Significant Decisions Affecting Law Enforcement in the

United States Supreme Court’s 2003-2004 Term

 

Prepared for the

Florida Association of Police Attorneys

October 8, 2004

 

 

 

Prepared by

Jeffrey Higginbotham

Spotsylvania, Virginia

 

I. Criminal Procedure   

            A. Fourth Amendment

            B. Fifth Amendment

            C. Sixth Amendment

II. Employment and Discrimination

III. Americans with Disabilities Act

IV. Miscellaneous

V. Cases Pending Decision – Certiorari Granted

 


 


I. Criminal Procedure

           

A. Fourth Amendment

           

United States v. Banks, 124 S.Ct. 521 (12/02/2003).

 

Police officers executing a search warrant for drugs went to Banks’ apartment.  They called out, “Police, search warrant,” rapped on the front door hard enough to be heard by officers at the back door, waited for 15 to 20 seconds with no response, and then broke open the door.  Banks was in the shower and heard nothing until the crash of the door.  The Ninth Circuit found, using a four-part scheme for vetting knock-and-announce entries, ruled that the entry had no exigent circumstances, making forced entry by destruction of property permissible only if there was an explicit refusal of admittance or a time lapse greater than the one here.  The Supreme Court disagreed. 

 

The Court said, “Banks does not, of course, deny that exigency may develop in the period beginning when officers with a warrant knock to be admitted, and the issue comes down to whether it was reasonable to suspect imminent loss of evidence after the 15 to 20 seconds the officers waited prior to forcing their way.  Though we agree... that this call is a close one... we think that after 15 or 20 seconds without a response, police could fairly suspect that cocaine would be gone if they were reticent any longer... The significant circumstances include the arrival of the police during the day, when anyone inside would probably have been up and around, and the sufficiency of 15 to 20 seconds for getting to the bathroom or the kitchen to start flushing cocaine down the drain. That is, when circumstances are exigent because a pusher may be near the point of putting his drugs beyond reach, it is imminent disposal, not travel time to the entrance, that governs when the police may reasonably enter; since the bathroom and kitchen are usually in the interior of a dwelling, not the front hall, there is no reason generally to peg the travel time to the location of the door, and no reliable basis for giving the proprietor of a mansion a longer wait than the resident of a bungalow, or an apartment like Banks’s.  And 15 to 20 seconds does not seem an unrealistic guess about the time someone would need to get in a position to rid his quarters of cocaine... Absent exigency, the police must knock and receive an actual refusal or wait out the time necessary to infer one.  But in a case like this, where the officers knocked and announced their presence, and forcibly entered after a reasonable suspicion of exigency had ripened, their entry satisfied §3109 as well as the Fourth Amendment, even without refusal of admittance.”

           

Illinois v. Lidster, 124 S.Ct. 885 (1/13/2004).

 

To aid the investigation of a hit-and-run death, one week after the incident, at about the same time of night and at about the same place, local police set up a highway checkpoint designed to obtain more information about the accident from the public.  Police cars with flashing lights partially blocked the highway and forced traffic to slow down, leading to lines of up to 15 cars in each lane.  As each vehicle drew up to the checkpoint, an officer would stop it for 10 to 15 seconds, ask the occupants whether they had seen anything happen there the previous weekend, and hand each driver a flyer.  The flyer said “ALERT … FATAL HIT & RUN ACCIDENT” and requested assistance in identifying the vehicle and driver involved in the accident that killed the 70-year old bicyclist. 

 

Lidster swerved his minivan as he approached the checkpoint, nearly hitting one of the officers.  The officer smelled alcohol on Lidster’s breath.  He directed Lidster to a side street where another officer administered a sobriety test and then arrested Lidster.  Lidster was tried and convicted in Illinois state court of driving under the influence of alcohol.  Lidster challenged his arrest on the ground that his initial stop was in violation of the Fourth Amendment because police lacked any particularized suspicion to pull Lidster over. 

 

The Supreme Court disagreed.  The Court distinguished Indianapolis v. Edmond, 531 U.S. 32 (2000), where it held a drug checkpoint was unconstitutional because it was an evidence seeking activity by the police for criminal law enforcement.  In contrast here, the roadblock’s “... primary law enforcement purpose was not to determine whether a vehicle’s occupants were committing a crime, but to ask vehicle occupants, as members of the public, for their help in providing information about a crime in all likelihood committed by others. 

 

The police expected the information elicited to help them apprehend, not the vehicle’s occupants, but other individuals... The importance of soliciting the public’s assistance is offset to some degree by the need to stop a motorist to obtain that help–a need less likely present where a pedestrian, not a motorist, is involved. The difference is significant in light of our determinations that such an involuntary stop amounts to a ‘seizure’ in Fourth Amendment terms... That difference, however, is not important enough to justify an Edmond-type rule here. After all, as we have said, the motorist stop will likely be brief.  Any accompanying traffic delay should prove no more onerous than many that typically accompany normal traffic congestion.  And the resulting voluntary questioning of a motorist is as likely to prove important for police investigation as is the questioning of a pedestrian.  Given these considerations, it would seem anomalous were the law (1) ordinarily to allow police freely to seek the voluntary cooperation of pedestrians but (2) ordinarily to forbid police to seek similar voluntary cooperation from motorists.”

 

 Ultimately, the Supreme Court determined the stop of Lidster was reasonable for a variety of reasons: “The relevant public concern was grave.  Police were investigating a crime that had resulted in a human death.  No one denies the police’s need to obtain more information at that time.  And the stop’s objective was to help find the perpetrator of a specific and known crime, not of unknown crimes of a general sort... The stop advanced this grave public concern to a significant degree.  The police appropriately tailored their checkpoint stops to fit important criminal investigatory needs.  The stops took place about one week after the hit-and-run accident, on the same highway near the location of the accident, and at about the same time of night.  And police used the stops to obtain information from drivers, some of whom might well have been in the vicinity of the crime at the time it occurred... Most importantly, the stops interfered only minimally with liberty of the sort the Fourth Amendment seeks to protect.  Viewed objectively, each stop required only a brief wait in line–a very few minutes at most.  Contact with the police lasted only a few seconds... Police contact consisted simply of a request for information and the distribution of a flyer... Viewed subjectively, the contact provided little reason for anxiety or alarm.  The police stopped all vehicles systematically... And there is no allegation here that the police acted in a discriminatory or otherwise unlawful manner while questioning motorists during stops.  For these reasons we conclude that the checkpoint stop was constitutional.”

