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Criminal Justice Magazine
Spring 2004
Volume 19 Number 1

Cert Alert

Mid-Term Report

Paul M. Rashkind

Paul M. Rashkind is a supervisory assistant federal public defender and chief of appeals for the Office of the Federal Public Defender, Southern District of Florida, in Miami. He also serves on the adjunct faculty of the University of Miami School of Law. He is the Section's vice-chair for publications, chair of the Book Committee, and a contributing editor to Criminal Justice magazine.

The Supreme Court punctuated two, month-long mid-Term recesses with five decisions and 10 new grants of certiorari. Three Fourth Amendment cases were decided, upholding arrests of automobile occupants after a traffic stop (Pringle) and at a crime checkpoint (Lidster), and of an apartment resident who failed to answer his door quickly enough (Banks). A fourth case will review government kidnapping of suspects in foreign countries for trial in the United States (Sosa).

The application of the exclusionary rule to denial of the right to counsel was reiterated and explained (Fellers). Added to the docket is the right to counsel for enemy combatants (Hamdi) and criminal defendants pursuing direct appeals after guilty pleas (Kowalski). Also added to the Court's pending issues is the burden a federal defendant must meet to demonstrate reversible plain error after a guilty plea (Dominguez Benitez). For defendants electing a trial over a plea, the Court agreed to decide the requisite burden for Batson challenges to peremptory juror strikes (Johnson).

Two death penalty cases joined the docket: Does the Eighth Amendment bar execution of juveniles (Roper)? And, should Ring v. Arizona (applying Apprendi in death penalty cases) be applied retroactively (Shriro)?

The Court decided one habeas corpus issue and granted review in three others. It prohibited federal courts from recharacterizing the postconviction pleadings of pro se defendants without first advising the litigant of potential adverse consequences flowing from doing so (Castro). On a similar note, the Court agreed to decide if a section 1983 claim can be recharacterized as a habeas corpus petition when that action is detrimental to the litigant (Nelson). Also under consideration is whether a mixed habeas petition should be dismissed or merely stayed pending further efforts to exhaust state remedies (Pliler); and whether illegal aliens may be detained indefinitely after serving their criminal sentences (Wallis).

Search & Seizure

Probable cause to arrest. Maryland v. Pringle, 124 S. Ct. 795 (2003). Police made a traffic stop, asking the driver/owner to produce the vehicle registration. When he opened the glove compartment to get the registration, police saw a large amount of rolled up money inside. Pringle was a front-seat passenger in the car, which was also occupied by a rear-seat passenger. Police checked on the registration, but found nothing amiss. They then asked all three occupants to get out of the vehicle, patted them down, and got the driver's consent to search the car. They found the money in the glove compartment and drugs hidden behind a rear armrest. There was no odor of drugs or other indicia of drug activity. Neither Pringle nor the other occupants admitted ownership of the drugs. They were all arrested. A couple of hours later, following a waiver of Miranda rights, Pringle admitted the cocaine belonged to him, and exonerated the other occupants, who were then released. The Maryland Supreme Court reversed Pringle's eventual conviction, finding there was no probable cause to support the arrest that led to his confession and conviction. The U.S. Supreme Court reversed, holding that police had probable cause to arrest a front-seat passenger when all three occupants were in a relatively small vehicle, the cash and five plastic baggies of cocaine were in close proximity to Pringle, and, upon questioning, none of the occupants gave information about its ownership. Under the "fluid concept" of probable cause, it was reasonable for the officers to conclude that Pringle was solely or jointly in possession of the drugs.

Roadblocks vs. checkpoints. Illinois v. Lidster, 124 S. Ct. 885 (2003). Chicago police set up a checkpoint a week after a fatal hit-and-run accident at the location of the accident and at the same time of day, hoping to find witnesses or information about the crime. Each car was stopped for 15-20 seconds as police handed out flyers and asked motorists if they were in the area when the accident occurred. Motorists were not asked their names and their vehicles were not searched. As Lidster approached the checkpoint, he nearly hit an officer with his vehicle. He was arrested for DUI after showing other signs of intoxication, and was eventually convicted of DUI. He challenged his conviction as the product of an unconstitutional roadblock and arrest. The Illinois Supreme Court agreed, reversing his conviction. Illinois sought certiorari, backed by 14 other states as amici, claiming that the checkpoint was reasonable and an invaluable tool to law enforcement. The U.S. Supreme Court reversed, holding that a checkpoint to collect tips-an informational checkpoint-is reasonable and does not violate the Fourth Amendment, as opposed to a roadblock to detect crime, which does violate the Fourth Amendment. (See Indiana v. Edmond, 531 U.S. 32 (2000) (limiting checkpoint roadblocks without specific cause).)

