The Fourth Amendment and Miranda in the Supreme Court Spotlight
ACLU Supreme Court Preview: 2003 Term
Statement of Susan N. Herman, ACLU General Counsel
FOR IMMEDIATE RELEASE
WASHINGTON -- Although the Supreme Court has not yet agreed to hear any cases directly raising issues about the government's violations of civil liberties in the war on terrorism, the Court's decisions about constitutional limitations on criminal procedure have been closely watched since September 11, 2001. During the first week of the October 2001 term, Justice O'Connor, asking a question at argument of the first of four Fourth Amendment cases the Court had agreed to hear that term (United States v. Arvizu), remarked that we now live in "perhaps a different world" than the world in which the Border Patrol stop at issue had occurred. In each one of the Fourth Amendment cases decided that term1, the Court, unanimously in two of the cases, rejected the constitutional challenge and interpreted the Fourth Amendment to allow greater discretion to government agents to search and detain. By way of contrast, the Court's docket of Fourth Amendment cases during the 20002 and 19993 Terms had yielded mixed results.
During the 2002 Term, the Court granted cert. in only one relatively minor Fourth Amendment case, Kaupp v. Texas, 123 S. Ct. 1843 (May 5, 2003), and issued a fact-based per curiam opinion summarily vacating a state court finding that a person apprehended in his home had not been "seized." The Fourth Amendment, unusually, was off the Court's agenda.
In the 2003 Term, the Court has resumed its practice of selecting a handful of Fourth Amendment cases (five so far).4 The common question posed by all these disparate cases is whether the Court will continue to lower the Fourth Amendment bar against arbitrary, discriminatory, and unreasonable searches and detentions.
The most portentous case is Maryland v. Pringle (02-809), which poses an important question about the meaning of the Fourth Amendment's probable cause requirement. A Baltimore County police officer arrested Joseph Pringle, the front seat passenger in a car stopped for a traffic violation, after finding five plastic baggies containing cocaine behind the backseat armrest during a consensual search. The officer had threatened to arrest all three occupants the driver/owner, the back seat passenger, and Pringle unless someone told him who possessed the drugs. No one confessed; all three were arrested.
The ACLU amicus brief argues that Pringle's mere proximity to the drugs, which were not even in plain view, did not give rise to probable cause for an arrest under the circumstances. The argument that probable cause must be based on individualized suspicion is based on the deepest rooted Fourth Amendment principles and confirmed by the Court's decisions in United States v. Di Re, 332 U.S. 581 (1948) (no probable cause to search or arrest a passenger in a car where counterfeit money was found) and Ybarra v. Illinois, 444 U.S. 85 (1979) (probable cause to search a bar and bartender for drugs does not extend to permitting search of a patron of the bar, without further information linking the patron to drug activity). Permission to arrest anyone found in the vicinity of contraband, even without the showing of dominion and control the Maryland court found to be required under state drug laws, would obviously greatly expand the government's power to choose whom to arrest.
Ironically, if Pringle had challenged the constitutionality of the search that uncovered the drugs under the backseat armrest, the government would probably have prevailed in arguing that Pringle had no standing to complain about the search because he had no reasonable expectation of privacy in that part of the car under the Court's earlier decision in Rakas v. Illinois, 439 U.S. 128 (1978). It would indeed be incongruous if Pringle's connection with the car were found to be sufficient to allow him to be arrested, but not sufficient to allow him to challenge the police conduct leading to the discovery of the evidence that provided the basis for his arrest.
Arizona v. Gant (02-1019) calls on the Court to decide whether the search incident to arrest doctrine of New York v. Belton, 453 U.S. 454 (1981), under which an officer is permitted to search the passenger compartment of the car of a person arrested while in the car, also permits the search of a car when the person arrested was a "recent occupant" of that car. The ACLU amicus brief argues against this unjustifiable extension of Belton's bright line rule.
Belton creates an exception to the usual principle that a search of a car is unreasonable if not based on probable cause. Under Belton, the arrest of a person in a vehicle is conclusively presumed to create an exigency and to authorize a search in order to ensure that the arrestee will not obtain a weapon or destroy evidence from the car. There is no exigency justifying the search of a car without probable cause where, as in this case, the person arrested has exited the car, which was parked in a residential driveway, before being arrested or even seized. Belton permitted a search incident to arrest even though the suspect was no longer in the car when the search was conducted, but that was because the police had already seized Belton while he was in the car and were simply following sound police procedure by removing him from the vehicle before conducting their search.
