Vol. 13, Nos. 18 & 19 |
Covering Cases Published in the Advance Sheets through May 8, 2006
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New Supreme Court Rulings
Sentencing Issues
Hudson v. Michigan, No. 04-1360 (U.S.S.C. June 15, 2006) (Justice Scalia)
In this case, a sharply divided Supreme Court held that evidence seized by police officers in violation of the venerable “knock-and-announce” rule can be used at trial despite the constitutional violation. Writing for a 5 to 4 majority, Justice Scalia argued that the connection between the entry (which Michigan conceded violated the “knock-and-announce” rule) and the discovery of various drugs and guns that were seized and admitted into evidence was “too attenuated” to justify the “massive remedy of suppressing evidence of guilt”; and, in this case, would have amounted to a “get-out-of-jail-free card.”
In a strong dissent that was joined by Justices Stevens, Souter and Ginsberg, Justice Breyer wrote that the majority’s ruling was “doubly troubling. It represents a significant departure from the Court's precedents. And it weakens, perhaps destroys, much of the practical value of the Constitution's knock-and-announce protection.”
The majority’s ruling is a foreboding, but concrete, example of how President Bush’s two newest appointees to the Supreme Court have tipped the balance of that Court in favor of a strong pro-government stance. In fact, the case had to be reargued less than a month ago because Justice Sandra Day O’Connor left the Court shortly after the case was first argued in January but before she had time to participate in a decision in the case. Thus, quite clearly, Justice Alito cast the decisive vote.
Both the majority and the dissenters agreed that the “knock-and-announce” rule is an ancient right that requires law enforcement officers to announce their presence and provide residents an opportunity to open the door before entering to conduct a search pursuant to a warrant. The rule can be traced back to 13th century common law; and it has been part of the American legal heritage for more than a century.
As Justice Breyer wrote in his dissent, as far back as 1886, when the Supreme Court wrote its seminal decision on the Fourth Amendment, it emphasized that the Fourth Amendment's prohibitions apply
"to all invasions on the part of the government and its employees of the sanctity of a man's home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offence; but it is the invasion of his indefeasible right of personal security, personal liberty and private property." (Boyd v. U.S., 116 U.S. 616, 630 (1886))
More recently, in Wilson v. Arkansas, 514 U.S. 927, 931-32 (1995), the Court was asked whether the “knock-and-announce” rule was also a command of the Fourth Amendment; and, in a unanimous decision written by none other than Justice Thomas, the Court unequivocally concluded that it was, stating:
"an examination of the common law of search and seizure leaves no doubt that the reasonableness of a search of a dwelling may depend in part on whether law enforcement officers announced their presence and authority prior to entering."
Twenty-eight years after Boyd, the Supreme Court put teeth into the prohibition against unlawful searches by adopting the exclusionary rule. In Weeks v. U.S., 232 U.S. 383 (1914), the Court held that the Federal Government could not retain evidence seized unconstitutionally and use that evidence in a federal criminal trial. The Court explained that "if letters and private documents" could be unlawfully seized from a home "and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secure against such searches and seizures is of no value, and . . . might as well be stricken from the Constitution." (Weeks, id., at 393). As the Court has often explained, the exclusionary rule protects "privacy values through deterrence of future police misconduct." (James v. Illinois, 493 U.S. 307, 319 (1990)).
Admittedly, the Wilson court specifically declined to decide whether the exclusionary rule was the appropriate remedy for a violation of the knock-and-announce requirement; but that issue was squarely before the Court in the instant case.
Eschewing his traditionally strong opposition to an analysis of constitutional issues on the basis of evolving standards, Justice Scalia undertook precisely that approach in the instant case. In holding that the suppression of the evidence at issue was too high a penalty to pay, he argued that the conditions that made deterrence of improper police conduct an important goal in past years had changed. He stated that today “massive deterrence is hardly required” because of two new developments: (a) the expanded scope and availability of civil rights suits against the Government; and (b) “the increasing professionalism of police forces, including a new emphasis on internal police discipline. . . . [W]e now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously.”
The dissenting judges found little comfort in either of those reasons to eliminate the exclusionary rule in “knock-and-announce” cases. Taking a more sanguine, and certainly more realistic, view of Scalia’s “the-police-can-now-be-trusted” approach, Justice Breyer retorted: “The cases reporting knock-and-announce violations are legion.”
On Scalia’s conclusion that the scope and availability of civil remedies are now adequate to justify the elimination of the exclusionary rule in such “knock-and-announce” cases, Justice Breyer stated:
“As Justice Stewart, the author of a number of significant Fourth Amendment opinions, explained, the deterrent effect of damage actions ‘can hardly be said to be great,’ as such actions are ‘expensive, time-consuming, not readily available, and rarely successful.’ . . . The upshot is that the need for deterrence -- the critical factor driving this Court's Fourth Amendment cases for close to a century -- argues with at least comparable strength for evidentiary exclusion here.