           

Maryland v. Pringle, 124 S.Ct.  795 (12/15/2003).

 

A car with a driver and two passengers was stopped for speeding.  When the glove compartment was opened to obtain the vehicle’s registration, the officer observed a large roll of cash inside.  The driver gave consent to search, and the cash and cocaine were seized.  All three people denied ownership of the drugs.  The police arrested all three persons, including Pringle who was the front-seat passenger.  At the police station, Pringle waived his Miranda rights and confessed to ownership of the cocaine.  He challenged his conviction alleging that police lacked probable cause to arrest him, and, therefore, his confession was illegally tainted.  The Supreme Court disagreed.  The Court reaffirmed prior holdings that probable cause is judged by the totality of circumstances and is a non-technical concept. 

 

Applying that standard to the facts, the Court said, “We think it an entirely reasonable inference from these facts that any or all three of the occupants had knowledge of, and exercised dominion and control over, the cocaine.  Thus a reasonable officer could conclude that there was probable cause to believe Pringle committed the crime of possession of cocaine, either solely or jointly... Here we think it was reasonable for the officer to infer a common enterprise among the three men.  The quantity of drugs and cash in the car indicated the likelihood of drug dealing, an enterprise to which a dealer would be unlikely to admit an innocent person with the potential to furnish evidence against him.”  Accordingly, the arrest was upheld. 

           

Hiibel v. Sixth Judicial District Court of Nevada, Humboldt County, 124 S.Ct. 2451 (06/21/2004).

 

An officer approached a man and explained that he was investigating a report of a fight.  The man appeared to be intoxicated.  The officer asked him if he had “any identification on [him],” intended as a request to produce a driver’s license or some other form of written identification.  The man refused and asked why the officer wanted to see identification.  The officer responded that he was conducting an investigation and needed to see some identification.  The unidentified man became agitated and insisted he had done nothing wrong.  The officer explained that he wanted to find out who the man was and what he was doing there.  After continued refusals to comply with the officer’s request for identification, the man began to taunt the officer by placing his hands behind his back and telling the officer to arrest him and take him to jail. This routine kept up for several minutes: the officer asked for identification 11 times and was refused each time.  After warning the man that he would be arrested if he continued to refuse to comply, the officer placed him under arrest. 

 

The Supreme Court upheld the arrest: “Our decisions make clear that questions concerning a suspect’s identity are a routine and accepted part of many Terry stops... Obtaining a suspect’s name in the course of a Terry stop serves important government interests.  Knowledge of identity may inform an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder.  On the other hand, knowing identity may help clear a suspect and allow the police to concentrate their efforts elsewhere.  Identity may prove particularly important in cases such as this, where the police are investigating what appears to be a domestic assault.  Officers called to investigate domestic disputes need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim... The principles of Terry permit a State to require a suspect to disclose his name in the course of a Terry stop.

 

The reasonableness of a seizure under the Fourth Amendment is determined ‘by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate government interests’... The Nevada statute satisfies that standard.  The request for identity has an immediate relation to the purpose, rationale, and practical demands of a Terry stop. The threat of criminal sanction helps ensure that the request for identity does not become a legal nullity.  On the other hand, the Nevada statute does not alter the nature of the stop itself: it does not change its duration... or its location... A state law requiring a suspect to disclose his name in the course of a valid Terry stop is consistent with Fourth Amendment prohibitions against unreasonable searches and seizures.”

           

Thornton v. United States, 124 S.Ct. 2127 (5/24/2004).

 

An off-duty officer was driving his patrol car when he noticed a Lincoln Town car slowing down to avoid passing the officer’s car.  The officer became suspicious and pulled on to a side street and allowed the car to pass.  As it did, the officer noted the license plate and called it in.  The records check indicated the plates were issued to a different car.  The officer then followed the car.  But before the officer could pull the car over,  the driver pulled into a parking lot and got out of the car.  The officer got out of his car and asked the driver about the mismatched license plates.  The driver was nervous and sweating, and rambled in his responses to the officer’s questions.  Fearing for his safety, the officer asked the driver if he was in possession of any weapons or drugs.  The driver denied having either, but consented to a pat down search of his person. 

 

During the pat down, the officer felt a bulge in the driver’s shirt pocket.   When asked again if he had any drugs, the driver admitted it and reached into his own pocket and produced one bag, containing three other bags of marijuana, and one bag of crack cocaine.  The driver was then arrested, handcuffed and secured.  The officer then searched the car, finding a handgun under the front seat.  Criminal charges based on the weapon were challenged by the driver on the basis that the search of the car was not lawfully incident to his arrest. 

 

Relying primarily on New York v. Belton, 453 U.S. 454 (1981), the Court concluded the search was lawful: “In all relevant aspects, the arrest of a suspect who is next to a vehicle presents identical concerns regarding officer safety and the destruction of evidence as the arrest of one who is inside the vehicle.  An officer may search a suspect’s vehicle under Belton only if the suspect is arrested... A custodial arrest is fluid and ‘[t]he danger to the police officer flows from the fact of the arrest, and its attendant proximity, stress, and uncertainty’... The stress is no less merely because the arrestee exited his car before the officer initiated contact, nor is an arrestee less likely to attempt to lunge for a weapon or to destroy evidence if he is outside of, but still in control of, the vehicle

 

In either case, the officer faces a highly volatile situation.  It would make little sense to apply two different rules to what is, at bottom, the same situation.  In some circumstances it may be safer and more effective for officers to conceal their presence from a suspect until he has left his vehicle.  Certainly that is a judgment officers should be free to make.  But under the strictures of petitioner’s proposed ‘contact initiation’ rule, officers who do so would be unable to search the car’s passenger compartment in the event of a custodial arrest, potentially compromising their safety and placing incriminating evidence at risk of concealment or destruction.  The Fourth Amendment does not require such a gamble... Once an officer determines that there is probable cause to make an arrest, it is reasonable to allow officers to ensure their safety and to preserve evidence by searching the entire passenger compartment.”