Knock and announce. United States v. Banks, 124 S. Ct. 521 (2003). Police had reason to believe Banks was selling cocaine from his two-bedroom apartment. They obtained a search warrant and attempted to execute it by knocking on the apartment door only once and announcing their presence. There was no denial of admission and police did not know if anyone was at home. Police waited only 15-20 seconds before making a forced entry. Upon entry, they found Banks, dripping wet, claiming he had been in the shower and that he heard nothing until the police entered. The Ninth Circuit held that this was an inadequate compliance with the knock-and-announce law, 18 U.S.C. § 3109, since the brief wait was not a reasonable amount of time. It created a multipart bright line test, and, based on that test, held that the delay before forced entry was inadequate. The Supreme Court reversed, rejecting the bright line test and following the traditional totality of circumstances test. The Court called this a "close case" and rejected the government's position that the need to damage property should not be part of the analysis of whether the entry itself was reasonable. But it found the entry reasonable, since it is reasonable that police perceived Banks might destroy the drugs if they waited any longer. The Court also found that the entry satisfied section 3109, which permits entry by force "if, after notice of his authority and purpose, [an officer] is refused admittance." Because section 3109 implicates the exceptions to the common law knock-and-announce requirement that inform the Fourth Amendment itself, section 3109 is also subject to an exigent circumstances exception, which qualifies the requirement of refusal after notice, just as it qualifies the obligation to announce in the first place.

o Covert kidnaping of suspects from foreign countries. Sosa v. Alvarez-Machain and United States v. Alvarez-Machain, 124 S. Ct. 821, cert. granted, Dec. 1, 2003; (consolidated); decision below 331 F.3d 604 (9th Cir. 2003). The U.S. government hired Mexican bounty hunters to kidnap a doctor suspected of aiding the 1985 torture and interrogation of a kidnapped DEA agent. Mexican authorities would not assist in a legal extradition. The bounty hunters took the doctor from his hotel in Mexico to the airport to be taken to the United States. A federal judge found insufficient evidence of the doctor's guilt and he was freed in 1992. He then sued the U.S. government and obtained a judgment for $25,000, which was affirmed in the case below, holding that federal law allows lawsuits for alleged violation of international law or treaties. The Supreme Court granted certiorari to decide if federal agents can conduct covert foreign kidnappings of criminal suspects, and, if not, whether damages may be assessed against the government in a case of this type.

Right to Counsel

Exclusionary rule: Sixth Amendment vs. Miranda violations. Fellers v. United States, 124 S. Ct. 1019 (2004). The defendant was arrested at his home pursuant to an arrest warrant following a federal indictment. Before being advised of his rights he made incriminating statements in response to comments by police that he had been indicted and they were there to discuss both the amphetamine indictment in which he was charged and his association with other suspects. He was later Mirandized at the police station and reiterated his admissions. The Eighth Circuit, while acknowledging that the defendant's incriminating statements made in response to questioning at the time of the arrest must be suppressed, held that subsequent confirming statements, made after the defendant received Miranda warnings at the police station, did not have to be suppressed. The Eighth Circuit concluded that even though the defendant, "responded by stating that he had associated with the named persons and that he used amphetamine," the police conduct did not amount to "a post-indictment interview" with the defendant (in violation of his Sixth Amendment right to counsel) and that the second (Mirandized) statement, reiterating these inculpatory admissions, was voluntary. The Supreme Court reversed, holding that the court of appeals erred by using an absence of interrogation to foreclose Fellers's claim. Under the Sixth Amendment, "deliberate elicitation" is the proper standard, not whether there was "interrogation." Here the officers deliberately elicited a response by Fellers after he had been indicted, outside of his counsel's presence, and without any waiver of Sixth Amendment rights. This violates Massiah v. United States, 377 U.S. 201, 206 (1964). As a result, the correct exclusionary rule analysis is under Massiah, not Oregon v. Elstad, 470 U.S. 298 (1985). This is an important distinction because Massiah's approach excludes fruit of the poisonous tree, while Elstad is more government-friendly, permitting statements that are knowing and voluntary, even if they are poisonous fruits; the Supreme Court has yet to allow Elstad to be applied in the context of Massiah violations. The Court left open the analysis of the statements made later at the police station, remanding the question of whether the Mirandized statements should also be suppressed.

