January 2000

Major Criminal Law Decisions of the United States Supreme Court’s 1998-99 Term: Part II

This article continues a survey of United States Supreme Court cases handed down during the 1998-99 term (the first part of the survey was published in the December 1999 Bar News.) More than one third (27) of the written opinions handed down by the high court dealt with criminal procedure issues. As usual, several cases involved the interpretation of federal statutes, including the recently enacted carjacking statute and the Federal Death Penalty Act. The Court issued several major decisions interpreting the reach of the Fourth Amendment. These included the expectation of privacy in a home, an anti-gang loitering ordinance, and several issues arising from traffic stops.

Following is a continuation of the summary of significant criminal justice-related decisions, arranged alphabetically by subject. The case history, rationale of the Court and the vote totals are included.

67 USLW 4222 (1999)

Gabbert was a criminal defense attorney representing the ex-girlfriend of a man charged with murder. Prosecutors had reason to believe Gabbert had in his possession a letter written by the murder defendant to his ex-girlfriend, asking her to testify falsely at his upcoming trial. The prosecutors obtained a search warrant for Gabbert and executed it upon him as he was accompanying his client to the grand jury investigating her ex-boyfriend. Gabbert’s client testified before the grand jury without the benefit of Gabbert’s counsel, and Gabbert did not request that his client’s testimony be delayed. The search turned up portions of the letter the prosecutors were seeking. Gabbert subsequently filed a Section 1983 action, alleging that the handling of the search violated his Fourteenth Amendment right to practice his profession without unreasonable governmental interference. He also alleged that the search violated his client’s right to consult with an attorney. The district court granted summary judgment for the prosecutors on the ground that they possessed qualified immunity. The Ninth Circuit reversed, holding that the prosecutors were not entitled to qualified immunity because their intent was to prevent Gabbert from consulting with his client, and that such action was unreasonable.

The Supreme Court unanimously reversed the decision of the Ninth Circuit and held that the prosecutors’ actions did not constitute a constitutional violation. Chief Justice Rehnquist’s opinion for the Court held that while the 14th Amendment does create a general right to choose a profession, that right is not absolute, but instead subject to reasonable governmental regulation. The prosecutors’ actions did not deprive Gabbert of his liberty interest in practicing law. The "brief interruption" of the search was reasonable. The Court also dismissed Gabbert’s claim that the search violated his client’s rights, noting that he lacked standing to raise the issue. The proper basis for a challenge to the manner of execution of the search warrant is the Fourth Amendment, not the Fourteenth Amendment. Additionally, the Court noted that it has never held that a grand jury witness has a constitutional right to consult with an attorney present outside the jury room, but declined to decide this issue. Many jurisdictions allow counsel to be present outside the grand jury room; this opinion may invite challenges to that practice. 9 0 decision.

67 USLW 4029 (1998)

Haddle cooperated with federal law-enforcement agents in an investigation of his employer for Medicare fraud. After being named as a potential witness in the criminal trial, he was fired by his employer. Haddle brought suit under 42 U.S.C. 1985, which prohibits conspiracies to deter or intimidate witnesses. He alleged he was fired in retaliation for his cooperation with the federal investigation, and that his firing was an attempt to intimidate him and influence his trial testimony. His employer sought dismissal of the suit on the ground that Haddle had failed to state a claim for relief, as the statute required that the complaint state an injury to person or property. The Eleventh Circuit upheld the dismissal of the lawsuit.

The Supreme Court, in a unanimous opinion authored by Chief Justice Rehnquist, held that interference with employment was sufficient to state a claim for relief, even though the employment was "at-will" and not a constitutionally protected property right. He noted that the purpose of the statute was to prevent witness intimidation and harassment, and that limiting claims to injury to person and property unduly limited the clear intent of the statute. 9-0 decision.

67 USLW 4058 (1999)

Police officers acting pursuant to a search warrant for evidence in a murder case seized personal property from the home of Perkins, who was not home at the time of the search. In accordance with department procedure, the police left behind a notice that the search had taken place and a list of the items taken. The officers did not leave the search warrant number (it was under seal) or any information about how to reacquire the seized evidence. Perkins contacted the police department, where he was informed that he would have to obtain a court order authorizing the return of the property. Perkins did not obtain the order, instead filing a 42 U.S.C. 1983 suit in federal court claiming that his due process rights were violated because the police failed to provide him with information on how to obtain his seized property. The district court dismissed the suit, but the Ninth Circuit reinstated on the due process issue, holding that the city had an obligation to inform Perkins how to obtain his property. No other circuit had a similar requirement.

