Rehnquist scaled back rights of the accused.

In 1969, when William Rehnquist was the assistant attorney general for the U.S. Justice Department's Office of Legal Counsel, he wrote a memorandum to John Dean, then associate deputy attorney general, opining that "the Supreme Court has failed to hold true the balance between the right of society to convict the guilty and the obligation of society to safeguard the accused." He specifically complained about Miranda v. Arizona, (1) the Fourth Amendment's exclusionary rule, and the rise in habeas corpus petitions. He urged the creation of a commission "to determine whether the overriding public interest in law enforcement ... requires a constitutional amendment." (2)

By 1985, thirteen years after his precipitous elevation to the Supreme Court, Rehnquist said he was pleased that the Court had "called a halt to a number of the sweeping rulings [of] the Warren Court" in "the area of constitutional rights of accused criminal defendants." (3) However, he had not met his goals of overruling Mapp v. Ohio's application of the exclusionary rule to the states (4) and Miranda. Then, in 2000, he wrote the majority opinion in Dickerson v. United States, reaffirming Miranda's constitutional status. (5)

Had Rehnquist succeeded in convincing his colleagues that Mapp and Miranda should be overruled, he would have essentially undone all the work of the Warren Court. Without the exclusionary remedy in place, as the Court had observed in Mapp, police would have no incentive to follow Supreme Court rules for searches or interrogations, and the entire structure of federally mandated "rules" of criminal procedure would have come crashing down. In theory, the states would still have to follow Supreme Court Fourth and Fifth Amendment rules because Rehnquist never argued that the Fourteenth Amendment should not make those amendments applicable to the states. But in practice, since only state police behavior that "shocked the conscience" would lead to federally mandated exclusion, (6) the states would basically be free to do what they wanted about other constitutional violations.

While Rehnquist failed in his effort to radically reconstruct criminal procedure law, he nevertheless enjoyed perhaps his greatest success in his 33 years on the Court by trimming back Warren Court initiatives in virtually every area of criminal procedure and habeas corpus.

Rehnquist joined the Court on the day when it achieved a Republican majority, even though Rehnquist himself did not change the partisan balance. (7) Thus, he was able to "hit the ground running" when it came to attempting to achieve his ambitious agenda.

One important area in which the Court consistently cut back police powers was the definition of "search" under the Fourth Amendment. (8) If a certain police activity is not a "search," by definition it can't be an "unreasonable search." Applying this logic, the Court held that helicopter (9) and airplane (10) flyovers were not searches. More dubiously, it held that police inspections of a fenced and posted "open field" (11) and trash left at the curb (12) were not "searches." While a perfectly respectable case could be made that these warrantless, and perhaps even no-probable-cause searches were not unreasonable under the amendment, it is hardly consistent with the notion of "strict construction" to claim that these intrusions were not searches.

Some began to fear that before long, nothing short of breaking into a house would be deemed a search by the Burger Court. But by the 2000s, the tide began to turn. Strangely, Rehnquist himself wrote one of the two key cases that ended the trend--the only nonunanimous Fourth Amendment case in which he voted for the defendant. (13) In Bond v. United States, the Court held that police who boarded a bus and without probable cause squeezed the luggage of the passengers had committed an unreasonable search. (14) But, in Kyllo v. United States, (15) Rehnquist resumed his usual pro-government position, dissenting where the Court held that use of a thermal-imaging machine on the outside of a house (that showed only the heat emissions from the house) was a "search" that required a warrant.

