Vol. 13, No. 20	Covering Cases Published in the Advance Sheets through May 15, 2006

New Supreme Court Rulings

• In Davis, the Supreme Court examined the scope of the term “testimonial statements” as it was used in its landmark Confrontation Clause decision, Crawford v. Washington. In ruling on two consolidated cases, the Court first held that a domestic violence victim’s responses to questions posed by a 911 operator are not inherently “testimonial” in nature, and therefore they are admissible at trial even if the victim doesn’t testify without violating the defendant’s rights under the Confrontation Clause. Then, in the second case, the Court held that statements made to police officers who were investigating the scene of a crime did qualify as “testimonial”; and, as such, they generally may not be admitted into testimony if the maker does not appear at trial.
  
  
  
• In Dixon, the Supreme Court held, by a 7 to 2 vote, that when a defendant raises the affirmative defense of duress or coercion in a criminal case, it is not a violation of her due process rights to instruct the jury that the defendant has the burden of proving that defense by a preponderance of the evidence, rather than requiring the Government to disprove the availability of that defense by proof beyond a reasonable doubt.
  
  
  
• In Samson, the Supreme Court held, by a 6 to 3 vote, that a California law that requires parolees to consent to suspicionless searches by the police as a condition of their release from prison does not violate the Fourth Amendment. In dissent, Justice Stevens argued that the ruling constitutes an unwarranted expansion of police power because it allows, “for the first time,” suspicionless searches in the absence of any governmental "special needs."
  
  
  
• In Ngo, the Supreme Court held, by a vote of 5 to 3, that a prisoner’s failure to comply with a prison-imposed deadline in its administrative remedy process, which thereby rendered him ineligible to participate in later appeals in that process, constituted a failure to pursue the “exhaustion requirements” of the PLRA and thus resulted in a waiver of his rights to pursue in the Federal courts a lawsuit challenging prison conditions.
  
  
  
• In Fernandez-Vargas, the Supreme Court held, by a vote of 8 to 1, that a provision of the IIRIRA, which was enacted in 1996 and which eliminated the ability of illegal aliens to seek discretionary relief from deportation, could be applied retroactively to illegal immigrants who had been in this country long before the 1996 amendment - thus clearing the way for the summary deportation of thousands of immigrants. In a lone dissent, Justice Stevens rejected the majority’s somewhat questionable assertion that the retroactive application of the new law would not “affect any right of, or impose any burden on,” the aliens covered by its ruling.
  
  

Editor's Note

Due to the recent heavy volume of new Supreme Court decisions, we have been forced to defer until later issues of P&J our coverage of some of the many new and significant lower court decisions that have been released during the past two weeks.

Davis v. Washington, No. 05-5224 (U.S.S.C. June 19, 2006) (Justice Scalia)

In Crawford v. Washington, 541 U.S. 36, 53-54 (2004), the Supreme Court issued its landmark Confrontation Clause ruling in which it held that the Sixth Amendment bars the "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." In so ruling the Court revisited its previous “admissible-if-reliable” standard that it had adopted in Ohio v. Roberts, 448 U.S. 56 (1980) and concluded that such a test was not only fundamentally wrong, it was at odds with the basic purpose of the Confrontation Clause.

While Crawford dramatically changed the standards for admitting “testimonial statements,” the Court specifically left for another day “any effort to spell out a comprehensive definition of ‘testimonial’." (Crawford, id., at 68).

In the instant decision, the Supreme Court addressed two types of statements made to law enforcement personnel during a 911 call (in Davis v. Washington (Docket No. 05-5224)) and during a crime scene investigation (in Hammon v. Indiana (Docket No. 05-5705)).

In the Davis case, Adrian Davis was charged in a Washington state court with a felony violation of a domestic protective order. His former girlfriend, Michelle McCottry, had made a frantic phone call to a 911 operator, stating that Davis was in her house and was beating her. At the time of his trial, the authorities were unable to locate Ms. McCottry to testify; so the State’s only witnesses were the two police officers who responded to the 911 call.

Both officers testified that McCottry exhibited injuries that appeared to be recent, but neither officer could testify as to the cause of the injuries. Over Davis' objection, the trial court admitted the recording of McCottry’s exchange with the 911 operator as an “excited utterance” under the state’s hearsay law. That evidence was critical to the prosecution; and, ultimately, Davis was convicted.

