This past year the U.S. Supreme Court decided several cases of significance to our nation’s law enforcement community. Of these cases, there are three that focus on labor and employment issues — an area not usually subject to a review of key decisions for law enforcement, but these cases are important to mention since employment related concerns are becoming increasingly significant to officers’ livelihoods.
The most significant of the criminal procedure cases decided this year were a Fifth Amendment Miranda related case from North Carolina dealing with the questioning of a juvenile suspect and a Fourth Amendment case from Kentucky consolidating the rule with regard to police-created exigencies.
Two other cases provide further exposition from the Court on the full range of the Sixth Amendment Confrontation Clause as a trial right and the extent to which the right will be applied.
J.D.B. v. North Carolina, No. 09-11121, decided June 16, 2011
This first case reviewed is a criminal procedure case involving the Fifth Amendment and Miranda warnings to a 13-year-old burglary suspect. In J.D.B. v. North Carolina the Court had to consider whether a statement made by a 13-year-old suspect to police was the product of a custodial setting without the benefit of a Miranda warning. J.D.B. was interviewed by a police officer in a conference room at his school in the presence of school officials. Aside from not being read a Miranda warning, J.D.B. was not allowed an opportunity to call his legal guardian — his grandmother — and was not told he was free to leave the room. After making an incriminating statement, he was told by the officer that he did not have to answer any further questions and that he was free to leave the room. J.D.B., upon admitting that he understood this, was questioned further and gave more incriminating responses.
At the trial court, a motion by J.D.B.’s attorney to suppress the statements — based on an argument of custody and lack of Miranda warnings plus an assertion of involuntariness — was denied. J.D.B. was found to be delinquent. His appeals to the North Carolina Court of Appeals and state Supreme Court were declined. The issue on appeal to the U.S. Supreme Court was whether a child’s age is a proper consideration for custody analysis so as to trigger the Miranda requirement? The Court had previously held that custody was purely an objective determination to be initially decided based on the factual circumstances surrounding the allegation of a custodial setting. The standard was then one of determining whether a reasonable person would have felt he or she was “at liberty to terminate the interrogation and leave.”1
In this case, the Court infused a new standard for consideration when police officers question juveniles and determining whether or not a juvenile is in custody for Miranda purposes. The officer must consider the age of the suspect in making a custody analysis, that is, whether or not the child would consider himself free to leave the interview. The Court said such reasoning was part of the objective inquiry relating to custody.
However, as indicated by Justice Alito in his dissent and subsequent commentators, the decision in J.D.B. v. North Carolina imposes a subjective consideration into the custody analysis for Miranda purposes. This is a decision that, depending on state statutes and department policies for handling juvenile cases, may not have any short term impact for police officers but it may have longer term effect in the overall custody analysis for Miranda purposes. The surest way to avoid any subsequent challenges to the statements of juvenile suspects is to provide Miranda warnings when there is any question as to whether an interview is custodial or otherwise.
Kentucky v. King, No. 09-1272, decided May 16, 2011
After a street-level undercover drug transaction police officers followed the suspect into a housing complex but lost sight of him and were unsure which of two apartment doors he entered. The backup officers were unaware of a radio transmission from the undercover officer indicating the suspect entered an apartment on the right at the end of a breezeway. When the officers reached the apartment doors they opted for the one on the left because they smelled marihuana emanating from the apartment.
The officers banged loudly on the door and announced themselves as police officers. They then heard loud noises coming from the apartment and the sound of furniture being moved. Based on their belief that drug evidence was being destroyed, the officers forcibly entered the apartment citing exigent circumstances. Crack cocaine, cash, and drug paraphernalia were found in the apartment. The issue before the Court was whether the exigency rule applies for a situation when the police create the exigency by knocking on the door and announcing their presence thereby causing “the occupants to attempt to destroy evidence.”
The Kentucky Supreme Court found that this was a police-created exigency which the officers should have foreseen. The U.S. Supreme Court rejected Kentucky’s interpretation of the rule:
“...warrantless searches are allowed when the circumstances make it reasonable, within the meaning of the Fourth Amendment, to dispense with the warrant requirement. Therefore, the answer to the question before us is that the exigent circumstances rule justifies a warrantless search when the conduct of the police preceding the exigency is reasonable in the same sense. Where, as here, the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment, warrantless entry to prevent the destruction of evidence is reasonable and thus allowed.”2
The Court relied on the Fourth Amendment standard of the reasonableness of the officers’ actions and the general lawfulness of their purpose in entering the apartment thus rejecting the “police-created emergency” exception to the exigency rule.