“To argue that there may be few civil suits because violations may produce nothing ‘more than nominal injury’ is to confirm, not to deny, the inability of civil suits to deter violations. And to argue without evidence (and despite myriad reported cases of violations, no reported case of civil damages, and Michigan's concession of their nonexistence) that civil suits may provide deterrence because claims may ‘have been settled’ is, perhaps, to search in desperation for an argument. Rather, the majority, as it candidly admits, has simply ‘assumed’ that, ‘as far as [it] knows, civil liability is an effective deterrent,’ a support-free assumption that [our cases] make clear does not embody the Court's normal approach to difficult questions of Fourth Amendment law.” (Internal citations omitted).
In an Editorial, the New York Times referred to the outcome of this case as the “Don’t-Bother-to-Knock Rule”!! (New York Times, June 16, 2006); but perhaps the most apt comment came from New York Times Op-Ed Columnist John Tierney, who responded to Justice Scalia's statement that unreasonable searches are less of a problem today because of "the invreasing professionalism of police forces." He wrote:
"Well, it's true that when police show up at your home in the middle of the night, they're better armed and trained than ever. They now routinely arrive with assault rifles, flash grenades and battering rams." ("The SWAT Syndrome," by John Tierney, New York Times, June 20, 2006.)
U.S. v. Grier, No. 05-1698 (3rd Cir. June 6, 2006) (Judge Fisher)
U.S. v. Staten, No. 05-30055 (9th Cir. June 7, 2006) (Judge Berzon)
In the Commentary to § 6A1.3 of the Guidelines, the Sentencing Commission has stated that it “believes that the use of a preponderance of the evidence standard is appropriate” for the sentencing determinations required by the Guidelines. Both of these cases discuss the continuing viability of that principle in the post-Booker world - particularly in cases where a particular sentencing factors has an extremely disproportionate impact on the sentence relative to the offense of conviction.
One of the first cases to hold that there are situations in which a higher standard of proof is required was the Third Circuit’s landmark decision in U.S. v. Kikumura, 918 F.2d 1084 (3d Cir. 1990) (“Kikumura II”). The defendant in that case pled guilty to certain crimes pursuant to a negotiated plea agreement that stipulated a Guideline sentence of between 27 and 33 months. When it came time for sentencing, however, Judge Lechner imposed a sentence of 360 months (or 30 years) - a tenfold increase. (See, U.S. v. Kikumura, 706 F.Supp. 331 (D.N.J. 1989) (“Kikumura I”)).
On appeal, the Third Circuit reduced that sentence to a mere 262 months after holding that certain sentencing enhancements under the Guidelines -- namely those that significantly increase the recommended sentence and "can fairly be characterized as 'a tail which wags the dog of the substantive offense'" -- must be proved by "clear and convincing evidence." (Kikumura II, id., at 1100-01).
Over the years since Kikumura II, a number of courts have held or suggested that there are or may be certain enhancements that are so severe that they do require proof by a greater standard - such as proof beyond a reasonable doubt or proof by clear and convincing evidence. While that question has usually resulted in great debate among the jurists, the Supreme Court did not reach that issue in its landmark sentencing decision in U.S. v. Booker, 543 U.S. 220 (2005).
As a matter of both coincidence and interest, both the Third and the Ninth Circuits debated that issue in the instant cases in the context of the precise holding in Kikumura II; and they came to opposite conclusions.
Grier
Sean Grier and another man got into a fight in which a shot was fired, but no one got hurt. Grier was subsequently arrested on state charges of aggravated assault, receiving stolen property (the gun), and unlawful possession of a firearm. These charges were dismissed in August 2003.
Grier was then charged by Federal indictment with possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), and possession of a stolen firearm, in violation of 18 U.S.C. § 922(j). He pled guilty to the first count; the second count was dismissed pursuant to a plea agreement. Grier’s presentence report concluded that Grier's conduct during the fight constituted the felony offense of aggravated assault under Pennsylvania law and that the offense had been committed in connection with the crime of conviction (unlawful possession of a firearm). That finding resulted in a four-level enhancement in Grier's offense level under the Guidelines, raising it from 23 to 27, and a fifty percent increase in the recommended imprisonment range, raising it from 84 to 105 months to 120 to 150 months.
At his sentencing hearing, Grier objected to the enhancement, arguing that the reasonable-doubt standard should apply, particularly because the enhancement rested on a finding that he had committed a ‘separate offense”, namely, aggravated assault, under Pennsylvania law.
