Supreme Court Action: Forfeiture, Warrantless Searches, and Personal Jurisdiction

The Supreme Court issued three opinions this morning.  They are Kaley v. United States (12-464), Fernandez v. California (12-7822), and Walden v. Fiore (12-574).  The Kaley case addresses the issue of pre-trial asset forfeiture when a defendant wants to use some of the money to hire a lawyer of choice.  The controlling federal statute allows a court to freeze s defendant’s assets prior to trial if they are subject to forfeiture upon conviction.

The grand jury indicted Kerri and Brian Kaley for reselling stolen medical devices and laundering the proceeds.  The Government filed a motion to freeze $500,000 in assets which the judge granted.  The Kaleys challenged the order as they wanted to use the money to hire an attorney.  The judge held a hearing on whether the money was traceable to the alleged crime and upheld the forfeiture order with the exception of $63,000.  The judge refused, however, to hold a hearing on the validity of the grand jury’s probable cause finding.  This was the basis for triggering the asset forfeiture under the statute.  The Eleventh Circuit affirmed.

The Supreme Court affirmed.  It stated that the grand jury’s finding of probable cause is conclusive and will not be challenged.  A finding of probable cause can be made reliably without an adversarial proceeding.  Further, if the indictment can affect the liberty of those charged, it can affect their property as well.  The Court cited precedent to show that there are no Fifth or Sixth Amendment violations in these circumstances even if it means the defendants cannot hire an attorney of choice.  In any event, the Kaleys are not entitled to a re-determination of the grand jury’s conclusions.  Justice Kagan delivered the opinion of the Court and was joined by Justices Scalia, Kennedy, Thomas, Ginsburg, and Alito.  Chief Justice Roberts filed a dissenting opinion and was joined by Justices Breyer and Sotomayor.

The Fernandez case concerns whether a tenant can authorize a premise search without a warrant when an absent co-tenant had earlier refused consent.  Police suspected that Fernandez was the perpetrator of a robbery.  Police were directed to an apartment where Fernandez was said to be located.  They knocked on the door and were greeted by Roxanne Rojas.  She was crying, bruised, and carrying a baby.  The police removed Fernandez from the premises on suspicion of assaulting Rojas.  Fernandez objected to the police entering the apartment.  He was taken to a police station.

An officer returned to the apartment later in the day and received oral and written consent from Rojas to search the apartment.  The police found evidence that linked Fernandez to the robbery.  Fernandez moved to suppress the evidence.  The trial court denied the motion and ultimately found Fernandez guilty.  The California Court of Appeal affirmed.

The Supreme Court affirmed.  The Court stated that the general rule is that a tenant can consent to a valid warrantless search in the absence of a co-tenant.  Fernandez argued that he had initially objected to the search when he was present in the first encounter and that should be valid until he changed his mind.  He further argued that his absence was caused by his removal and arrest by the police.  As to the first argument, it does not square with precedent which sought to avoid a formalistic rule on duration and scope of procedures necessary to define an objection.  Essentially, absence is enough, even if the police caused the absence.  Earlier precedent suggesting that police could avoid objections by removing the tenant only applies in cases where removal is not objectively reasonable.  That is not the case here.  Justice Alito delivered the opinion of the Court and was joined by Chief Justice Roberts, and Justices Scalia, Kennedy, Thomas, and Breyer.  Justice Ginsburg filed a dissent and was joined by Justices Sotomayor and Kagan.

The Walden case concerns the application of personal jurisdiction over an out-of-state defendant. Walden was a police officer working as a deputized DEA agent at a Georgia airport.  He searched Fiore’s luggage as well as that of Fiore’s companion and seized $97,000 in cash from the two.  He advised them that the money would be returned later if the source of the cash was legitimate.  Walden was tipped about this from DEA agents in Puerto Rico who had initially examined the luggage at the airport there.  Fiore explained that these were casino winnings.  Fiore and his companion were cleared for their flight to Atlanta and ultimately to California.

Walden filed an affidavit of forfeiture with the U.S. Attorney’s Office.  Fiore objected to it as it contained misleading information and did not include statements about the lack of evidence for drugs or other contraband.  The DEA returned the money and no charges were filed.  Fiore and his companion filed a Bivens suit in Nevada on the basis of the encounters and Walden’s conduct in filing the affidavit.  The district court dismissed for lack of personal jurisdiction.  The Ninth Circuit reversed, at least in reference to the false probable cause in the affidavit aimed at Nevada residents.

The Supreme Court reversed.  It basically held that personal jurisdiction had to be established by contacts with the forum rather than contacts with plaintiffs.  Everything happened in Georgia.  Walden had no contacts with Nevada that would support extending jurisdiction to the Nevada district court.  Justice Thomas delivered the opinion for a unanimous Court.  Speaking of Justice Thomas, check out Jeffrey Toobin’s post, Clarence Thomas’s Disgraceful Silence, in The New Yorker.  –Mark

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