SCOTUS Today: Two Defense Losses

After two defense wins yesterday, we get two losses this morning.

In Oregon v. Ice, the Court held 5-4 that it does not violate the Sixth Amendment for a judge to impose consecutive sentences based on facts that were not found by the jury. (Under Oregon law sentences are to be served concurrently unless there is a finding that the offenses did not arise out of the same course of conduct and resulted in separate harms.) Justice Ginsburg states for the majority that Apprendi v. New Jersey and its progeny is limited to sentencing for single crimes. Justice Scalia, who has turned out to be the strongest champion of the proposition that jury must find all facts (other than a prior conviction) which increase a sentence, dissented.

In Herring v. United States, another 5-4 decision, the Court held that the exclusionary rule does not apply when police obtain evidence while relying on erroneous information supplied by another police officer. Here, the defendant was arrested on a report of a warrant which had, in fact, been recalled months earlier. Naturally, the police found guns and drugs during the search incident to arrest. Chief Justice Roberts wrote the majority opinion. Justices Ginsburg and Breyer wrote dissenting opinions.

Herring should be of no consequence in state court practice as Idaho, thankfully, does not have a good-faith exception to its state constitutional exclusionary rule. State v. Guzman.