In a unanimous decision penned by Justice Kennedy, the Supreme Court reversed the Ninth Circuit and held that the due process clause does not require police agencies to provide property owners with instructions on how to go about seeking the return of legally seized property. Rather, the agency need only provide fair procedures for obtaining the property and notice that the property has been seized, both done in this case. Due process requires notice that items have been seized, so the owner will know who is responsible for the loss of property. Due process does not require, however, that the property owner be informed about how to get the property back. Justices Thomas and Scalia concurred in the judgment, but added that they believe due process does not require even the giving of notice. Instead, they asserted the proper basis for determining the propriety of the police officers’ actions was under the Fourth Amendment reasonableness clause. 9-0 decision.

Wilson v. Layne and Hanlon v. Berger

67 USLW 4322, 4329 (1999)

These two cases dealt with the issue of whether police violate the Fourth Amendment when they allow media representatives to accompany them while they execute a warrant at a person’s residence. In Wilson, a team of federal and local law-enforcement officers permitted a local newspaper reporter and photographer to accompany them as they executed an arrest warrant for a fugitive at the home of his parents. The group entered the house in the early morning but did not find the fugitive. Instead, they found his parents, still in bed and rather scantily clad. The news crew photographed the activity but never used the pictures. The parents filed a Section 1983 action (against the state police) and a Bivens action (against the federal officers), alleging the law enforcement officers violated their Fourth Amendment rights by allowing the news media to witness the warrant execution. The Fourth Circuit held the officers were immune from liability. In Hanlon, a television news crew accompanied federal agents executing a search warrant at the ranch of a man suspected of poisoning eagles. He filed a Bivens claim, and the Ninth Circuit held that the police were liable, as no reasonable officer would have thought it appropriate to allow the news media to enter a private residence with them.

The Supreme Court, via Chief Justice Rehnquist, held that the Fourth Amendment does not permit police to bring along the press or any third party who is not a law enforcement officer, unless that person can aid in the execution of the warrant. The reasonableness requirement of the amendment requires that police actions in executing warrants be related to the objectives of the authorized intrusion. The majority opinion stressed the sanctity of the home and discounted the police argument that media ride-alongs serve an important public-relations function and help to discourage police misconduct. These law-enforcement interests did not override the right of privacy enjoyed by homeowners. The Court was careful to note that when third parties can aid in the execution of a warrant, as when the third party can identify property to be seized, that person may accompany the officers into a residence. The Court did not address the common police practice of allowing third person ride-alongs in public areas. Finally, while the Court held that the Fourth Amendment prohibits media ride-alongs in these cases, it also held that the police were not liable in Wilson or Hanlon, as the rule prohibiting ride-alongs was not "clearly established" at the time the warrants were executed.

In dissent, Justice Stevens agreed with the majority that the Fourth Amendment barred such media ride-alongs, but disagreed with the majority that the police were immune from liability due to a lack of awareness of the appropriate conduct. He argued that the rule was clearly established at the time of the raids, and that the officers were therefore not entitled to qualified immunity. 8-1 decision in Wilson; per curiam decision in Hanlon.

67 USLW (1999)

The Prison Litigation Reform Act (PLRA), passed by Congress in 1995, contains a number of provisions limiting the ability of inmate plaintiffs to file lawsuits. One provision of the PLRA limited the hourly rate for attorneys’ fees for post-judgment monitoring services to $112.50 per hour. The plaintiffs in this case had contracted, prior to the enactment of the PLRA, to perform such services at $150 an hour. The attorneys performed work both before and after the passage of the PLRA. They argued that they were entitled to compensation at the higher rate, as they had signed the contract before the PLRA was enacted. The Sixth Circuit Court of Appeals held that application of the PLRA’s cap on attorneys’ fees was invalid because it would have an impermissible retroactive effect; other federal courts had held otherwise.

The Supreme Court reversed the Sixth Circuit. The majority opinion, written by Justice O’Connor, held that the PLRA could limit attorneys’ fees for work performed after its enactment, even though the work had been previously contracted at a higher rate. The majority refused, however, to limit fees for work done prior to the enactment of the statute. Justice Ginsburg dissented, arguing that permitting a limitation on fees after a contract had been signed interfered with the expectations of the lawyers, who could not ethically abandon the case and were thus forced to work for less than they had contracted for. 7-2 decision.