           

United States v. Flores-Montano, 124 S.Ct. 1582 (03/24/2004).

 

Flores-Montano was stopped at a border crossing in Southern California.  He was directed to leave his car, which was then taken to a secondary inspection station.  A customs officer tapped on the gas tank, and thought it sounded solid.  A contract mechanic was summoned and removed the gas tank.  Inside the tank, approximately 81 pounds of marijuana was discovered.  Flores-Montano was indicted and moved to suppress the evidence on the basis of a Ninth Circuit rule that requires reasonable suspicion before a car’s gas tank may be removed.   The Court, however, rejected that Ninth Circuit rule and Flores-Montano’s contention that he had a reasonable expectation of privacy in his gas tank.  The Court held “...that the Government’s authority to conduct suspicionless inspections at the border includes the authority to remove, disassemble, and reassemble a vehicle’s fuel tank.  While it may be true that some searches of property are so destructive as to require a different result, this was not one of them.”

           

Groh v. Ramirez, 124 S.Ct. 1284 (02/24/2004).

 

ATF agents search a home pursuant to a warrant that failed to describe the “persons or things to be seized.”   Although the application particularly described the place to be searched and the contraband petitioner expected to find, the warrant itself was less specific; it failed to identify any of the items that petitioner intended to seize.  In the portion of the form that called for a description of the “person or property” to be seized, petitioner typed a description of respondents’ two-story blue house rather than the alleged stockpile of firearms.  The warrant did not incorporate by reference the itemized list contained in the application.  It did, however, recite that the Magistrate was satisfied the affidavit established probable cause to believe that contraband was concealed on the premises, and that sufficient grounds existed for the warrant’s issuance.  The search uncovered no illegal weapons or explosives.  A lawsuit followed alleging a violation of the Warrant Clause of the Fourth Amendment.  The Court made several rulings:

 

(1)   “The warrant was plainly invalid.  The Fourth Amendment states unambiguously that ‘no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’  The warrant in this case complied with the first three of these requirements: It was based on probable cause and supported by a sworn affidavit, and it described particularly the place of the search. On the fourth requirement, however, the warrant failed altogether.” 

 

(2)   The “presumptive rule against warrantless searches applies with equal force to searches whose only defect is a lack of particularity in the warrant.” 

 

(3)   “Given that the particularity requirement is set forth in the text of the Constitution, no reasonable officer could believe that a warrant that plainly did not comply with that requirement was valid... Moreover, because petitioner himself prepared the invalid warrant, he may not argue that he reasonably relied on the Magistrate’s assurance that the warrant contained an adequate description of the things to be seized and was therefore valid.”  Thus, the affiant was not entitled to qualified immunity. 

 

(4)   “[O]fficers leading a search team must ‘mak[e] sure that they have a proper warrant that in fact authorizes the search and seizure they are about to conduct’... That is not a duty to proofread; it is, rather, a duty to ensure that the warrant conforms to constitutional requirements... Petitioner contends that the search in this case was the product, at worst, of a lack of due care, and that our case law requires more than negligent behavior before depriving an official of qualified immunity... But as we observed in... Sheppard, ‘a warrant may be so facially deficient -- i.e., in failing to particularize the place to be searched or the things to be seized -- that the executing officers cannot reasonably presume it to be valid’... This is such a case.”  (Emphasis added.)

           

B. Fifth Amendment

           

Missouri v. Seibert, 124 S.Ct. 2601 (06/08/2004).

 

Seibert’s 12-year-old son Jonathan had cerebral palsy, and when he died in his sleep she feared charges of neglect because of bedsores on his body.  In her presence, two of her teenage sons and two of their friends devised a plan to conceal the facts surrounding Jonathan’s death by incinerating his body in the course of burning the family’s mobile home, in which they planned to leave Donald Rector, a mentally ill teenager living with the family, to avoid any appearance that Jonathan had been unattended.  Seibert’s son Darian and a friend set the fire, and Donald died.  Five days later, the police awakened Seibert at 3:00 a.m. at a hospital where Darian was being treated for burns.  In arresting her, Officer Kevin Clinton followed instructions from Rolla, Missouri, officer Richard Hanrahan that he refrain from giving Miranda warnings.  After Seibert had been taken to the police station and left alone in an interview room for 15 to 20 minutes,  Hanrahan questioned her without Miranda warnings for 30 to 40 minutes, squeezing her arm and repeating “Donald was also to die in his sleep.” 

 

After Seibert finally admitted she knew Donald was meant to die in the fire, she was given a 20-minute coffee and cigarette break.  Officer Hanrahan then turned on a tape recorder, gave Seibert the Miranda warnings, and obtained a signed waiver of rights from her.  He resumed the questioning.  Seibert thereafter gave a full confession.  The Court noted that it took the case to analyze “a police protocol for custodial interrogation that calls for giving no warnings of the rights to silence and counsel until interrogation has produced a confession... the interrogating officer follows it with Miranda warnings and then leads the suspect to cover the same ground a second time.”  The Court also suggested that this practice was apparently widespread: “Although we have no statistics on the frequency of this practice, it is not confined to Rolla, Missouri. 

