2009 Supreme Court Wrap-Up Part 1: Review of October 2008 Term Cases (podcast transcript)

Cauthen -  Hi.  I’m Bob Cauthen, Program Manager for Advanced Legal Training Programs at the Legal Division of the Federal Law Enforcement Training Center.  I’m here with Poppi Ritacco, Senior Instructor in the Legal Division.
We’re going to take a look at some, but not all, of the criminal law / law enforcement cases decided by the Supreme Court this past term. 
In Part 2 of this podcast, we’ll look at some of the cases on the docket now that the Court will decide in this upcoming October 2009 term.

Ritacco -   Hi, I’m Poppi Ritacco.  Let’s start by talking about some of the cases from last term.
There are two cases that deal with obtaining statements from criminal defendants.  The first case is Corley v. United States out of the 3rd Circuit which pertains only to federal prosecutions.
Corley is an important case for law enforcement officers because it deals with the admissibility of statements taken after arrest but before the initial appearance. 
Let’s set the legal landscape in which this case was decided.
Federal Rule of Criminal Procedure 5(a), states that, “A person making an arrest within the United States must take the defendant without unnecessary delay before a magistrate judge . . . .”   We call this the initial appearance.
There are two important cases in which the Supreme Court has identified examples of “unnecessary delay.”  In the first case, McNabb v. United States, decided in 1943, federal agents interrogated murder suspects until they obtained confessions.  They weren’t brought before a magistrate until days after they were arrested.    In the 1957 case of Mallory v. United States, prior to taking Mallory before any one of several nearby magistrates, police questioned him for four hours, obtaining a confession seven hours after his arrest.  In both cases, presentment of the suspects was delayed for the sole purpose of interrogation.  The Court found that to be the “epitome of unnecessary delay.”  Together, these cases created what is known as the McNabb-Mallory rule.  Simply put, under the McNabb-Mallory rule, confessions made during periods of detention that violate the prompt presentment requirement of Rule 5(a) are generally inadmissible. 
In 1968, Congress enacted 18 U.S.C. §3501 which addressed, in part (c), the application of the McNabb-Mallory rule in federal courts.  §3501 also addressed Miranda in part (a) and voluntariness in part (b).  Part (a) sought to eliminate the Miranda requirement by deeming admissible voluntary confessions obtained without Miranda advice and waiver.  The Supreme Court overruled part (a) in US v Dickerson in 2000.  Part (b) listed five voluntariness factors.  Under part (c) voluntary statements taken within six hours of arrest are admissible.  Voluntary statements taken after six hours but before the initial appearance are admissible if the court determines that there was a legitimate reason for the delay. 
Now, back to Corley.     
Corley was arrested for assaulting a federal officer and was also suspected of robbing a bank.  He was detained by FBI agents at a local police station for several hours then taken to the hospital to be treated for a minor injury.  He was next taken to the FBI office which was in the same building as the chambers of the nearest magistrate judge.  He waived his Miranda rights, was questioned about the bank robbery, and began an oral confession to the crime.  He began his confession some 9.5 hours after his arrest.  The defendant was too tired to generate a written confession, so he was held overnight.  He signed a written confession the next day.  His initial appearance occurred 29.5 hours after his arrest.
Corley moved to suppress his confession on the grounds that the government had violated FRCP 5(a) and the McNabb-Mallory rule.  The trial court denied Corley’s motion and admitted the oral confession, ruling that once the time needed for Corley’s medical treatment was excluded, the confession was voluntarily obtained within six hours as required by §3501.  The trial court further admitted the later written confession, finding that a break in questioning at the request of the suspect does not constitute “unnecessary delay.”  Corley was tried and convicted.  The 3rd Circuit affirmed the conviction, but on different grounds.  The appeals court held that §3501 had replaced the McNabb-Mallory rule with a pure voluntariness test regardless of whether any delay was reasonable or unreasonable.
Thus, the issue that The Supreme Court had to decide was whether §3501 eliminated or simply modified the McNabb-Mallory rule.  In other words, for a suspect’s statement obtained before the initial appearance to be admissible, does the government still need to present the defendant to a magistrate without unnecessary delay or simply ensure that the statement is voluntary?
The government defended the logic used by the 3rd Circuit, arguing that §3501 eliminated the McNabb-Mallory rule and replaced it with a pure voluntariness test.  The defendant argued that §3501 simply modified the McNabb-Mallory rule - voluntary statements obtained prior to the initial appearance held within six hours of arrest are admissible.  But, if the initial appearance occurs more than 6 hours after arrest, the government must show necessary delay for the statement to be admissible.  And remember, under the McNabb-Mallory rule, delay for the purpose of getting the statement is “unnecessary delay” in violation of Rule 5.
The Supreme Court sided with the defendant and held that §3501 only modified the McNabb-Mallory rule. 
A confession made after arrest but before initial appearance is admissible if it is made within six hours of arrest, is voluntary, and is in compliance with Miranda. 
If the confession occurred more than six hours after arrest but before the initial appearance, it is not admissible when the delay was for the sole purpose of obtaining the statement.
If the confession occurred more than six hours after arrest but before the initial appearance, it is admissible when the delay was reasonable and the statement was voluntary and in compliance with Miranda.