67 USLW 4311 (1999)

Police officers observed White use his automobile to deliver cocaine, but they did not arrest him. Several months later, White was arrested at his workplace on charges unrelated to the drug transactions. The police seized his automobile from the parking lot where he worked, saying that it was an asset subject to forfeiture. This claim was not based on the crime for which he was arrested but on their prior observations. The police then conducted an inventory of the vehicle and found cocaine. White was subsequently charged and convicted on drug charges, based on the cocaine found during the inventory search. On appeal, White argued that the seizure and subsequent inventory search of his car violated the Fourth Amendment. Prior case law clearly established that police may search a car without a warrant when they have probable cause to believe the car contains contraband. White asserted that in his case the police lacked probable cause to believe the car contained contraband; instead the police merely believed the car itself was contraband. The Florida State Supreme Court held that the search was invalid because the police lacked an exigent circumstance to search the car.

In an opinion written by Justice Thomas, the U.S. Supreme Court reversed the state court. The majority opinion relied heavily on early American admiralty law as the basis for its holding that the police do not have to obtain a warrant before seizing an automobile from a public place, so long as they have probable cause to believe the car is forfeitable as contraband under the asset forfeiture laws. The majority refused to distinguish between probable cause to believe a car contains contraband and probable cause to believe the car is contraband. The dissent, by Justice Stevens, argued that the exigency so often present in vehicle searches was not present here because the conduct creating probable cause to believe the car was forfeitable contraband occurred several months prior to the actual seizure of the car. 7-2 decision.

67 USLW 4027 (1998)

An Iowa police officer stopped Knowles for speeding. After issuing a speeding ticket, the officer ordered Knowles out of the car and searched it, finding marijuana. Knowles was then charged and convicted of drug possession. The officer searched the car under the authority of two state statutes: one which authorized police to either arrest or issue a citation for traffic offenses, and one which authorized police to conduct a "search incident to arrest" even in those situations where the officer chose not to actually take a person into custody but instead merely issue a traffic citation. The trial court and state supreme court upheld the search on the ground that a search incident to arrest is appropriate in any situation where an officer is authorized to arrest, even if an arrest does not actually take place.

The U.S. Supreme Court, in a unanimous opinion authored by Chief Justice Rehnquist, struck down the Iowa law as violative of the Fourth Amendment. The Court acknowledged that the "search incident" was a continuing exception to the rule requiring a warrant, but noted that the exception was created for two reasons: (1) to protect officers from a potentially armed person about to be taken into custody; and (2) to preserve evidence for later use at trial. Neither of these two justifications existed in this case. First, Knowles was not in custody. Second, it was unlikely that the search could turn up any evidence of speeding, the offense that Knowles was charged with when the search commenced. The court did not decide whether the search incident rationale would extend to situations where a state eliminated citations altogether and mandated custodial arrests for minor traffic offenses. Also unanswered was the issue of whether the court might extend the search incident exception to other situations where there is only the issuance of a citation (such as offenses more serious than a traffic offense, where a stronger case can be made that the person might be a danger to the officer). The context and fact-specific language of the opinion leaves these issues unresolved. 9-0 decision.

67 USLW 3770 (1999)

Maryland police received a tip from a reliable informant that Dyson would be returning to Maryland in an automobile containing drugs. The officers did not obtain a search warrant, but instead waited 13 hours for Dyson to drive by, stopped the car and searched it, finding cocaine. On appeal the state appellate court ruled that while the police clearly had probable cause to search the car, the search was unconstitutional because the police officers lacked an exigent circumstance justifying their failure to obtain a warrant.

The U.S. Supreme Court reversed in a brief per curiam opinion without benefit of briefing or oral argument. The majority reiterated that police may search a car without a warrant, so long as they have probable cause. The nature of the car creates an automatic exigency excusing the failure to obtain a warrant, even when there is time to obtain the warrant. Justices Stevens and Breyer dissented only from the summary nature of the decision, not on the merits. 9-0 decision.

