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From DNA Collection To Drug-Sniffing Dogs Fourth Amendment Drives High Court's Term

Publication Date: 
July 23, 2013
United States Law Week - BNA
Lance J. Rogers

Professor Jeffrey L. Fisher spoke with Lance J. Rogers of United States Law Week - BNA on Alleyne v. United States and why it was this term's "big ticket Sixth Amendment case."

The U.S. Supreme Court's 2012-13 term was dominated by the Fourth Amendment, highlighted by cases touching on DNA sampling, drug-sniffing dogs, and the court's continued fondness for “trespass jurisprudence” to help delineate the boundaries of permissible searches, experts told BNA.

In a boost to law enforcement, the court gave the green light to routine DNA testing of arrestees and ruled that police can rely on trained, drug-sniffing dogs to provide probable cause. It clarified, however, that the police cannot walk those dogs around the curtilage of a suspect's home unless they first secure a search warrant and also announced that they usually need a warrant before forcing a suspected drunken driver to give a blood sample.


According to Jeffrey L. Fisher, of Stanford Law School's Supreme Court Litigation Clinic, Alleyne v. United States, 81 U.S.L.W. 4444 (U.S. 2013), was this term's “big ticket Sixth Amendment case.” In Alleyne, the court reversed Harris v. United States, 536 U.S. 545 (2002), ruling that facts triggering or increasing mandatory minimums are for the jury—not the judge—to find.

“The case is significant because of the number of mandatory minimums in the state and federal systems,” Fisher told BNA.


Fisher also underscored a pair of “categorical approach” decisions in which the court curbed government efforts to interpret state convictions in a way that would cause dire consequences under the Armed Career Criminal Act and the Immigration and Nationality Act.

In both Descamps v. United States, 81 U.S.L.W. 4490 (U.S. 2013), and Moncrieffe v. Holder, 81 U.S.L.W. 4265 (U.S. 2013), Fisher said, “the court demonstrated that it is concerned about the combination of vaguely drafted statutes and government overreaching.”


Pressed to comment on the significance of the court's plurality decision in Salinas v. Texas, 81 U.S.L.W. 4467 (U.S. 2013), Fisher agreed that the court dodged the big question of whether prosecutors violate the Fifth Amendment if they argue to a jury that the suspect's pre-arrest silence is evidence of his guilt. However, it seems clear that the court feels that a person has the right to assert the right to remain silent during these pre-arrest interviews, he added. Fisher argued the case before the court.


According to Fisher, the court implicitly rejected the concurrence's argument that the Fifth Amendment never applies in noncustodial interrogations. “I think if the court had five votes for that position, they would have said so,” Fisher said.


As a practical matter, however, Fisher mused whether anyone but well-counseled white collar crime defendants or suspects with lots of experience in the criminal justice system would know about this right, much less how to successfully invoke it when they are not under arrest.