Another favorite target of the Burger and Rehnquist Courts was the so-called warrant requirement of the Warren Court, which holds that a warrant is ordinarily a requirement of a reasonable search "subject only to a few specifically established and well-delineated exceptions." (16) Not even the Warren Court really believed this, as its recognition of numerous exceptions, including warrantless searches of automobiles and searches incident to arrest, illustrated. Today the warrant requirement has essentially been lifted for all outdoor searches, though the Court, often over Rehnquist's objection, has been steadfast in requiring warrants to enter structures. (17)

The Burger and Rehnquist Courts limited the Fourth Amendment in other areas, too, by diluting the meaning of "probable cause"; (18) creating a "good faith" exception to the exclusionary rule when police employ defective search warrants; (19) enhancing the ability of the police to "stop and frisk" criminal suspects; (20) encouraging police to use "voluntary" consents to avoid Fourth Amendment strictures; (21) and limiting the "standing" of criminal defendants to raise Fourth Amendment claims when the rights of people other than the defendant have allegedly been violated by the police. In this last area, Rehnquist was particularly influential. (22)

'Prophylactic' warnings

Professor Yale Kamisar notes that in Rehnquist's 1969 memo to Dean, Rehnquist never suggested that Miranda is not a "constitutional" holding--nor is it described as "prophylactic." (23) Yet, two years after Rehnquist joined the Court he authored Michigan v. Tucker, (24) which disparaged the Miranda warnings as merely prophylactic and "not themselves rights protected by the Constitution." (25) Tucker allowed the testimony of a witness whose identity was discovered as a result of questioning the defendant without giving him a complete set of warnings. How Miranda's own state conviction could have been reversed for failure to give the warnings if they were not "rights protected by the Constitution" is not explained.

Rehnquist further limited Miranda in the 1984 decision in New York v. Quarles. (26) In that case, the Court created a "public safety" exception to the Miranda requirements, again on the ground that they were merely "prophylactic" rules that were not constitutionally required. (27) A year later, he joined Justice Sandra Day O'Connor's opinion in Oregon v. Elstad, which approved a second, warned, confession from a defendant who had first given an unwarned confession. (28) Because the failure to give the warnings in the first place was not "police infringement of a constitutional right," the fruit-of-the-poisonous-tree doctrine was not applicable. (29)

Having done everything he could to undercut Miranda, it appeared that Rehnquist was just waiting for the chance, and the votes, to overrule it. That chance seemed to arise in 2000 in Dickerson. (30) But much to everyone's surprise, Rehnquist (and O'Connor) not only voted to uphold Miranda--he wrote the opinion!

In Dickerson, Rehnquist seemed to take back everything he had previously said about Miranda. As Professor Kamisar puts it, "some portions of the Dickerson opinion read as if he had read the Miranda opinion closely for the first time." (31) Now the warnings were constitutionally required again, (32) and the Court struck down an act of Congress, passed in the furor that followed Miranda, that purported to overrule Miranda.

Can any sense be made of Rehnquist's about-face in Dickerson? Analytically speaking, the answer is, "no." Tucker was a disingenuous reading of Miranda--"first and foremost," as Rehnquist pointed out himself in Dickerson--because Miranda couldn't have been applied to state courts if it wasn't a constitutional requirement. (33)

Practically speaking, however, there were a number of sensible reasons for Rehnquist's turnaround. First, as he notes in Dickerson, Miranda had become so "embedded in routine police procedure that warnings were "part of our natural culture." (34) Stare decisis protected Miranda unless there was good reason to overrule it. But to abandon the warnings requirement would have created massive confusion among police about how to conduct interrogations.

Second, the Court wanted to reprimand Congress for its intemperate attempt to "overrule" a constitutional decision of the Supreme Court. Finally, with only Justice Antonin Scalia and Justice Clarence Thomas prepared to overrule Miranda, it made sense for Rehnquist to vote to uphold it and then assign the opinion to himself, so as to limit the damage. Had he not done so, Stevens, as senior justice in the majority, would likely have written the opinion, and, no doubt, overruled Tucker and Elstad, making it clear that a Miranda violation had the same fruit-of-the-poisonous-tree consequences as any other constitutional violation by police.

The shrewdness of Rehnquist's decision became clear four years later when the Court decided United States v. Patane (35) and Missouri v. Seibert. (36) In Patane, the defendant, after receiving incomplete Miranda warnings, revealed the location of a pistol. The Court upheld the admissibility of this fruit of the poisonous tree by a 3-2-4 vote. Thomas's plurality opinion, joined by Rehnquist, once again referred to the Miranda warnings as prophylactic and contrasted the warnings requirement with "the core privilege against self-incrimination" (37) (that is, coerced confessions)--notions that Dickerson had seemingly laid to rest.

