In a possession with intent case, the general FRE 404(b) rule is that prior acts of drug trafficking are relevant to prove knowledge and intent. United States v. Mehrmanesh, 689 F.2d 822, 832 (9th Cir. 1982). But see United States v. Bell, 516 F.3d 432, 443-44 (6th Cir. 2008) (prior acts only admissible if part of the same modus operandi). It doesn’t even matter if the prior conviction involved a different kind of drug. In analyzing admissibility under FRE 404(b), the courts “look to the type of activity undertaken, rather than the precise identity of the drugs, as the relevant factor.” United States v. Vo, 413 F.3d 1010, 1018 (9th Cir. 2005).

Given the broad rule in favor of admissibility, it can be hard to win a 404(b) challenge in this context. However, recent cases out of the Eighth and Eleventh Circuits suggest that the issue of remoteness may provide a fertile ground for litigation. In United States v. Aldridge, the Eighth Circuit held that evidence of other drug trafficking acts is only admissible if it occurs within a 13-year window. United States v. Aldridge, 644 F.3d 705, 714 (8th Cir. 2011). In United States v. Sanders, the Eleventh Circuit declined to set a hard-and-fast rule, but held that a 22-year-old drug trafficking conviction was too remote to warrant admission under FRE 404(b). United States v. Sanders, No. 10-13667, 2012 WL 308540 at *14 (11th Cir. Feb. 2, 2012).

The Ninth Circuit has held that a 13-year-old conviction for drug trafficking is not too remote under FRE 404(b). United States v. Vo, 413 F.3d 1010, 1018 (9th Cir. 2005). However, given Aldridge and Sanders it would appear that prior offenses more than 13 years old should be ripe for exclusion, particularly if there are any relevant differences between the prior conviction and the current allegations.

–Rebecca Pennell

–Alison Guernsey

The O.J. Simpson juror questionnaire does not appear to be available on-line in its original format. However, available here are links to jury questionnaires that have been used in a wide variety of famous cases. There is a link to an O.J. questionnaire, but it is not clear whether it is an accurate copy of the original. In any event, review of past questionnaires may help in developing potential voir dire questions for the court, as well as drafting new questionnaires in appropriate cases.

Rebecca Pennell

The Court found this conclusion consistent with its Fourth Amendment jurisprudence, which until the latter half of the 20th century was tied to common-law trespass. Later cases, which have deviated from that exclusively property-based approach, have applied the analysis of Justice Harlan’s concurrence in Katz v. United States, 389 U. S. 347, which said that the Fourth Amendment protects a person’s “reasonable expectation of privacy,” id., at 360. The Court found that it need not address the Government’s contention that Jones had no “reasonable expectation of privacy,” because Jones’s Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, the Court found that it must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Kyllo v. United States, 533 U. S. 27, 34. The Court noted that Katz did not repudiate the understanding that the Fourth Amendment embodies a particular concern for government trespass upon the areas it enumerates. The Katz reasonable-expectation-of-privacy test has been added to, but not substituted for, the common-law trespassory test.

This decision may be important for several reasons. First, as a practical matter, it will at least lessen the frequency of the increasingly routine procedure of attaching GPS devices to vehicles suspected to be involved in criminal activity. Stepping back from the facts of this case, it also appears to loosen the constraints of a pure “reasonableness” analysis. In recent times, Fourth Amendment cases have been largely dependent on a determination of whether society found an “expectation of privacy” to be “reasonable.” Here, the Court clearly determines that this “reasonableness” inquiry is not solely determinative, by resuscitating the property-based approach.

While all justices voted to reverse the Court of Appeals decision upholding the search, the rationale was not unanimous. Both Justice Sotomayor and Justice Alito wrote concurring opinions (the latter joined by Justices Ginsburg, Breyer and Kagan). Justice Sotomayor noted that perhaps it was time to re-examine whether an individual had a reasonable expectation of privacy in information which was nevertheless disclosed to certain third parties. Nevertheles, Justice Sotomayor stated that they need not do so in this case, since the property interest had been infringed upon, as held by the majority opinion. Justice Alito went a step further, rejecting the majority’s property-based analysis, and found that this long-term GPS surveillance infringed upon the reasonable expectation of privacy.

At this point, it is not clear whether this decision will apply “retroactively” to cases on appeal for example, or even to searches conducted before this decision was announced. A similar retroactivity issue became a major contention in the wake of Arizona v. Gant, 556 U.S. 332 (2009). At this point, this issue should be raised whenever possible in order to preserve the claim for further review.

— Matt Campbell