The Supreme Court ruled today, in Pepper v. United States (opinion here) that when a defendant's sentence has been set aside, the court, in resentencing defendant, may consider his post-sentence rehabilitation to impose a lower sentence. It also ruled the court can grant a greater downward departure than it ordered when orginally sentencing defendant.

We hold that when a defendant’s sentence has been set aside on appeal, a district court at resentencing may consider evidence of the defendant’s postsentencing rehabilitation and that such evidence may, in appropriate cases, support a downward variance from the now-advisory Federal Sentencing Guidelines range. Separately, we affirm the Court of Appeals’ ruling that the law of the case doctrine did not require the District Court in this case to apply the same percentage departure from the Guidelines range for substantial assistance that had been applied at petitioner’s prior sentencing.

The only dissenters were Clarence Thomas and Samuel Alito (the latter dissented only in part.)

The Supreme Court ruled against AT&T in a privacy rights case today, holding that since it is a corporation and not a person, it does not have a right to privacy. The case involved a Freedom of Information request seeking documents pertaining to an FCC investigation of AT&T and possible overbilling.

AdamB at Daily Kos provides analysis of the decision. You can read the opinion here.

Lyle Denniston at Scotus Blog has more in "A Word Game Over Privacy."

In a split decision today, the Supreme Court has ruled a dying man's identification of his killer is admissible evidence and does not violate the Sixth Amendment's Confrontation Clause. The opinion (available here) was written by Justice Sotomayor.

Covington’s identification and description of the shooter and the location of the shooting were not testimonial statements because they had a “primary purpose . . . to enable police assistance to meet an on-going emergency.”

Justices Ginsberg and Scalia were among the dissenters. Scalia's dissent is particularly harsh. He points out that the statement was not taken for safety in an emergency situation, but for investigation of a crime:

"Today's tale...is so transparently false that professing to believe it demeans this institution,"

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Adam Liptak of the New York Times reports on yesterday's Supreme court oral argument in Kentucky v. King, about when the police can enter your home without a warrant, claiming exigent circumstances.

police officers in Kentucky were looking for a suspect who had sold cocaine to an informant. They smelled burning marijuana coming from an apartment, knocked loudly and announced themselves.

Then they heard sounds from inside the apartment that they said made them fear evidence was being destroyed. They kicked the door in and found marijuana and cocaine but not the original suspect, who was in a different apartment.

Orin Kerr points out the facts of the case are not quite clear. [More...]

A judge in Delaware has ruled police may not use GPS devices to track a suspect 24/7 without a warrant. The ruling is based on Delaware's state constitution, which like those in many states, provides greater protection than the federal counterpart. In suppressing the evidence obtained from the surveillance, the Judge wrote:

"The advance of technology will continue ad infinitum....An Orwellian state is now technologically feasible. Without adequate judicial preservation of privacy, there is nothing to protect our citizens from being tracked 24/7."

Though police can follow a suspect in public, there are limits to how long officers can keep up the tail, whereas a GPS device never sleeps and "provides more information than one reasonably expects to be 'exposed to the public,' " the judge wrote....

....if no warrant is required for such surveillance, "any individual could be tracked indefinitely without suspicion of any crime. ... No one should be subject to such scrutiny by police without probable cause,"

There is a split among courts on the issue. While the decision may be appealed, for now Delaware joins New York, Oregon and Massachusetts which say a warrant is required.

Jeffrey Toobin has a new article in the New Yorker on the tenth anniversary of the Supreme Court decision in Bush v. Gore.

This month marks ten years since the Court, by a vote of five-to-four, terminated the election of 2000 and delivered the Presidency to George W. Bush. Over that decade, the Justices have provided a verdict of sorts on Bush v. Gore by the number of times they have cited it: zero.

Jeffrey says the "echoes" of the case are "clearest when it comes to judicial activism."

Judicial conservatism was once principally defined as a philosophy of deference to the democratically elected branches of government. But the signature of the Roberts Court has been its willingness, even its eagerness, to overturn the work of legislatures.

...This, ultimately, is the tragedy of Bush v. Gore. The case didn’t just scar the Court’s record; it damaged the Court’s honor

The Supreme Court today announced it will review the case of former detainee and material witness Abdullah al-Kidd against former Attorney General John Ashcroft. Al-Kidd is a U.S.-born American citizen:

Al-Kidd, a one-time University of Idaho football star who converted to Islam, was arrested at Dulles International Airport in 2003 as he was boarding a plane for Saudi Arabia, where he planned to study.

