Editor’s Note: At the 2009 IACP Conference in Denver last month, one of the sessions that drew a standing room only crowd was the annual report of key developments in criminal law from the United States Supreme Court. The following is PoliceOne Columnist Ken Wallentine’s take on the top cases of the 2008-2009 term (Arizona v. Gant, Arizona v. Johnson, Ashcroft v. Iqbal, Herring v. United States, and others) as well as his overview of cases already accepted by the Supreme Court for decision in 2009-2010. Add your comments below.
Police legal advisors from across the nation gathered at the IACP Conference to learn from each other and compare notes on legal developments in law enforcement legal topics across the country. Several presenters discussed the case of Arizona v. Gant and its impact on the search incident to arrest doctrine. Legal officers joined with police physicians for a panel examining the safe use of electronic control devices. Carl Milazzo of the Federal Law Enforcement Training Center was joined by the DEA Training Academy’s Jayme Holcomb and the FBI’s Jonathan Rudd in a session exploring the search incident to arrest doctrine applied to cell phones and GPS devices in the post-Gant world. Elliot Spector, a fixture at the IACP updates on civil liability, presented the latest cases on racial profiling, false arrest, as well as search and seizure liability. The Americans for Effective Law Enforcement has graciously provided access to all of the presentations and papers from the 2009 Legal Officers Section meetings and posted them here.
An employment law update, including a discussion of the Supreme Court’s decision in the Connecticut firefighter promotional exam case of Ricci v. DiStephano, was presented by Orlando City Police advisors Jody Litchfield and Lee Ann Freeman. In that case, the Supreme Court ruled that the City of New Haven violated the Civil Rights Act by tossing out the results of a test where 18 Hispanic and white firefighters passed the promotional exam, but no black firefighters achieved a passing score. The city believed that the test had a disparate impact on black firefighters seeking promotion to lieutenant and captain positions. The case drew national attention because then-judge Sonia Sotomayor was on the appellate court panel affirming the city’s decision.
Cases decided in the 2008-2009 term
Arizona v. Johnson, 129 S.Ct. 781 (2009)
Johnson was the backseat passenger in a car stopped for a traffic violation. Johnson’s behavior and clothing prompted questioning. The officer learned that Johnson was from a town with a Crips gang and that he’d served prison time. The officer asked Johnson to get out of the car to question him further about his gang affiliation. The officer suspected that Johnson was armed and frisked him, feeling a gun. A further search revealed that he was holding marijuana. Johnson began to struggle, and the officer handcuffed him. Johnson was charged with possession of drugs and possession of a weapon by felon.
The Arizona Court of Appeals held that Johnson was lawfully seized during the encounter by virtue of being a passenger in a car that was lawfully stopped for an insurance violation. The Arizona court also held that the initial encounter between the officer and Johnson was voluntary. However, the court stated that once the officer began to question Johnson on a matter unrelated to the traffic stop, the frisk authority ceased, unless there was independent reasonable suspicion that Johnson had committed a crime.
In Terry v. Ohio, 391 U.S. 1 (1968), the Supreme Court ruled that an officer may conduct a frisk when two conditions are present. First, the investigatory stop must be lawful, based on reasonable suspicion that the person detained is committing, is about to commit, or has committed, a crime. Second, to progress from a stop to a frisk, the officer must reasonably suspect that the person stopped is armed and dangerous. Two years ago, in Brendlin v. California, 551 U.S. 249 (2007), the Supreme Court held that a traffic stop constitutes a seizure of a vehicle’s passengers as well as the driver. The temporary seizure of the vehicle occupants normally remains reasonable for the duration of the stop. The Court held that Johnson remained lawfully seized for the duration of the traffic stop. Thus, the first requirement of the Terry v. Ohio frisk rule was satisfied. Because there was also reasonable suspicion that Johnson was armed, the frisk was proper.
Arizona v. Johnson also answered another vital question for street cops. Four years ago, in Muehler v. Mena, 544 U.S. 93 (2005), the Supreme Court held that mere police questioning on a topic unrelated to the initial reason for an otherwise lawful investigatory detention does not create a further seizure requiring a further legal basis. Muehler was a case of a detention during a search warrant execution at a home. Many courts subsequently applied its reasoning to questioning at traffic stops. Some ruled that an officer’s questioning must be strictly limited to the purpose of the traffic stop; others disagreed. A unanimous Supreme Court has now resolved this important question. The Court held: “An officer’s inquiries into matters unrelated to the justification for the traffic stop, this Court has made plain, do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.”
