October 2011 Term Supreme Court Preview (Podcast Transcript)
TRANSCRIPT – Supreme Court Preview - April 2011
Welcome to the Supreme Court Preview presented by the Legal Division of the Federal Law Enforcement Training Center. In this 25 minute podcast, you will hear from three attorney instructors assigned to the legal division as they provide you with information regarding upcoming Supreme Court cases.
First, let’s listen to Mr. Jeff Fluck as he describes a couple of important upcoming cases that have Fourth amendment implications.
Hello, my name is Jeffrey Fluck. I am a retired Army judge advocate and have been a senior instructor in the Legal Division at FLETC for more than 9 years.
This term, the Supreme Court will decide 2 cases affecting our understanding of the 4th Amendment.
First, the limits of the exclusionary rule will be considered by the Supreme Court in the Davis case.
Specifically, the Davis case will consider whether the good-faith exception should allow evidence:
- seized before the Supreme Court’s Gant case made the seizure unlawful
- when the evidence was offered in a trial that occurred after the Gant case was decided.
Let’s start with the Davis case from the 11th Circuit.
Davis v. United States:
Arizona v. Gant had not been decided when police stopped a car in Greeneville, Alabama. Willie Gene Davis was a passenger. After Davis and several others in the car were arrested, a search-incident-to-arrest of the passenger compartment produced Davis’s revolver from the pocket of the jacket he had left inside. That revolver led to his conviction and 220 months of imprisonment. At the time, the search was proper under both the Supreme Court’s Belton case and 11th Circuit precedent.
Then Arizona v. Gant established that such searches could only be performed if either:  arrestees could still access the passenger compartment; or  it was reasonable to believe that evidence of the crime of arrest was in the passenger compartment. Neither of these conditions had been met.
Despite finding that the search violated Arizona v. Gant, the 11th Circuit allowed the conviction to stand, saying:
In this case, [police] performed a search that our contemporaneous interpretation of Belton clearly permitted. Had the Supreme Court not subsequently rejected that interpretation in Gant, we undoubtedly would have upheld the search as constitutional. Because the search was objectively reasonable under our then-binding precedent, suppressing the gun found in Davis’s jacket would serve no deterrent purpose. In accordance with our holding that the good faith exception allows the use of evidence obtained in reasonable reliance on well-settled precedent, we refuse to apply the exclusionary rule here. Davis’s conviction is affirmed.
Now, not every Circuit has agreed that the good faith exception applies in this kind of situation to allow admitting evidence even if it was obtained in violation of the Fourth Amendment. This case gives the Supreme Court the opportunity to settle that disagreement.
The case was argued on 21 March 2011.
Second, the Supreme Court will potentially consider whether and how the Fourth Amendment applies to law enforcement interviews of potential victims in the consolidated cases of Greene v. Camreta and Greene v. Alford.
Greene v. Camreta; Greene v. Alford:
In February 2003, Oregon police arrested Nimrod Greene for the drunken sexual abuse of a 7-year-old boy. The boy’s mother told authorities that Greene’s wife, Sarah, was worried that the same thing might be going on with the couple’s two daughters. The caseworker assigned to the case, Bob Camreta, found out that Nimrod had been released from custody and might have access to his daughters.
Camreta and a deputy sheriff (Alford) went to the daughters’ school and interviewed the older daughter for two hours. The caseworker’s and the Greene family’s accounts of this interview and later dealings between them differ sharply.
Nimrod was charged with abusing the 7-year-old boy and his older daughter. The first jury deadlocked. At that point Nimrod entered an Alford plea on the charges involving the boy. The charges involving the girl were dismissed.
This Supreme Court case arises from a § 1983 suit Sarah filed later on behalf of her 9-year-old daughter. Among other things, the suit alleged that the “in-school seizure of [the daughter] without a warrant, parental consent, probable cause, or exigent circumstances violated the Fourth Amendment.”
The Ninth Circuit, after finding that the school interview did violate the Fourth Amendment, nevertheless granted qualified immunity to the caseworker and deputy because the law was not clearly established at the time of the interview.
The case has reached the Supreme Court.
Although other issues are in play, the ultimate issue remains whether this interview of a minor victim / witness violates the Fourth Amendment.
Child sexual abuse cases are not a big part of the federal law enforcement caseload. But the Court may have to discuss a number of preliminary questions to answer the ultimate issue. These could include:
- Is a witness interview, as opposed to a suspect interview, a “seizure” requiring compliance with the Fourth Amendment?
