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Fourth Amendment questions and Sixth Amendment questions

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, Fourth Amendment questions regarding what constitutes the “curtilage” of an apartment and whether a warrant is required for officers to observe a phone’s notification screen; as well as confrontation clause questions regarding testimony given by sexual assault nurse examiners and whether defense lawyers have a right to cross-examine accomplices about the magnitude of benefits they will receive in exchange for their testimony.

First, Sorenson v. Massachusetts presents a question driving at the core of the Fourth Amendment: the right to be secure in one’s home. While it is widely recognized that this right encompasses the areas immediately surrounding or associated with the home, known as the curtilage, it is less clear what is considered “curtilage” in the context of an apartment building. In this case, Erich Sorenson was arrested without a warrant on the doorstep of his apartment. He alleges that if he instead lived in a house and was arrested outside his door on an open porch, then the arrest would have been unconstitutional. But the Massachusetts Appeals Court held that a common hallway in an apartment building does not constitute curtilage. Sorenson asks the justices for review to clarify what can be considered apartment curtilage.

Next, in Ohio v. Deuble, an undercover officer impersonated a 15-year-old girl online and was contacted by an anonymous man who arranged to meet with her in a local park. At the set meeting time and location, investigators identified Daniel Deuble playing basketball and observed him using his cell phone at the times in which the undercover officer sent messages pretending to be the girl. Officers then detained Deuble and confiscated his phone. Officers sent another message and a notification appeared on Deuble’s phone, confirming that he was the individual communicating with the undercover officer. The trial court found sufficient probable cause for the detention, but the Ohio Court of Appeals reversed, finding that probable cause did not exist until after Deuble’s phone had been “searched.” The court held that Deuble had an expectation of privacy in his phone’s notification screen based on the Supreme Court’s holding in Riley v. California. The state of Ohio argues that such a finding is clearly erroneous and asks the court to clarify whether its holding in Riley requires a search warrant for officers to simply observe the notification screen of a locked phone.

Two other petitions involve the confrontation clause of the Sixth Amendment, which establishes the right to cross-examine adverse witnesses. Over the last couple of decades, the presence of nurses certified to collect sexual assault evidence and testify for the prosecution in court proceedings has increased dramatically. In Burke v. Washington, Ronald Burke was convicted of sexual assault based in part on testimony given by a sexual assault nurse examiner who presented statements she received from the victim during an examination. The victim was deceased at the time of trial and thus unavailable to testify. Burke was convicted by the jury, but the Washington Court of Appeals reversed, holding that the statements were testimonial and admitting them was an error. The Washington Supreme Court reversed again, this time holding that all but one of the statements were “nontestimonial” because the primary purpose of the interaction was to obtain medical care, although it acknowledged that jurisdictions have split on this issue. The only statement found to be testimonial was a statement identifying Burke as the assailant; however, because DNA evidence confirmed Burke’s identity, the admission of this statement was found to be harmless error. Burke seeks the court’s review, arguing that sexual assault nurse examiners are “adjuncts of law enforcement” and therefore admission of testimony regarding statements given by a victim during a forensic sexual assault examination violates the confrontation clause.

Finally, in Campbell v. United States, the justices are asked to consider the scope of the confrontation clause in the context of incentives given for accomplice testimony. Alston Campbell was convicted of drug offenses based in part on testimony of four alleged accomplices. The four accomplices signed plea bargains agreeing to give testimony in exchange for avoiding mandatory minimum sentences on related offenses. Campbell’s lawyer was not allowed to cross-examine the accomplices on the extent of the incentives they received to testify favorably for the government. Campbell argues that accomplices are rewarded for their assistance in more than 10,000 cases each year, and such a prohibition on cross-examination limits the ability of defendants to expose bias that could be determinative of guilt or innocence. He asks the justices for their review to clarify the extent of limitations a trial court can impose on cross-examination of accomplices.

These and other petitions of the week are below:

Sorenson v. Massachusetts
Issue: Whether the hallway area immediately adjacent to an apartment, in a private multi-family dwelling that is not open to the public, is part of the curtilage of the home for Fourth Amendment purposes.

Ohio v. Deuble
Issues: (1) Whether probable cause existed under the Fourth Amendment to detain a person suspected of soliciting sexual activity from a law enforcement officer posing as a minor through a social media application where the person’s identity is corroborated through the person’s actions. Here the suspect agreed to meet the law enforcement officer posing as a minor for sexual activity, and was the only person observed at the agreed meeting location using his cell phone as the law enforcement officer posing as the minor sent communications to the suspect through the social media application; and (2) whether a phone is searched for purposes of the Fourth Amendment where the phone’s content was not affirmatively accessed by law enforcement officers.

City of New York v. Frost
Issue: Whether, where a Section 1983 plaintiff alleges that his pretrial detention was influenced by fabricated evidence, and the existence of probable cause independent of the challenged evidence defeats his Fourth Amendment claim, he may still pursue a due process-based claim based on alleged use of the same challenged evidence in securing the same pretrial detention.

Campbell v. United States
Issues: (1) Whether a trial court violates a defendant’s rights under the Confrontation Clause by prohibiting cross-examination of accomplice witnesses about the sentencing benefits they hope to receive in exchange for their cooperation with the government; and (2) whether appellate courts should review violations of the Confrontation Clause de novo or for abuse of discretion.

Burke v. Washington
Issue: Whether the Confrontation Clause of the Sixth Amendment prohibits a Sexual Assault Nurse Examiner from testifying about statements made during a forensic examination by an adult sexual assault complainant who is unavailable to testify at trial and has not previously been subjected to cross-examination.

Recommended Citation: Mitchell Jagodinski, Fourth Amendment questions and Sixth Amendment questions, SCOTUSblog (Jul. 3, 2021, 8:25 PM),