 

An officer of that police department testified that the strategy of withholding Miranda warnings until after interrogating and drawing out a confession was promoted not only by his own department, but by a national police training organization and other departments in which he had worked... Consistently with the officer’s testimony, the Police Law Institute, for example, instructs that ‘officers may conduct a two-stage interrogation... At any point during the pre-Miranda interrogation, usually after arrestees have confessed, officers may then read the Miranda warnings and ask for a waiver.  If the arrestees waive their Miranda rights, officers will be able to repeat any subsequent incriminating statements later in court’... The upshot of all this advice is a question-first practice of some popularity, as one can see from the reported cases describing its use, sometimes in obedience to departmental policy.” 

 

In holding the statements made by Seibert were inadmissible, the Court said, “By any objective measure, applied to circumstances exemplified here, it is likely that if the interrogators employ the technique of withholding warnings until after interrogation succeeds in eliciting a confession, the warnings will be ineffective in preparing the suspect for successive interrogation, close in time and similar in content.  After all, the reason that question-first is catching on is as obvious as its manifest purpose, which is to get a confession the suspect would not make if he understood his rights at the outset; the sensible underlying assumption is that with one confession in hand before the warnings, the interrogator can count on getting its duplicate, with trifling additional trouble. 

 

Upon hearing warnings only in the aftermath of interrogation and just after making a confession, a suspect would hardly think he had a genuine right to remain silent, let alone persist in so believing once the police began to lead him over the same ground again.  A more likely reaction on a suspect’s part would be perplexity about the reason for discussing rights at that point, bewilderment being an unpromising frame of mind for knowledgeable decision.  What is worse, telling a suspect that ‘anything you say can and will be used against you,’ without expressly excepting the statement just given, could lead to an entirely reasonable inference that what he has just said will be used, with subsequent silence being of no avail. 

 

Thus, when Miranda warnings are inserted in the midst of coordinated and continuing interrogation, they are likely to mislead and ‘depriv[e] a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them’... By the same token, it would ordinarily be unrealistic to treat two spates of integrated and proximately conducted questioning as independent interrogations subject to independent evaluation simply because Miranda warnings formally punctuate them in the middle... Strategists dedicated to draining the substance out of Miranda cannot accomplish by training instructions what Dickerson held Congress could not do by statute. Because the question-first tactic effectively threatens to thwart Miranda’s purpose of reducing the risk that a coerced confession would be admitted, and because the facts here do not reasonably support a conclusion that the warnings given could have served their purpose, Seibert’s postwarning statements are inadmissible.”

           

United States v. Patane, 124 S.Ct. 2620 (06/28/2004).

 

Patane was under a restraining order to avoid contact with a woman he had been charged with harassing.  When he violated that order, police officers went to arrest him.  The also possessed information that he illegally possessed a firearm.  When Patane was arrested, the officers started to advise him of his Miranda rights.  Before they could completely do that, however, Patane interrupted and said the he knew his rights.  The officers did not complete the admonition of Miranda rights, but did ask him about the gun.  Initially, Patane balked, saying, “I am not sure I should tell you anything about the Glock because I don’t want you to take it away from me.”  

 

When the officers persisted, Patane told them where the gun was and it was seized.  Patane’s argument before the Court sought suppression of the gun on the grounds that it was the fruit of an illegal interrogation.  The Court, however, ruled in favor of the government: “[T]he Miranda rule is a prophylactic employed to protect against violations of the Self-Incrimination Clause.  The Self-Incrimination Clause, however, is not implicated by the admission into evidence of the physical fruit of a voluntary statement.  Accordingly, there is no justification for extending the Miranda rule to this context. And just as the Self-Incrimination Clause primarily focuses on the criminal trial, so too does the Miranda rule. 

 

The Miranda rule is not a code of police conduct, and police do not violate the Constitution (or even the Miranda rule, for that matter) by mere failures to warn.  For this reason, the exclusionary rule articulated in cases such as Wong Sun does not apply... Our cases also make clear the related point that a mere failure to give Miranda warnings does not, by itself, violate a suspect’s constitutional rights or even the Miranda rule... It follows that police do not violate a suspect’s constitutional rights (or the Miranda rule) by negligent or even deliberate failures to provide the suspect with the full panoply of warnings prescribed by Miranda.  Potential violations occur, if at all, only upon the admission of unwarned statements into evidence at trial.  And, at that point, ‘[t]he exclusion of unwarned statements... is a complete and sufficient remedy’ for any perceived Miranda violation.”

           

Yarborough v. Alvarado, 124 S.Ct. 2140 (06/01/2004).

 

Alvarado and Soto attempted to steal a car from a man in a mall parking lot.  Soto approached the man and demanded the car.  When the victim refused, Soto shot him.  Alvarado helped hide the gun.  About a month later, the investigator left word at Alvarado’s house that she needed to talk to him.  Alvarado’s parents brought him to the police station and waited in the lobby while Alvarado was being interviewed.  No Miranda warnings were given prior to the interview.  During the course of a two-hour interview, Alvarado made admissions.  After the interview, Alvarado was returned to his parents and left the police station.  The state thereafter sought to introduce into evidence the recorded interview when Alvarado testified in his own defense.  The lower courts concluded the evidence was admissible because Alvarado was not in custody at the time of his police-station interview; therefore, no Miranda warnings were required.   In habeas proceedings, however, the Ninth Circuit Court of Appeals disagreed and ruled that the state court erred in failing to account for Alvarado’s youth and inexperience when evaluating whether a reasonable person in his position would have felt free to leave.  The Supreme Court granted certiorari.  The Court made two rulings.

 

First, on the technical issue of whether habeas relief could be granted given the statutory deference in 28 U.S.C. §2254(d)(1) for state court findings, the Court found that the state court did not unreasonably interpret the Supreme Court’s clearly established law concerning custody for Miranda purposes.  In doing so, however, the Court did not establish any new or clearer rule about custodial interrogation.