- If so, must LEO meet some standard that the witness has pertinent information before they can conduct the interview? And if so, what is that standard?
- If this is a seizure requiring Fourth Amendment compliance, does this kind of situation routinely present an exigent circumstance excusing first obtaining a warrant?
- Finally, what weight should be given to parental rights in resolving these issues?
The Court’s discussion of these preliminary questions could have broad implications for federal law enforcement.
The case was argued on 1 March 2011. Unfortunately, the Court’s appeared to focus on procedural hurdles rather than the Fourth Amendment issues. This suggests that the Court may not reach the Fourth Amendment issues raised.
Finally, the Court dismissed a third Fourth Amendment case named Tolentino v. New York.
James Tolentino had been stopped by police near the intersection of 181st Street and Broadway in New York City on New Year’s Day, 2005. Police ran his name against the DMV database, learned that his license had been suspended, and charged him with “aggravated unlicensed operation of a motor vehicle in the first degree.”
Tolentino contended that he had been stopped without reasonable suspicion of wrongdoing. He then argued that the database check was the fruit of this unlawful stop and that the result should be suppressed.
Although the Court initially accepted his appeal, they changed their mind on 29 March 2011 and dismissed the appeal without a decision or opinion.
Thank you Mr. Fluck. Next we will listen to Mr. Steve Knerly as identifies the issues in an upcoming case with important Fifth amendment ramifications.
Hi. My name is Steve Knerly. I am a Senior Legal Instructor at the Federal Law Enforcement Training Center, where I serve as the subject matter expert for matters involving the law of self-incrimination and Miranda. In this briefing, I will give a preview of the U.S. Supreme Court’s upcoming decision in the case of J.D.B. v. North Carolina, a case involving the application of the requirements of the Miranda decision when law enforcement officers question juvenile suspects.
In J.D.B. v. North Carolina the Court will decide whether the age of a juvenile suspect is a factor that must be considered in determining whether the juvenile is “in custody” for purposes of applying the requirements of the Miranda decision. In Miranda, the Court created the now-familiar procedural rules that must be followed whenever a suspect is questioned by law enforcement officers while “in custody,” including administration of the Miranda advice of rights or warning. Importantly, these procedural rules only apply when the suspect is determined to be “in custody,” thus making the determination of whether the suspect was in fact “in custody” a particularly critical one. For the purpose of applying Miranda, a suspect is “in custody” when under the totality of the circumstances a reasonable person in the position of the suspect would believe himself under formal arrest or under a restraint on his freedom of movement to the degree associated with a formal arrest. Notably, this test can result in a suspect being determined to be “in custody” even when the suspect is not actually under arrest.
Here are the pertinent facts of the case being considered by the Court. In September 2005, two homes were broken into and items stolen, including a digital camera and jewelry. J.D.B., then 13 years old and enrolled in seventh grade special education classes in Middle School, became a suspect, when he was seen behind another residence in the same neighborhood the same day and later seen at school in possession of the stolen camera. A police investigator went to his school, had the school resource officer escort him from his class to a conference room, and interviewed him with the assistant principal, the school resource officer, and an intern present. The door was closed but not locked. The investigator did not give J.D.B. Miranda warnings; no parent or guardian was contacted beforehand; and no offer to J.D.B. was made to make such a contact. The investigator did ask J.D.B. if he would agree to answer questions about the break-ins and J.D.B. consented to do so.
Initially, J.D.B. denied his involvement. The assistant principal encouraged him to “do the right thing” and tell the truth. When confronted by the investigator with the fact the camera had been found, J.D.B. asked if he would still be in trouble if he gave the items back. The investigator responded that it would be helpful, but the matter would still be going to court and that he may have to seek a secure custody order (resulting in his detention in a juvenile facility). J.D.B. then confessed to breaking in the houses and taking items together with another juvenile. The investigator then informed J.D.B. that he did not have to talk with him and that he was free to leave. The investigator asked J.D.B. if he understood he was not under arrest and did not have to talk him, to which J.D.B. responded by nodding “yes.” J.D.B. then provided further details and a written statement. The interview lasted 30-45 minutes, with J.D.B. being allowed to leave at the closing bell and catch his bus home.