Bullcoming v. New Mexico, No. 09-10876, decided June 23, 2011
In this case, the Sixth Amendment Confrontation Clause once again takes center stage in the context of lab reports offered into evidence at trial. This case presents a procedural concern for prosecutors involving a driving-while-intoxicated prosecution, a common criminal trial matter for most officers. The benefit to officers being familiar with this case is an awareness of the evidentiary requirements for use of lab results or any other testing relating to a DWI case.
In Crawford v. Washington3 the Court said the Confrontation Clause allowed testimonial statements of witnesses absent from trial only if the declarant is unavailable and the defendant had a prior opportunity to cross-examine the unavailable witness. In a subsequent case, Melendenz-Diaz v. Massachusetts, the Court held that a lab report was testimonial in nature and refused to recognize a forensic evidence exception to the holding in Crawford. The prosecution in Melendez-Diaz involved a lab report on drug evidence and the Court said the prosecution could not introduce the report without either a stipulation between the parties or the presence of a live witness to testify as to the contents of the report’s findings.
The evidence against Bullcoming was a lab report certifying his blood-alcohol content level. The report was prepared and certified by a lab analyst who performed the tests on Bullcoming’s blood sample but who was not called to testify at the trial. The prosecution called another analyst to introduce the report into evidence however this witness was not familiar with the tests conducted on Bullcoming’s blood sample. The Court found the lab report to be testimonial in nature and did not satisfy Bullcoming’s Sixth Amendment Confrontation Clause right by having a substitute witness testify. This case was but another in a continuing line of U.S. Supreme Court cases to address a defendant’s right of confrontation at trial.
Michigan v. Bryant, No. 09-150, decided February 28, 2011
Detroit police responding to a shooting call found the victim in the street and inquired as to who shot him and where the shooting had occurred. The victim described his assailant by name and provided information regarding the circumstances of the shooting. The victim eventually died from his wounds but at trial the prosecution sought to admit the statements of the deceased against the defendant — Bryant — through the testimony of the responding officers who spoke with the victim. The defense argued that the admission of the statement of the deceased violated the Sixth Amendment Confrontation Clause, thereby making the statements inadmissible testimonial hearsay.
This argument was eventually persuasive to the Michigan Supreme Court and the second-degree murder conviction was reversed.
Before the U.S. Supreme Court, in a decision by Justice Sotomayor, the Michigan Supreme Court’s order was vacated and the case remanded back to the state court based on a determination that the “primary purpose of the interrogation” was to “enable police assistance to meet an ongoing emergency.”4
Because the primary purpose of the police questioning related to an ongoing emergency, the Court found that the victim’s statements were not testimonial. Otherwise, in keeping with the Court’s Crawford v. Washington decision, the defendant would be entitled to confront the maker of the testimonial statement. The bizarre aspect of this case — which many of you may question — is why was this even an issue, since the declaration would seem to be a hearsay exception as a dying declaration or excited utterance?
This particular issue was not preserved for review before the Court and had not been addressed by the Michigan Supreme Court. The trial court had admitted the statement as an excited utterance without addressing whether it was a dying declaration, and this determination was made prior to the U.S. Supreme Court’s decision in Crawford v. Washington.
The U.S. Supreme Court in Bryant provided two rules of inquiry for the admissibility of statements where there is a Sixth Amendment Confrontation Clause claim:
1.) what is the primary purpose of the questions and the resulting statement? If the purpose is related to responding to an ongoing emergency then the statement will not be deemed testimonial in nature.
2.) in determining the nature of the statement’s purpose the test will be an objective one which takes into account what a reasonable person’s purpose would be in providing or obtaining the statement.
Duryea v. Guarnieri, No. 09-1476, decided June 20, 2011
There are limitations on police officers’ First Amendment rights as public sector employees. Specifically, the 2006 U.S. Supreme Court case Garcetti v. Ceballos5 made it clear that public employees did not have First Amendment protection for statements made in the course of their employment unless the statement involved a matter of public concern. What constitutes a matter of public concern however has been an open-ended question as subsequent federal cases interpreting Garcetti have shown.
In Duryea, the respondent — Guarnieri — was fired as police chief of the Borough of Duryea. He was reinstated after he filed a union grievance but upon reinstatement the employer issued directives on how he was to perform his duties. This led to his filing a second grievance and the matter being resolved by an arbitrator who partially sided with Guarnieri. A civil rights lawsuit under 42 USC §1983 was subsequently filed by Guarnieri based on a violation of his First Amendment right to petition the government for redress of grievances. The directives he claimed were submitted as retaliation for his filing the first grievance which won back his job. Guarnieri then amended his complaint to add a claim that the employer violated the Petition Clause of the Constitution based on a denial of overtime time which was claimed as retaliation for his filing the §1983 lawsuit.
