Supreme Court cases 2004-2005 term.

The 2004-2005 U.S. Supreme Court term included several cases addressing a variety of constitutional criminal procedural issues and employment-related matters of interest to the law enforcement community. One case addressed the extent to which the Constitution recognizes the ability of law enforcement to use canine detection, ruling on whether the Constitution requires articulable and specific facts indicating criminal activity to use a canine. Also before the Supreme Court was a case involving the extent to which law enforcement may exercise authority over occupants of a residence for which the officers have a search warrant to search. In two other cases, the Supreme Court ruled on whether the federal statute criminalizing conspiracy to launder money requires proof of an overt act and the extent to which a defendant can be visibly shackled during the penalty phase of a trial. Regarding employment matters, the Court provided further guidance on the extent to which speech engaged in by a government employee is protected under the First Amendment and also ruled on an issue arising under the Age Discrimination in Employment Act. A brief synopsis of each of these cases follows.

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Illinois v. Caballes, 125 S. Ct. 843 (2005)

The Supreme Court held that a dog sniff of the exterior of an automobile conducted during the course of a lawful vehicle stop is not a search and may be performed without any suspicion that the vehicle's occupants are engaged in criminal activity. In so holding, the Court distinguished Kyllo v. United States, (1) in which it held that the use of thermal imaging to detect a detail of the interior of a home not otherwise knowable was a search.

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In Caballes, an Illinois state trooper stopped Roy I. Caballes for speeding and while radioing in to dispatch, a second trooper overheard the transmission and drove to the scene with his narcotics-detection dog. While the first trooper was writing Caballes a warning ticket, the second trooper walked the dog around the vehicle. When the dog alerted to the trunk, both officers searched it and found marijuana. Caballes was then arrested and later convicted on drug charges. The Illinois Supreme Court reversed the drug conviction, finding that because there was no specific and articulable facts to suggest drug activity, use of the dog sniff unjustifiably enlarged a routine traffic stop into a drug investigation. (2)

In reversing the Illinois Supreme Court, the U.S. Supreme Court found that the arrival of another officer at the scene while the traffic stop was in progress and the use of the narcotics-detection dog to sniff around the exterior did not itself constitute any additional infringement on Fourth Amendment rights that would have to be supported by a reasonable suspicion of criminal activity unrelated to the stop. (3) Recognizing that a seizure that is lawful at its inception can violate the Fourth Amendment if its manner of execution is unreasonable, the Supreme Court held that in this case, the traffic stop was not extended beyond the time necessary to issue a warning ticket. The outcome would be different if the dog sniff was conducted during an unlawful detention, not because of the constitutionality of the search, but rather due to the unreasonableness of the seizure.

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The Court cited United States v. Place (4) to support its conclusion that the dog sniff itself was not a search within the meaning of the Fourth Amendment because the use of a well-trained dog "does not expose noncontraband items that otherwise would remain hidden from public view." (5) Because it can reveal only the existence of an illegal substance, a dog sniff does not intrude into any legitimate expectation of privacy. Distinguishing this case from Kyllo v. United States the Court stated (6)

    This conclusion is entirely consistent with our recent decision that
    the use of a thermal-imaging device to detect the growth of
    marijuana in a home constituted an unlawful search .... Critical to
    that decision was the fact that the device was capable of detecting
    lawful activity--in that case, intimate details in a home .... The
    legitimate expectation that information about perfectly lawful
    activity will remain private is categorically distinguishable from
    respondent's hopes or expectation concerning the nondetection of
    contraband in the trunk of his car. A dog sniff conducted during a
    concededly lawful traffic stop that reveals no information other
    than the location of a substance that no individual has any right to
    possess does not violate the Fourth Amendment. (7)

Muehler v. Mena, 125 S. Ct. 1465 (2005)

In this case, the Supreme Court provided additional guidance on the authority to detain, handcuff, and question occupants during the execution of a search warrant. In Michigan v. Summers, (8) the Court ruled that officers serving a search warrant for drugs could detain occupants of the premises while searching to "prevent flights in the event incriminating evidence is found, minimizing the risk of harm to the officers," and to facilitate the search, because occupants' "self-interest may induce them to open locked doors or locked containers to avoid the use of force." (9) Although the Court in Summers clearly held that a warrant to search for contraband carries with it the limited authority to detain occupants of the premises while a search is conducted, Summers did not resolve whether detained occupants could be handcuffed, or for how long, or questioned, nor whether its ruling also applied to searches for evidence as opposed to contraband. These issues were addressed in Muehler v. Mena.

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Police in Simi Valley, California, obtained a warrant in connection with a drive-by shooting to search a suspected gang member's house for weapons, ammunition, and gang paraphernalia. Because of the high-risk nature of the case, SWAT made the initial entry. Four occupants, including Iris Mena, were handcuffed at gunpoint and taken to a garage on the premises, where they were detained for the 2 to 3 hours it took to finish the search. Although Mena was not implicated in any crime, an INS agent who had accompanied the police briefly questioned her about her identity and immigration status. She was ultimately released. Mena brought a civil action against officers alleging a violation of her Fourth Amendment rights.

