The Resurrection of the “Trespass” Element of Fourth Amendment Law

Recently, in United States v. Jones, the Supreme Court ruled that the attaching of a GPS tracking device to a suspect’s car without his knowledge and monitoring of the vehicle’s movements violated the suspect’s Fourth Amendment rights against unreasonable search and seizure.  See generally 132 S.Ct. 945 (2012).  In so doing, the Court resurrected an idea relating to Fourth Amendment law that had been dormant for almost 50 years – the idea of common-law trespass as a test for violations of the amendment.

Specifically, police officers obtained a warrant to put the tracking device on a car registered to Jones’ wife.  Jones, 132 S.Ct. at 948.  Officers then placed the GPS tracker on the undercarriage of the car while it was parked in a public parking lot.  Id.  The officers then monitored the car’s movements for 28 days.  Id.  Eventually, the Government indicted Jones on charges of (among other things) conspiracy to distribute and possess with intent to distribute cocaine.  Id.  Jones moved to suppress the evidence from the GPS device.  

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The Criminal Jurisdiction of Indian Tribes

This is the third in a series of posts addressing commonly asked questions regarding American Indians, Indian Tribes, and the law. The first post dealt with casinos, taxation, and hunting and fishing rights, while the second focused on the relationship between the unique legal treatment of Indian tribes or their members and the U.S. Constitution’s guarantee of equal protection. This post will explore the criminal jurisdiction of tribes, with the expectation that one or more future posts will similarly explore the criminal jurisdiction of the federal and state governments in relation to Indians or conduct on Indian lands.

Sovereignty, as conceptualized in the Western legal-political tradition, has customarily included the power to enact and enforce a criminal code against persons who, within the sovereign’s territory or against its citizenry, commit conduct injurious to health, safety, welfare, and morals. This is a theoretical standard, however, and today across the globe as well as in the United States—and not just with regard to Indian tribes—one can observe forms of sovereignty that include degrees of diminished (or less-than-plenary) criminal jurisdiction.

The most obvious domestic example involves the respective authority of the federal and state governments.

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Difficulties Arising Out of No-Merit Reports

Under Wisconsin Statute 809.32(1), an attorney representing a criminally convicted client on appeal must file a no-merit report if he or she:

concludes that a direct appeal on behalf of the [client] would be frivolous and without any arguable merit within the meaning of Anders v. California, 386 U.S. 738 (1967), and the [client] requests that a no-merit report be filed or declines to consent to have the attorney close the file without further representation by the attorney.

A no-merit report is essentially as it sounds, a report to the Court of Appeals stating that the client has no arguable case.  Once a no-merit report is filed, the client may choose to respond.  If the client does not respond, or does and the court finds that there are no meritorious claims, the court will affirm the conviction.

This situation, however, brings to light an interesting predicament for convicted individuals. 

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