As we near the close of 2009 we look back and take an assessment of what was and look forward with hope for what is to be. The year closed out tragically in the State of Washington with two incidents involving the assassination of police officers that defy reason. We mourn as well the loss of other officers around the country who gave their lives doing “the job.”
It was an eventful year for the U.S. Supreme Court, with cases directly and immediately impacting police officers as well as some legal activity for which we will have to wait to measure the significance for law enforcement.
The New Justice
Whenever a new Justice is placed on the Supreme Court there is speculation over how the newcomer will affect the ideological balance of the Court.
Will there be a shift from one side of the political spectrum to the other?
Will the junior Justice maintain their existing ideological or political leanings?
The nomination and confirmation of former Second Circuit Court of Appeals Judge Sonia Sotomayor to the U.S. Supreme Court has not been without its own speculation and attempts to define this Justice prior to her issuing a single opinion from the Court. History has shown that Supreme Court Justices tend to evolve in their thinking once elevated to the Court. One needs only to study the work of former Chief Justice Earl Warren or former Justice Harry Blackmun to see such examples.
Sotomayor joins the Court at a time with a curious array of colleagues on the bench in a year that has brought us some interestingly diverse criminal procedure decisions. So how will Justice Sotomayor rule when it comes to constitutional issues involving police officers? That answer is open-ended but if past history is any indication she will be a tough law and order judge who will not coddle criminals nor let the government run rampant over individual rights. If life experience is any influence then one must remember she grew up in the Bronx during a time when the Bronx was a lot tougher place to live than it is now, and then after law school went on to be a prosecutor with the Manhattan District Attorney’s Office.
A study by the Majority Staff of the Senate Judiciary Committee on her criminal justice record indicated that as a Second Circuit Court of Appeals judge she affirmed convictions 92 percent of the time and upheld police searches 90 percent of the time. The Majority Staff found that her appellate decisions “demonstrate(s) a consistent record of following the rule of law in upholding convictions and sentences in criminal cases.”
I reviewed a few of her more recent Second Circuit criminal law opinions and found the decisions to be respectful of precedent and painstaking in the review of the lower trial court record1. Approval of Justice Sotomayor’s nomination and eventual confirmation came from groups as diverse as national law enforcement organizations2 and the liberal Alliance for Justice, which found her to be a “careful moderate judge who adheres to precedent and issues rulings that are tough on criminals and prosecutors alike.”3
On a personal note I remember Justice Sotomayor as a federal district court judge in the Southern District of New York in the early 1990’s when she presided over a civil RICO trial involving the Hell’s Angels motorcycle gang. The jury was an anonymous sequestered panel due to the nature of the case. The New York State Police had a former undercover testifying against the gang. We were in the court providing security for our colleague and the Hell’s Angels were in court every day (as is their right but likely for intimidation purposes as well). At the beginning of the trial then Judge Sotomayor made it clear she would tolerate no disruptions, disrespect, or disorder in her court and let all present know she was in charge. She ran a tight courtroom and the trial proceeded without a hitch. Time will tell what type of Justice she will be and over time she write her own history on the Court but it looks like law enforcement may have an ally in Justice Sotomayor.
There were a number of decisions rendered by the Court this past year which will have a direct impact on the way police officers do their job. Even if the effects are not directly on police procedure in the street — as in cases such as Arizona v. Gant and Montejo v. Louisiana — they have no less impact upon the outcome of policing efforts.
An immediate case in point is the decision in Herring v. U.S.4 in which the Court revisited the “good faith” exception to the exclusionary rule first articulated in U.S. v. Leon.5 The rule was extended beyond the errors committed by judges (Leon) and court personnel (Arizona v. Evans6) to unintentional police error.
As long as the police error is not the product of reckless disregard for constitutional protections the exclusionary rule will not apply. This rule exhibits the motivations of the Chief Justice who authored the opinion and has long been an advocate of doing away with the exclusionary rule. Under the ruling provided in Herring only egregious or systemic police error will necessitate exclusion of evidence. In essence the standard of review will be to take an objective look at police culpability in a given situation to determine admissibility over a claim of error.
In Arizona v. Johnson7 the Court straightened out the misguided and unrealistic approach to the status of passengers during a vehicle stop taken by the Arizona Supreme Court. I mentioned this case in a prior column8 before the U.S. Supreme Court opinion and criticized the decision of the lower court for turning good police work on its head and suppressing the gun found by the investigating officer. Thankfully our nation’s highest court recognized the importance of officer safety and ruled that a passenger is detained along with the operator during a vehicle stop. The passenger is therefore not free to leave or move about freely. This case involved a vehicle stop by Tucson police for a minor traffic infraction.
As is often the case good police work led to a backseat passenger being asked to step from the vehicle and eventually being frisked and a gun being found. The investigating officer had previously noted a police scanner being held by the passenger, gang related clothing being worn by him and otherwise nervous and evasive behavior. The Arizona Supreme Court had held that this was an impermissible seizure of the defendant and suppressed the gun and marijuana found on him. In overturning the Arizona Supreme Court the U.S. Supreme Court sent the case back down to the Arizona court to determine whether the officer had reasonable suspicion the defendant was armed. The impact of Johnson for law enforcement is a clear statement by the Court of the seizure status of passengers in a stopped vehicle.
