The Criminal Docket


July 2006 

Volume 1, Number 5

In This Issue:

     United States Supreme Court Decisions
United States Supreme Court Reviews Granted
United States Court of Appeals (9th Circuit) Decisions

United State Supreme Court Decisions 
Davis v. Washington

Hammon v. Indiana
Hudson v. Michigan
Samson v. California
United States v. Faulkner
Zedner v. United States

Hudson v. Michigan, No. 10-1360 (S. Ct. 6/15/06) (5-4) (Scalia; Kennedy, concurring; Breyer, dissenting).  In a significant search and seizure ruling today, the Supreme Court held that the exclusionary rule does not apply to knock-and-announce violations.  Its reasoning should also be helpful in arguing that the exclusionary rule does not apply to other procedural violations that do not directly involve the propriety of seizing the evidence.
In this case, police executing a search warrant knocked but then waited only 3-5 seconds before opening the door and entering the home.  The state conceded a knock-and-announce violation so the only issue was the applicability of the exclusionary rule.  The majority held that the exclusionary rule did not apply because, first, the interests at issue with a knock-and-announce violation (which are essentially (1) the ability to throw on a bathrobe and (2) not to have a broken front door) have nothing to do with the seizure of the evidence.
Second, the majority reasoned, the deterrent benefits of the exclusionary rule in this context do not outweigh its "substantial social costs."  In this regard, the Court helpfully noted that "[s]uppression of evidence . . . has always been our last resort, not our first impulse."
Justice Kennedy concurred, emphasizing that while the knock-and-announce principles are important parts of Fourth Amendment jurisprudence, suppression is not warranted based on the lack of causal connection between the violation and the seizure of evidence.  Justice Breyer, along with the rest of the left side of the Court, dissented because they believe that the exclusionary rule is necessary for deterrence and that without it, the knock-and-announce protection is practically meaningless. 
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note that the Supreme Court denied cert in several cases raising the Almendarez-Torres issue.  Justice Thomas dissented, but Justice Stevens issued a "statement" noting that, while he continues to believe Almendarez-Torres was wrongly decided, there is "no special justification" for overruling it and stare decisis provides a sufficient basis for denial of cert. 
Text of Thomas Dissent and Text of Stevens Dissent

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Davis v. Washington
Hammon v. Indiana
On June 19, 2006, the Supreme Court decided two Confrontation Clause cases, Davis v. Washington, No. 05-5224, and Hammon v. Indiana, No. 05-5705.
In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court held that the Confrontation Clause categorically bars the admission of testimonial hearsay unless the witness is unavailable to testify and the defendant has had a prior opportunity for cross-examination.   The Court did not provide a comprehensive definition of the term "testimonial" hearsay, but it did state that the term includes statements obtained through police interrogation.   The issue in Davis
was whether a battery victim's identification of her assailant in response to emergency questioning by a 911 operator is testimonial within the meaning of Crawford.  The issue in Hammon was whether statements made in response to "initial inquiries" by police officers at the scene of a crime are testimonial.

 In a consolidated opinion authored by Justice Scalia and joined by seven Justices, the Court summarized its holding as follows:  "Statements are nontestimonial when 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.   They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution."

The Court held that statements made during 911 calls, such as those at issue in Davis, generally belong to the first category of hearsay statements.  The Court noted, however, that questioning that begins for the purpose of determining the need for emergency assistance may give rise to testimonial statements once that purpose is achieved and the questioner moves on to try to elicit evidence for potential use in a criminal prosecution.  Because the statements in Davis were made during the emergency phase of a 911 call, the Court concluded that they were nontestimonial.    In Hammon, the Court held that the police interrogation at the crime scene was "part of an investigation into possibly criminal past conduct" and therefore that the statements to which it gave rise fell within the second - i.e, testimonial - category of hearsay statements. The Court explained that there was no emergency in progress at the time of the interrogation.  It further noted that the declarant was separated from the defendant; that the statements recounted potentially criminal "past events"; and that the interrogation took place "some time" after the events described were over.  The Court, however, emphasized that it was not holding that no questions at a crime scene will yield nontestimonial answers.  It explained that
"initial inquiries" by the police may produce nontestimonial answers when they are directed at determining "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 Court remanded Hammon to the state appellate court for a determination whether Hammon  forfeited his Confrontation Clause claim by obtaining the declarant's absence at trial through intimidation or coercion.   Justice Thomas concurred only in the judgment in Davis and dissented in Hammon.  Justice Thomas took issue with the majority's holding that, in determining whether statements made in response to police interrogation are testimonial or not, courts should look to the
"primary purpose" of the questioning.  Instead, Justice Thomas would have adopted a test focusing on the formality of the interrogation. Under his preferred test, Justice Thomas would have found the statements in both Davis and Hammon nontestimonial, since the interrogations were not "formalized dialogue[s]."   
Full text of both cases