After exhausting his state court appeals, Davis appealed to the Supreme Court, which granted certiorari to determine whether McCottry’s statements to the 911 operator, in which she named Davis as her assailant, constituted “testimonial” statements that were subject to the restriction enunciated in Crawford. In its decision, the Court acknowledged that:

“The inquiries of a police operator in the course of a 911 call are an interrogation in one sense, but not in a sense that ‘qualifies under any conceivable definition.’ We must decide, therefore, whether the Confrontation Clause applies only to testimonial hearsay; and, if so, whether the recording of a 911 call qualifies.”

After examining the facts of the case, the Court concluded that the 911 call at issue was not inherently “testimonial” because McCottry was not acting as a witness. She was “seeking aid, not telling a story about the past.” The Court explained:

“A 911 call . . . , and at least the initial interrogation conducted in connection with a 911 call, is ordinarily not designed primarily to ‘establish or prove’ some past fact, but to describe current circumstances requiring police assistance. . . . [T]he circumstances of McCottry's interrogation objectively indicate its primary purpose was to enable police assistance to meet an ongoing emergency. She simply was not acting as a witness; she was not testifying.”

In the Hammon case, the police responded to a report of a domestic disturbance and found evidence of a physical struggle between a husband and wife, Amy and Hershel Hammon. After interviewing Amy, the police arrested Hershel and charged him with battery. Amy was subpoenaed to testify at Hershel’s trial, but she did not show up. The officer who had interviewed Amy testified about what she had told him. Hershel was ultimately found guilty. On appeal, the Indiana appellate courts affirmed Hershel’s conviction, generally concluding that Amy's statement was admissible for state-law purposes as an excited utterance; and that her oral statement was not "testimonial" for purposes of Crawford.

The Supreme Court reversed. It concluded that it was “entirely clear” from the circumstances of the police interrogation of Amy that

“the interrogation was part of an investigation into possibly criminal past conduct -- as, indeed, the testifying officer expressly acknowledged. There was no emergency in progress; the interrogating officer testified that he had heard no arguments or crashing and saw no one throw or break anything. When the officers first arrived, Amy told them that things were fine, and there was no immediate threat to her person. When the officer questioned Amy for the second time, and elicited the challenged statements, he was not seeking to determine (as in Davis) ‘what is happening,’ but rather ‘what happened.’ Objectively viewed, the primary, if not indeed the sole, purpose of the interrogation was to investigate a possible crime.” (Internal citations omitted.)

The Court summarized the rationale for its holdings in these two cases by stating:

“Without attempting to produce an exhaustive classification of all conceivable statements -- or even all conceivable statements in response to police interrogation -- as either testimonial or nontestimonial, it suffices to decide the present cases to hold 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.”

Samson v. California, No. 04-9728 (U.S.S.C. June 19, 2006) (Justice Thomas)

In U.S. v. Knights, 534 U.S. 112 (2001), the Supreme Court held that the police need only “reasonable suspicion” - not probable cause - to search the home of a person on probation who has “agreed” as part of his probation order to submit to searches of his home at any time. In so ruling, the Court relied on the need to “protect[ ] society from future criminal violations,” and for that reason it concluded that probationers have a reduced expectation of privacy.

However, in its ruling, the Knights Court specifically declined to decide whether the parolee’s written consent alone, signed by him as a condition of his release from prison, was sufficient to justify the search. “We do not decide whether the probation condition so diminished, or completely eliminated, Knights's reasonable expectation of privacy (or constituted consent) that a search by a law enforcement officer without any individualized suspicion would have satisfied the reasonableness requirement of the Fourth Amendment.” (Knights, id., at 120, n.6).

In the instant case, the Supreme Court has now addressed the issue that it declined to answer in Knights - and held that California parolees can routinely be searched by the police as a condition of their release from prison - even if the police have no reason to suspect that the parolee is engaged in any wrongdoing.

California is the only state that allows parolees to be searched for no specific reason. Thirty other states and the federal government require parolees to submit to searches, but there must be reasonable grounds for the search to occur. Under a recent California law, every parolee is required to consent in writing to searches by police during the term of their supervision. If they refuse, they are not allowed out of prison. The law provides that every parolee "shall agree in writing to be subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause."

On a September afternoon in 2002, parolee Donald Samson was walking down a California street with a woman and a small child when he was approached by a police officer, Alex Rohleder. Rohleder had no reason to believe that Samson was engaged in any criminal activity, but he knew that Samson was a parolee and decided to search Samson pursuant to the California statute noted above. Officer Rohleder patted down Samson, found a cigarette package, looked inside, and found some methamphetamine.