Twice this past term the Court took aim at longstanding precedents — these were 28- and 23-year-old decisions respectively — in narrowing the interpretation previously given in New York v. Belton9 and overturning Michigan v. Jackson.10 The Court’s decision in Arizona v. Gant11 caused a bit of a stir when released earlier this year. In Gant the Court limited the authority of the police to search a vehicle incident to the arrest of an occupant. After the 1981 Belton case the authority to search a vehicle incident to arrest was deemed to be a given consequence of the arrest. The exception to following the rule in Belton occurred in those states like New York which further limited the effect of Belton and provided extended protection under the state constitution.12 As for the present holding in Gant, once the occupant is removed from the vehicle and secured there is no broad authority to search the interior of the vehicle. Only if the arrestee is “within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of the arrest.”13
Naturally, if there is an independent reason to search the vehicle or another exception applies then the search will be valid.
The last case I want to address is the Court’s opinion in Montejo v. Louisiana14 wherein the Court overruled its 1985 decision in Michigan v. Jackson. The Jackson precedent had been that once a defendant requested counsel at arraignment his Sixth Amendment rights attached and subsequent police questioning, even if obtained after the reading of Miranda rights and a defendant’s waiver of those rights, was improper. Thus, no statements made by the defendant could be admitted into evidence. In Montejo the fact pattern was similar to that of Jackson in that the defendant was a suspect in a homicide, there was an arraignment, counsel was appointed and the defendant was later interviewed by police and incriminated himself. However, Montejo did not request an attorney directly; one was appointed pursuant to Louisiana law. The issue became one of appointed counsel versus requested counsel. The U.S. Supreme Court rejected legal arguments from both the defense and prosecution as unworkable and proceeded to overrule Michigan v. Jackson.
The Court found the answer not in the Sixth Amendment, as had been the Jackson rationale, but in the Fifth Amendment and the provision of Miranda warnings. If a defendant invokes his right against self-incrimination and requests counsel then the admissibility of any statement is viewed through the lens of Edwards v. Arizona15 which prevents police from re-initiating interrogation of the suspect. The Court found the protections of the Fifth Amendment to be adequate to guard the constitutional rights of a criminal suspect and prevent “police badgering” of the suspect. So even if a defendant is represented by counsel the police may approach and attempt to obtain a Miranda waiver and initiate interrogation. A valid, intelligent and knowing waiver will be the key to admissibility. Once the defendant, after being read Miranda, states that he/she wants an attorney the door will be shut unless re-opened by the defendant without initiation by the police. Of course the holding in Montejo is subject to limitation by the several state courts under their separate state constitutions.
The above cases present a snapshot of a very active Supreme Court term which impacted law enforcement. The coming year will bring new decisions to be discussed. Oral argument was recently held on December 7 in Florida v. Powell, 08-1175 which may have the effect of changing the text of Miranda warnings for a number of police agencies across the country. Additionally, the extent of protection afforded under Edwards v. Arizona, specifically as it relates to the passage of time, was argued on October 5, 2009 in Maryland v. Shatzer, 08-680. The challenges to law enforcement are evolving and the decisions of the Court will likely evolve with those challenges. If there is anything we can gather from this past Supreme Court term it is that we have a bench that is not afraid to take a look at past opinions and either clarify or overturn prior case law.
To all law enforcement and military personnel I extend my wishes for a safe 2010.
1Cases reviewed were as follows: U.S. v. Abdulla, 06-3647cr; U.S. v. Castello, 07-4533cr; U.S. v.Draper, 07-2301cr; U.S. v. Falso, 06-2721cr; U.S. v. Cote, 07-1852cr; U.S. v. Blech (Rittweger), 05-3600cr
2Major Cities Chiefs Association; Police Executive Research Forum; National Sheriff’s Association; National Association of Police Organizations; National Latino Peace Officers Association; Fraternal Order of Police; National Organization of Black Law Enforcement Executives; National Association of District Attorneys.
3“Liberal Group Praises Sotomayor’s Criminal Justice Rulings,” Jerry Stockton, The Washington Post, June 16, 2009
4129 S. Ct. 695 (2009)
5468 U.S. 897 (1984)
6514 U.S. 36 (2004)
7129 S. Ct. 781 (2009)
8See, “Other Person Encounters”, PoliceOne.com, January 12, 2009
9541 U.S. 615 (1981)
10475 U.S. 625 (1986)
11129 S. Ct. 1710 (2009)
12See, People v. Belton, 55 N.Y.2d 49 (1982), where NYS Court of Appeals, on remand from the U.S. Supreme Court, rejected the Court’s reasoning in New York v. Belton and held that under NY Constitutional law once a person has been removed from a vehicle that vehicle cannot be searched unless another exception to the warrant requirement is available. See also, State v. Eckel, 186 NJ 523 (2006) for an example of another state taking a similar approach to New York v. Belton and rejecting its position.
13NUMGant at 1723.
14NUM129 S. Ct. 2079 (2009)
15NUM451 U.S. 477 (1981)