Arizona v. Gant, 129 S.Ct. 1710 (2009)
The United States Supreme Court restricted the search incident to arrest doctrine, rejecting a broad reading of New York v. Belton, 453 U.S. 454 (1981). In Arizona v. Gant, the Court overturned the search incident to arrest of Rodney Gant’s car after Gant was arrested for driving with a suspended license, handcuffed and secured in the back of a patrol car with several officers at the scene. Officers found cocaine in Gant’s car during the search incident to the driver license arrest.
The Court held that a search of the passenger compartment of a vehicle following an arrest is allowed “only if [1] the arrestee is within reaching distance of the passenger compartment at the time of the search or [2] it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.”
In Chimel v. California, 395 U. S. 752 (1969), the Supreme Court approved a search incident to arrest of the “lunge area” on two theories. First, the suspect could reach a weapon and endanger the officer. Second, the suspect could grab and destroy evidence. Once the suspect is handcuffed and moved away from the vehicle, the suspect’s ability to reach evidence or a weapon is eliminated, or at least significantly reduced. Thus, no search incident to arrest is permissible under the rationale that the suspect can destroy evidence or reach a weapon. One of the practical dangers of the decision in Arizona v. Gant is that some officers may conclude that there is a practical balancing act, a tactical trade off. Leave the suspect unsecured, unhandcuffed, and near the car, and there remains the possibility that that suspect would lunge toward a weapon and thus, the legal justification for the search remains. The legal justification may come at the cost of a significant risk to the officers’ safety.
Five years ago, in Thornton v. United States, 541 U. S. 615 (2004), the Court recognized that a search of a vehicle incident to the arrest of a recent occupant may be also justified “when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” The Gant decision also leaves this holding intact. Because Gant and the other two suspects were in custody, handcuffed and secured in separate police cars, the Court refused to apply the Chimel lunge or reaching justification to the case. And because Gant was arrested for a driver license violation, the Thornton evidentiary search holding would not apply. It was not reasonable to believe that the vehicle held evidence of Gant’s suspended driver license status.
Gant holds that once the arrestee is secured, a search incident to arrest of the vehicle is lawful only when there is reason to believe that the vehicle holds evidence of the underlying crime on which the arrest is based. Gant does not foreclose other search doctrines that may apply to particular cases. Fourth Amendment warrant clause exceptions of consent, probation/parole search, exigent circumstances, vehicle “frisk” for weapons upon appropriate reasonable suspicion, inventory and community caretaking, continue to potentially apply.
Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009)
This case offers substantial protection to officers and supervisors facing claims of discriminatory law enforcement. In the months following the September 11, 2009, the FBI and other law enforcement agencies received over 90,000 tips regarding the September 11 terrorist attacks. The usual — and some of the not-so-usual — suspects were rounded up. One such suspect was Javaid Iqbal, a New York cable television installer. Iqbal was incarcerated in the Metropolitan Detention Center in Brooklyn, New York, in the Administrative Maximum Special Housing Unit. Iqbal claimed that he was beaten and called names. He was convicted of fraudulently using another person’s Social Security card and number and was deported to Pakistan. He sued a number of law enforcement officials, including FBI Director Robert Mueller and former United States Attorney General John Ashcroft. He claimed that Mueller and Ashcroft personally condoned his incarceration and incarceration of others based on their religious affiliation and ethnic origin.
A slender 5-4 majority held that the complaint failed to plead sufficient facts to state a claim for purposeful and unlawful discrimination. The Court has previously ruled that the theories of respondeat superior and vicarious liability cannot be employed to impose liability under Section 1983 or a Bivens action on a command or policy level official for the acts of their subordinates. Ashcroft v. Iqbal extends protection to law enforcement supervisors accused of acquiescing in discriminatory conduct by requiring plaintiffs to show the supervisors’ discriminatory purpose, and in use of force cases by requiring plaintiffs to show that the supervisors knew of and acquiesced in the use of force, and had a sadistic purpose in their actions.