Arizona argues that a defendant might evade the sweep of the search incident to arrest exception by intentionally exiting his car before being arrested; we argue that the police might intentionally evade the Fourth Amendment's prerequisite for searching a car (probable cause) by seeking to extend a bright line exception beyond the limits of its logic. We also contend that the state's proposed test, requiring determination of who counts as a "recent occupant," is fatally vague. Our proposed rule is that a search of a vehicle incident to arrest is permissible when police seize a person who is inside a vehicle, the suspect is arrested, and the vehicle is searched contemporaneously with the arrest.
Illinois v. Lidster (02-1060) involves a constitutional challenge to a roadblock set up by police to obtain information about a hit-and-run accident that took place one week earlier, at the same location and same time of day. While the Supreme Court has upheld the constitutionality of roadblocks, which detain people in the absence of individualized suspicion, if they serve regulatory "special needs" (Michigan Dep't. of State Police v. Sitz, 496 U.S. 444 (1990) (drunk driving roadblock); United States v. Martinez-Fuerte, 428 U.S. 543 (1976) (permanent immigration checkpoint near border)), the Court has also held that roadblocks are impermissible when their primary purpose is criminal law enforcement (Indianapolis v. Edmond, supra). The ACLU amicus brief argues that the attempt to apprehend a hit-and-run perpetrator and to locate witnesses to the accident are aspects of ordinary criminal law enforcement and not exempt from the requirements of the Fourth Amendment, including the requirement of individualized suspicion.
It is notable that in all three of these cases, the petitioner is a state presenting an argument for expanded police discretion that lost in its own state court.
The Court has also agreed to hear several cases raising important questions about the scope and potency of Miranda v. Arizona, 384 U.S. 436 (1966).5 Last term, the ACLU argued in Chavez v. Martinez that the Fifth Amendment gave rise to a cause of action for a suspect who was questioned while in a hospital emergency room, without having been given Miranda warnings and over his repeated invocation of his right to remain silent. The Court held that although Martinez may have a claim that he was denied due process, the Fifth Amendment privilege against self-incrimination, the constitutional provision at issue in Miranda, was not violated because Martinez's statements were never used against him. We had argued that this ruling, together with other limitations and exceptions the Court has superimposed on the Miranda ruling, undermines Miranda's deterrent rationale and encourages the police to question "outside Miranda," as an LAPD training film put it, on the theory that evidence obtained in violation of Miranda is very likely to be useful to the police in some manner even if it cannot be directly used as evidence in the government's case-in-chief.
Missouri v. Seibert (02-1371) is a perfect example of the problem created by the Court's treatment of Miranda as a second-class right. Patrice Seibert was questioned in a small interview room by an officer who had been explicitly instructed not to give her Miranda warnings. She made an inculpatory admission. The officer gave her a 20 minute coffee break and then resumed the interview, using a tape recorder and advising her of her Miranda rights. She signed a waiver and, after being reminded of the earlier discussion, repeated her inculpatory remarks.
The Missouri Supreme Court held the second statement inadmissible, distinguishing the Supreme Court's decision in Oregon v. Elstad, 470 U.S. 298 (1985), which had permitted the use of a statement obtained in a second, laundering interrogation that followed an unwarned interrogation, saying that "a subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement." The Missouri court thought Seibert's statement was indeed the fruit of the first, illegal interrogation because, unlike Elstad, the second interrogation was essentially a continuation of the first, so the giving of Miranda warnings was not sufficient to cure the conditions that gave rise to the first statement.
Elstad's holding may be distinguished on this ground, but much of the dicta in Elstad, announcing that Miranda violations should not be treated in the same manner as full-scale constitutional violations, is in tension with the Court's subsequent decision in Dickerson v. United States, 530 U.S. 428 (2000), which held that Miranda is indeed constitutionally based. Seibert offers the Court an opportunity to align cases considering when evidence seized as a result of Miranda violations is admissible with cases considering what constitutes the "fruit of the poisonous tree" with respect to other constitutional violations. In one of its principal cases on this subject, Brown v. Illinois, 422 U.S. 590 (1975), where a suspect who later confessed had been arrested without probable cause, the Court held that the prosecution has the burden of proving attenuation, a presumption of taint that Elstad undermined. In Brown, the Court applied a balancing test in which the Court regarded "the purpose and flagrancy of the official misconduct" as particularly important in deciding whether or not the exclusionary rule should prohibit the use of evidence.