Cauthen - The second case we want to look at is Montejo v. Louisiana, which also deals with obtaining statements from criminal defendants.  Montejo, however, deals with the issue of when the defendant has invoked the 6th Amendment right to counsel. 
A quick review of existing law prior to Montejo is helpful. 
A defendant has the 6th Amendment right to a lawyer when the adversarial judicial process begins with formal charging by indictment or the filing of an information, or once an initial appearance occurs.  When invoked, no questioning is allowed without the lawyer.  Law enforcement may not approach the defendant at all.  In the 1986 decision of Michigan v. Jackson, the Court held that the defendant invoked his 6th Amendment right to counsel when he requested a lawyer at his initial appearance (or similar proceeding).  The purpose of the rule created in Jackson was to prevent police from badgering defendants into changing their minds after they had asserted their 6th Amendment right to a lawyer.
In Montejo, the defendant was arrested and charged with first degree murder.  As a matter of routine court practice, he was appointed counsel at a preliminary hearing.  Later that day, police read him his Miranda rights, and he agreed to accompany them to locate the murder weapon.  During the trip, Montejo wrote an inculpatory apology letter to the victim’s widow.  When he returned from the trip, he met his court-appointed lawyer for the first time.  Montejo moved to suppress the apology letter at trial on the grounds that it was obtained in violation of his 6th Amendment right to counsel. However, the letter was admitted over his objection.  On appeal, the Louisiana Supreme Court affirmed the conviction, reasoning that since Montejo simply stood without speaking while the court appointed counsel, he had not “requested” a lawyer as required in Michigan v. Jackson so as to trigger the 6th Amendment.
The U.S. Supreme Court, thus, considered the question of whether courts must presume that a waiver of the 6th Amendment right to counsel is invalid once a defendant has been appointed counsel at an arraignment or a similar proceeding.  The Court overruled Michigan v. Jackson and held that such a waiver need not be presumed invalid simply because the defendant has been appointed counsel.  Consequently, police may now initiate interrogation with a defendant who has counsel.  Statements are admissible so long as police properly advise the defendant of his rights and obtain a valid waiver.  In other words, the 6th Amendment lawyer invocation must be made in the specific context of being asked to give a statement.  If the defendant then requests a lawyer or otherwise asserts his 6th Amendment right to counsel, the contact must end. 
The Court reasoned that a defendant who has been appointed an attorney but has never asked for one, has not necessarily made up his mind about his rights.  The Court further pointed out that practices regarding appointment of counsel vary from place to place; sometimes counsel is appointed automatically upon a finding of indigency, while other times, a defendant is asked if he would like counsel.  To treat appointment of counsel as an invocation of the 6th Amendment right to counsel would mean that  in some places all defendants would automatically invoke when given a lawyer while, arbitrarily, others would not.  The Court found that the costs of such a rule outweigh its benefits.  The requirement that police advise a defendant of his Miranda rights prior to interrogation and obtain a valid waiver is sufficient protection against police badgering.  In doing so, they overruled Michigan v Jackson and created greater opportunity for police investigation after the initial appearance. 