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Samson v. California, No. 04-9728 (6/19/06) (6-3) (Thomas; Stevens, dissenting).  Search/Seizure - Probation Searches; Parole.  The Supreme Court today upheld suspicionless searches of parolees.  An officer searched defendant based solely on his status as a parolee and not on any reasonable suspicion of criminal activity, and the state court denied his motion to suppress the methamphetamine found as a result of the search.  The Court affirmed, holding that defendant's status as a parolee so diminished his expectation of privacy that a suspicionless search did not violate the Fourth Amendment.  Note that the Court distinguished parolees from probationers, explaining that on the continuum of state-imposed punishments, parolees have fewer expectations of privacy than probationers because parole is more akin to imprisonment than probation is.  In particular, the Court noted that parole is early release from imprisonment conditioned on the defendant's compliance with certain rules (and in this regard also distinguished federal supervised release which is meted out in addition to, not in lieu of, imprisonment).  The Court also found "salient" the fact that parolees are expressly advised of the suspicionless search condition when they elect to accept early release on parole, but the Court declined to reach the question of whether
acceptance of the search condition constituted consent.  The Court then balanced the parolee's diminished expectation of privacy against the state's interests -- in particular, the need to reduce recidivism -- which it found to be "substantial."  Finally, the Court found unfounded concerns that allowing suspicionless searches would lead to abuses by officers, noting that California law places restrictions on "arbitrary, capricious or harassing" searches and requires that the
officer know that the person searched is a parolee. 
 In dissent, Justice Stevens wrote that the Court's precedents did not support suspicionless searches, such a regime grants unfettered discretion to law enforcement personnel (as distinguished from probation officers) who have no special interest in the parolee's welfare, and that parolees have a greater expectation of privacy than prisoners.  The dissent concluded that because individualized suspicion is the shield the Fourth Amendment provides to protect against unreasonable searches, plunging below the reasonable suspicion standard in the absence of a showing of special needs, constitutes a
violation of the Fourth Amendment.
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United States v. Faulkner, No. 05-10405 (6/13/06) (E.D. Cal.) (Tallman, with Paez; Reinhardt, concurring).  Upon entry into the park, Ranger Ruth stops visitors for about 20 seconds at an "information station" (to be distinguished from a "checkpoint") to impart the park's regulations and hand out litter bags.  During one such stop, Ranger Ruth saw in plain view in defendant's car an open container of beer, at which point he ordered defendant to pull off the road and show his driver's license; then, during a "cursory visual search" of the car, Ruth saw marijuana and smoking paraphernalia.  On appeal of the denial of defendant's suppression motion, the 9th Circuit majority held that the detention was a seizure for Fourth Amendment purposes but held that it was a valid stop because (1) its purpose was not primarily crime control but instead to provide information (and litter bags) to visitors, and (2) the public concerns served by the information station outweighed the minimal interference with individual liberty.  Judge Reinhardt concurred on the ground that he did not believe there was a seizure at all because the ranger was imparting, not requesting, information and the encounter is voluntary, consensual and accepted as part of the ordinary process of entering the park.
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Zedner v. United States
On June 5, 2006 the Supreme Court decided Zedner v. United States, No. 05-5992. During pretrial proceedings at Zedner's counterfeiting trial, the district court required Zedner to execute a "Speedy Trial Waiver For All Time" as the price for a third continuance.  The district court then granted the continuance without making the statutory findings to justify an "ends of justice" continuance under the Speedy Trial Act (STA), 18 U.S.C. 3161(h)(8)(A).  After long pretrial delays, Zedner moved to dismiss the charges for a violation of the STA, including the delay caused by the continuance. The district court denied the motion on the basis of the waiver and the Second Circuit affirmed. 
 In the Supreme Court, the government agreed that the waiver "for all time" was ineffective but argued that Zedner was "judicially estopped" from obtaining relief because he had induced the district court to grant the continuance on the basis of his waiver. The Supreme Court (per Alito) unanimously rejected that argument.  It reasoned first that an estoppel based on a defendant's promise not to seek dismissal of the charges under the Speedy Trial Act would swallow the Act's no-waiver policy.  Second, Zedner did not persuade the district court to accept the waiver.  To the contrary, the district court forced the waiver on Zedner.  Third, Zedner's trial position that he needed the continuance was not "clearly inconsistent" with his later position that the delay from the continuance was not excluded under the STA. Finally, the district court's failure to make the findings was not subject  to harmless error review. 
Scalia concurred except for Alito's reliance on the Speedy Trial Act's legislative history to support his reasoning.
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United State Supreme Court Reviews Granted:

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