January 2001

A Review of Significant Criminal Law Decisions of the 1999 Term of the United States Supreme Court 

by Craig Hemmens, J.D., Ph.D.

Introduction

During its 1999 term the United State Supreme Court handed down signed opinions in 73 cases. This is half the number of opinions issued during terms in the mid-1980s, and is the fewest number of cases decided by signed opinion since the early 1950s. It continues a downward trend in signed opinions, as the 1998 term had only 75 opinions. Over 8,000 cases reached the Court, the vast majority being denied review. While the number of opinions declined, there were a number of significant decisions, spanning the landscape of constitutional law.

There were 44 decisions (60 percent), with at least a 7-2 majority; of these, 29 decisions were unanimous. While this presents a picture of general ideological agreement, it should be noted that there were 21 cases with 5-4 decisions (27 percent), and the dissents were at times quite acrimonious. Clear ideological blocs have formed, with the Chief Justice and Justices Scalia and Thomas frequently aligned against Justices Stevens, Breyer, Ginsburg and Souter. Justice O'Connor emerged as the key vote, filing only four dissents and being in the majority in all but one of the 5-4 decisions. Interestingly, Justice Thomas dissented more frequently than O'Connor, but was also in the majority in all but one of the 5-4 decisions. Justice Scalia and Justice Stevens disagreed the most, in 44 cases. In contrast, Chief Justice Rehnquist and Justice O'Connor disagreed in only 10 cases.

Majority opinion authorship was fairly evenly divided, with each justice writing between eight and 10 majority opinions. The most prolific opinion writer was Justice Stevens, with 33 opinions. The least prolific writer was Justice O'Connor, with 15 opinions. Following a trend in recent years, Justice Stevens filed the most dissents (18).

The Court reversed or vacated lower court decisions in over half of its decisions. The 9th Circuit, a favorite target of the Supreme Court, was reviewed 11 times, with the high court affirming only one decision while vacating two and reversing eight others.

More than a third of the written opinions handed down by the high court dealt with criminal law and procedure issues. The Court interpreted several key provisions of the Anti-Terrorism and Effective Death Penalty Act and the Prison Litigation Reform Act, and issued several major Fourth Amendment rulings. As usual, several cases involved the interpretation of federal criminal statutes. Several cases dealt with subject matter unrelated to the criminal justice system, but the decision in the case has major implications for the criminal justice system. Also, several "non-decisions" warrant mention, including two death penalty cases and a search and seizure case.

Following is a summary of the significant criminal justice-related decisions of the 1999 term, arranged alphabetically by subject. The case history, rationale of the Court, and vote totals are included.

Ramdass v. Angelone, 68 USLW 4486 (2000)

Ramdass was convicted by a Virginia court of murdering a convenience store clerk during an armed robbery. During the punishment phase of the trial, the prosecution argued that the aggravating factor of "future dangerousness" justified imposition of the death penalty, and mentioned Ramdass' prior conviction for armed robbery as evidence that he was likely to reoffend if ever released from prison. At the time, Ramdass had been found guilty of armed robbery in another case, but the judge had not yet entered a formal judgment of guilt. Under state law, Ramdass would be ineligible for parole if the prior armed robbery conviction were upheld, as he would then fall under the state's three-strikes law, which eliminated the possibility of parole for habitual offenders. Ramdass did not argue at his murder trial that he was ineligible for parole. The jury sentenced him to death. While his case was on appeal, the Supreme Court announced, in Simmons v. South Carolina (1994), that a defendant who is ineligible for parole has a right to inform the jury of that fact when the jury is considering the issue of future dangerousness. Ramdass then argued on appeal that the jury should have been instructed that he was ineligible for parole based on his prior convictions. The Virginia Supreme Court held that because Ramdass had not conclusively established he would be parole ineligible at the time of his murder trial, he was not entitled to have the jury apprised of the effect of parole ineligibility. The 4th Circuit denied his habeas petition, holding that the question of whether a defendant was ineligible for parole was a matter of state law.