67 USLW 4017 (1998)

An anonymous informant notified an Eagan, Minnesota, police officer that he had just observed people in an apartment bagging cocaine. Following up on the tip, the officer walked to the window of the apartment and looked in. The blinds were closed, but the officer was able to see through a gap between the blinds, and observed two men and a woman, in fact, bagging cocaine. While the police were still in the process of obtaining a search warrant, the men left the apartment and drove away. The police stopped and arrested them and then returned to the apartment and arrested the woman. A search of the car and apartment revealed cocaine. At trial the men sought to have the cocaine found in their car and the apartment suppressed as the fruit of an unlawful seizure. They argued that the police officer who peered through the window violated the Fourth Amendment, as they had a reasonable expectation of privacy while in the apartment. The woman was renting the apartment, while the two men were there visiting from Chicago for the admitted sole purpose of packaging the cocaine. The trial court and state appellate court upheld the search, but the Minnesota Supreme Court reversed, holding that the Fourth Amendment applied to guests engaged in a "common task" with their host.

The U.S. Supreme Court, in an opinion by Chief Justice Rehnquist, reversed the state court and upheld the constitutionality of the police officer’s actions in this case. According to the majority, the Fourth Amendment simply did not apply, as the officer’s conduct did not constitute a search for Fourth Amendment purposes. In previous cases the Court has stressed that the Fourth Amendment applies not simply to places or things, but also when there exists a "reasonable expectation of privacy." In a prior case, (Rakas v. Illinois, 439 US 128 (1978)), the Court held that merely being present on the premises does not automatically create standing to assert a Fourth Amendment violation. In another case (Minnesota v. Olson, 495 US 91 (1990)), the Court held that an overnight guest had an expectation of privacy. The Court distinguished Olson on the ground that the defendants in this case were not overnight guests, but merely short-term guests. Justice Scalia, joined by Justice Thomas, took a broader view — that the Fourth Amendment offers no protection to guests of any kind. He argued the Court should abandon the "expectation of privacy" analysis and interpret the Fourth Amendment in light of the law at the time of its passage. Justice Kennedy provided the crucial fifth vote, but added a concurrence limiting somewhat the effect of the majority opinion. In his view, social guests have a reasonable expectation of privacy, but commercial guests (such as these defendants) did not. In dissent, Justice Ginsburg argued that the majority’s view of the Fourth Amendment was overly restrictive and that protection should extend to any guests, as they are there at the invitation of the homeowner. 6-3 decision.

67 USLW 4225 (1999)

A Wyoming Highway Patrol officer stopped a car for speeding. While speaking with the driver, he noticed a syringe in the driver’s shirt pocket, which the driver admitted using to inject drugs. Having probable cause to believe there were drugs in the car, the officer ordered the driver and his two female passengers (all of whom were sitting in the front seat) out of the car and conducted a search of the passenger compartment. On the back seat of the car was a purse containing methamphetamine. One of the passengers, Houghton, admitted it belonged to her. She was arrested and convicted of felony drug possession. On appeal, she argued that the drugs in her purse should have been excluded from evidence as the product of an illegal search. She acknowledged the officer had probable cause to search the car for drugs, but did not have probable cause to search inside her purse, as it belonged to her, a passenger not suspected of criminal activity at the time the search took place. The Wyoming Supreme Court reversed, holding that when an officer has notice that a container within a car does not belong to the person suspected of criminal activity, the officer may not search the container.

The U. S. Supreme Court disagreed and upheld the search of Houghton’s purse. Writing for the majority, Justice Scalia determined that the long line of cases regarding search of vehicles supported the application of a bright-line rule: once a driver’s conduct gives the police probable cause to believe there may be contraband in the car, the police may search the car without a warrant, and the scope of the search extends to all containers within the car that are capable of holding the contraband. This even includes the search of the purse in this case, although it was no doubt obvious to the officer before he opened it that the purse did not belong to the male driver but to one of his female companions. Adopting a "passenger property" exception or the "notice" rationale of the state court would impair effective law enforcement. While such a bright-line rule clearly affected the privacy interests of passengers, Scalia asserted that such interests were generally weak, as the passengers had no reasonable expectation of privacy when riding in a car belonging to another and being driven on the public highways.

Justice Stevens dissented and argued that police should be required to establish probable cause before searching belongings which clearly belong to passengers rather than to the driver of a vehicle. He suggested that the majority’s rationale would permit such absurd results as the warrantless search of a taxi passenger’s briefcase if there was probable cause to believe the driver had contraband in the taxi. 6-3 decision.

