Criminal Justice Section
Criminal Justice Magazine
Criminal Justice Magazine
Volume 15, Issue 3
David G. Leitch
High Court Closes 1999 Term; Selects 35 Cases for 2000
In its recently completed 1999 term, the Supreme Court issued a number of significant opinions affecting criminal practice. Several are likely to gain "landmark" status, but most will be of interest to those engaged in criminal practice.
Miranda: The Court’s decision in Dickerson v. United States, 120 S. Ct. 2326 (2000), was remarkable in several respects. First, few would have predicted the 7–2 margin by which the Court upheld and reaffirmed its Miranda decision in the face of a statute designed by Congress to bypass that decision. Second, the Court’s opinion is not just a grudging acceptance of Miranda as a venerable precedent, but reads as a ringing endorsement of the original decision. The current decision confirmed Miranda’s place as "a constitutional decision of this Court" that has become "embedded" in police practice, and signaled the end of any chance that the Court would overrule its criminal procedure landmark. Third, this opinion was penned by Chief Justice Rehnquist himself, a fact that signals the broad consensus on the Court on this issue. Only Justice Scalia, joined by Justice Thomas, dissented—vehemently.
Penalty Enhancements: In a decision with far-reaching implications, the Court decided in Apprendi v. United States, 120 S. Ct. 2348 (2000), that the existence of a factor—in this case, the identification of a crime as a "hate crime"—increasing the range of statutory penalties had to be determined by a jury under the "reasonable doubt" standard of proof. As the Court put it, sweepingly: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and must be proved beyond a reasonable doubt." Justice Stevens’s opinion for a five-member majority made clear that judges retain authority to exercise discretion to consider various factors when determining a sentence within the statutory range, but factors permitting sentences in excess of the normal statutory range must be determined by a jury under the reasonable doubt standard. In her dissent, Justice O’Connor predicted that this decision "will surely be remembered as a watershed change in constitutional law." The Chief Justice, Justice Kennedy, and Justice Breyer also dissented. The decision already reportedly sent a shock wave through sentencing enhancement cases in lower courts.
Luggage: The Court’s fact-intensive jurisprudence on searches got an interesting wrinkle this term as the Court decided whether a physical manipulation of soft-sided, carry-on luggage constituted a search for Fourth Amendment purposes. Although recognizing that a bus passenger had a reduced expectation of privacy in luggage he knew might be handled by other passengers or bus personnel, the Court held that the passenger would not expect others to "feel the bag in an exploratory manner." Accordingly, the federal drug agent’s "tactile observation" of the bag violated the Fourth Amendment. The 7–2 decision in Bond v. United States, 120 S. Ct. 1462 (2000), was again written by Chief Justice Rehnquist. Surprisingly, the dissent was penned by Justice Breyer, who was (not surprisingly) joined by Justice Scalia.
Ex Post Facto: The Court issued two opinions on ex post facto issues. In Garner v. Jones, 120 S. Ct. 1362 (2000), Justice Kennedy wrote for a five-member majority that the retroactive application of a Georgia law that permitted the extension of intervals between parole considerations did not necessarily violate the Ex Post Facto Clause, but remanded the case to the lower courts to consider whether the change created a sufficient risk of increasing the punishment attached to the crimes at issue. In that event, the clause would be implicated. In the second case, Carmell v. Texas, a different five-member majority found the clause violated when Texas applied a statute reducing the quantum of evidence required to convict a defendant of a particular offense in a prosecution for an act that had taken place before the statute was adopted. At the time of the offense, certain types of corroborating evidence were required for the offense at issue; the Court held that application of a statutory revision eliminating the need for such evidence would violate the Ex Post Facto Clause.
Prior Convictions: The decision in Ohler v. United States, 120 S. Ct. 1850 (2000), resolved a split in the circuits over a defendant’s ability to challenge a ruling on a motion in limine concerning prior conviction evidence. The issue arose where a trial court had, prior to trial, granted the government’s motion to use prior conviction evidence to impeach the defendant. In the face of that ruling and in an effort to mitigate its impact, the defendant admitted the prior conviction on her direct testimony. On appeal, she challenged the pretrial ruling granting the government’s request to introduce the evidence. In a 5–4 decision, the Court held that the defendant could not challenge the admission of evidence she herself introduced, even if motivated to do so by the trial court’s ruling on the motion in limine.