The Supreme Court affirmed the lower courts. The plurality opinion by Justice Kennedy agreed with the Virginia court that Simmons was inapplicable because Ramdass was not conclusively ineligible for parole when the jury considered his sentence. He did not become parole ineligible until the judgment of guilt was entered, and this occurred after his murder trial and conviction. Justice O'Connor provided the crucial fifth vote in a concurrence in which she said Simmons was inapplicable because it applied only to cases where the only thing between defendant and parole ineligibility is a "ministerial act," such as a parole board decision. Justice Stevens dissented, arguing it was unfair to allow the state to use the defendant's conduct in another case as the basis for proving future dangerousness while effectively preventing the defendant from using the prior case judgment to show future dangerousness was not an issue in the present murder case. 5-4 decision.

Weeks v. Angelone, 68 USLW 4060 (2000)

Weeks was convicted in a Virginia court in 1993 of murdering a state trooper. During the penalty phase of his trial, the jury was given a pattern instruction (approved by the Supreme Court in Buchanan v. Angelone, 1998) that the death penalty was appropriate if the state proved beyond a reasonable doubt at least one of two aggravating circumstances: (1) that the defendant would continue to be a serious threat to society; or (2) that the crime was "outrageously or wantonly vile, horrible or inhuman." The instructions said further that "if you believe from all the evidence that the death penalty is not justified," the jurors should impose life imprisonment. The law did not require a jury to impose a death penalty even if the state proves an aggravating factor; they could still hold that any mitigating factor(s) outweigh the aggravating factors. The jury interrupted its deliberations to ask the judge: "If we believe that Weeks is guilty of at least one of the alternatives, then is it our duty as a jury to issue the death penalty?" In response, the judge simply instructed the jury to reread the instruction, refusing a defense attorney's request to more clearly explain the alternatives. Two hours later, with several members in tears, the jury returned with a death sentence. On appeal, Weeks argued that the jury had mistakenly believed that it was required to impose a death sentence if the state proved the existence of an aggravating factor, and the judge's failure to clarify the situation beyond reference to the jury instruction constituted a violation of due process. The Virginia Supreme Court had upheld the conviction and sentence, and the 4th Circuit rejected the inmate's petition for a writ of habeas corpus.

The Supreme Court upheld the sentence. In his majority opinion, Chief Justice Rehnquist said the record indicated there was at worst a "slight possibility" that the jury mistakenly believed a death sentence to be mandatory once the state proved the existence of an aggravating factor. Rehnquist noted that a jury is presumed to understand a judge's answer to its question. The fact that the jurors then spent two hours in further deliberation showed that they were weighing the mitigating and aggravating evidence and were not simply imposing a death sentence automatically. The four dissenters, in an opinion by Justice Stevens, disagreed vigorously with both the majority's factual analysis of the case and its legal conclusion. Justice Stevens said there was a "virtual certainty" that the jury was confused, and that there was no reason to believe the judge's answer had resolved the confusion. He argued the jury instruction may have caused the jury to erroneously believe they had to impose a death sentence if the prosecution proved either aggravating factor. Justice Stevens said it was just as likely that the jurors spent the next two hours continuing to debate the meaning of the instruction that continued to confuse them, and the fact that several jury members were crying indicated they disagreed with the imposition of the death penalty. 5-4 decision.

Knight v. Florida (1999)

None of the current justices opposes the death penalty in principle, unlike Justices Brennan, Marshall, and ultimately Blackmun, who shortly before he retired stated bluntly: "I shall no longer tinker with the machinery of death." As many as four of the current justices have voiced serious concerns about the process, however. Inmates on death row in Florida (24 years) and Nebraska (19 years) argued that their prolonged confinement on death row constituted cruel and unusual punishment. In both cases, the prolonged residence on death row was due in substantial part to the states' responses to the inmates' successful challenges to unconstitutional state procedures. Rather than proceed quickly to new trials, as the lower courts had ordered, the states spent years appealing the adverse rulings back up through the judicial system. Eventually, the states prevailed and the inmates were again sentenced to death.