 

 The second ruling concerned the Ninth Circuit’s reliance on Alvarado’s age and inexperience with law enforcement.  Those factors, as they pertain to custody for Miranda purposes, were rejected by the Court: “Our opinions applying the Miranda custody test have not mentioned the suspect’s age, much less mandated its consideration.  The only indications in the Court’s opinions relevant to a suspect’s experience with law enforcement have rejected reliance on such factors... There is an important conceptual difference between the Miranda custody test and the line of cases from other contexts considering age and experience. The Miranda custody inquiry is an objective test... The objective test furthers ‘the clarity of [Miranda’s] rule’... ensuring that the police do not need ‘to make guesses as to [the circumstances] at issue before deciding how they may interrogate the suspect’... For these reasons, the state court’s failure to consider Alvarado’s age does not provide a proper basis for finding that the state court’s decision was an unreasonable application of clearly established law.  Indeed, reliance on Alvarado’s prior history with law enforcement was improper not only under the deferential standard of 28 U.S.C. §2254(d)(1), but also as a de novo matter. 

 

In most cases, police officers will not know a suspect’s interrogation history... Even if they do, the relationship between a suspect’s past experiences and the likelihood a reasonable person with that experience would feel free to leave often will be speculative. True, suspects with prior law enforcement experience may understand police procedures and reasonably feel free to leave unless told otherwise.  On the other hand, they may view past as prologue and expect another in a string of arrests.  We do not ask police officers to consider these contingent psychological factors when deciding when suspects should be advised of their Miranda rights... The inquiry turns too much on the suspect’s subjective state of mind and not enough on the objective circumstances of the interrogation.” 

           

United States v. Lara, 124 S.Ct. 1628 (04/19/2004).

 

Lara was an non-tribe member living with his wife on the Spirit Lake Indian reservation.  After several incidents, he was issued an order excluding him from the reservation.  Lara ignored the order.  When he was stopped by a federal officer, he struck the officer.  He was charged by the tribe with violence to a police officer, was convicted and served an 90 jail sentence.  Upon his release, he was charged by the United States with assault on a federal officer.  That charge was contested as a violation of the Double Jeopardy Clause of the Fifth Amendment.  The Court rejected that claim, finding that the “...Constitution authorizes Congress to permit tribes, as an exercise of their inherent tribal authority, to prosecute nonmember Indians.  We hold that Congress exercised that authority in writing this statute [25 U.S.C. §1301].  That being so, the Spirit Lake Tribe’s prosecution of Lara did not amount to an exercise of federal power, and the Tribe acted in its capacity of a separate sovereign. Consequently, the Double Jeopardy Clause does not prohibit the Federal Government from proceeding with the present prosecution for a discrete federal offense.”

           

C. Sixth Amendment

                       

Crawford v. Washington, 124 S.Ct. 1354 (3/8/2004).

 

Crawford and his wife went to the victim’s apartment to avenge an attempted rape of Crawford’s wife.  A fight ensued and Crawford stabbed the victim.  Following his arrest and the admonition of Miranda rights, Crawford confessed.  Crawford’s wife was also arrested, and she, too, gave an incriminating statement.  Crawford was charged with assault and attempted murder.  At trial, the state introduced into evidence the wife’s recorded statement, even though she did not testify because of a spousal privilege. 

 

Crawford challenged the admissibility of that statement on the ground that it violated the Confrontation Clause of the Sixth Amendment.  The trial and lower appellate courts concluded the wife’s confession was admissible, even without the opportunity for the defendant to cross-examine, because it was deemed to be reliable.  The Supreme Court disagreed.  The Court held, “Our cases have thus remained faithful to the Framers’ understanding: Testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine... Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. 

 

This is not what the Sixth Amendment prescribes... In this case, the State admitted [the wife’s] testimonial statement against petitioner, despite the fact that he had no opportunity to cross-examine her.  That alone is sufficient to make out a violation of the Sixth Amendment... we decline to mine the record in search of indicia of reliability.  Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.”

           

Fellers v. United States, 124 S.Ct. 1019 (1/26/2004).

 

Fellers was indicted by a grand jury for conspiracy to distribute methamphetamine.  Thereafter two police officers went to his home to arrest him.  The officers knocked on Fellers’ door and, when he answered, they identified themselves and asked if they could come in.  Fellers invited the officers into his living room where the officers advised petitioner they had come to discuss his involvement in methamphetamine distribution.  They also informed him that they had a federal warrant for his arrest and that a grand jury had indicted him for conspiracy to distribute methamphetamine.  The officers told petitioner that the indictment referred to his involvement with certain individuals, four of whom they named.  Fellers  then told the officers that he knew the four people and had used methamphetamine during his association with them. 

 

After spending about 15 minutes at Fellers’ house, the officers transported him to jail.  There, the officers advised him for the first time of his Miranda rights.  Fellers and the two officers signed a Miranda waiver form, and Fellers then reiterated the inculpatory statements he had made earlier, admitted to having associated with other individuals implicated in the charged conspiracy, and admitted to having loaned money to one of them even though he suspected that she was involved in drug transactions.  At trial, Fellers challenged the admissibility of his statements, alleging they violated his Sixth Amendment right to be represented by counsel.  The Court agreed with Fellers.

 

It held, “there is no question that the officers in this case ‘deliberately elicited’ information from petitioner.  Indeed, the officers, upon arriving at petitioner’s house, informed him that their purpose in coming was to discuss his involvement in the distribution of methamphetamine and his association with certain charged co-conspirators... Because the ensuing discussion took place after petitioner had been indicted, outside the presence of counsel, and in the absence of any waiver of petitioner’s  Sixth Amendment rights, the Court of Appeals erred in holding that the officers’ actions did not violate the Sixth Amendment standards established in Massiah, supra, and its progeny.” 

 

However, the Court declined to decide on the admissibility of the jail-house statement:  “[The] Court of Appeals did not reach the question whether the Sixth Amendment requires suppression of petitioner’s jailhouse statements on the ground that they were the fruits of previous questioning conducted in violation of the Sixth Amendment deliberate-elicitation standard.  We have not had occasion to decide whether the rationale of Elstad applies when a suspect makes incriminating statements after a knowing and voluntary waiver of his right to counsel notwithstanding earlier police questioning in violation of Sixth Amendment standards.  We therefore remand to the Court of Appeals to address this issue in the first instance.”