In rejecting that argument, a divided panel held that the Due Process Clause of the Fifth Amendment does not require the Government to prove beyond a reasonable doubt facts that are relevant to an enhancement under the Guidelines, even where that enhancement constitutes a “separate offense” under governing law. In so ruling, the majority also held that the jurisprudential basis of the holding in Kikumura II” plainly conflicts with the principles underlying Booker and its predecessors” and thus it reversed that aspect of Kikumura II.
In a strong dissent, Judge Sloviter disagreed. She stated: “This holding turns constitutional criminal procedure on its head.” She argued that because Booker addressed only a defendant’s Sixth Amendment rights at sentencing and did not even mention the Fifth Amendment, the majority had overstepping its bounds as an inferior court in concluding that Booker has abrogated other constitutional rights.
Staten
The defendant in this case, Sue Ellen Staten, pled guilty to conspiracy to manufacture methamphetamine; and, at sentencing, her sentence was increased by fifteen levels to reflect an enhancement for creating a substantial risk of harm to human life or the environment, pursuant to U.S.S.G. § 2D1.1(b)(5)(B). Staten objected to the enhancement on two grounds. First, she argued that the district court had failed to consider the mandatory factors listed in Application Note 20(A) to § 2D1.1(b)(5)(B), and the Ninth Circuit agreed with that contention.
More significantly, Staten argued that the enhancement had to be proved by more than a mere preponderance of evidence since it more than doubled her sentence. Even the Government conceded that point: it acknowledged that the facts supporting the enhancement had to be proved by clear and convincing evidence, instead of a preponderance of the evidence, relying on pre-Booker case law to that effect. Once again, the Ninth Circuit agreed with Staten. It stated:
“We agree with the government that the clear and convincing standard still obtains for an enhancement with an extremely disproportionate effect, even though the enhancement now results in the calculation of an advisory rather than a mandatory Guidelines sentence. . . .
“Although the Guidelines do not control the district court's ultimate sentence any longer, they must, as a first step, be consulted and accurately assessed. . . . As the concern with accuracy remains critical, so does the concern that enhancements having a drastic impact be determined with particular accuracy. . . .
“We hold, accordingly, that Booker has no impact on the due process concerns which require that enhancements resulting in disproportionate, albeit advisory, Guidelines sentences find support in facts established by clear and convincing evidence. On remand, therefore, if the application of section 2D1.1(b)(5)(B) again results in a disproportionate sentence, the enhancement must be supported by facts established by clear and convincing evidence.”
As a matter of interest, the Staten court both cited and relied heavily upon Kikumura II in support of its decision, obviously unaware that the Third Circuit had vacated that ruling the preceding day.
News From the Internet
Among the ever-expanding stream of noteworthy and useful resources for lawyers that are available in the Internet, we note the following:
• Memorandum Decision by Judge John Gleeson (E.D.N.Y.) in Turkmen v. Ashcroft, No. 02 CV 2307(JG) (June 14, 2006), which, for unexplained reasons, was published “For Online Publication Only.” In his ruling, Judge Gleeson upheld the Government’s right to detain noncitizens on the basis of religion, race or national origin, and to hold them indefinitely without explanation. For a summary of that ruling, see “Judge Rules That U.S. Has Broad Powers to Detain Noncitizens Indefinitely,” by Nina Bernstein, The New York Times, June 15, 2006.
• Two Noteworthy Habeas Corpus Resources: “Federal Habeas Corpus: A Brief Legal Overview,” prepared by the Congressional Research Service, The Library of Congress, April 26, 2006; and “Falcoff’s Habeas Corpus Training Manual,” by Marc D. Falcoff, the Habeas Corpus Special Master appointed by Judge Jack B. Weinstein (E.D.N.Y.) In 2003 to oversee 500 habeas cases.• “Confronting Confinement,” a disturbing report on violence and abuse in U.S. jails and prisons prepared by the Commission on Safety and Abuse in America’s Prisons, for the Vera Institute of Justice, June 2006.
• "Gideon's Silence: Whatever happened to the right to counsel," by Prof. Alexandra Natapoff, as published in Slate Magazine, May 31, 2006.
• www.therobingroom.com - a new website from North Law Publishers, Inc. which has begun the invaluable task of collecting from lawyers all across the country candid evaluations of the Federal judges and magistrate judges in the U.S. and then posting those reviews on that website. We encourage our readers to add their own anonymous evaluations to The Robing Room. For a sample of some of the comments posted so date, see the Top Ten Judges and the Bottom Ten Judges.
Scorecard Of Published Federal Criminal Cases Reviewed By Our Staff: |
Court
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This Week
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Year to Date
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Since 1996
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Courts of Appeal
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88
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969
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24,807
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District Courts
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57
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530
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13,972
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Copyright © 2006 Punch and Jurists, Ltd.