The Supreme Court refused the petition for certiorari. What makes this "non-decision" notable is the exchange between the justices. Justice Breyer, who wanted the court to hear the appeals, and Justice Thomas, who did not, engaged in an unusual written exchange. While Justice Breyer did not take a stand on the merits of the inmates' contention that their prolonged incarceration violated the Eighth Amendment, he said their argument could not be rejected out of hand, and that if the delay was caused by the state the claim was "a particularly strong one." Justice Breyer also noted that courts in a number of other countries have concluded that such delays are inhumane. Justice Thomas vigorously disagreed with Justice Breyer, and placed the blame for the delays squarely on the Court's "Byzantine death penalty jurisprudence" and "undue solicitude for defendants' rights" as well as the inmates' delaying tactics. Justice Thomas also dismissed Breyer's suggestion that the Court consider the actions of other countries. The only other justice who entered the discussion was Justice Stevens, who had first identified the issue in Lackey v. Texas (1995), when he called for review of a Texas inmate's argument that 17 years on death row was cruel and unusual. Since then, dozens of inmates have made similar arguments, none successfully. Ordinarily, the Supreme Court waits for a conflict to develop among the lower courts before agreeing to hear a case, and the absence of such a conflict may have persuaded some justices to decide against adding the issue to the court's docket. Appeal dismissed.

Bryan v. Moore (1999)

Florida was one of four states that required those sentenced to death to be executed by electrocution. Most of the 38 states with death penalty laws have switched since 1950 to lethal injection as the primary means of execution. Once, 26 states used electric chairs. Bryan, an inmate on Florida's death row, argued that electrocution violated the Eighth Amendment's ban on cruel and unusual punishment.

The Supreme Court accepted his appeal when electrocution was the only method used by the state, but backed away from deciding whether electrocution is "cruel and unusual punishment" when the Florida Legislature responded to the granting of certiorari by passing legislation providing for death by injection unless an inmate preferred the electric chair. The Court then dismissed the case as moot. Now, only three states (Alabama, Georgia and Nebraska) require death by electrocution. The issue may return to the nation's highest court in a case from one of those states. Appeal dismissed.

Edwards v. Carpenter, 68 USLW 4308 (2000)

In an effort to avoid the death penalty, Carpenter pled guilty and was sentenced to prison for robbery and murder. His sentence was affirmed by the state courts. His attorney failed to challenge the sufficiency of the evidence on direct appeal or in his state habeas petition. Carpenter then sought habeas relief pro se in federal court, challenging the sufficiency of the evidence. This claim was procedurally defaulted by the court on the ground that Carpenter had failed to raise this issue on direct appeal or in his state habeas petition, and the time limit for such a claim had since run. Carpenter argued that it was because he received ineffective assistance of counsel on direct appeal that he had not raised the issue there, and that this should excuse his procedural default on his sufficiency of the evidence claim in federal court. The district court granted relief, a decision affirmed by the 6th Circuit.

The Supreme Court, in an opinion by Justice Scalia, held that a habeas petitioner must establish both cause for and prejudice from his procedural default in state court in order to use the procedural default on one issue (ineffective assistance of counsel) to excuse his procedural default on another issues (sufficiency of the evidence). Scalia made clear that the Anti-terrorism and Effective Death Penalty Act (AEDPA) did not affect the "cause and prejudice" rule that a federal habeas court may not entertain a claim that was procedurally defaulted in state court unless the inmate can show cause for the default and prejudice. 9-0 decision.

Slack v. McDaniel, 68 USLW 4315 (2000)

Slack was convicted of second-degree murder in Nevada and unsuccessfully challenged his conviction on direct appeal. He then filed, in 1991, a federal habeas petition, seeking to raise issues he had not yet presented to the state courts in a state habeas petition. He then filed a motion to hold his federal petition in abeyance while he pursued his state habeas petition. The district court dismissed his federal habeas petition without prejudice. After exhausting his state remedies, in 1995 Slack filed another federal habeas petition, including in it issues previously considered by the state courts and some issues not considered by the state courts. The state sought dismissal of this petition, arguing that because the federal petition included some issues not considered by state courts, it should be dismissed. The district court agreed and dismissed Slack's 1995 petition with prejudice on the grounds it constituted a "second or successive petition," barred by the AEDPA, which was enacted in 1996. Slack then filed a notice of appeal, which was treated by the federal district court and 9th Circuit as a certificate of probable cause (a pre-AEDPA device) and denied.