After Samson was charged with possession of illegal drugs, he moved to suppress the evidence as the fruit of an unreasonable search under the Fourth Amendment. The state trial court denied the motion; and Samson was convicted and sentenced to seven years in prison. The California Court of Appeals affirmed, holding suspicionless searches of parolees are lawful under California law. In addition, referring to the language of the statute, the court said that such searches are reasonable within the meaning of the Fourth Amendment so long as they are not “arbitrary, capricious or harassing.”

On appeal, the Supreme Court affirmed, by a vote of 6 to 3. Writing for the majority, Justice Alito said that, given the agreement that Samson had signed, he “did not have an expectation of privacy that society would recognize as legitimate,” while “the state’s interests, by contrast, are substantial,” citing 130,000 parolees in California in 2005 and a 68-to-70 percent recidivism rate among California's parolees.

In his decision, Justice Alito noted that, because the majority considered the search at issue reasonable under its “general Fourth Amendment approach,” the majority found it “unnecessary” to address two subsidiary issues relating to the search, namely: (a) whether the acceptance of the search condition constituted the type of “voluntary” consent discussed in Schneckloth v. Bustamonte, 412 U.S. 218 (1973); and (b) whether California's parole search condition is justified as a “special need” under Griffin v. Wisconsin, 483 U.S. 868 (1987).

While the Supreme Court may have ducked addressing the issue of whether the consents forced on all parolees were “voluntary,” we note that the California courts have long held that “contracts of adhesion” are “unconscionable” - and therefore unenforceable - when “both procedural and substantive unconscionability are present.” (See, Laster v. T-Mobile USA, Inc., 407 F.Supp.2d 1181, 1187 (S.D.Cal. 2005)). The Laster court defined contracts of adhesion as “standardized contracts, which, imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party only the opportunity to adhere to the contract or reject it.” (Laster, id.).

On Justice Alito’s comment that it was unnecessary to address whether the state had some “special need” that would justify the search, the dissenting judges retorted that our Fourth Amendment jurisprudence does not permit a finding that a search is reasonable - absent either some individualized suspicion or some special need. In an unusually caustic dissent that was joined by Justices Souter and Breyer, Justice Stevens wrote:

“What the Court sanctions today is an unprecedented curtailment of liberty. Combining faulty syllogism with circular reasoning, the Court concludes that parolees have no more legitimate an expectation of privacy in their persons than do prisoners. However superficially appealing that parity in treatment may seem, it runs roughshod over our precedent. It also rests on an intuition that fares poorly under scrutiny. And once one acknowledges that parolees do have legitimate expectations of privacy beyond those of prisoners, our Fourth Amendment jurisprudence does not permit the conclusion, reached by the Court here for the first time, that a search supported by neither individualized suspicion nor ‘special needs’ is nonetheless ‘reasonable’.”

Clearly, Justice Stevens was concerned about a doctrinal shift in Fourth Amendment jurisprudence. He argued that sanctioning a regime of suspicionless searches permits “the very evil the Fourth Amendment was intended to stamp out.” Noting that the Court had previously sanctioned suspicionless searches only in the case of “special needs” exceptions to the general interest in law enforcement, Justice Stevens assailed the majority for creating a category of constitutionally sanctioned suspicionless searches “unsupported by any special need.”

He equated the suspicionless searches to "a blanket grant of discretion untethered by any procedural safeguards"; and he noted that “the search condition here is imposed on all parolees -- whatever the nature of their crimes, whatever their likelihood of recidivism, and whatever their supervisory needs -- without any programmatic procedural protections.

The core of Justice Stevens’ problems with the majority’s ruling was that it equated the parolee’s Fourth Amendment liberties with that of the prisoner, who arguably has none, rather than that of the probationer, whose rights are merely diminished. In response to that concept, Justice Stevens emphatically stated: “[T]he notion that a parolee legitimately expects only so much privacy as a prisoner is utterly without foundation.”

For an interesting perspective on this decision, see “Parole After Samson,” by Dan Filler, on Concurring Opinions.

From our perspective, the sad thing about this ruling is that only a few brave voices will really object to this latest departure from the Fourth Amendment. After all, most people will say, it only affects convicts. But when will the constant erosion of our Fourth Amendment rights stop? When will the time come to say “enough” to the long series of “most-people-won’t care” decisions that steadily chip away at out rights?

If one thinks about it, the parade of horribles that could grow from this decision is almost endless. For example, what is to stop the Government from using the theory of this case to require all aliens, as a condition of receiving permission to enter the United States or as a condition of receiving a green card, to “consent” to a search of their persons and their homes at any time, on the whim of any law enforcement officer, regardless of the absence of any suspicion of wrongdoing? By the time the populace wakes up and starts objecting, it may be far too late!

