Recent Legal Developments

• Author: Craig Hemmens,Lauren Block
• DOI: 10.1177/0734016813509105
• Published date: 01 December 2013
• Date: 01 December 2013

Recent Legal Developments

Recent Legal Developments:

Criminal Justice Decisions of

the United States Supreme

Court, 2012 Term

Craig Hemmens

1

and Lauren Block

1

Introduction

During its 2012 term, the U.S. Supreme Court issued a total of 78 decisions—73 signed opinions and

5 summary reversals. Roughly, a third of the decisions at least touched upon a criminal justice–

related issue. While some of these decisions will have only a slight impact on the daily administra-

tion of justice, there were a number of significant cases involving criminal justice–related topics

such as search and seizure, the Ex Post Facto Clause, and sentencing.

An examination of all of the Court’s decisions reveals some interesting patterns. Almost half

(49%, or 38 of 78) of the Court’s decisions were unanimous judgments, while 11 decisions were

either 8-1 or 7-2 majorities. Twenty-three cases (29%) were decided by a narrow 5-4 margin. This

is the highest number of 5-4 decisions since the 2008 term. Interestingly, it appears that on this Court

it is a matter of either unanimity or a bitter split—a full 78%of all the decisions were either unan-

imous or 5-4 votes.

The lineup of justices in the 5-4 cases was fairly consistent. Justice Kennedy remains a crucial

swing vote on the court, moving between a solid four vote ‘‘conservative’’ bloc consisting of Chief

Justice Roberts and Justices Scalia, Thomas, and Alito, and a four vote ‘‘liberal’’ bloc of Justices,

Ginsburg, Breyer, Sotomayor, and Kagan. Justice Kennedy was in the majority in twenty of the

twenty-three 5-4 decisions. The justice who authored the most majority opinions in 5-4 decisions,

however, was Justice Alito with six, despite being in the majority in such cases only 13 times.

Justice Thomas issued the most opinions overall, with 8 majority opinions, 11 concurring

opinions, and 6 dissents. For the second year in a row, Justice Kagan produced the fewest (13)

opinions—8 majority opinions, 2 concurrences, and 3 dissents. Majority opinion authorship was

divided evenly, with every justice writing eight save Justice Ginsburg, who wrote nine. Seven of

these were unanimous decisions, however. As is often the case, Justice Scalia authored the most

dissents, with 11.

We present below a summary and analysis of the most significant decisions involving criminal

justice. Space limitations prevent a discussion of every criminal justice–related decision. The cases

are divided, somewhat roughly, into categories.

1

Washington State University, Pullman, WA, USA

Corresponding Author:

Craig Hemmens, Washington State University, 717 Johnson Tower, Pullman, WA 99163, USA.

Email: craig.hemmens@wsu.edu

Criminal Justice Review

38(4) 545-561

ª2013 Georgia State University

Reprints and permission:

sagepub.com/journalsPermissions.nav

DOI: 10.1177/0734016813509105

cjr.sagepub.com

Fourth Amendment/Expectation of Privacy

Maryland v. King. In 2009, King was arrested for first- and second-degree assault, for menacing a

group of people with a shotgun and was taken to the central booking facility in Wicomico County,

Maryland. During his booking, a buccal swab was taken from the inside of King’s cheek to gather a

DNA sample. The Maryland DNA Collection Act makes it routine procedure to take DNA samples

booking from persons arrested for felonies that are ‘‘violent crimes or attempts to commit violent

crimes and burglary or attempts to commit burglary.’’ Once the defendant is arraigned, the DNA

is processed and entered into a database. Upon analyzing the DNA taken from King, it was discov-

ered that it matched the DNA collected from the victim of a rape in 2003. King was subsequently

charged with that rape. At the rape trial, King filed a motion to suppress the DNA evidence taken at

his booking, claiming that the Maryland DNA Collection Act violated the Fourth Amendment. The

trial judge allowed the DNA evidence to be used against King. King was convicted of rape and

sentenced to life in prison without the possibility of parole. On appeal, the Court of Appeals of

Maryland held that the collection of DNA samples from felony arrestees was an unlawful seizure,

as King had an expectation of privacy in his DNA. At the time of this ruling, both federal and state

courts had come to differing opinions on whether the Fourth Amendment prevents the collection and

analysis of DNA evidence taken from arrestees who had not yet been convicted of felony charges.

In a 5-4 decision, the Supreme Court reversed the decision of the Court of Appeals of Maryland,

with Justice Kennedy writing the majority opinion. The Court held that it is constitutional to take

DNA samples from felony arrestees who are booked on serious charges because the collection and

analysis of DNA serves a legitimate government interest, that of accurately identifying arrestees.

Justice Kennedy argued that the accurate identification of arrestees ensures that the correct person

has been arrested and tried and can provide information on their criminal history to inform bail deci-

sions and correctional facilities to ensure the safety of the community, arrestee, other detainees, and

correctional staff. Justice Kennedy discussed the use of DNA collection and analysis for the purpose

of accurately identifying arrestees as comparable to the use of photographs and fingerprinting.

Justice Kennedy also argued that the buccal swab of the inside of an arrestee’s cheek does not intrude

upon their reasonable expectation of privacy considering this expectation is lowered once an indi-

vidual is arrested and detained. Furthermore, the buccal swab is minimally invasive and unlikely to

threaten the health or safety of the arrestee. Also, the DNA collection and analysis is performed

solely for identification purpose and does not provide any other private medical information about

the individual. Justice Kennedy concluded that the collection and analysis of DNA from arrestees

can be considered a routine booking procedure and reasonable search under the Fourth Amendment.

Justice Scalia dissented arguing that the justification put forth by the Court to allow the suspicionless

search and seizure of DNA from individuals for the purpose of accurately identifying arrestees,

‘‘taxes the credulity of the credulous.’’

Fourth Amendment/Probable Cause

Florida v. Harris. Clayton Harris was stopped by Officer Wheetley due to an expired license plate.

When Officer Wheetley approached Harris, he thought he seemed very nervous and saw an open

beer container in the cup holder. Officer Wheetley asked Harris for consent to search his vehicle,

and when Harris refused, the officer used a drug-sniffing dog, Aldo, to conduct a sniff test of the

area around the vehicle. During this test, Aldo signaled at the driver’s side door handle, indicating

that he smelled drugs there. Officer Wheetley then conducted a warrantless search of the vehicle.

During this search, Officer Wheetley failed to find any of the drugs Aldo was trained to alert to,

but he did discover multiple ingredients used to make methamphetamine, including 200 pseu-

doephedrine pills. Harris was subsequently charged with possessing pseudoephedrine for use in

546 Criminal Justice Review 38(4)