A second and critical reason why the Court should distinguish Seibert from Elstad is that the police misconduct here was flagrant a premeditated attempt to evade Miranda's safeguards. To serve the purposes of Miranda deterring such misconduct and guaranteeing the trustworthiness of evidence we argue that the police may not be allowed to use the Court's exceptions to Miranda as a sword to eviscerate the decision.
In another case, United States v. Patane (02-1183), the government argues that it should be permitted to use physical evidence discovered as a result of questioning outside Miranda, even though it concededly could not use the statements obtained in violation of Miranda's straightforward requirements. Here again, the question is when evidence obtained as a result of a Miranda violation should be considered "tainted fruit." And here again, the values underlying Miranda and the Fifth Amendment privilege itself deterring coercive police questioning, guaranteeing trustworthy evidence, and safeguarding fundamental trial rights are threatened if the police are given too many incentives to ignore Miranda. The ACLU amicus brief in this case advocates the use of a balancing test similar to Brown v. Illinois in deciding when evidence derived from a Miranda violation may be used, with a rebuttable presumption that derivative evidence should be excluded. Limitations on the breadth of exclusion are justified only when the ordinarily unacceptable risks of compulsory self-incrimination are diminished or the usual costs of exclusion are heightened.
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1. United States v. Arvizu, 534 U.S. 266 (Jan. 16, 2002) (9-0) (Border Patrol stop was based on reasonable suspicion); United States v. Knights, 534 U.S. 112 (Dec. 10, 2001) (9-0) (warrantless search of probationer's home was permissible on reasonable suspicion); United States v. Drayton, 536 U.S. 194 (June 17, 2002) (6-3) (passenger questioned on bus was not "seized"); and Board of Education of Indep. School Dist. No. 92 of Pottawatomie County, Okla. v. Earls, 536 U.S. 822 (June 27, 2002) (5-4) (drug testing of students participating in extra-curricular activities was permissible).
2. Three cases found Fourth Amendment violations, see Kyllo v. United States, 533 U.S. 27 (2001) (thermal imaging is a "search"); City of Indianapolis v. Edmond, 531 U.S. 32 (2000) (drug interdiction checkpoint was impermissible); Ferguson v. City of Charleston, 532 U.S. 67 (2001) (hospital's warrantless drug tests of pregnant women were impermissible), while two others did not, see Atwater v. City of Lago Vista, 532 U.S. 318 (2001) (arrest for fine-only traffic offense is permissible); Illinois v. McArthur, 531 U.S. 326 (2001) (preventing occupant from entering home during execution of a search warrant is permissible).
3. During the 1999 Term, the Court ruled in favor of Fourth Amendment claims in three cases, see Bond v. United States, 529 U.S. 334 (2000) (squeezing canvas bag in overhead rack in bus was a "search"); Florida v. J.L., 529 U.S. 266 (2000) (anonymous tip was not sufficient to justify a Terry stop and frisk ); Flippo v. West Virginia, 528 U.S. 11 (1999) (per curiam) (warrantless search of murder scene was impermissible), and against the Fourth Amendment claim in one case, see Illinois v. Wardlow, 528 U.S. 119 (2000) (unprovoked flight in a high crime area constitutes reasonable suspicion justifying a Terry stop).
4. Three of the cases are described below. The other two are United States v. Banks, 282 F.3d 699 (9th Cir. 2002), cert. granted Feb. 24, 2003 (02-473) (Did law enforcement officers executing a search warrant violated the Fourth Amendment or 18 U.S.C. ยง 3109 when they forcibly entered a small apartment 15 to 20 seconds after knocking and announcing their presence?), and Groh v. Ramirez, 298 F.3d 1022 (sub nom. Ramirez v. Butte-Silver Bow County, 9th Cir. 2002), cert. granted Mar. 3, 2003 (02-811) (Did law enforcement officers violate the Fourth Amendment's particularity requirement when they executed a search warrant approved by a magistrate judge, based on an attached application and affidavit properly describing with particularity items to be searched and seized, but the warrant itself did not include those details?).
5. In addition, the Court will hear Fellers v. United States, 285 F.3d 721 (8th Cir. 2002), cert. granted Mar. 10, 2003 (02-6320) (If defendant's Sixth Amendment right to counsel was violated when police obtained an inculpatory statement from him after his indictment, in the absence of counsel, and without giving Miranda warnings, should a second statement made by defendant on a subsequent occasion, preceded by Miranda warnings, have been suppressed as a fruit of that violation?).