o Enemy combatant's relief in federal courts. Hamdi v. Rumsfeld, 124 S. Ct. 981, cert. granted, Jan. 9, 2004; decision below at 316 F.3d 450 (4th Cir. 2003). Hamdi, an American citizen, is detained at the Norfolk Naval Brig as a result of the hostilities in Afghanistan. He has been given no access to counsel. His father petitioned for relief and the district court granted Hamdi the right to counsel and to an opportunity to consult with counsel in private. The government appealed and the Fourth Circuit reversed the order, holding, that: (1) the detention was authorized by Congress; (2) the detainee did not have right under the Geneva Convention to a formal hearing to determine his status as enemy belligerent; (3) the district court's order impermissibly conflicted with constitutional war-making powers of the president and Congress; and (4) the government's affidavit was sufficient to establish that the detention conformed with the legitimate exercise of the president's war powers. The Supreme Court granted certiorari review.

o Right to counsel in discretionary appeals. Kowalski v. Tesmer, 124 S. Ct. 1144, cert. granted, Jan. 20, 2004; decision below at 333 F.3d 683 (6th Cir. 2003) (en banc). Michigan passed a state constitutional amendment and statute denying a first appeal of right to criminal defendants who plead guilty, nolo contendere, or guilty but mentally ill. Those defendants only receive discretionary appellate review. Following this scheme, Michigan judges denied appointed appellate counsel for such cases. The defendants and their court-appointed counsel brought a federal section 1983 action to challenge the law as unconstitutional, after the state supreme court upheld the law. Although the federal courts abstained from hearing the defendant's claims, under Younger v. Harris, 401 U.S. 669 (1971), they granted standing to the plaintiff lawyers, who are members of the court-appointed panel. After a panel of the court of appeals found the law constitutional, the en banc Sixth Circuit held it unconstitutional and affirmed an injunction against the named state judges who refused to appoint counsel for such defendants. The Supreme Court granted certiorari in a case that involves both the standing of lawyers to sue in this circumstance, and the right of criminal defendants to court-appointed appellate counsel for a first appeal that is not heard as of right.

Pleas & Trial

o Guilty plea colloquy. United States v. Dominguez Benitez, 124 S. Ct. 921, cert. granted, Dec. 8, 2003; decision below at 310 F.3d 1221 (9th Cir. 2002). The federal criminal defendant pleaded guilty to a mandatory minimum drug offense in accordance with a written plea agreement, which provided for significant prosecution sentencing recommendations, including the safety valve, acceptance of responsibility, and the low end of the guideline range. The written plea agreement stated that he could not withdraw the guilty plea if the district court did not accept the recommended sentence. After the guilty plea, but before sentencing, a PSI was prepared, revealing two previously unknown prior convictions, which disqualified the defendant from the benefit of the safety valve and a sentence below the mandatory minimum. He was sentenced to the higher sentence, but never sought to withdraw his guilty plea. On appeal, he argued as plain error that the district judge never orally advised him that he could not withdraw his plea (as the written plea agreement recited). The Ninth Circuit found the trial judge's omission to be plain error and reversed the sentence. The government's cert petition claims that the decision is contrary to the Court's decision in United States v. Vonn, 535 U.S. 55 (2002) (where a defendant fails to object to a technical plea error, the case is reviewed for plain error, and the record as a whole should be examined, not simply the plea colloquy). The Supreme Court granted certiorari on the question: In order to show that a violation of Federal Rule of Criminal Procedure 11 (Fed. R. Crim. P.) constitutes reversible plain error, must the defendant demonstrate that he would not have pleaded guilty if a violation had not occurred?

o Batson challenges; burden of proof. Johnson v. California, 124 S. Ct. 817, cert. granted, Dec. 1, 2003; decision below unpublished. Question: "Whether to establish a prima facie case under Batson v. Kentucky, 476 U.S. 79 (1986), the objector must show that it is more likely than not the other party's peremptory challenges, if unexplained, were based on impermissible group bias?"