In the companion case of Seibert, the Court narrowly struck down the deliberate tactic of the police to avoid Miranda's strictures by first questioning a suspect without warnings, then giving her the warnings and using her first confession to induce a second. (38) Rehnquist dissented.

Kamisar finds it "hard to conceive that any justice could write an opinion of the Court advancing almost every argument conceivable for why Miranda must be said to have announced a constitutional doctrine only to concur four years later in an opinion" that undercut it so severely. (39)

I agree with Kamisar that the fruits doctrine should apply to Miranda violations. To hold otherwise encourages the police to violate Miranda whenever they are more interested in obtaining fruits than the statement itself. Moreover, it will often be difficult to show that such violations were deliberate.

However, I don't necessarily find it so inconsistent for the Court to declare that the Miranda warnings are constitutionally required but to refuse to generally apply the fruits doctrine. While Miranda is a constitutional rule, there's no particular reason why the doctrine must apply to all constitutional violations. And it is certainly true, as the Elstad Court noted, that coerced confessions, which do have fruit consequences, are worse than Miranda violations and strike more directly at the core of the Fifth Amendment. Thus, for Rehnquist to give liberals half a loaf by upholding the constitutionality of Miranda, but not the whole loaf by applying the fruits doctrine to Miranda violations, does not strike me as incongruous.

Rehnquist was no less active in the area of Sixth Amendment right-to-counsel law. However, he never expressed any hostility to the most significant Warren Court innovation in this area--Gideon v. Wainwright, which required representation by counsel for all felony defendants, regardless of ability to pay. (40) When the Court extended Gideon to misdemeanor defendants in Argersinger v. Hamlin, (41) Rehnquist joined an opinion by Justice Lewis Powell concurring in the result. This opinion simply said that the right to counsel in misdemeanor cases should depend on the complexity of the case; there should be no hard-and-fast rule that counsel was required in all cases involving a deprivation of liberty, but none that did not. (42)

Despite the seeming neutrality of this position, University of Iowa Law Professor James Tomkovicz points out that "an undeniable and significant motivation for the concurrence Justice Rehnquist joined was a genuine concern that Argersinger's logic foreshadowed the adoption of a broader entitlement to all petty offense prosecutions." (43)

Seven years later, in Scott v. Illinois, (44) Rehnquist (and Powell) abandoned the case-by-case approach they had urged in Argersinger and adopted a flat rule that there was a right to counsel only in cases of "actual imprisonment." (45) Subsequently, Rehnquist dissented in Baldasar v. Illinois, which held that an uncounseled misdemeanor conviction could not be used to enhance a sentence in a subsequent case. (46) Then, in Nichols v. United States, he wrote the majority opinion overruling Baldasar and allowing the use of such convictions to increase a sentence under the federal sentencing guidelines. (47)

Likewise, Rehnquist was able to call a halt to the march toward extensive rights to counsel on appeal. In Douglas v. California, the Warren Court had established a right to counsel on appeal under the Equal Protection and Due Process clauses. (48) But in Ross v. Moffitt, (49) Rehnquist undercut the equal protection analysis of Douglas, which seemed to require that a poor person be supplied counsel whenever a rich person would want one. (50) The Court refused to extend Douglas to discretionary appeals beyond the first one.

Rehnquist's legacy in criminal procedure is essentially the same as the roadmap he set forth in his 1969 Justice Department memorandum, with the significant exceptions of overruling Miranda and Mapp. He was able to cut back on defendants' rights substantially in the Fourth Amendment area, limit the impact of Miranda, and stop the expansion of the Gideon right to counsel. When this is combined with his successful efforts to cut back defendants' rights to federal habeas corpus relief, (51) Rehnquist's legacy, reflecting the tenor of his times and the makeup of his Court, is substantial. The constitutional amendment that Rehnquist envisioned in 1969 was unnecessary because he was able to, in effect, rewrite the Constitution himself.