There was another 6th Amendment case - Kansas v. Ventris  - in which the Supreme Court ruled that statements suppressed because of a 6th Amendment violation may be used to impeach the defendant’s testimony.    This is consistent with the Court’s earlier rulings allowing evidence obtained in violation of Miranda and in violation of the 4th Amendment to be used for impeachment purposes.

Ritacco - Let’s leave the 6th Amendment and focus our attention on the 4th Amendment by looking at a couple of cases out of Arizona. 
AZ v. Gant addressed vehicle searches incident to arrest.
Can police conduct a search of a vehicle incident to arrest once the scene is secure and the suspect can no longer access the vehicle?
A little 4th Amendment review is probably helpful before we dive into this case:
In the 1969 decision of Chimel v. California, the Supreme Court held that in the case of a lawful custodial arrest, police may search – without a warrant -- the arrestee’s person and the area within the arrestee’s immediate control.  The purpose, as stated by the Court, is to remove any weapons the arrestee might use to resist arrest or affect escape, and to prevent concealment or destruction of evidence. 
In New York v. Belton, a 1981 case, the Supreme Court addressed what officers can do when they arrest someone who’s inside a vehicle.  The Court held that when a recent occupant of a vehicle is arrested, the area within the arrestee’s immediate control for purposes of the SIA includes the entire passenger compartment of the vehicle and any containers inside. 
Then, in 2004, came Thornton v. U.S., where the Supreme Court again addressed the issue of SIAs and vehicles.  The question for the Court in Thornton was whether an arrestee could be considered a “recent occupant” of a vehicle if he was outside the car when the officer first encountered him.  The Court held that just getting out of the car doesn’t remove it from the scope of an SIA… the arrestee can still be considered a “recent occupant” for purposes of the Belton rule.
Now, remember the stated justification for an SIA: to keep the arrestee from grabbing a weapon, getting hold of a means of escape, or concealing or destroying evidence.  Here’s the question that state and federal courts struggled with: if the arrestee is secure – for instance, handcuffed and sitting in the back of a police car – is a search of his lunging area incident to arrest still reasonable under the 4th Amendment?  Some said yes, and some said no. 
That brings us to Arizona v. Gant.  In this case, an officer arrested Gant in the driveway of a residence just after he stepped out of his car.  The officer handcuffed Gant, locked him in the back of a patrol car, and posted another officer to watch him.  At least four officers were at the scene by this time and the scene was secure.  No other suspects or civilians were moving around in the area.  After Gant was secured in the patrol car, two officers searched his car incident to arrest and found a weapon and a plastic baggie of cocaine.  At his subsequent trial, Gant filed a motion to suppress the evidence found in the car.
When the case finally reached the AZ Supreme Court, Gant agreed that he was a recent occupant of the car.  But, Gant claimed that since he couldn’t possibly access the car at the time of the search, the search incident to arrest was constitutionally unreasonable.
The AZ Supreme Court looked back at the justifications supporting warrantless searches incident to arrest and agreed with Gant.  Even though Belton and Thornton presented similar facts, the state supreme court read those opinions as assuming a lawful SIA of the vehicle, and deciding only where the officers could look during that search.  This case, however, dealt not with the scope of the SIA, but whether the officers were authorized to conduct the search in the first place. 
The lower courts were strongly divided on this issue.  Holding that the SIA is reasonable even when the arrestee is secure were the 4th, 7th, 8th, 9th, and DC Circuits, Florida, and Kentucky.  Holding that the 4th Amendment prohibits an SIA of the lunging area unless the arrestee is a safety risk or might destroy evidence were the 3rd Circuit, Arizona, Mississippi, and Nevada.
So, how did the Supreme Court vote?   Justice Scalia, writing for the majority, said that police are authorized to search the passenger compartment of a vehicle incident to arrest of an occupant or recent occupant under two circumstances –
The first is when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.
The Court noted that “it will be the rare case in which an officer is unable to fully effectuate an arrest so that a real possibility of access to the arrestee’s vehicle remains.”  In such a rare case, however, an SIA of the passenger compartment would be reasonable under the 4th Amendment.  Some may suggest the holding in Gant encourages an unsafe practice of leaving arrestees unsecured in a nearby area to justify a search incident to arrest.  Justice Scalia, however, in his concurring opinion in Thornton, has already anticipated and answered that argument.  He wrote, “if an officer leaves a suspect unrestrained nearby just to manufacture authority to search, one could argue that the search is unreasonable precisely because the dangerous conditions justifying it existed only by virtue of the officer’s failure to follow sensible procedures.” 
The second circumstance occurs when, even if the arrestee can no longer access the vehicle’s passenger compartment, “it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.”  In many cases, such as arrests for traffic violations, there will be no reasonable basis to believe that the vehicle contains relevant evidence.  In other cases, however, such as arrests for possession of controlled substances, the basis of the arrest will supply an acceptable rationale for searching the arrestee’s passenger compartment and any containers inside.
Since the Gant decision, 5 federal circuit courts have addressed cases affected by it.  Four of those cases involved purely traffic offenses.  Three were reversed with the 9th Circuit specifically rejecting the application of the good faith exception to the exclusionary rule.  On the other hand, the 10th Circuit affirmed a traffic offense case by applying the good faith exception because the stop and search occurred before the Gant decision.  The other case that was affirmed involved a search of the car incident to arrest after drugs were found on one of the passengers.  The court in that case also upheld the SIA because three passengers who were not arrested and were unrestrained could have accessed the passenger compartment.
You will find these cases summarized with links to the courts’ opinions in the 2006-2009 Case Digest by Subject on the LGD website.