Woodford v. Ngo, No. 05-416 (U.S.S.C. June 22, 2006) (Justice Alito)

This is another of a long series of almost banal and highly fact-specific cases dealing with the “exhaustion requirement” of the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a) - the outcome of which does little more than confirm the Supreme Court’s long-held desire to eliminate virtually all prisoner lawsuits.

The majority in this 5 to 3 decision (in which Justice Breyer concurred) attempted to phrase the issue in this case in a manner that preordained its resolution: “This case presents the question whether a prisoner can satisfy the [PLRA’s] exhaustion requirement . . . by filing an untimely or otherwise procedurally defective administrative grievance or appeal.”

The dissenting judges (Stevens, Souter and Ginsburg) more astutely rephrased the issue before the Court in its true context:

“The citizen's right to access an impartial tribunal to seek redress for official grievances is so fundamental and so well established that it is sometimes taken for granted. A state statute that purported to impose a 15-day period of limitations on the right of a discrete class of litigants to sue a state official for violation of a federal right would obviously be unenforceable in a federal court. The question in this case is whether, by enacting the exhaustion requirement in the [PLRA], Congress intended to authorize state correction officials to impose a comparable limitation on prisoners' constitutionally protected right of access to the federal courts. The text of the statute, particularly when read in the light of our well-settled jurisprudence, provides us with the same unambiguous negative answer that common sense would dictate.”

Viet Mike Ngo, the prisoner/respondent in this case, filed a civil rights claim against his California prison warden claiming that his exclusion from certain prison programs violated his rights. Ngo was serving a life sentence when he was placed in administrative segregation as punishment for engaging in some unspecified “inappropriate activity” in the prison chapel. Ngo was released into the general prison population on the condition that he was not allowed to participate in certain programs, such as evening fellowship and Bible study sessions. Ngo appealed the disciplinary action to the prison appeals coordinator. His appeal was denied because it was filed more than fifteen working days after “the event or decision being appealed.” He then filed another appeal, alleging that his first appeal was within the 15 day limit, and after that appeal was rejected, Ngo finally filed a complaint with a Federal district court.

Ngo's complaint alleged, among other things, that his disciplinary restrictions violated his First Amendment rights. The prison moved to dismiss the Federal complaint on the grounds that Ngo had failed to “exhaust” all “available” administrative remedies within the prison system before filing a complaint in court, as required by § 1997e(a). The district court granted the prison’s motion to dismiss, reasoning that Ngo had not exhausted all of his administrative remedies because, if his first appeal had been timely, he other appeals within the prison system would have been "available" to him.

In a decision reported at Ngo v. Woodford, 403 F.3d 620 (9th Cir. March 24, 2005), the Ninth Circuit reversed the district court. The appellate court reasoned that the untimeliness of Ngo's initial appeal made the other administrative appeals not "available" to him. Thus, even though Ngo could have appealed more times in the administrative process if his first appeal been timely, he had no further "available" appeals when he filed his claim in district court, and the exhaustion requirement of the PLRA was therefore satisfied.

The majority, of course, held that Ngo had failed to comply fully with the prison’s administrative procedures, because he had missed the prison-imposed 15 day time-limit that was at issue in this case; and, thus, he had effectively waived his rights to bring suit in the Federal courts. For those who don’t want to wade through the majority’s obtuse reasoning, the dissent summarized Judge Alito’s ruling as follows:

“The majority essentially ignores the PLRA's text, suggesting instead that general administrative law principles, which allow courts in certain circumstances to impose procedural default sanctions as a matter of federal common law, suggest we should read waiver into the PLRA. . . .

“The majority does not claim that the plain language of the statute dictates its decision, but rather that the text ‘strongly suggests’ that the PLRA includes a procedural default sanction . . . The doctrine of exhaustion in administrative law does not support the majority's engraftment of a procedural default sanction into the PLRA. . . .

“Between Congress' codification of the exhaustion requirement in federal habeas law and Congress' adoption of an essentially identical exhaustion requirement in the PLRA, we decided no fewer than six cases in which we stated explicitly that a habeas petitioner satisfies the statutory exhaustion requirement so long as state-court remedies are no longer available to him at the time of the federal-court filing, regardless of the reason for their unavailability.”

In the end, the dissenting judges argued that the majority's holding “is as unsupported by the policy concerns it discusses as it is by the text of the statute.” However, they also suggested that the majority’s faulty logic was perhaps the only means by which it could achieve its unstated goal of “reducing the number of lawsuits filed by prisoners.”