Herring v. United States, 129 S.Ct. 695 (2009)
Herring went to the Coffee County Sheriff’s impound yard to check on one of his vehicles that had been impounded. As he was leaving, a deputy saw Herring, recognized him, and checked for an arrest warrant. When the deputy found no warrant in Coffee County, he asked a clerk to telephone the neighboring Dale County Sheriff and check for warrants. The Dale County Sheriff’s clerk stated that there was an arrest warrant for Herring. The deputy stopped Herring, arrested him, searched him, and found a handgun and some methamphetamine. However, within 10 to 15 minutes of the call to the Dale County Sheriff, the clerk called back and said that the warrant had been recalled and was not valid. Due to negligent record-keeping by the court clerk, the warrant was “active” in the computer database.
Herring asked to have the gun and drug evidence suppressed. The Court of Appeals refused, holding that the good faith exception to the Fourth Amendment exclusionary rule should apply. Herring appealed to the United States Supreme Court, which upheld the court of appeals’ decision. For the first time ever, the Supreme Court extended the good faith exception to the exclusionary rule for constitutional violations arising from an officer’s error and not merely a court worker’s mistake. This decision follows on the 2006 ruling in Hudson v. Michigan, 547 U.S. 586 (2006), in which the Supreme Court refused to apply the exclusionary rule as a sanction for a violation of the knock and announce rule in search warrant execution. The Court noted, exclusion “has always been our last resort, not our first impulse.”
The Court focused on the flagrancy of the error, whether suppression was likely to determine future errors of a similar nature, and whether exclusion of the evidence outweighs the harm to justice incurred when a guilty person goes free. In applying the good faith exception to Herring’s situation, the Court emphasized that it “did not find the record-keeping error to be reckless or deliberate.” Though the Court also left open the possibility that not all police record keeping errors are covered by the good faith exception to the exclusionary rule, it directed lower courts to consider whether such errors are systemic, or whether police have recklessly or intentionally entered false information into a database. The Court was sharply divided, with four justices agreeing that exclusion of evidence is the proper remedy for negligent errors in police record-keeping. The decision seems to signal that the Court wants to see the Exclusionary Rule applied for its original purpose: to deter police misconduct.
Kansas v. Ventris, 129 S.Ct. 1841 (2009)
Donnie Ray Ventris and his girlfriend confronted Hicks at Hicks’s home. Polite conversation went downhill and Hicks was shot and killed. Ventris and the girlfriend took a bunch of his stuff. When arrested, Ventris and his girlfriend each claimed that the other did the shooting. One has to wonder whether the relationship lasted!
While in prison awaiting trial, Ventris shared a cell with Doser, a probation violator who had been specifically recruited by the police to listen for any incriminating information from Ventris. In exchange for this information, the prosecution offered to release Doser from probation and spare him the possibility of serving additional prison time. Doser subsequently told police that Ventris privately admitted to being the one who shot Hicks and took his possessions.
At trial, Ventris took the stand and testified that it was his girlfriend who drew the gun and shot Hicks. The prosecution called Doser to testify about Ventris’s alleged jailhouse confession. Ventris objected to this testimony on the ground that the police had violated his Sixth Amendment rights because Doser, acting as an undercover informant, had effectively interrogated him in the absence of his counsel and without a knowing and voluntary waiver of his Sixth Amendment rights. The prosecution conceded that Ventris’s Sixth Amendment rights had been violated, but it argued that the testimony should nonetheless be admissible for purposes of impeachment that is, to contradict Ventris’s own testimony and thereby call his truthfulness into question. Ventris was ultimately convicted of aggravated robbery and aggravated battery.
The Court held that any benefits from exclusion in these circumstances are greatly outweighed by its costs. The costs of exclusion are substantial, as it would offer a shield to defendants who take the stand at trial and then commit perjury. The marginal deterrence achieved through exclusion, on the other hand, would be small, since the prosecution is already significantly deterred when these uncounseled statements are barred from its case in chief.
Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009)
This case may well have the biggest financial impact in many years on the cost of policing and prosecution. Boston police officers arrested Luis Melendez-Diaz as he sold cocaine sale in a K-Mart parking lot. One wonders whether the police considered the case to be a blue light special. At trial, bags of the cocaine allegedly sold by Melendez-Diaz were introduced into evidence along with the drug analysis certificates from a state lab technician who analyzed the drugs and identified them as cocaine. The jury convicted Melendez-Diaz of distributing cocaine.
Melendez-Diaz argued on appeal that the prosecution’s introduction of the drug analysis certificates violated his Sixth Amendment confrontation right under Crawford v. Washington. After Crawford, a defendant has the right to demand that either a hearsay declarant testify or that the prosecution show that the declarant is unavailable and that the defendant had a prior opportunity for cross examination.