Of course, other vehicle search exceptions remain available.
The Gant Court noted that the other established exceptions to the search warrant requirement remain available to safeguard evidence and protect the safety of officers. 
If an officer has a reasonable suspicion that a passenger or recent occupant of a vehicle – whether arrested or not – is dangerous and may gain access to a weapon, he may frisk the passenger compartment for weapons.  This exception is known as a Terry frisk of the vehicle. 
If the officer has probable cause that the vehicle contains evidence of criminal activity, the officer may conduct a thorough search of any area of the vehicle in which the evidence might be found.  This exception is called the “mobile conveyance exception” or the Carroll Doctrine.
If an officer conducting an arrest reasonably suspects that a dangerous person is hiding in a nearby vehicle, he may conduct a protective sweep of that vehicle by looking in places where such a person might be concealed. 
Although not specifically mentioned by the Court, and not a criminal search tool, an inventory of a vehicle’s contents following a lawful impound is another exception to the search warrant requirement.  This administrative exception, however, may not be used as a pretext for a criminal search. 
Finally, consent remains a viable option as well.
So, what’s the bottom line?
To justify a search incident to arrest of a vehicle’s passenger compartment, an officer must articulate that either (1) the officer was unable to sufficiently restrain the arrestee during the search, so that it was reasonable to believe the arrestee might have been able to access the vehicle, or (2) there was a reasonable basis to believe that evidence of the crime for which the occupant of the vehicle was arrested might be found in the passenger compartment at the time of the search.
You’ll find a videocast on this case with a companion slide show on the Videocasts page of the LGD web site.