Death Penalty

o Juveniles: cruel and unusual punishment. Roper v. Simmons, 124 S. Ct. ___, cert. granted, Jan. 16, 2004; decision below at 112 S.W.3d 397 (Mo. 2003). The Missouri Supreme Court held that execution of persons who committed murder before the age of 18 is cruel and unusual, in violation of the Eighth Amendment. The state petitioned for certiorari review, raising two questions: Can a state hold that the execution of juveniles (those under 18 when they committed their crime) violates the Eighth Amendment based on evolving standards, when that determination is contrary to the Supreme Court's holding in Stanford v. Kentucky, 492 U.S. 361 (1989); and, ultimately, is the imposition of the death penalty on a person who commits murder at the age of 17 cruel and unusual punishment barred by the Eighth Amendment? The Supreme Court granted certiorari review.

o Retroactivity of Ring v. Arizona. Schriro v. Summerlin, 124 S. Ct. 833, cert. granted, Dec. 1, 2003; decision below at 341 F.3d 1082 (9th Cir. 2003). In Ring v. Arizona, the Supreme Court applied Apprendi to death penalty cases, holding that a jury, not the judge, must make the ultimate death penalty determinations. Federal circuits have split over whether Ring is retroactive to inmates whose appeals have been completed. The Ninth Circuit held that Ring applies retroactively. The Supreme Court granted certiorari to decide the issue.

Habeas Corpus

Recharacterizing Rule 33 motion as successive habeas petition. Castro v. United States, 124 S. Ct. 786 (2003). The Supreme reversed the Eleventh Circuit's decision upholding a district court's sua sponte decision to treat a prisoner's postconviction pleading (nominally filed as a motion for new trial under Fed. R. of Crim. P. 33) as a 28 U.S.C. § 2255 motion, without warning the movant that the recharacterized motion may be his only chance to seek relief given section 2255's bar to successive motions. The Court held that before a federal court can recharacterize a pro se litigant's motion, it must first warn the litigant of the consequences of recharacterization, permitting the litigant to withdraw the motion or amend it to include all potential section 2255 claims.

o Recharacterizing section 1983 proceedings as successive habeas petitions. Nelson v. Campbell, 124 S. Ct. 835, cert. granted, Dec. 1, 2003; decision below at 347 F.3d 910 (11th Cir. 2003). Question: "Whether a complaint brought under 42 U.S.C. § 1983 by a death-sentenced state prisoner, who seeks to stay his execution in order to pursue a challenge to the procedures for carrying out the execution, is properly recharacterized as a habeas corpus petition under 28 U.S.C. Sec. 2254?"

o Exhaustion and relation back. Pliler v. Ford, 124 S. Ct. 981, cert. granted, Jan. 9, 2004; decision below at 330 F.3d 1086 (9th Cir. 2003). Questions: Is the dismissal of a mixed habeas petition (containing both exhausted and unexhausted claims) improper unless the district court informs the petitioner about the possibility of a stay of the proceeding pending exhaustion of state remedies and advises the petitioner with respect to the statute of limitations in the event of any refiling? May a second, untimely habeas petition relate back to a first habeas petition, under the relation-back rule of Fed. R. Civ. P. 15(c), where the first habeas petition was dismissed and the first proceeding is no longer pending?

o Postconviction detention. Benitez v. Wallis, 124 S. Ct. 1143, cert. granted, Jan. 16, 2004; decision below at 337 F.3d 1289 (11th Cir. 2003). An illegal alien who cannot be deported to his home country brought a habeas petition challenging his indefinite detention following completion of his criminal sentences. Relief was denied by the district court. The Eleventh Circuit affirmed, holding that an indefinite detention of an excludable alien did not violate due process or statutory rights. The Supreme Court granted certiorari review on an expedited basis.


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