grateful:

As one might expect, the United States Supreme Court’s recent ruling in Arizona v. Gant has triggered changes in the way police officers and attorneys must analyze warrantless searches incident to a lawful arrest in the vehicle context.  Professor Jon Deitrich provided several interesting observations about the opinion itself in a post last week.  The Court held that police officers may “search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.”  This holding narrowed the Court’s prior holdings in Chimel v. California and New York v. Belton, which were largely interpreted by lower courts as permitting vehicular searches incident to a lawful arrest regardless of how improbable it was that the arrestee could access the automobile.  Gant will undoubtedly constrict law enforcement’s hitherto broad authority to search vehicles incident to lawful arrest, see United States v. Majette, No. 08-4427, 2009 U.S. App. LEXIS 9267 (4th Cir. Apr. 30, 2009) (conviction vacated pursuant to Gant), but it is too soon to describe how courts will answer tough questions presented by Gant‘s requirements: What constitutes a “secured” arrestee?  May police officers circumscribe the spirit of Gant by directing the unsecured arrestee to remain within reaching distance of the passenger compartments?  These fact-sensitive questions will take time to resolve.

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Seventh Circuit Criminal Case of the Week: Watch the “R” Word, Prosecutors!

Two months ago, I posted here about the Seventh Circuit’s sharp rebuke of a prosecutor in United States v. Farinella, in which the defendant was charged with selling mislabeled bottles of salad dressing.  The court’s concerns focused, in part, on the prosecutor’s repeated suggestions to the jury that the salad dressing was spoiled, despite the absence of any evidence to that effect. The court, per Judge Posner, rightly took the prosecutor to task for attempting to inflame the jury’s emotions through evocative, but misleading, characterizations of the evidence.  We can and should expect prosecutors to act with integrity and restraint in carrying on their critically important public functions, rather than playing the adversarial system for all it’s worth.  In my experience, the vast majority of prosecutors appreciate — apologies to Vince Lombardi — that winning is not the only thing.  But, when prosecutors do occasionally cross the line, as in Farinella, I am happy to see the courts call them out.

I was reminded of Farinella when reading the court’s decision last week in United States v. Mannava (No. 07-3748), in which the court, again per Judge Posner, overturned the defendant’s child enticement conviction based, again, on the prosecutor’s repeated use of misleading and inflammatory language in front of the jury. 

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Permission to Skip to the Chase

In United States v. Booker, the Supreme Court held that the mandatory federal sentencing guidelines violated a defendant’s Sixth Amendment right to trial by jury. As a remedy, the Court excised the statutory provision, 18 U.S.C. § 3553(b), requiring the district court to impose a sentence within the guideline range, thereby rendering the guidelines effectively advisory. Under Booker‘s advisory guideline regime, district courts must still calculate and consider the guidelines, but are free to impose a reasonable sentence above or below the range based on the other sentencing factors set forth in 18 U.S.C. § 3553(a).

So, sentencing is now a two-step process. (In some circuits, it’s three steps, but let that pass.) The court must first calculate the guideline range, just as it did before Booker, and then at step two determine an appropriate sentence in light of all the statutory factors.

But guideline calculations can be quite complex. The Guidelines Manual approaches 600 pages, and studies have shown that, depending on who is doing the calculating, the same set of facts can produce divergent guideline ranges. (See Professor O’Hear’s article, “The Myth of Uniformity,” 17 Fed. Sent. Rep. 249, for more on this.) Must the court, post-Booker, still resolve all disputed guideline issues, even though it has settled on an appropriate sentence under the statutory factors? Last week, in United States v. Sanner, the Seventh Circuit addressed this question.

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