The majority opinion by Justice Kennedy held that: (1) Slack's right of appeal was governed by the pre-AEDPA law, since he filed his petition prior to the enactment of the AEDPA; and (2) when a claim is denied on the merits, a habeas petitioner must establish that reasonable judges would find the district court's assessment of the merits was debatable or wrong, but when a claim is denied on procedural grounds, as was the case here, a habeas petitioner must establish that reasonable judges would find both that the district court's assessment of the merits and procedures were debatable or wrong. 6-3 decision.

Williams v. Taylor, 68 USLW 4279 (2000)

Michael Williams was convicted in a Virginia court of two murders and sentenced to death. His conviction and sentence were upheld on direct appeal and state habeas. In his federal habeas petition he raised several issues, including: (1) a claim that his right to an impartial jury was violated by the seating of a juror who failed to reveal possible bias, of which the prosecutor was aware but failed to reveal; and (2) a claim that he was denied due process when the prosecution failed to disclose a psychiatric report on an accomplice who testified for the state. Evidence on these claims had not been previously submitted on direct appeal or in the state habeas petition.

The federal district court agreed to hold an evidentiary hearing on these issues, but before the hearing took place the 4th Circuit ruled that Williams was not entitled to it because he had failed to develop the factual basis of these claims in the state court proceedings. The AEDPA limits the ability of a habeas petitioner to raise an issue in federal court that was not first developed in state court. The meaning of the phrase "failed to develop" was the central issue in this case. Williams argued that he had not presented these issues in the state courts due to being unaware of the facts because the state itself suppressed the facts until after the state proceeding. The 4th Circuit determined that the reason for the failure was immaterial.

In a unanimous opinion authored by Justice Kennedy, the Supreme Court held that Williams should not have been penalized by the state's failure to provide needed evidence. In his opinion, Kennedy said the 4th Circuit misused the word "fail," which he said connotes some omission, fault or negligence on the part of the person who has failed to do something. Use of the phrase "has failed to" instead of "did not" clearly indicates that Congress did not intend to limit habeas petitions where the inmate was not responsible for the delay in developing new evidence. The proper question was whether the prisoner made a reasonable attempt to investigate and pursue claims in state court, in light of the information available at the time. 9-0 decision.

Williams v. Taylor, 68 USLW 4263 (2000)

Terry Williams was convicted in a Virginia court of murder and sentenced to death. His sentence was upheld on direct appeal, but during the state habeas proceeding the court determined, after hearing new evidence on the matter, that while the conviction was valid, because the defense attorney failed to present significant mitigating evidence during the sentencing phase, Williams received ineffective assistance of counsel. The state Supreme Court disagreed, finding that Williams had not proven sufficient prejudice to justify resentencing. Williams then filed a federal habeas petition, and the federal district court judge agreed with the trial court judge that there was sufficient evidence of ineffective assistance of counsel, and that there was a reasonable probability the result would have been different had this evidence been presented, a finding required under Strickland v. Washington (1984). The judge applied the portion of the AEDPA which provides that in reviewing a habeas corpus petition, the federal court may set aside a state court decision only if that decision "was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court." The 4th Circuit reversed, interpreting the AEDPA provision as permitting reversal of a state court decision only if "reasonable jurists would all agree [it was] unreasonable."

There were two controlling opinions in the Supreme Court. Justice O'Connor held that the AEDPA requires a federal court to defer to a state court decision it regards as incorrect, as long as the decision was not "unreasonable." It is not enough that one federal judge subjectively believes the decision was unreasonable; rather, there must be evidence that the state court decision was "objectively unreasonable." The dissenters to this portion argued that federal judges should not have to defer to state court decisions they believed were incorrect, and that it was the federal courts' independent responsibility to interpret federal law. If Congress had intended federal courts to defer even to decisions they regarded as incorrect, the 1996 law would have said so clearly, rather than by indirection. Applying the law, the court then voted 6 to 3, in an opinion by Justice Stevens, that Williams was entitled to a new sentencing hearing because his lawyer's performance at the original hearing amounted to ineffective assistance of counsel. The dissenters to this portion of the opinion argued that while Williams had received ineffective assistance of counsel, he had failed to prove it actually made a difference in the outcome of his sentencing hearing, as required by Strickland. 5-4 decision.

