Federal Criminal Defense Blog : Georgia Federal Criminal Defense Lawyer & Attorney : Gillen Withers & Lake Law Firm : White Collar Crime, RICO, Trial : Atlanta, Savannah, GA

As everyone now knows President Obama has chosen Second Circuit Judge Sonia Sotomayor as his Supreme Court nominee. If confirmed Judge Sotomayor will be the third woman and first Hispanic on the Supreme Court. Her parents came to New York from Puerto Rico during World War II. The New York Times has an excellent personal history of Judge Sotomayor here, detailing her rise from the housing projects of the East Bronx and overcoming childhood diabetes and the loss of her father to graduate at the top of her class from Princeton as a history major, then from Yale Law where she was on Law Review. Interestingly, Judge Sotomayor will be one of the few Supreme Court Justices that, if confirmed, has actually been a trial lawyer. She was a prosecutor in the Manhattan District Attorney’s Office prior to joining a boutique commercial law firm in Manhattan. In 1991 the first President Bush nominated her for a federal district judgeship in the Southern District of New York. President Clinton nominated her for the Second Circuit in 1997.

Tom Goldstein at Scotusblog has an excellent analysis of Justice Sotomayor’s scholarship and fantastical personal tale here, where he writes that, “The objective evidence is that Sotomayor is in fact extremely intelligent. Graduating at the top of the class at Princeton is a signal accomplishment. Her opinions are thorough, well-reasoned, and clearly written. Nothing suggests she isn’t the match of the other Justices.”

In a fairly brief analysis of her work on the Second Circuit, the New York Times reports here that her writings on the Second Circuit “reveal no larger vision, seldom appeal to history and consistently avoid quotable language.”
 

Goldstein reports that the Senate Judiciary Committee will likely hold hearings the third week of July with a floor vote before Congress prior to the Summer recess in August.

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Yesterday the Supreme Court gave us another defense win authored by Justice Souter. Pursuant to a wiretap of Mohammed Said’s phone, the government recorded 6 phone calls between Said and petitioner Abuelhawa, who arranged on 2 occasions to buy one gram of cocaine. The government charged each of the phone calls as a felony under 21 U.S.C. 843(b), which makes it a felony to “use any communication facility . . . facilitating” the distribution of drugs.

The two purchases by petitioner Abuelhawa were misdemeanors. The two sales by Said were felonies. Justice Souter, in a fairly awkward fashion, writing for a unanimous court, held that because Congress legislated a more lenient sentence for the purchase of gram quantities of cocaine as misdemeanors, that the government’s reach exceeded its grasp in making those misdemeanor purchases into felonies by the end run of charging the use of a communication device. Thus, using a telephone to make a misdemeanor purchase does not “facilitate” felony drug distribution in violation of § 843.

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In Arizona v. Gant, 07-542, the Supreme Court held on Tuesday that police may search a car incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment or the officers have a reasonable belief that the car contains “evidence of the offense of arrest.”

Demonstrating that the wheels of justice do indeed turn slowly, the Supreme Court affirmed the Arizona Supreme Court suppressing evidence found in Gant’s car when he was arrested for driving with a suspended license in 1999. The state court held that Gant could not have reached his car during the search and posed no safety threat to the officers, making a vehicle search unreasonable under the “reaching-distance rule” of New York v. Belton, 453 U.S. 454 (1981).

Scotus blog’s excellent discussion of the Gant case comments that Justice Scalia’s concurrence was clearly the swing vote in the 5-4 decision and that Justice Scalia suggests that the court abandon the “charade of officer safety” rule pronounced by the court earlier in Belton, for the rule that the majority ultimately adopts in its opinion.

This is an important decision for our citizens and for the every day practitioners of criminal law because it effectively extinguishes the “search incident to arrest” that we see in virtually all cases involving cars.

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