Federal Criminal Attorney Hope Lefeber Comments on Supreme Court Decisions Affecting Fourth and Fifth Amendment Rights

In its recent decision, Kaley v. United States, 134 S. Ct. 1090 (2014), the United States Supreme Court has eliminated a criminal defendant's right to have a hearing to contest the issue of whether probable cause exists to believe that the defendant committed the crimes charged at a pretrial hearing to contest the legality of the government's asset seizure under 21 U.S. §853(e)(1). Under Fernandez, the trial court may only hold a hearing to determine whether there is probable cause that the assets are traceable to the charged offense. In Kaley, according to court documents, the defendants sought to vacate an order freezing their assets pretrial, so that they could use the funds to hire a lawyer. The Supreme Court held that they did not have a constitutional right to challenge the issue of probable cause that they committed the crimes. In Ms. Lefeber's opinion, this decision represents a nail in the coffin for the ability of defendants to fight the pretrial restraint of assets by the government. Although the Supreme Court, in Kaley, left open the possibility of a pretrial hearing to determine whether the assets are traceable to the criminal activity charged in the Indictment, in Ms. Lefeber's opinion, trial courts will be reluctant to release seized assets pretrial, because the laws of forfeiture are so broad. In Fernandez v. California, 134 S. Ct. 1126 (2014), the United States Supreme Court held that although police may generally search a jointly occupied premises if one of the occupants consents, there is a narrow exception where consent of one occupant is insufficient if another occupant is present and objects to the search. Georgia v. Randolph, 547 U.S. 103 (2006). However, the Supreme Court, in Fernandez, held that Randolph does not apply where the objecting occupant is not present when another occupant consents, even if his absence is caused by his arrest after objecting to the search. Ms. Lefeber states that this decision further erodes the defendant's rights under the Fourth Amendment, as the police can simply remove an objecting defendant by arresting him or her and then proceed to obtain the consent of an unwary occupant who is unaware of the defendant's objection.