Investigative Detentions: In a closely watched case—said to implicate the issue of those who are detained for nothing other than DWB (driving while black)—the Court held that police officers were justified in conducting a Terry stop of an individual who "fled upon seeing police officers patrolling an area known for heavy narcotics traffic." Using a "totality of the circumstances" approach, the opinion by Chief Justice Rehnquist in Illinois v. Wardlow, 120 S. Ct. 673 (2000), noted that both the area in which the defendant was found and his evasive behavior—"headlong flight . . . the consummate act of evasion"—constituted reasonable cause for a brief investigation. Justice Stevens dissented, joined by Justices Souter, Ginsburg, and Breyer.
The Court’s decision in Florida v. J.L., 120 S. Ct. 1375 (2000), by contrast, unanimously found a Terry stop unjustified when it was based solely on an anonymous tip that a person is carrying a gun. The tip at issue was unaccompanied by any "indicia of reliability," and at the time the police made the stop at issue, they had no reason other than the tip to think that J.L. was engaged in unlawful activity. The stop, the Court held, was unsupported.
Self-representation: In Martinez v. Court of Appeal, 120 S. Ct. 684 (2000), the Court unanimously declined to extend the right of a defendant to proceed without counsel to the appellate process. This decision limits the Court’s earlier holding in Faretta v. California, 422 U.S. 806 (1975)—that a state cannot force an attorney on a defendant—to the trial process, and upheld California’s authority to require the defendant to accept, against his will, a state-appointed lawyer to represent him on appeal.
Appeal: In United States v. Anders, 386 U.S. 738 (1967), the Court found California’s procedure inadequate when court-appointed counsel wanted to withdraw from a case being appealed, and set out a procedure whereby counsel seeking permission to withdraw could do so. In Smith v. Robbins, 120 S. Ct. 746 (2000), the Court held that the precise procedures set out in Anders were not constitutionally required, and blessed a somewhat different procedure that it found "affords adequate and effective appellate review for criminal indigents." The 5–4 decision made clear that states are free to experiment in this area and that Anders did not establish a fixed procedure.
Prosecutorial Comment: The Court held that a defendant’s Sixth Amendment rights to be present at trial and to confront witnesses are not violated when a prosecutor, in summation, calls to the jury’s attention the fact that the defendant had the opportunity to hear all the other witnesses and tailor his or her testimony accordingly. The opinion in Portuondo v. Agard, 120 S. Ct. 1119 (2000), held that such statements were fair—and sometimes essential—commentary on the witness testimony and served the truth-finding function of the trial.
Interstate Commerce: With one eye on its cases limiting the reach of the Commerce Clause, the Court in Jones v. United States, 120 S. Ct. 1904 (2000), unanimously adopted a narrow reading of a federal arson statute designed to save it from constitutional scrutiny. It held that an owner-occupied dwelling not used for any commercial purpose was not "used" in interstate commerce within the meaning of the arson statute, vacating a conviction under the statute where the petitioner had tossed a Molotov cocktail into a private residence.
Self-Incrimination: United States v. Hubbell, 120 S. Ct. 2037 (2000), was the latest clash between Webster Hubbell and former Independent Counsel Kenneth Starr, with this round going to Hubbell. In investigating and preparing an indictment of Hubbell, the independent counsel had relied on papers provided by Hubbell after he received a grant of immunity. The Supreme Court held that the act of producing the documents was testimonial rather than a simple physical act, and was protected by the privilege against self-incrimination: "The assembly of those documents was like telling an inquisitor the combination to a wall safe, not like being forced to surrender a key to a strong box." Accordingly, the use of the documents by the independent counsel was governed—and precluded—by the grant of immunity.