67 USLW 4230 (1999)

Mitchell pleaded guilty to charges related to a drug distribution conspiracy, reserving her right to contest the drug quantity, an important factor in determining the length of her prison sentence. The judge accepted her guilty plea after advising her of the rights she was waiving, including the right to remain silent "at trial." At the sentencing hearing, the prosecution presented evidence regarding the extent of the defendant’s participation in the cocaine distribution scheme. The defendant elected not to testify. The trial judge, relying in part on the defendant’s refusal to contradict the testimony of her co-conspirators, determined that the defendant’s offense involved an amount of cocaine that made her eligible for a 10-year mandatory-minimum sentence. Mitchell appealed her sentence, but the Third Circuit upheld it, holding that the guilty plea constituted a waiver of her right to remain silent at the sentencing hearing, and that it was therefore appropriate for the trial judge to use her failure to testify against her. This ruling was in conflict with several other circuits.

In an opinion penned by Justice Kennedy, the U.S. Supreme Court disagreed with the Third Circuit. The majority acknowledged that the general rule is that a witness may not, in a single proceeding, voluntarily testify about a matter and then assert the privilege against self-incrimination during cross-examination. This is known as the "stop and go" rule. Thus the defendant could have been cross-examined at her plea hearing. The defendant retained her privilege against self-incrimination at her sentencing hearing because it is part of the criminal case and what she says there can be used against her. The majority also refused to permit the drawing of adverse inferences from her refusal to testify. A similar ban exists regarding trial testimony, and the majority asserted that the same logic applied to testimony at sentencing hearings. The dissent by Justice Scalia took issue with the majority’s unwillingness to allow the trial judge to draw adverse inferences from the defendant’s silence. Scalia suggested that the majority was improperly extending the rationale of a prior case (Griffin v. California, 380 U.S. 609 (1965)). Justice Thomas also dissented, going beyond Scalia’s argument and suggesting that the Court reconsider Griffin.

The Supreme Court’s 1999 term was marked by some significant decisions involving criminal law. As in past terms, several cases involved the interpretation of federal criminal statutes. These cases appear to be increasing in number, perhaps as a result of Congress criminalizing additional activity. Several decisions involved traffic stops. Of note is a continued decline in the number of decisions involving the imposition of the death penalty.

In most cases, the Court continued its record of upholding law-enforcement authority. There is little reason to think this trend is about to change. Several cases have already been accepted for consideration during the 1999 term that present the Court with the opportunity to further expand the authority of law enforcement officers. These include a case involving whether a person’s sudden and unprovoked flight from police in a high-crime area creates reasonable suspicion to justify a Terry stop (Illinois v. Wardlaw), and a case focusing on whether an officer may extend a traffic stop to ask unrelated questions about criminal activity (Potts v. United States). Another decision that will likely be reviewed by the Court is U.S. v. Dickerson, 166 F.3d 667 (1999). In this case, the Fourth Circuit reinstated the voluntariness test for the admissibility of custodial statements, holding that Miranda warnings are not constitutionally required in federal courts. The decision is based on a rather obscure statute, 18 U.S.C. 3501, passed by Congress in 1968 as part of the Omnibus Crime Control and Safe Streets Act. Decisions in these cases could have a substantial impact on the administration of justice.

Many of the decisions were narrow or without a clear majority. Others featured a bare majority of five. This reflects the clear ideological divisions on the court. Conservatives are not winning all the battles over law-enforcement authority: the Chicago gang ordinance was struck down and Iowa’s attempt to expand the search incident exception was refused. The language in both decisions, however, left many unanswered questions.

Justices Kennedy and O’Connor are at the ideological center of the court and have emerged as the key votes in many cases. Justice Scalia remains the most acerbic and iconoclastic member, while Justice Stevens is often a lone liberal holdout, especially in criminal cases. Indications are that Justice Thomas has stepped out of Scalia’s shadow. Since 1991, they have agreed in about 90 percent of all cases, with Thomas often just signing on to Scalia’s opinion. This has changed, however, since Justice Thomas is writing more opinions and establishing his own identity.

Given the narrow margin in so many cases, the 2000 presidential election is likely to have a major impact on the composition of the Supreme Court. Several justices are reported to be contemplating retirement. President Clinton thus far has appointed two justices (Ginsburg and Breyer); his successor will likely be presented with more opportunities than that to shape the composition of the Court.

Rolando V. del Carmen is professor of criminal justice at the College of Criminal Justice, Sam Houston State University, in Huntsville, Texas. He has several law degrees and has written numerous books and articles on a variety of legal topics. The fifth edition zof his best-selling textbook, Criminal Procedure (West Publishing), is at press.

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