Fernandez-Vargas v. Gonzales, No. 04-1376 (U.S.S.C. June 22, 2006) (Justice Souter)

In this case, the Supreme Court endorsed a tough application of a 1996 amendment to the immigration laws to certain longtime illegal immigrants, clearing the way for summary deportations of perhaps thousands of aliens who have been living in the United States for a decade of more.

By a vote of 8 to 1, the Court held that the Government properly sent Utah truck driver Humberto Fernandez-Vargas (“Fernandez”) back to Mexico in 2004 because he returned to the U.S. illegally in 1982 after having previously been deported. As Justice Stevens explained in his lone dissenting opinion, for the next 20 years, Fernandez:

“worked as a truckdriver, owned a trucking business, fathered a child, and eventually married the child's mother, a United States citizen. The laws in place at the time of petitioner's entry and for the first 15 years of his residence in this country would have rewarded this behavior, allowing him to seek discretionary relief from deportation on the basis of his continued presence in and strong ties to the United States. See 8 U.S.C. § 1254(a)(1) (1994 ed.).

“In 1996, however, Congress passed a new version of the applicable provision eliminating almost entirely the possibility of relief from deportation for aliens who reenter the country illegally having previously been deported. See Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA), § 305(a)(3), 8 U.S.C. § 1231(a)(5) (2000 ed.). . . . The 1996 provision is silent as to whether it was intended to apply retroactively to conduct that predated its enactment. Despite a historical practice supporting petitioner's reading, and despite the harsh consequences that attend its application to thousands of individuals who, like petitioner, entered the country illegally before 1997, the Court not only holds that the statute applies to preenactment reentries but also that it has no retroactive effect. I disagree with both of these conclusions.”

Thus, the central issue in this case was whether § 1231(a)(5), which provides for the reinstatement of a previous order of removal against an alien who has illegally re-entered the United States, applies to an alien whose illegal re-entry predated the effective date of the provision?

Writing for the majority, Justice Souter held that § 1231(a)(5) applied to persons who entered the United States before it was enacted - but that such a reading of the statute did not “retroactively affect any right of, or impose any burden on, the continuing violator of the INA now before us.”

Justice Souter concluded that there was no problem in applying the law retroactively because that interpretation would not deprive Fernandez and other similarly-situated of any rights to which they were legitimately entitled. Further, he reasoned, Fernandez didn’t suffer any adverse consequences from the new law because he was essentially responsible for his own predicament: he had plenty of notice that the new law was going into effect in 1997 and he could have left for Mexico and applied for legal admission from there.

In response, Justice Stevens argued:

“Even on its own terms the Court's logic is troubling. The Court believes that petitioner could have avoided being affected by the 1996 reinstatement provision, not just retroactively but in any way whatsoever, by leaving the country prior to its effective date . . . . But had petitioner ‘taken advantage of the statutory warning,’ he would have imposed upon himself the very same punishment -- the guarantee of removal to Mexico -- that he hopes to avoid. Just as we would not say that a defendant may avoid the retroactive application of a criminal statute by locking himself up for 10 years, it cannot be that petitioner's ability to leave the country of his own accord somehow helps to prove that the provision at issue has no retroactive effect.”

There are no official statistics on how many of the country's estimated 12 million illegal residents entered after a previous deportation before 1997 and would thus be directly affected by this ruling. However, in one of its briefs in this case, the Government stated that it "believes that the number is substantial and is likely to remain so for some time," adding that the application of the 1996 law to them is "of significant practical importance."

Editor's Note

Because of space limitations, it has been impossible to include in the current issue of P&J all of the new criminal justice decisions from the Supreme Court Due as well as many of the noteworthy new decisions from the lower courts. However, because of their significance, we particularly note a number of recent decisions from the Circuit courts which we will analyze for the benefit of our subscribers later this summer in subsequent issues of P&J.

U.S. v. Rattoballi, No. 05-1562-cr (2nd Cir. June 15, 2006) - an important sentencing decision from the Second Circuit; see the comments on the Second Circuit Blog here and here for an excellent analysis of this decision.

U.S. v. Cage, No. 05-2079 (10th Cir. June 8, 2006) - an important decision on the reasonableness of sentences from the Tenth Circuit; see Sentencing Law and Policy for a discussion of this ruling.

U.S. v. Navedo-Concepcion, No. 05-2301(1st Cir. June 9, 2006) - an important decision on the reasonableness of sentences from the First Circuit; see Sentencing Law and Policy for a discussion of this ruling.

U.S. v. Scott, No. 04-10090 (9th Cir. June 9, 2006) - denial of en banc review of an important decision relating to searches of pre-trial detainees that was discussed in the 08/22/05 of P&J.

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