The US Supreme Court [official website] heard oral arguments [day call, PDF] in two cases Thursday. In Chaidez v. United States [transcript, PDF; JURIST report] the court heard arguments to determine if Padilla v. Kentucky [JURIST report] applies retroactively to persons whose convictions became final before its announcement. Padilla held that the Sixth Amendment [text] guarantee of effective assistance of counsel requires a criminal defense lawyer to advise a non-citizen client that pleading guilty to an aggravated felony will trigger mandatory, automatic deportation. In this particular case, petitioner Roselva Chaidez's attorney's advice to take a plea deal resulted in her deportation. She contends had she known deportation was possible, she would not have taken his advice. The attorney for Chaidez argued that Padilla was just an application of the longstanding precedent in Strickland v. Washington [text] and thus the more than 10 contrary circuit court decisions that were issued before Padilla was announced are incorrect.
Well, let me—let me try to work with your hypothetical. I think what I hear your hypothetical to say is that prevailing norms change, and they evolve to a certain point where certain kinds of advice is required, which is much what this Court said in Padilla about—about deportation advice. You would have—you would not have a new rule to simply recognize that at the time that attorney gave advice, that—that Strickland was violated. It would be a new rule, I think, Justice Kennedy, to say that Strickland requires relief, even though at the time the advice was given the prevailing norm had not yet crystalized into the degree that this Court requires.The Solicitor General argued that the previous decision interpreted Strickland correctly and that Padilla created a new rule that could not be applied retroactively.
The court also heard arguments in Bailey v. United States [transcript; JURIST report] on whether police officers may lawfully detain individuals incident to a search warrant when those individuals have left the premises before the search warrant could be executed. Police detained Chunon Bailey a mile away from his home, incident to a search warrant of his home. Bailey claims his Fourth Amendment [text] rights were violated, with his attorney arguing, "[b]ecause individuals who have left the scene do not pose an immediate threat to the safe and efficient completion of the search, the court of appeals erred by permitting their detention absent probable cause or even individualized suspicion," citing Michigan v. Summers [text]. The Solicitor General denied this understanding of Summers: "So let me be very clear. In the government's view, Summers is about current and recent occupants, people whom police, when they are executing the warrant, find at the home or see leaving the home in the process of executing a warrant. And the question here is do the justifications apply equally as a departing occupant steps away from the home and onto a sidewalk, a yard, a couple blocks away. And I think my friend's answer to that has a wonderfully abstract quality to it that doesn't engage any of the realities on the ground. [...] The justifications for detention apply equally to departing occupants when they are seen by officers leaving in the process of executing the warrant. [...] [T]he government is not contending that other connections to the residence, other than that kind of observed connection by the officers, could justify a detention under Summers."