A jury trial resulted in a verdict for Guarnieri, which was upheld by the Third Circuit Court of Appeals. The Borough of Duryea appealed to the U.S. Supreme Court, where it was successful. In keeping with its prior decisions in Connick v. Myers1 and Pickering v. Board of Education7 the Court held that a public employee suing an employer under the First Amendment has to show he spoke as a citizen on a matter of public concern, then the courts will balance an employee’s speech rights against the government’s interest in promoting the efficiency and effectiveness of its public services. The Court said that the petition rights alleged to be violated are closely connected to the rights of speech thereby requiring a similar analysis. The petition filed by Guarnieri over an internal job related grievance was not a matter of public concern or of any other social or political significance beyond that of his employment.
Kasten v. Saint-Gobain Performance Plastics Corp., No. 09-834, decided March 22, 2011
The Fair Labor Standards Act (FLSA) is a federal statute from 1938 that provides rules for employers concerning overtime compensation, maximum hours worked, and minimum wages. Many officers have some familiarity with the FLSA through lawsuits related to overtime pay. The FLSA contains an anti-retaliation section that prohibits an employer from discriminating against or terminating an employee for any activity involving the filing of a complaint related to the FLSA.
In Kasten, the Court had to decide if the oral complaint made by the employee, Kevin Kasten, to his employer regarding the placement of timeclocks satisfied the statutory requirement that an aggrieved employee “filed any complaint” pursuant to the Act. The specific complaint from Kasten was that the employer’s placement of timeclocks in an area between where employees changed into and out of protective gear and their assigned work locations deprived the employees of credited time at work.
Kasten claims that he was discharged because of his oral complaints to his employer relating to the placement of the timeclocks. Whether or not he could invoke the protections of the Act’s anti-retaliation provision depended on the Court’s interpretation of the Act and the meaning of “filed any complaint”, which the employer argued applied only to written complaints made to the employer. In a 6-2 decision — with Justice Kagan taking no part in the case — the Court determined that the statutory term “filed any complaint” includes oral as well as written complaints pursuant to the Act.
Since there have been many claims over the past decade involving police officers and FLSA claims, this decision cannot be overlooked. Officers have won compensation claims under the FLSA for maintenance and care of equipment, training, work-related paperwork and other compensable activities related to their job. Kasten furnishes a definitive answer to what it means to file a complaint under the FLSA, providing protection to those employees who make an oral complaint and feel retaliated against as a result.
Thompson v. North American Stainless, LP, No. 09-291, decided January 24, 2011
The petitioner — Eric Thompson — was dismissed three weeks after his fiancée filed an EEO complaint against their mutual employer. Thompson’s claim was that his dismissal was done as an indirect retaliation against his fiancée for her complaint. His case was dismissed at the district court level on a summary judgment motion and was affirmed by the Sixth Circuit Court of Appeals.
The U.S. Supreme Court, however, found that Title VII of the Civil Rights Act of 1964 allows for third-party retaliation claims against an employer. Any conduct that could have the effect of preventing an employee from filing or providing evidentiary support of EEO complaints is prohibited by Title VII. The Court reasoned that this includes employer retaliation against third-parties closely related to the original EEO complainant — such as the fiancée in this case — yet the Court did not define which relationships satisfy this standard, it only stated this was an objective standard for courts to follow in determining third-party complaints.
Looking Ahead to 2012
The foregoing represent selected cases decided between January and December 2011, though many of these cases were argued before the Court in 2010. The upcoming year will feature cases heard in 2011, such as the recent GPS surveillance case U.S. v. Jones argued this past November, and Messerschmidt v. Millender, argued on December 5th, which concerns the extent of officers’ qualified immunity when they execute a search warrant that is subsequently declared invalid.
As always, it must be remembered that the U.S. Supreme Court sets the minimal constitutional standard to be applied, state courts are free to provide broader constitutional protections under state constitutions. Criminal procedure related material should be reviewed at the state level. Any variations between the standard enunciated by the Court and state appellate courts should be noted and the broader state procedure followed since this will be the controlling law of the jurisdiction. A case such as J.D.B. v. North Carolina will likely have little impact in most states which already have a significant body of case law and specific statutory directives dealing with the interviewing of juvenile suspects.
Above all, as the New Year approaches, officer safety remains the utmost concern and the memories of the fallen should never fade. I wish you all happy holidays and a safe and secure New Year.
1 Thompson v. Keohane, 516 U.S. 99 (1995) 2 Kentucky v. King, 563 U.S. __ (2011) 3 3 541 U.S. 36 (2004) 4 Davis v. Washington, 547 U.S. at 822 (2006) 5 547 U.S. 410 (2006) 6 461 U.S. 138 (1983) 7 391 U.S. 563 (1968)