Miller v. French, 68 USLW 4535 (2000)

In 1975, inmates at an Indiana prison filed a conditions of confinement lawsuit which resulted in an order of ongoing injunctive relief. In 1996, Congress enacted the Prison Litigation Reform Act (PLRA), which included a provision allowing prison officials to file a motion to terminate relief, the filing of which operates as a stay on the original injunction ordering relief until the district court rules on the motion to terminate relief. In 1997, Indiana prison officials filed a termination motion, and inmates sought to enjoin the operation of the "automatic stay" on the grounds that that portion of the PLRA violated the separation of powers doctrine because Congress was intruding on the authority of the judicial branch. The district court enjoined the stay, and the 7th Circuit affirmed, ruling that while the PLRA did not permit the district court to enjoin the automatic stay, that provision violated the separation of powers doctrine.

The Supreme Court, in a majority opinion by Justice O'Connor, reversed the 7th Circuit, holding that the PLRA's "automatic stay" provision does not violate the separation of powers doctrine. The Court also noted that the plain language of the statute eliminated the equitable power of the district court to enjoin the automatic stay. 5-4 decision.

California, 68 USLW 4040 (2000)

Martinez represented himself at his trial in California state court on embezzlement charges. He was convicted, but filed an appeal and a motion that he wished to represent himself on appeal. The state appeals court denied his motion to represent himself, holding there was no constitutional right to represent oneself on appeal. A 1975 Supreme Court decision (Faretta v. California) held that criminal defendants had a Sixth Amendment right to represent themselves at trial. This right did not extend to appeals, the state court ruled, as the Sixth Amendment does not apply to appeals, and due process does not require courts to allow defendants to represent themselves. Martinez then filed an appeal with the Supreme Court, which accepted the appeal and appointed a lawyer to represent Martinez before the high court.

The Supreme Court ruled unanimously that criminal defendants do not have a constitutional right to represent themselves on appeal. Writing for the Court, Justice Stevens said the historical analysis that supported the Faretta decision did not apply to appeals, which were not available at common law and, although provided for by law in the state and federal systems today, are not guaranteed by the Constitution. Justice Stevens wrote that states had the discretion to decide whether the government's interest in the integrity, efficiency and fairness of the appellate proceeding outweighed the inmate's interest in acting as his own lawyer. 9-0 decision.

Roe v. Flores-Ortega, 68 USLW 4132 (2000)

Flores-Ortega pled guilty to second-degree murder. The trial judge informed him he had 60 days to file an appeal, but defense counsel failed to file an appeal within the time period. An appeal subsequently filed by Flores-Ortega was denied as not timely. He then sought habeas relief, arguing his counsel's failure to file an appeal within the time period constituted ineffective assistance of counsel. The district court denied relief, but the 9th Circuit reversed, ruling that a defense counsel's failure to file an appeal was per se ineffective assistance of counsel unless the defendant specifically instructed the defense attorney not to file an appeal.

The Supreme Court vacated the 9th Circuit decision, rejecting application of a per se rule in this situation. Flores-Ortega did not lose his appeal, however. The Court held that defense counsel has a Sixth Amendment duty to consult with a client about the possibility of an appeal if a rational defendant would want to appeal or this particular defendant expressed a desire to appeal. The Court remanded the case to determine whether defense counsel had consulted with Flores-Ortega. If not, the Court held, he need show only a "reasonable probability" that, but for counsel's failure, he would have appealed. Justice Souter dissented in part, saying the better rule would be to hold that a defense attorney "almost always" consult with a client as to the efficacy of an appeal. 6-3 decision.

Smith v. Robbins, 68 USLW 4069 (2000)

Robbins was convicted in a California state court of second-degree murder. His court-appointed counsel determined that there were no grounds for appeal, and filed a brief silent on the merits of the case, while offering to brief any issues raised by the appellate court. This procedure was in accord with California state practice, but differed from the practice outlined by the Supreme Court in Anders v. California (1967). In Anders, the Court held that appellate counsel who believe an appeal is without merit must explicitly state such and request to withdraw, after filing a brief identifying any "arguable" issues, even if he or she thinks these issues are frivolous. The California state courts denied review. Robbins subsequently filed a federal habeas petition, alleging he had been denied effective assistance of counsel because his appellate counsel's brief did not comply with the Anders requirements. The district court and the 9th Circuit concluded the Anders procedure was constitutionally required.