He was held for 15 nights as a material witness in a broader terrorism probe. But he claims that was simply a pretext for a larger plan approved by Ashcroft to sweep up Muslim men it could not prove had any ties to terrorism.

The 9th Circuit rejected personal immunity for Ashcroft. En Banc hearing was denied.

The Obama Administration is representing Ashcroft and asking the Supreme Court to overturn the decision. The ACLU says more than 70 people have similar complaints about their detention as material witnesses. More on the abuse of the material witness statute is here.

Remember the "Denver Three" who were kicked out of a Colorado campaign event for George Bush? The Tenth Circuit ruled the officials had qualified immunity. They petitioned for cert and the Supreme Court denied their request today. The question presented:

Whether clearly established First Amendment law prohibits government officials who are speaking at events that are open to the public and paid for by taxpayers from excluding people from the audience on the basis of viewpoint

Justice Ginsburg dissented, joined by Justice Sotomayor:

I cannot see how reasonable public officials, or any staff or volunteers under their direction, could have viewed the bumper sticker as a permissible reason for depriving Weise and Young of access to the event. Nevertheless, the Court of Appeals held respondents entitled to qualified immunity because “no specific authority instructs this court . . . how to treat the ejection of a silent attendee from an official speech based on the attendee’s protected ex-pression outside the speech area.” 593 F. 3d 1163, 1170 (CA10 2010).

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For the third time, the 9th Circuit Court of Appeals today upheld the suppression of records in the Balco lab case.

A full 11-judge panel of the appeals court agreed to reconsider its August 2009 three-judge decision that the government violated the rights of players not covered by the search warrant and must return the confiscated drug-testing records to the Major League Baseball Players Assn. The appellate judges also upheld the lower-court rulings that all subpoenas issued as a result of the excessive seizure had to be quashed.

The illegally obtained evidence included results indicating that 104 Major League Baseball players had tested positive for steroid use during a 2003 confidential screening.

The opinion is here. [More...]

The Third Circuit Court of Appeals today released its long-awaited decision on whether the law and the Constitution require a warrant based on probable cause (rather than a court order issued under a lesser standard) when the Government wants cell phone providers to turn over data showing the location of the cell phone. Wired gets the import right: Court OKs Warrantless Cell-Site Tracking."

The Third Circuit is the first appeals court in the country to address the issue. The decision is here. EFF and the ACLU submitted Amicus Briefs. Disappointingly, the Obama Administration argued probable cause and a warrant are not needed for historical CSLI, and refused to say it wouldn't go the same route when seeking prospective (real-time) data.

The Court's decision is very disappointing. The ACLU and EFF are trying to spin it into a win, but it's clearly not. [More...]

U.S. District Court Judge Royce Lamberth has granted an injunction in a lawsuit backed by a Christian group seeking to prevent the implementation of President Obama's new stem cell research guidelines. The judge ruled the guidelines violate the Dickey-Wicker Amendment and that "ESC research is research in which a human embryo is destroyed."

The opinion is here.

The Plaintiffs originally included Drs. James L. Sherley and Theresa Deisher, and Nightlight Christian Adoptions (“Nightlight”), Embryos, Shayne and Tina Nelson, William and Patricia Flynn, and the Christian Medical Association (“CMA”). They sought an injunction and declaratory relief to keep the new NIH "Guidelines for Human Stem Cell Research" from taking effect to prevent funding research involving the destruction of human embryonic stem cells. [More...]

The D.C. Circuit Court of Appeals today became the first appeals court to rule that police need a warrant to install a GPS tracking device on a vehicle. In doing so, it reversed a conviction and life sentence of an alleged major trafficker.

In striking down the drug conviction of Antoine Jones, former co-owner of a District nightclub called Levels, the D.C. court said the FBI and District police overstepped their authority by tracking his movements round-the-clock for four weeks, placing a GPS monitoring device on his Jeep after an initial warrant had expired.

...Here the police used the GPS device not to track Jones‘s ―movements from one place to another,‖ Knotts, 460 U.S. at 281, but rather to track Jones‘s movements 24 hours a day for 28 days as he moved among scores of places, thereby discovering the totality and pattern of his movements from place to place to place.

Contrary positions have been taken by federal appeals courts in other districts, making Supreme Court review a real possibility, if it's not reversed en banc. The decision is here. [More...]