Editors' note: This article reviews the late chief justice's impact on criminal procedure. Last month's column focused on civil cases.

Notes

(1.) 384 U.S. 436 (1966).

(2.) Yale Kamisar, Dickerson v. United States, The Case That Disappointed Miranda's Critics--and Then Its Supporters (quoting Memorandum from William H. Rehnquist to John Dean Ill (Apr. 1, 1969)), in THE REHNQUIST LEGACY 106, 109 (2005).

(3.) Craig Bradley, The Fourth Amendment: Be Reasonable (quoting John A. Jenkins, The Partisan, N.Y. TIMES MAC., Mar. 3, 1985, at 28), in THE REHNQUIST LEGACY 81, 81 (2005).

(4.) 367 U.S. 643 (1961). See discussion in Bradley, id. at 84-85.

(5.) 530 U.S. 428 (2000).

(6.) As the pre-Mapp case of Rochin v. California, 342 U.S. 165 (1952), had held.

(7.) Rehnquist's replacement of Republican Justice John Marshall Harlan did not change the partisan balance, though Rehnquist was considerably more conservative than the moderate Harlan. However, Justice Lewis Powell's replacement of the liberal Democrat Justice Hugo Black on the same day gave the Republicans a majority for the first time since the 1930s. But it was Kennedy appointee Byron White who was much more likely to vote with Rehnquist than the moderate Justice Potter Stewart in criminal procedure matters.

(8.) Bradley, supra note 3, at 86.

(9.) Florida v. Riley, 488 U.S. 445 (1989).

(10.) California v. Ciraolo, 476 U.S. 207 (1986).

(11.) Oliver v. United States, 466 U.S. 170 (1984).

(12.) California v. Greenwood, 486 U.S. 35 (1988).

(13.) Bradley, supra note 3, at 86.

(14.) 529 U.S. 334 (2000).

(15.) 533 U.S. 27 (2001).

(16.) United States v. Ross, 456 U.S. 798, 825 (1982) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)).

(17.) See Bradley, supra note 3, at 89-94.

(18.) See id. at 94.

(19.) See id. at 95-97.

(20.) See id. at 97-98.

(21.) See id. at 99.

(22.) See id. at 100-02.

(23.) Kamisar, supranote 2, at 110.

(24.) 417 U.S. 433 (1974).

(25.) Id. at 444.

(26.) 467 U.S. 649 (1984).

(27.) Id. at 654.

(28.) 470 U.S. 298 (1985).

(29.) Id. at 304.

(30.) 530 U.S. 428.

(31.) Kamisar, supra note 2, at 120.

(32.) Dickerson, 530 U.S. 428, 438.

(33.) Id.

(34.) Id. at 443.

(35.) 124S. Ct. 2620 (2004).

(36.) 542 U.S. 600 (2004).

(37.) Patane, 124S. Ct. 2620, 2627.

(38.) The vote in Seibert was 4-1-4 with Justice Anthony Kennedy concurring in the result to provide the fifth vote to overturn the conviction.

(39.) Kamisar, supra note 2, at 128.

(40.) 372 U.S. 335 (1963).

(41.) 407 U.S. 25 (1972).

(42.) Argersinger was actually ambiguous on this limitation. James Tomkovicz, Against the Tide: Rehnquist's Efforts to Curtail the Right to Counsel, in THE REHNQUIST LEGACY 129, 135 (2005).

(43.) Id. at 133.

(44.) 440 U.S. 367 (1979).

(45.) Id. at 374.

(46.) 446 U.S. 223 (1980).

(47.) 511 U.S. 738 (1994).

(48.) 372 U.S. 353 (1963).

(49.) 417 U.S. 600 (1974).

(50.) Id. at 612 (citation omitted).

(51.) Joseph Hoffmann, Narrowing Habeas Corpus, in THE REHNQUIST LEGACY 156 (2005).

CRAIG M. BRADLEY is the James Louis Calamaras Professor of Law at Indiana University (Bloomington). He is a former law clerk to Justice William Rehnquist and the editor and co-author of The Rehnquist Legacy (2005).