           

Iowa v. Tovar, 124 S.Ct. 1379 (03/08/2004).

 

Tovar was arrested for operating a vehicle while intoxicated (OWI).  He appeared for his arraignment without an attorney, and there informed the court that he wished to represent himself and to plead guilty.  The court conducted the required guilty colloquy.  Tovar told the court he understood his rights and the consequences of his plea.  The court accepted his guilty plea.  Over the next several years, Tovar was charged with additional OWI offenses that resulted in felony exposure.  Now represented by an attorney, he moved to set aside his initial OWI conviction on the basis that he “...was never made aware by the court... of the dangers and disadvantages of self-representation.”  

 

The Iowa Supreme Court ruled in favor of Tovar, concluding that a waiver of counsel at a plea hearing requires “the trial judge  advise the defendant generally that there are defenses to criminal charges that may not be known by laypersons and that the danger in waiving the assistance of counsel in deciding whether to plead guilty is the risk that a viable defense will be overlooked’... in addition, the defendant should be admonished that by waiving his right to an attorney he will lose the opportunity to obtain an independent opinion on whether, under the facts and applicable law, it is wise to plead guilty.”   The Supreme Court granted certiorari to clarify the requirements the Sixth Amendment imposes for waiver of counsel at a plea hearing. 

 

In deciding that issue, the Court noted: “We have described a waiver of counsel as intelligent when the defendant ‘knows what he is doing and his choice is made with eyes open’... We have not, however, prescribed any formula or script to be read to a defendant who states that he elects to proceed without counsel.  The information a defendant must possess in order to make an intelligent election, our decisions indicate, will depend on a range of case-specific factors, including the defendant’s education or sophistication, the complex or easily grasped nature of the charge, and the stage of the proceeding.”  Ultimately, the Court overturned the Iowa court’s Sixth Amendment interpretation, finding that the two admonitions it imposed were not Sixth Amendment requirements.  The Court noted, however, that Iowa was free to impose such rules by state law, but could not expand the Sixth Amendment to reach that position.

           

II. Employment and Discrimination

           

General Dynamics Land Systems, Inc. v. Cline, 124 S.Ct. 1236 (2/24/2004) .

 

General Dynamics and its union negotiated a collective bargaining agreement that eliminated health care benefits for future retirees, except for those current employees who were at least 50 years old.  Cline challenged that agreement as violative of the Age Discrimination in Employment Act (ADEA).  The Court found in favor of the employer.  It held that the ADEA forbids discriminatory preference for the young over the old, but does not prohibit favoring the old over the young.

           

Pennsylvania State Police v. Suders, 124 S.Ct. 2342 (06/14/2004).

 

Suders was hired as a communications operator for the Pennsylvania State Police (PSP) and was almost immediately subjected to sexual harassment by three PSP officers.  The harassing conduct included references to people having sex with animals, discussions of how young girls should be instructed to provide oral sexual gratification to males, obscene gestures of grabbing genitals, and one officer’s rubbing of his rear end, followed by the question, “I have a nice ass, don’t I?”  After she was accused of taking a missing accident file, Suders contacted a PSP equal employment opportunity counselor and told her she may need help. 

 

Neither woman followed up on the conversation.  Two months later, Suders again contacted the counselor and was told she should file a complaint, but was not told how to go about doing so.  Two days later, Suders was arrested for theft when the PSP claimed she stole some exam papers.  Suders disputed the theft, claiming that the exams were the ones she had completed, but for which she had not been given passing credit.  Upon her arrest, she tendered her resignation.  Suders’ lawsuit was dismissed by the trial court when it concluded that the employer could not be held liable for its employees’ conduct where Suders did not take advantage of the employer’s anti-discrimination policy and procedure. 

 

The Supreme Court granted certiorari to resolve the disagreement among the Circuits on the question whether a constructive discharge brought about by supervisor harassment ranks as a tangible employment action and therefore precludes assertion of the affirmative defense available under Faragher v. Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).  Those cases held that when there is no tangible employment action an affirmative defense may be pleaded by the employer “...(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” 

 

The Court began its analysis by deciding that “ ... Title VII encompasses employer liability for a constructive discharge.”  More importantly, though, the Court decided the primary issue against Suders.  The Court held: “To be sure, a constructive discharge is functionally the same as an actual termination in damages-enhancing respects... But when an official act does not underlie the constructive discharge, the Ellerth and Faragher analysis, we here hold, calls for extension of the affirmative defense to the employer.  As those leading decisions indicate, official directions and declarations are the acts most likely to be brought home to the employer, the measures over which the employer can exercise greatest control.  

 

Absent ‘an  official act of the enterprise’... as the last straw, the employer ordinarily would have no particular reason to suspect that a resignation is not the typical kind daily occurring in the work force.  And as Ellerth and Faragher further point out, an official act reflected in company records–a demotion or a reduction in compensation, for example–shows ‘beyond question’ that the supervisor has used his managerial or controlling position to the employee’s disadvantage... Absent such an official act, the extent to which the supervisor’s misconduct has been aided by the agency relation... is less certain.  That uncertainty, our precedent establishes... justifies affording the employer the chance to establish, through the Ellerth/Faragher affirmative defense, that it should not be held vicariously liable.”

           

Jones v. R.R. Donnelley and Sons Company, 124 S.Ct. 1836 (5/3/2004).

 

In Goodman v. Lukens Steel Co., 482 U.S. 656, 660 (1987), the Court held that federal courts should apply “the most appropriate or analogous state statute of limitations” to claims based on asserted violations of 42 U.S.C. §1981.  In 1990, Congress enacted 28 U.S.C. §1658 and  established a catchall 4-year statute of limitations for actions arising under federal statutes enacted after December 1, 1990.  At issue in this case was whether a race discrimination claims brought under §1981 and made possible when Congress amended that statue in 1991 to include as actionable the “termination of contracts and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship,” was subject to a state 2-year statute of limitation, or the 4-year statute of limitations contained in §1658. 