The Supreme Court, in a majority opinion written by Justice Thomas, affirmed the constitutionality of the California procedure. The majority explained that the Anders procedure was not mandatory, but just one possible method of dealing with potentially meritless appeals. The majority stressed its reluctance to require the states to follow one set procedure when others, such as the California procedure in this case, might function equally well. The dissenters argued that failing to require appellate counsel to undertake a "partisan scrutiny of the record" for potential appealable issues weakened the right to counsel. 5-4 decision.

Bond v. United States, 68 USLW 4255 (2000)

Bond carried a one-pound brick of methamphetamine in a duffel bag he stowed in the storage compartment above his seat on a Greyhound bus. A border patrol agent, conducting a routine immigration check as the bus traveled through Texas, felt the solid object as he walked through the bus conducting a "probing tactile examination" of passengers' carry-on luggage. Bond was arrested and convicted of drug possession. Two lower federal courts rejected Bond's argument that the agent's action violated the Fourth Amendment prohibition on unreasonable searches. Determining whether an expectation of privacy is reasonable under particular circumstances is the key to deciding whether an invasion of that privacy by a government agent violates the Fourth Amendment. As the court's precedents have developed it, the inquiry has two parts: (1) Did the individual have an expectation of privacy, and (2) was that expectation of privacy one that society recognizes as reasonable? The agent's probe was not a search in the constitutional sense, the 5th Circuit ruled, because a bus passenger did not have a reasonable expectation of privacy in his luggage.

The Supreme Court disagreed and reversed Bond's conviction. Writing for the court, Chief Justice Rehnquist first noted that Bond manifested a subjective expectation of privacy by placing the bag directly above his seat and using a solid-colored bag that hid the contents from view. He than asserted that there was an objective expectation of privacy because the border patrol agent's conduct in probing the bag exceeded the sort of handling that a passenger would expect from his fellow passengers. Rehnquist acknowledged that while passengers expect others to handle their luggage, they do not expect that others will "feel the bag in an exploratory manner." Prior decisions (California v. Ciraolo, 1986; Florida v. Riley, 1989) permitted police to conduct an aerial surveillance of a person's property; the Justice Department argued that the search here was no different. The Court disagreed, noting that the physical invasion here was more intrusive than a "mere visual inspection." Justice Breyer filed a dissenting opinion in which he argued that the agent's squeezing in this case was no different than the kind of squeezing that luggage is likely to receive from fellow travelers, and so there was no objective expectation of privacy. 7-2 decision.

Flippo v. West Virginia, 528 US 11

In 1996, Flippo was convicted of murdering his wife after a trial in which prosecutors introduced into evidence photographs the police took from a briefcase they found at the crime scene and opened without a warrant. Flippo had initially summoned the police to the murder scene, his vacation cabin, where he said both he and his wife had been attacked by an unknown intruder. The photographs indicted that Flippo, a minister, was having a homosexual relationship with a member of his church, and provided a possible motive for killing his wife. In allowing the photographs into evidence, the trial court said the police were allowed to examine "anything and everything found within the crime scene." The West Virginia Supreme Court upheld Flippo's conviction.

In an unsigned opinion issued without briefing or oral argument, the Supreme Court reversed the conviction, reiterating that there is no "crime scene exception" to the search warrant requirement. The trial court's ruling "squarely conflicts" with Mincey v. Arizona (1978), in which the Supreme Court refused to create a crime scene exception to the search warrant requirement. The general rule is that a warrantless search by the police is invalid unless it falls within one of the exceptions to the warrant requirement. Here, the court noted, there was no emergency or danger to the police or others that would have precluded getting a warrant after the site of the crime, in a remote state park, had been secured. The decision addressed only the application of the 1978 precedent, sending the case back to the state courts with other issues unresolved. State prosecutors remained free to argue, for example, that Flippo in effect consented to the warrantless search by summoning the police to the murder scene, or that the photographs did not play an important role in his conviction, and that their introduction at the trial was thus "harmless error." 9-0 decision.