Prior to the Court’s decision in this case, 44 states and the District of Columbia allowed the prosecution to introduce laboratory technicians’ certificates to identify illicit drugs. In the first few years after Crawford v. Washington, the Court denied certiorari in cases seeking to challenge the admission of such certificates as “testimonial.” Dozens of states, and many national organizations, filed amicus briefs supporting the State of Massachusetts.
Massachusetts argued that the Confrontation Clause was traditionally applied to statements made to police by eyewitnesses to a crime, and not peripheral witnesses such as forensic technicians. The state urged the Court to examine the character of lab reports at being consistent with the sort of public records that fit an accepted exception to the hearsay prohibition. Melendez-Diaz countered that the reports are prepared expressly for the purpose of aiding a criminal prosecution, and therefore lack the objective character of other public records.
The Court held that the lab technicians’ affidavits are testimonial and are subject to the Court’s holding in Crawford v. Washington. Massachusetts had also argued that the defense was free to call the lab technician and the Court rejected that claim. Only four days after issuing the opinion in Melendez-Diaz, the Court granted certiorari in Commonwealth v. Magruder, 657 S.E.2d 113, cert. granted sub nom Briscoe v. Virginia, No. 07 1191 (June 29, 2009) and will squarely address the question of “If a State allows a prosecutor to introduce a certificate of forensic laboratory analysis, without presenting the testimony of the analyst who prepared the certificate, does the State avoid violating the Confrontation Clause of the Sixth Amendment by providing that the accused has a right to call the analyst as his own witness?”
The Court stated that “the sky will not fall” after its ruling. Perhaps not, but the day-to-day business of prosecuting alcohol and drug offenses will become far more complicated. Though this decision significantly impacts the prosecution burden, it may well be that a middle ground will be found in most cases. An effective defense attorney recognizes the value in stipulating to chemical testing when there is no advantage to be gained. Most technicians are excellent witnesses and their testimony generally scores points only for the prosecution. Defense attorneys may also exercise caution in irritating judges, juries and even prosecutors with unnecessary demands that the laboratory staff testify. On the other hand, there are often advantages in cross examining even the best witness in a close case.
Some states already have notice statutes applying to laboratory tests. The Court observed that these “notice-and-demand statutes require the prosecution to provide notice to the defendant of its intent to use an analyst’s report as evidence at trial, after which the defendant is given a period of time in which he may object to the admission of the evidence absent the analyst’s appearance live at trial.” Because these statutes do not shift the burden, they are constitutional.
Melendez-Diaz is certain to generate legislative action and additional litigation. One immediate question is whether the calibration affidavits used to certify breath alcohol testing devices and the calibration affidavits for other laboratory equipment will fall under the shadow of Crawford and Melendez-Diaz.
Pearson v. Callahan, 129 S.Ct. 808 (2009)
Though not a widely-heralded case from this year, this case is a great win for attorneys who defend police officers in civil rights lawsuits. A confidential informant told officers that he could buy methamphetamine from Afton Callahan. The CI went to Callahan’s home and Callahan invited him into the home. After seeing methamphetamine, the CI gave a pre arranged signal and officers entered the home. They had neither an arrest warrant nor a search warrant. During the entry, an officer saw Callahan drop what was later identified as a bag of methamphetamine. During the criminal appeal, the prosecution conceded the lack of warrant and the lack of exigent circumstances for the entry. Callahan prevailed and the Utah Court of Appeals reversed his conviction. Callahan then sued for damages in federal court. The Court of Appeals for the Tenth Circuit found that the “consent once removed” doctrine was not applicable when the person entering by consent is not a police officer. The Court of Appeals ruled that the officers violated Callahan’s civil rights, and that they were not entitled to qualified immunity because they should have known that they were violating Callahan’s rights.
The Supreme Court reversed the Court of Appeals and held that the officers were entitled to qualified immunity from suit. However, the critical holding in the Supreme Court decision does not resolve the issue of “consent once removed.” Though the officers are victorious in the litigation, the real value of this case is that the Court took the opportunity to revise the rule of Saucier v. Katz, 533 U.S. 194 (2001). Saucier imposed an analytical model that required a court deciding the issue of qualified immunity for officers to first decide whether the facts alleged by a plaintiff actually rose to the level of a constitutional violation, and then decide whether the constitutional right allegedly violated was “clearly established” at the time of the violation. Many lower courts had criticized the rigid analytical approach, arguing that some cases could be resolved by more expedient means. The true benefit of this decision is to allow federal courts more flexibility in dealing with civil rights cases and ultimately to save litigation costs and headaches.