 

The debate centered on whether §1981 was a post-1990 statute because of its new amendments, or a pre-1990 statute because it was initially passed by Congress in 1866.  The Court concluded that “...a cause of action “aris[es] under an Act of Congress enacted” after December 1, 1990–and therefore is governed by §1658’s 4-year statute of limitations–if the plaintiff’s claim against the defendant was made possible by a post-1990 enactment.  That construction best serves Congress’ interest in alleviating the uncertainty inherent in the practice of borrowing state statutes of limitations while at the same time protecting settled interests.  It spares federal judges and litigants the need to identify the appropriate state statute of limitations to apply to new claims but leaves in place the ‘borrowed’ limitations periods for preexisting causes of action, with respect to which the difficult work already has been done.

 

Interpreting §1658 to apply whenever a post-1990 enactment creates a new right to maintain an action also is consistent with the common usage of the word ‘arise’ to mean ‘come into being; originate’ or ‘spring up.’  Finally, that construction is consistent with our interpretations of the term ‘arising under’ as it is used in statutes governing the scope of federal subject-matter jurisdiction... We should avoid reading §1658 in such a way as to give the familiar statutory language a meaning foreign to every other context in which it is used.”  Accordingly, since the cause of action for racial discrimination was made possible specifically by the 1991 amendment to §1981, the new statute of limitations applied.

           

III. Americans with Disabilities Act

           

Raytheon Company v. Hernandez, 124 S.Ct. 513 (12/2/2003).

 

Hernandez lost his job after 25 years for failing a urinalysis drug test.  He subsequently admitted to the use of cocaine and lost his job pursuant to company policy that forbid the use of illegal drugs.  The   “Employee Separation Summary” indicated as the reason for separation: “discharge for personal conduct (quit in lieu of discharge).”   Two years later, after enrolling in a treatment program, Hernandez applied to be rehired.  He was refused, however, because “the company had a policy against rehiring employees who were terminated for workplace misconduct.”  The employer testified that she did not know that Hernandez was a former drug addict when she made the employment decision and did not see anything in his personnel file that would constitute a “record of” addiction.”  The lower court concluded that the policy refusing rehires under these conditions was a guise for illegal discrimination under the Americans with Disabilities Act.  The Supreme Court reversed the appellate court. 

 

The Supreme Court held that under the disparate treatment claim raised by Hernandez, the employer’s neutral no-rehire policy plainly satisfied its obligation under McDonnell Douglas to provide a legitimate, nondiscriminatory reason for refusing to rehire him.  The Court noted that the “no-rehire policy is a quintessential legitimate, nondiscriminatory reason for refusing to rehire an employee who was terminated for violating workplace conduct rules.  If petitioner did indeed apply a neutral, generally applicable no-rehire policy in rejecting respondent’s application, petitioner’s decision not to rehire respondent can, in no way, be said to have been motivated by respondent’s disability.”  Accordingly, the lower court’s ruling in favor of Hernandez was overturned.  

           

Tennessee v. Lane, 124 S.Ct. 1978 (05/17/2004).

 

Title II of the Americans with Disabilities Act (ADA) provides that no “qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs or activities of a public entity...”  Lane and other mobility-impaired persons sued, claiming the lack of elevators and other access devices prevented them from having access to the court system in several counties in Tennessee.  The question presented in this case is whether Title II exceeds Congress’ power under §5 of the Fourteenth Amendment.  In Board of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001), the Court held that the Eleventh Amendment bars private suits seeking money damages for state violations of Title I of the ADA, but left open the question whether the Eleventh Amendment permits suits for money damages under Title II. 

 

In its analysis, the Court noted that Congress may abrogate the State’s Eleventh Amendment immunity only when it  unequivocally expresses its intent to abrogate that immunity and acts pursuant to a valid grant of constitutional authority.  Answering the first inquiry, the Court easily concluded Congress intended to make Title II of the ADA applicable to the states.  The second question was also answered affirmatively. 

 

The Court held that Congress was lawfully attempting to remedy a historical problem of discrimination against persons with disabilities and evidenced it in the ADA.  “[D]iscrimination against individuals with disabilities persists in such critical areas as … education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services.”  42 U.S.C. §12101(a)(3) (emphasis added).  This finding, together with the extensive record of disability discrimination that underlies it, makes clear beyond peradventure that inadequate provision of public services and access to public facilities was an appropriate subject for prophylactic legislation.”

           

IV. Miscellaneous

 

Doe v. Chao, 124 S.Ct. 1204 (2/24/2004).

 

Buck Doe filed a worker’s compensation claim for black lung disease with the Department of Labor (DOL).  In doing so, Doe provided his Social Security Account Number, which DOL thereafter use to identify his claim, including on public documents.  Doe sued the DOL, alleging a violation of the Privacy Act of 1974, that is, disclosure of personal information beyond that permitted by the statute. 

 

At issue before the Court was whether the Privacy Act’s provision setting a minimum award of $1000 for a violation, is an automatic award of damages or whether it requires proof of damages.  The Court held, “The ‘entitle[ment] to recovery’ necessary to qualify for the $1,000 minimum is not shown merely by an intentional or willful violation of the Act producing some adverse effect.  The statute guarantees $1,000 only to plaintiffs who have suffered some actual damages.”

           

Sosa v. Alvarez-Machain, 124 S.Ct. 2739 (06/29/2004).

 

In 1985, DEA Agent, Enrique Camarena-Salazar, was captured on assignment in Mexico and taken to a house in Guadalajara, where he was tortured over the course of a 2-day interrogation, then murdered.  Based in part on eyewitness testimony, DEA officials in the United States believed that Humberto Alvarez-Machain, a Mexican physician, was present at the house and acted to prolong the agent’s life in order to extend the interrogation and torture.  