Florida v. J. L., 68 USLW 4236 (2000)

Miami police received an anonymous phone tip that a black teenager (a 15-year-old identified in court documents only as J. L.) dressed in a plaid shirt, standing with two companions at a bus stop was carrying a concealed handgun. Police officers went to the scene, found it as described, detained and frisked the juvenile, and pulled a gun from his pants pocket. The Florida Supreme Court suppressed the gun as the fruit of an illegal search. In Terry v. Ohio (1968), the Supreme Court permitted police officers to conduct a stop and frisk based on "reasonable suspicion" rather than the more exacting standard of probable cause. In Alabama v. White (1990), the high court held an anonymous tip which provided an accurate prediction of the suspect's future movements was sufficient to create reasonable suspicion for a stop. In New York v. Quarles (1984), the Court created a "firearms exception" to the Miranda warning requirement for questions related to finding a firearm discarded by the suspect in a public place. A number of lower courts had interpreted these decisions as creating the requisite "reasonable suspicion" justifying a stop and frisk for a weapon mentioned in an anonymous tip. The Florida Supreme Court was in a minority of courts that refused to create such a "firearms exception."

In a unanimous decision written by Justice Ginsburg, the Supreme Court upheld the Florida court's exclusion of the gun from evidence. An anonymous tip that a person is carrying a gun is not enough to justify a stop-and-frisk by the police without some further sign that the information is reliable. The court declined to create a "firearms exception" allowing anonymous tips to permit Terry stops if the tip mentions a weapon, saying such an exception would be too broad, and would enable people to harass others by filing false tips. Additionally, such a rule would not be easily confined to guns, but would logically extend to "bare-boned" tips about narcotics on the ground that guns are often associated with drug dealing. Justice Ginsburg distinguished White by saying that for an anonymous tip to be reliable enough to justify police action, it must do more than simply describe a suspect's appearance and location. In this case, Ginsburg noted that the tip had offered nothing beyond mere description, in contrast to the tip in White, which provided predictions about future movement, thus permitting the police to verify its reliability. In the context of an anonymous tip rather than observed behavior, reasonable suspicion requires that the tip be reliable in its assertion of illegality and/or conduct, not just in its tendency to identify a particular person. Recalling that the court had described White as "close," Ginsburg said this case was on the other side of the line. She did suggest that the need for reliability might be relaxed in contexts where great danger was alleged — as in a report that someone was carrying a bomb — or in places such as airports or schools, where the reasonable expectation of privacy is diminished. 9-0 decision.

Illinois v. Wardlow, 68 USLW 4031 (1999)

As four police cars on narcotics patrol at noon approached the Chicago sidewalk where he was standing, Sam Wardlow turned and ran down an alley. An officer caught him and, in a pat-down search, felt a gun in a bag Wardlow was carrying. Wardlow was arrested and subsequently convicted of illegal possession of a firearm. The Illinois Supreme Court reversed his conviction, on the ground that fleeing from the police at high speed did not provide the "reasonable suspicion" necessary to justify a stop-and-frisk procedure. The state court reasoned that because people have the right to walk away from an encounter with the police, they also have the right to run away. In its appeal, Illinois argued that unprovoked flight from the police should always give rise to reasonable suspicion, regardless of the presence or absence of any other element. Most lower courts that had considered the matter had held that running from the police, even in a high-crime area, was not enough to justify being stopped and searched by the police.

The Supreme Court, in a 5-4 decision authored by Chief Justice Rehnquist, upheld the stop-and-frisk in this case. Rehnquist held that Wardlow's presence in an area known for heavy narcotics trafficking, combined with his unprovoked flight, justified the Terry stop. The Chief Justice noted that the determination of reasonable suspicion is based on "common-sense judgments and inferences about human behavior," and that the circumstances in this case constituted reasonable suspicion. Rehnquist distinguished between a mere refusal to cooperate with the police and "headlong flight" — the first is permissible, but the second suggests a desire to evade the police rather than a simple desire to go about one's business. Rehnquist's brief five-page majority opinion did make it clear that flight alone would not automatically justify a stop, but it should be given heavy weight in the analysis. Justice Stevens's dissenting opinion noted that the majority failed to acknowledge the growing evidence of police practices of "racial profiling" and singling out members of minority groups for police scrutiny, and suggested that some minorities might believe that contact with the police can itself be dangerous, and thus encouraged flight from the police. The dissent also said the known facts of the case were too ambiguous to justify the conclusion that the officer had the requisite level of suspicion. 5-4 decision.