J.D.B.’s statements were used in juvenile proceedings against him, leading to the court’s adjudication of his delinquency. During the trial, the court denied his motion to suppress the statements on grounds that they were taken in violation of Miranda, holding that J.D.B. was not in custody during the questioning and the Miranda protections therefore did not apply. J.D.B. appealed first to the Court of Appeals and then to the North Carolina Supreme Court, both of which affirmed the trial court’s decision, but with strong dissents by some of the justices. The United States Supreme Court accepted the case for review, with oral argument before the Court held on March 23, 2011. In addition to briefs by the parties, six amicus (sometimes called, “Friend of the Court”) briefs have been filed with and accepted by the Court – five by various organizations supporting J.D.B., and one by the United States supporting North Carolina.
In its brief, the State of North Carolina argued that the lower courts had correctly found that J.D.B. was not “in custody” during his questioning by applying the proper objective test. Under that test, the totality of the circumstances did not support that a reasonable person in J.D.B.’s position would believe himself under formal arrest or otherwise subject to a restraint on freedom of movement of a degree associated with formal arrest. The questioning was done without the application of handcuffs, in an unlocked room, and with no officer guarding the door. J.D.B.’s cooperation was initially requested, rather than demanded. He was later clearly told, and he understood, he was free to leave. While the school setting with school officials present was somewhat restricting, J.D.B.’s freedom of movement was not restricted to any significantly greater degree than is common in the school environment in general.
J.D.B., in his brief, argued that the proper test for the Miranda “in custody” determination must consider the age of a juvenile suspect, which was not applied in his case. As he argues, the test should be whether a reasonable person of J.D.B.’s age (i.e., a 13 year old) would have believed himself under formal arrest or restrained in his movement to the degree associated with formal arrest. He notes facts that include he was removed and escorted from class by an armed officer, unable to lawfully leave the school, questioned in a closed room in the presence of significant adult authority figures, and told he might be ordered to juvenile detention. Applying this test, J.D.B. asserts he would have been found to have been “in custody” during the questioning without having been provided his Miranda rights, requiring suppression of his statements.
As can be seen, the key disagreement between the parties is the propriety and desirability of incorporating consideration of a juvenile suspect’s age in the Miranda custody determination. The proponents believe that the objective “reasonable person” must be modified when dealing with juvenile suspects in order to recognize their unique vulnerabilities and give them the practical protections intended by Miranda. The opponents, on the other hand, believe the test should be truly objective, without consideration of a subject’s individual characteristics. In their view, juvenile suspects need no special consideration under Miranda. They note a juvenile suspect has adequate age-sensitive protections under the Fifth Amendment, in that his age, education, intelligence, etc. are all considered in the totality of the circumstances test to determine the voluntariness of any statement he makes that is offered against him in a criminal case. If determined to be involuntary due to coercive police tactics, the statements would be inadmissible. As counter-arguments, the proponents assert that age is an objective factor. They also justify the need for greater protection of juveniles from police coercion by citing various studies and experts suggesting that juveniles are significantly more likely to give false confessions than adults.
Thank you Mr. Knerly. Last but not least, Mr. Bruce Landrum will explain an upcoming case that has an interesting Sixth Amendment issue.
Hello, and welcome. My name is Bruce Landrum and I am an instructor with the Legal Division at the Federal Law Enforcement Training Center. One of my specialty areas in the Legal Division curriculum is the area of courtroom evidence law, including the application of the Confrontation Clause of the 6th Amendment to the U.S. Constitution.
As it turns out, the U.S. Supreme Court has been pretty active recently in addressing Confrontation Clause issues. Under the Confrontation Clause, a criminal defendant has the right to cross examine any witness who testifies against him. However, in certain circumstances, the prior statements of a witness can be admitted at trial instead of live testimony, even when the witness is unavailable for cross-examination.
The Court has explained that witness statements fall into one of two categories, either “testimonial” or “non-testimonial.” Statements that are “testimonial” are subject to the Confrontation Clause. Statements that are “non-testimonial” are analyzed under traditional hearsay rules to determine their admissibility at trial, and so they might be admissible even when the witness who made the statement is not available for cross-examination.