 

In 1990, a federal grand jury indicted Alvarez for the torture and murder of Camarena-Salazar, and the United States District Court for the Central District of California issued a warrant for his arrest.  The DEA asked the Mexican Government for help in getting Alvarez into the United States, but when the requests and negotiations proved fruitless, the DEA approved a plan to hire Mexican nationals to seize Alvarez and bring him to the United States for trial.  A group of Mexicans, including Sosa, abducted Alvarez from his house, held him overnight in a motel, and brought him by private plane to El Paso, Texas, where he was arrested by federal officers. 

 

That abduction did not deprive the United States courts of jurisdiction, the Supreme Court ruled in 1992.  See, United States v. Alvarez-Machain, 504 U.S. 655 (1992).  Following his acquittal, Alavarez returned to Mexico and filed suit against the United States for false arrest under the Federal Tort Claims Act (FTCA).  The government defended by asserting that the FTCA did not waive the United States’ sovereign immunity, since the FTCA exempts suits that arise in a foreign country. 

 

The Ninth Circuit Court of Appeals ruled in favor of Alvarez based on its analysis that the planning for the abduction occurred at DEA’s California headquarters.  The Supreme Court, though, rejected the headquarters analysis and held that the FTCA’s exception to waiver of sovereign immunity for claims “arising in a foreign country,” bars claims based on any injury suffered in a foreign country, regardless of where the tortious act or omission occurred.”

           

V. Cases Pending Decision – Certiorari Granted

           

Kowalski v. Tesmer, 333 F.3d 683 (6th Cir. 2003).  The questions are: 

 

  1. Does the Fourteenth Amendment guarantee a right to an appointed appellate attorney in a discretionary first appeal of an indigent criminal defendant convicted by a guilty plea? 

 

  1. Do attorneys have third-party standing on behalf of potential future indigent criminal defendants to make a constitutional challenge to a state statute prohibiting appointment of appellate counsel in discretionary first appeals following convictions by guilty pleas where the federal courts properly abstained from hearing the claims of indigent criminal defendants?

           

Johnson v. California, 321 F.3d 791 (9th Cir. 2003). The questions are:

 

  1. Is a state’s practice of routine racial segregation of state prisoners for at least a 60-day period subject to the same strict scrutiny generally applicable to all other challenges to intentional racial segregation, or is it excused from such scrutiny and subject only to the more relaxed review afforded under Turner v. Safley, 482 U.S. 78 (1987)? 

 

  1. Does California’s practice of routine racial segregation of state prisoners for at least a 60-day period violate the Equal Protection Clause?

 

Devenpeck, et al. v. Alford, 333 F.3d 972 (9th Cir. 2003).

 

Under the Fourth Amendment’s objective reasonableness test, an arrest is deemed “reasonable” if there is probable cause to believe that a violation of law has occurred.  Two judicial circuits find an arrest reasonable if, based on an objective assessment by a reasonable officer, there is probable cause to arrest for any offense.  On the other hand, at least five judicial circuits find an arrest to be reasonable only if there is probable cause to arrest for crimes “closely related” to the crime or crimes articulated by the arresting officer.  This case presents the following questions:    

 

  1. Does an arrest violate the Fourth Amendment when a police officer has probable cause to make an arrest for one offense, if that offense is not closely related to the offense articulated by the officer at the time of the arrest? 

 

  1. For the purpose of qualified immunity, was the law clearly established when there was a split in the circuits regarding the application of the “closely related offense doctrine”, the Ninth Circuit had no controlling authority applying the doctrine, and Washington state law did not apply the doctrine?

           

Small v. United States, 333 F.3d 425 (3rd Cir. 2003).

 

The statute in question, 18 §922(g)(1), makes it unlawful for any person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year to possess in or affecting commerce, any firearm.  In the instant matter, petitioner’s only conviction occurred in Okinawa, Japan, and it was this Japanese conviction that served as the predicate felony in this § 922(g)(1) prosecution. The petitioner filed a motion to dismiss the indictment arguing that foreign felonies should not be considered.  The question presented, therefore, is whether the term “convicted in any court” contained in 18 U.S.C. § 922(g)(i) includes convictions entered in foreign courts.”

           

Illinois v. Caballes, 802 N.E.2d 202 (Ill. 2003). The question is:

 

Whether the Fourth Amendment requires reasonable, articulable suspicion to justify using a drug-detection dog to sniff a vehicle during a legitimate traffic stop.

           

Smith, et al. v. City of Jackson, MS, 351 F.3d 183 (5th Cir. 2003).

 

Are disparate impact claims cognizable under the Age Discrimination in Employment Act?

           

Whitfield v. United States and Hall v. United States, 349 F.3d 1320 (11th Cir. 2003). The questions are:

 

  1. Whether commission of an overt act is an essential element of a conviction under 18 U.S.C. § 1956(h), conspiracy to commit money laundering? 

 

  1. Whether the Supreme Court should resolve the split between the federal circuit courts on the issue of whether an overt act is an essential element of a conviction under 18 U.S.C. § 1956(h)? 

 

  1. Whether the district court abused its discretion in omitting an “overt act” element from its instruction on money laundering conspiracy?

           

Muehler v. Mena, 332 F.3d 1255 (9th Cir. 2003). The questions are:

 

  1. Whether, in light of this Court’s repeated holdings that mere police questioning does not constitute a seizure, the Ninth Circuit erred in ruling that law enforcement officers who have lawfully detained an individual pursuant to a valid search warrant engage in an additional, unconstitutional “seizure” if they ask that person questions about criminal activity without probable cause to believe that the person is or has engaged in such activity. 

 

  1. Whether, in light of this Court’s ruling in Michigan v. Summers, that a valid search warrant carries with it the implicit authority to detain occupants while the search is conducted, the Ninth Circuit erred in ruling that a two to three hour detention of the occupant of a suspected gang safe-house while officers searched for concealed weapons and other evidence of a gang-related drive-by shooting was unconstitutional because the occupant was initially detained at gun-point and handcuffed for the duration of the search.

           

                           


 

 

 

 

© 2004, by Jeff Higginbotham