Cauthen - The next AZ case is AZ v. Johnson.
This is a Terry frisk case, so a quick review of Terry v. Ohio principles is in order before we begin.  As you recall, an officer may temporarily detain a suspect to conduct a limited investigation into criminal activity if the officer can articulate facts establishing a reasonable suspicion that crime is afoot.  Additionally, an officer may conduct a frisk – a limited search of the outer clothing for weapons – if the officer can articulate facts establishing a RS that the suspect is presently armed and dangerous.  It’s important to remember that stops and frisks are different things supported by different standards.  Although frisks almost always occur in the context of a lawful Terry stop, the question in AZ v. Johnson is whether an officer can conduct a frisk without first detaining the suspect on suspicion of criminal activity.  In other words, can an officer ever justify a frisk during a consensual encounter?
In this case, a Gang Task Force officer (Officer Treviso) and her partner pulled over a car for an insurance suspension, which is a ticketable civil issue.  The officers admitted they had no reason to believe that crime was afoot, but during the stop Treviso began to suspect that one of the passengers – Johnson – was gang-affiliated.  He was wearing all blue with a blue bandana, and the car was pulled over just on the outskirts of a Crips-controlled area.  Johnson said he was from an area controlled by a Crips gang, he had a police scanner in his pocket, and he admitted he’d done time for a burglary charge.  Because she wanted to get some intel about his gang, Treviso asked Johnson if he’d get out of the car and talk to her.  Johnson agreed to step out and talk to her.  Based on what she’d noticed about Johnson, Treviso patted him down when he got out of the car.  She found a gun, and Johnson was charged with being a felon in possession of a firearm.  Johnson moved to suppress the gun at trial, claiming that Treviso couldn’t justify a pat-down without first justifying a Terry stop.  Since Treviso had no reason to suspect Johnson of criminal activity, he argued that the frisk was unlawful.
The AZ appellate court agreed.  Since Treviso admitted she had no reason to believe Johnson was engaged in any criminal activity, that court held that she could not have lawfully detained Johnson at that point.  The purpose of the initial traffic stop had been accomplished, so Johnson was free to go.  If Johnson was free to walk away, then forcibly frisking him was not reasonable as part of that consensual encounter, even if Treviso could articulate a reasonable suspicion that Johnson was presently armed and dangerous. 
The Supreme Court decided that the first Terry condition - a lawful investigatory stop - is met whenever police lawfully detain an automobile and its occupants for a traffic violation.  Police need not, in addition, have cause to believe any occupant of the vehicle is involved in criminal activity.  All that is necessary to justify a frisk of the driver or a passenger during a traffic stop is reasonable suspicion that the person subjected to the frisk is armed and dangerous. 
On a closely related issue, in two non-traffic cases the 9th Circuit held that an officer may conduct a frisk during a voluntary/consensual encounter if there is reasonable suspicion that the subject is presently armed and dangerous. The Supreme Court declined to hear the appeal of both of those cases.

Ritacco - There were other Supreme Court cases touching on law enforcement / criminal law issues.
In Flores-Figueroa v. U.S., the Court looked at the knowledge element in 18 U. S. C. §1028A, aggravated identity theft.  The Court ruled that in order to obtain a conviction under this statute, the government must prove that the defendant knew that the means of identification belonged to a real person.    
In Dean v. U.S., the Court addressed the sentence enhancement under 18 U.S.C. §924(c) for discharging a firearm carried during and in relation to any violent or drug trafficking crime. The 10-year mandatory minimum applies if a gun is discharged in the course of the crime, whether on purpose or by accident. 
In Pearson v. Callahan, it was highly anticipated that the Court would rule on the issue of “consent once removed.” Instead of ruling on “consent once removed,” the Court decided the case by finding that the officers were entitled to qualified immunity. The focus of the Court’s opinion deals with how lower courts should analyze cases to determine qualified immunity. Basically, courts are no longer required to first find that a Constitutional violation has occurred before considering whether the right violated was clearly established.  
And in Abuelhawa v. U.S., the Court decided that using a telephone to make a misdemeanor drug purchase does not “facilitate” felony drug distribution in violation of 21 U.S.C. § 843(b). 

Cauthen - Each month, the Legal Division publishes The Federal Law Enforcement Informer.  The Informer contains summaries of pertinent Supreme Court decisions when they are issued along with a link to each opinion.  You can subscribe to The Informer by clicking on the “subscribe” link on The Informer page and entering your e-mail address.  These Supreme Court cases are also included in the 2006-2009 Case Digest by Subject that you will find on our website on The Informer page. 

Ritacco – Thanks for joining us for this review of last year’s Supreme Court decisions.  You’ll find Part 2 on the podcast page of our website.  In it we look at some of the law enforcement cases on the Supreme Court’s docket for this October 2009 Term.