Cases to be decided in this term
Carr v. United States, No. 08-1301
Thomas Carr plead guilty to sexual abuse in 2004. Two years later, Congress passed the Sex Offender Notification Act, requiring all states to provide a public web site with photographs and information about registered sex offenders. Upon Carr’s release from prison, he was required to register as a sex offender. He moved from Alabama to Indiana and was arrested in 2007. Carr was charged with failing to register as a sex offender upon his move to Indiana, in violation of the 2006 federal law. He claimed that the ex post facto doctrine prohibited his prosecution on a law that did not exist when he was originally convicted as a sex offender. The Court of Appeals for the Seventh Circuit rejected Carr’s claim. Other federal appellate courts have reached differing results on the application of the sex offender registration statute to persons convicted of sex crimes prior to its passage.
The high court will also consider another sex offender appeal in United States v. Comstock, in which the Court will determine the constitutionality of keeping a dangerous sex offender incarcerated after the completion of a prison sentence for the underlying crimes.
Berghuis v. Smith, No. 08-1402
This case will revisit the concept of racial proportionality in the jury pool. Diapolis Smith was convicted of murder by an all-white jury. He claimed that the jury pool in Michigan had too few blacks. Black prospective jurors were often excused for work, transportation and child care issues. The Sixth Circuit Court of Appeals held in Smith’s favor, ruling that the statistical analysis showed systemic exclusion of blacks in the jury pool. The Supreme Court will decide whether Smith’s conviction should be tossed on those grounds.
Berghuis v. Thompkins, No. 08 1470
Van Chester Thompkins was convicted of a 2001 murder. Shortly after his arrest, officers provided a Miranda warning. Thompkins said that he understood his rights. However, he did not offer an explicit waiver of his rights. During the interrogation, Thompkins occasionally nodded his head, made eye contact with the officers and answered some questions verbally. An officer asked him if he “prayed for forgiveness for shooting that boy down” and Thompkins clearly said “yes.” Thompkins claimed that his less-than-open communications with the officers should have lead them to understand that he did not wish to waive his Miranda rights. The Sixth Circuit Court of Appeals tossed out his confession. The Michigan Attorney General argues that, “Neither Miranda or its progeny prohibit interaction between an officer and a defendant after warnings have been given and acknowledged but before the invocation of rights.”
Florida v. Powell, No. 08-1175
Kevin Powell was arrested and taken to the police station for interrogation. The officers told him that he had a right to consult an attorney before questioning. However, the form of the Miranda warning given did not include a statement that he had the right to have an attorney present during questioning. The trial court found that was not a sufficient breach of the Miranda rule to trigger exclusion of his admissions. The Florida Court of Appeals and Florida Supreme Court disagreed, reversing his conviction. The United State Supreme Court will now decide whether the flawed warning was fatal to a valid interrogation.
McDonald v. Chicago, No. 08-1521
Nearly two centuries passed before the Supreme Court decided a landmark case under the Second Amendment. Following on the heels of District of Columbia v. Heller, which held that the right to bear arms is a personal right, this appeal asks the Supreme Court to determine that the City of Chicago’s ban on handguns, as well as certain other restrictions on long guns, are unconstitutional. The theory relied upon by the plaintiff is that the Selective Incorporation doctrine of the Fourteenth Amendment’s Due Process Clause forces the City of Chicago to recognize that personal handgun ownership is an individual constitutional right. The case is certain to generate substantial interest among law professors and constitutional scholars because the petition also asks the Supreme Court to entirely overrule the Slaughter-House Cases. These were a series of three cases decided just after the Civil War that the Fourteenth Amendment did not requirer application of fundamental civil rights to the various states’ (and local) governments. If the Slaughter-House Cases are overturned, it likely means that the right to a jury in a civil case and the right to a grand jury in a criminal case will automatically be binding upon state governments. Thus, the irony of the case is that conservative gun rights advocates are pressing an issue that stands to advance a cause promoted for many years by civil libertarians often associated with more liberal causes.
Supreme Court resource sites:
• www.oyez.org
• www.scotuswiki.com
• www.supremecourtus.gov
• www.kenwallentine.com/xiphos