In Davis v. Washington, decided in 2006, the Supreme Court held that a statement by a witness is “non-testimonial”, and therefore not subject to the Confrontation Clause cross-examination requirement, if the statement is made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. On the other hand, statements are testimonial when the circumstances objectively indicate that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
In Michigan v. Bryant the Court recently decided that statements made to officers by a recent shooting victim, who later died, are admissible at trial, because those statements were obtained by officers to deal with an ongoing emergency, and not primarily intended to be used at trial. In the Bryant case, police went to a gas station in response to a call that a man had been shot. Officers questioned the victim, who told them that he had been shot a half hour earlier while standing outside the back door of the defendant’s residence, and that he had driven himself to the gas station. He identified the defendant as the shooter and gave the officers the defendant’s address. The victim died several hours later at the hospital. At the defendant’s trial, the victim’s statements to the officers were ruled to be “non-testimonial” under Davis because they were made in the course of a police interrogation under circumstances objectively indicating that their primary purpose was to enable police assistance to meet an ongoing emergency. The statements were admitted at trial as “excited utterances,” one of the exceptions to the general rule against the use of hearsay evidence at trial. After being convicted of murder, the defendant appealed, and, as I mentioned, after a lengthy appeals process, the U.S. Supreme Court held that this was the correct result. The Court explained that, even though the victim was describing past events instead of an ongoing emergency at that location, this did not negate the fact that a shooter was still at large and potentially dangerous to the public and police. Hence the primary purpose of the inquiry was to deal with the ongoing emergency.
Shortly after releasing the opinion in Michigan v. Bryant, the Supreme Court heard oral argument on another Confrontation Clause case, the case of Bullcoming v. New Mexico. The issue in this case is a bit different than the issue presented in Davis and Bryant.
In the Bullcoming case, the defendant was convicted of drunk driving, based in part on the laboratory report of his blood alcohol content. The report contained test results recorded and certified by a particular laboratory analyst who was unavailable to testify at trial.
Based on other prior Supreme Court cases, it was pretty clear that this lab report was prepared with a primary purpose of being used to prosecute the defendant, and therefore it was a “testimonial” statement which would be subject to the requirements of the Confrontation Clause. The novel approach used by the State of New Mexico in this case was to argue that the report was not really a statement of the lab analyst so much as a recording of the statement of the testing machine. Thus the state argued that the analyst was a mere scrivener and was not adding any content to the report that would require his being available for cross-examination. Instead, the state produced a substitute witness who was also qualified to operate the machine and to interpret its results. This, they argued would be sufficient to allow the defendant to cross-examine the machine testing process.
The New Mexico Supreme Court affirmed this approach. The state court concluded that even though the analyst who prepared the report was not present at trial, he merely recorded “raw data” from the machine and provided no interpretation of that data. Thus the true “accuser” was the machine that tested the blood and generated a print-out of the results of that test. When the prosecution produced another qualified witness to interpret those test results at trial, this satisfied the defendant’s confrontation rights because the interpreting witness was subject to cross-examination.
On appeal to the U.S. Supreme Court, the defendant’s counsel argued that the Confrontation Clause was not satisfied by this “substitute witness” procedure. In fact, they argued, the absent analyst had actually performed the test using the machine and had read the results and recorded them in the report. By signing the report, the absent analyst certified the results as correct. A substitute analyst might be able to explain how the machine works generally and interpret the test results, but this substitute witness cannot testify that the test was performed correctly, or that the results were recorded correctly. Thus they argued, there is still a significant Confrontation Clause interest that can only be satisfied by production of the actual witness who performed the test and recorded the results.
Another concern with using a substitute witness is that the opponent of the evidence cannot cross-examine the witness who performed the test on his or her own competence and qualifications to perform that test correctly. In this case, the analyst who performed the test was unavailable to testify at trial because he “was very recently put on unpaid leave.” During oral argument, Justice Scalia raised the issue of potential abuse by asking why the analyst was on unpaid leave. Was he fired due to incompetence or misconduct? This concern highlights another important purpose of subjecting the witness to cross-examination. If the government is allowed to use substitute witnesses in cases like this, the door would be opened to manipulating the system by “hiding” witnesses whose appearance might detract from the prosecution’s case.
After a lively hour-long argument before the Supreme Court, the case of Bullcoming v. New Mexico is now pending decision with the Court. Stay tuned to the FLETC Legal Division website for our future report on how this and other pending cases are ultimately resolved by the U.S. Supreme Court.
Thank you Mr. Landrum. Well that concludes this edition of the FLETC Legal Division Supreme Court Preview. Make sure you keep an eye out for a review of how the Supreme Court decides these cases in the FLETC Informer. You can find digital versions of the FLETC Informer as well as other helpful legal resources on our website at www.flect.gov/legal.