The case is an appeal filed by the State of Utah from a Utah Supreme Court decision early last year that four Brigham City police officers violated the Fourth Amendment's prohibition against unreasonable search and seizure by entering a home to break up a fight.

The police, who went to the home in response to a neighbor's complaint about a loud party, did not have a warrant and did not announce their presence before walking through an open back door. They arrested three occupants for disorderly conduct, intoxication and contributing to the delinquency of a minor by allowing a teenager to drink.

The Utah trial court, appeals court and Supreme Court all ruled that the evidence of alcohol consumption could not be introduced at trial because of the illegal police entry.

Supreme Court precedents have established numerous exceptions to the Fourth Amendment's warrant requirement. Two are at issue in this case, Brigham City v. Stuart, No. 05-502. One is an exception for "exigent circumstances," in which split-second judgments must be made by the police to prevent, for example, the destruction of evidence. The other is an "emergency aid" exception, in which the police are permitted to act immediately to prevent injury or to assist an injured person.

The Utah courts held that the circumstances of this case did not justify invoking either of the exceptions. The garden-variety altercation, visible to the police through a window, did not amount to an "exigent circumstance," the Utah Supreme Court said. It also said the police could not claim the "emergency aid" exception because they did not enter the home for the purpose of providing medical assistance.

In the state's appeal, Utah's attorney general, Mark L. Shurtleff, is arguing that the "subjective motivations of police officers" are irrelevant as long as the entry was "objectively reasonable." State courts are divided on how to apply either of the exceptions, the state's brief said.

The justices granted six new cases for argument in April and decision before the current term ends in early summer. There was no word on the most closely watched case from among the several hundred available for the justices' action at their Friday morning conference: the Bush administration's appeal from a decision by the federal appeals court in St. Louis that declared unconstitutional the federal ban on so-called partial birth abortions.

Accepting a Justice Department appeal, the court agreed to decide whether a conviction should automatically be overturned if a defendant has been denied representation by the lawyer of his choice.

In this case, a defendant facing trial in federal district court in St. Louis on charges of conspiring to distribute marijuana wanted a lawyer from California, who had a good track record of representing federal drug defendants, to represent him.

But the lawyer, Joseph Low, was not admitted to practice before the district court, necessitating the judge's permission for him to proceed with the case. The judge denied permission, and the defendant, Cuauhtemoc Gonzalez-Lopez, was represented by a less experienced local lawyer. He was convicted and sentenced to 24 years in prison.

On appeal, the United States Court of Appeals for the Eighth Circuit said the defendant had been deprived of his "fundamental" constitutional right to a lawyer of his choice, a denial that it said "infects the entire trial process" and required automatic reversal of his conviction.

The government's appeal, United States v. Gonzalez-Lopez, No. 05-352, argues that "rules of automatic reversal are highly disfavored and should be reserved for only the most egregious constitutional errors." To win a new trial, the government maintains, a defendant who has been deprived of the lawyer of his choice should be required to show that the "counsel of choice might well have made a difference to the outcome."

The court also agreed to decide whether parents who successfully sue a public school system's special-education plan for their disabled child are entitled to be reimbursed for the money they spent on expert witnesses. The lower federal courts are in dispute on this question.

The Individuals with Disabilities Education Act, the federal law that entitles children with disabilities to a "free appropriate public education," authorizes courts to order school systems to reimburse parents for their legal fees incurred in bringing a successful challenge to a proposed education plan, but does not mention expert witness fees.

In this case, Arlington Central School District v. Murphy, No. 05-18, the federal appeals court in New York found that expert fees were implicitly covered.

Source: New York Times (NY)
Author: Linda Greenhouse
Published: January 7, 2006
Copyright: 2006 The New York Times Company
Contact: letters@nytimes.com
Website: http://www.nytimes.com/

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• New Device Will Sense Through Concrete Walls

Jeez, it just occured to me(!) that I ought to have told the alarm company to call off the dogs immediately. Guess I wasn't sure if there was a fire or not at the time. Then I got to go through the grinder. Ironically, my community service turned out to be 'cutting grass' on 4/20 and 21...if there is a god, it has a since of humor.

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In other words, it's not enough to say the state forced a crappy lawyer on you over your objection, you have to prove the lawyer they forced on you was crappy.

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