When it closed its October 1999 term, the Supreme Court had granted review in only 35 cases for the 2000 term. Although that number of cases will increase when the Court returns from its recess, it’s fair to say that those few criminal law cases on the Court’s docket for the upcoming term appear, in general, to be of much less significance than some of the decisions issued last term. Stay tuned, however, because the Court itself, and its opinions, make particular cases important. Several cases to watch:
Drug Testing: In Ferguson v. City of Charleston (No. 99–936), the Court will decide the constitutionality of a public hospital’s policy—developed in cooperation with the Charleston, South Carolina, police department—of conducting drug tests on pregnant women who showed signs of drug abuse. Under the program, positive tests were reported to the police department, which required the woman to enter drug treatment or face prosecution. The policy was challenged as involving an unconstitutional search and an invasion of privacy. The Fourth Circuit upheld the "searches" under the "special needs" exception, and found any privacy interest outweighed by the government’s interest in disclosure.
Mental Commitment: After serving a five-year sentence for rape, a defendant was involuntarily transferred to a mental health facility pursuant to Washington State’s Sexually Violent Predator statute. He sought a writ of habeas corpus, alleging that the confinement was punitive and therefore violated the ex post facto and double jeopardy protections of the Constitution. The Ninth Circuit held that, despite the Supreme Court’s approval of a similar commitment scheme in Kansas v. Hendricks, 521 U.S. 346 (1997), the defendant had alleged facts that, if proven, would establish that the confinement was punitive and remanded the case to the district court for an evidentiary hearing. The Supreme Court will review its decision in Seling v. Young (No. 99–1185).
Checkpoints: The Seventh Circuit found that an Indianapolis roadblock checkpoint program violated the Fourth Amendment. Under the program, drivers were stopped and asked to provide a license and registration. During the stop, another officer would conduct a "plain view" inspection from outside the car and a drug sniffing dog would be led around the car. A search would ensue if either inspection gave reason to believe that drugs were present. A divided Seventh Circuit held that the roadblock program "belongs to the genre of general programs of surveillance which invade privacy wholesale in order to discover the evidence of crime." The Supreme Court will review that decision in Indianapolis v. Edmond (No. 99–1030).
Ex Post Facto: Rogers v. Tennessee (No. 99–6218) involves a murder defendant whose victim died 16 months after the attack. Under a Tennessee statute, "no person should be adjudged by any act whatever to kill another who does not die by it within a year and a day after." On appeal from his conviction, Rogers urged that his conviction violated the "year-and-a-day" rule. In response, the Tennessee Supreme Court abolished the rule and applied its decision in Rogers’s case. The question before the U.S. Supreme Court is whether the Tennessee court’s application of its decision to Rogers violates the Ex Post Facto Clause.
Arrest: The Supreme Court will review a case that deeply divided the en banc Fifth Circuit over the question of an unreasonable seizure. In Atwater v. Lago Vista, Texas (No. 99–1408), a police officer arrested the petitioner for a seat belt violation. A panel of the Fifth Circuit found the arrest objectively unreasonable in these circumstances, involving a fine-only offense and accompanied by evidence of an overly zealous police officer, and reinstated Atwater’s lawsuit challenging the arrest. The en banc majority, however, held: "When probable cause exists to believe that a suspect is committing an offense, the government’s interests in enforcing its laws outweigh the suspect’s privacy interests, and an arrest of the suspect is reasonable." The Supreme Court will therefore consider whether the Fourth Amendment provides limits on arrests based on the type of offense charged.
Search and Seizure: The question in Illinois v. McArthur (No. 99–1132) is whether the police violated the defendant’s Fourth Amendment rights by prohibiting him from entering his trailer home while a search warrant was obtained. When the police received evidence that the defendant had marijuana in the trailer, they asked for consent to search the trailer, which was refused by the defendant as he stood outside the trailer. Police then sought a search warrant, but during the two hours it took to secure the warrant, would not let the defendant in the trailer alone. The Illinois courts suppressed the evidence found pursuant to the warrant, holding that defendant had been subjected to an unreasonable search and seizure in violation of the Fourth Amendment.
David G. Leitch is a partner in the Washington, D.C., office of Hogan & Hartson, L.L.P., who specializes in appellate litigation. He is also a contributing editor to Criminal Justice magazine.