Dickerson v. United States, 68 USLW 4566 (2000)

In 1968, by passing 18 USC 3501, Congress attempted to overrule the Miranda decision, which required police officers to inform a suspect in custody of his rights before they could lawfully interrogate him. Under this statute, applicable only to federal courts, a confession could be admitted even when the suspect was not Mirandized if the prosecution could establish the confession was voluntarily given. This was the test used by the Court prior to Miranda. Doubts about the constitutionality of the statute led federal prosecutors to ignore it for many years. Dickerson was questioned without being Mirandized and made incriminating statements related to his participation in a bank robbery. When his statements were challenged, the prosecution argued 18 USC 3501 applied. On appeal, the 4th Circuit accepted the argument that the federal statute applied and held Dickerson's statements admissible under the voluntariness test. The 4th Circuit relied on language from several Supreme Court cases that suggested the Miranda warnings were not constitutionally mandated but were merely prophylactic rules.

The Supreme Court, in an opinion by Chief Justice Rehnquist, overruled the 4th Circuit and struck down 18 USC 3501. In so doing, the Court held that the Miranda warnings are in fact constitutionally required and are not just a prophylactic rule. The Court acknowledged that there was some language in subsequent opinions, including some authored by then- Justice Rehnquist, suggesting Miranda warnings were not required by the Constitution, but pointed out that the Miranda opinion itself clearly stated otherwise. Furthermore, subsequent cases in which the Court applied the rule to state courts indicated it was a constitutional rule rather than a mere rule of evidence. As Congress lacks the authority to overrule via statute a Supreme Court decision interpreting the constitution, 18 USC 3501 was therefore void. Rehnquist also noted that while the current Court might not agree with Miranda, the principle of stare decisis and evidence that the rule has not adversely affected law enforcement augured for the status quo. Justice Scalia dissented, ridiculing members of the majority for changing their position and arguing the later cases proved Miranda was not a rule of constitutional dimension and that stare decisis does not justify keeping what he believes is a clearly erroneous decision. 7-2 decision.

United States v. Hubbell, 68 USLW 4449 (2000)

In 1994, former Associate Attorney General Webster Hubbell pled guilty to mail fraud and tax evasion charges and was sentenced to almost two years in prison. As part of his plea agreement he promised to provide special prosecutor Kenneth Starr with information relating to the Whitewater investigation. In 1996, Hubbell was served with a subpoena requesting documents. He asserted his privilege against self-incrimination and was granted immunity. He then produced over 13,000 pages of documents, some of which were later used as the basis for his indictment for tax fraud. The district court dismissed the indictment on the ground that the documents used to obtain the indictment came from an immunized act, the production of subpoenaed documents. The District of Columbia Court of Appeals affirmed, ruling that the indictment was flawed unless the prosecution could establish "with reasonable particularity" that it had independent knowledge of the documents, something the prosecution acknowledged it could not do.

The Supreme Court, in an opinion by Justice Stevens, upheld the lower courts, ruling that documents produced in response to a broad subpoena under a grant of immunity cannot be used as evidence if the prosecutor did not previously know of the documents' existence. The Court said the subpoena in this case amounted to nothing more than a "fishing expedition." The Court made clear that just as the privilege against self-incrimination protects the target of grand jury investigation from being compelled to verbally answer incriminating questions, that same privilege exists for the "testimonial act" of document production. Chief Justice Rehnquist was the sole dissenter. 8-1 decision.

The Supreme Court's 1999 term was marked by a number of significant decisions involving criminal justice. In most cases, the Court continued its record of upholding law-enforcement authority, but not always. Law enforcement won 17 times, while criminal defendants and inmates won 11 times. Even when the criminals won, they sometimes lost, as in the Williams case. Coming from a court that is decidedly conservative on criminal law issues, decisions like Bond and J. L. may indicate not a change in the Court's direction, but rather that some lower courts have misread the Court as tilting even further toward law enforcement than in fact it has.