The U.S. District Court for the Central District of California upheld a jury verdict awarding Mena $60,000 in damages. The U.S. Court of Appeals for the Ninth Circuit affirmed. (10) In upholding the judgment against the police, the Ninth Circuit took issue with the continued detention of Mena during the search despite determining that she was not a suspect, as well as the use of handcuffs during the search despite what the court believed to be insufficient information suggesting she posed a threat to officer safety. (11)

The Supreme Court reversed, finding that "Mena's detention was, under Summers, plainly permissible." (12) In so concluding, the Court made no distinction between searches for contraband and searches for evidence. An officer's authority to detain occupants incident to the execution of a search warrant was described as being categorical--meaning absolute and unqualified and not requiring any justification beyond the warrant itself. The authority does not depend on the amount of proof justifying detention nor the extent of intrusion imposed by the seizure. (13) The Court concluded that Mena's detention for the duration of the search was reasonable simply based on the existence of a warrant for a residence in which she was an occupant at the time of the search. (14)

The Court also found that the officer's continuing safety interests rendered the use of handcuffs for the full length of the search reasonable. (15) Inherent in the authority to detain occupants is the authority to use reasonable force to effect the detention. (16) What force is reasonable will depend on the facts of the case. Here, the underlying case was a crime of violence; the warrant was based on probable cause to believe that gang members and weapons would be located at the residence. Further, there were multiple occupants and only a limited number of officers to control them while the search was completed. (17)

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On the issue of questioning, the Ninth Circuit Court of Appeals ruled that an officer must have reasonable suspicion that an individual is not a citizen to interrogate that individual about citizenship status. The U.S. Supreme Court disagreed and held that officers do not need independent reasonable suspicion to question an occupant detained during a lawful search. As the Court explained, "We have 'held repeatedly that mere police questioning does not constitute a seizure'" and "[h]ence, the officers did not need reasonable suspicion to ask Mena her name, date and place of birth, or immigration status." (18)

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Deck v. Missouri, 125 S. Ct. 2007 (2005)

In this case, the Supreme Court considered whether shackling a convicted offender during the penalty phase of a capital case violates the Constitution. The Court determined that the Constitution, in fact, does forbid the use of visible shackles during the penalty phase, just as it forbids their use during the guilt phase unless specific circumstances justify their use. (19)

Carman Deck was a convicted double murderer when he appeared before a second jury who was to recommend either life in prison or death as his sentence. (20) From the outset of the sentencing proceeding, Deck was shackled with leg irons, handcuffs, and a belly chain. (21) At the conclusion of the penalty phase, Deck received two death sentences. (22) Deck appealed the sentencing as a violation of Missouri law and the U.S. Constitution. The Missouri court rejected the claims and affirmed the sentence. He then appealed to the U.S. Supreme Court.

The Supreme Court initially recognized that "[t]he law has long forbidden routine use of visible shackles during the guilt phase" (23) of criminal cases. Justice Breyer, the author of the majority opinion, then applied the threefold legal rationale for this longstanding prohibition to the situation at issue in Deck--whether the use of visible shackles during the penalty phase violated Deck's right to due process.

The first reason for not routinely allowing shackles during the guilt phase of criminal trials is because "the criminal process presumes that the defendant is innocent until proven guilty." (24) While this presumption is no longer at play during the sentencing proceeding for a convicted defendant, similar concerns are impacted. While the jury may no longer be deciding between guilt and innocence, it is deciding between life and death, and accuracy in making that decision is [no] less critical. (25)

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The second traditional reason for prohibiting shackles in court is that they diminish a person's right to a meaningful defense. A person in shackles may decide against taking the witness stand on his own behalf, and shackles may interfere with the ability to communicate with counsel. The right to a meaningful defense is at least as equally important during the penalty phase as it is during the guilt phase of a capital case.

Finally, the Court considered the third traditional factor behind the ban on courtroom shackles. The Court noted that "judges must seek to maintain a judicial process that is a dignified process." (26) This factor mitigates against the use of shackles during the penalty phase as much (if not more) than at the guilt phase. If the use of shackles at trial affronts the dignity and decorum of trial proceedings, then to have a man plead for his life in shackles certainly undermines the dignity of those proceedings as well. (27)

While the Court banned the systematic use of shackles during penalty proceedings, it recognized that not all uses of restraints during these proceedings violate the Constitution. The decision to shackle, though, must be based on case-specific circumstances. Restraints, up to and including shackling, should reflect particular concerns, such as special security needs or escape risks, related to the defendant. (28) In making this allowance, Justice Breyer acknowledged that tragedy can result "if judges are not able to protect themselves and their courtrooms. But given their prejudicial effect, due process does not permit the use of visible restraints if the trial court has not taken account of the circumstances of the particular case." (29)

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Whitfield v. United States, 125 S. Ct. 687 (2005)

In this case, a number of codefendants were charged by an indictment that described, in general terms, the manner and means used to accomplish the objects of a money-laundering conspiracy. The indictment, however, did not charge the defendants with any overt act in furtherance of the scheme. At trial, the government presented evidence that the defendants, as principals in Greater Ministries International Church, managed and promoted a fraudulent investment scheme. At the close of the evidence, the defendants asked the district court to instruct the jury that the government was required to prove beyond a reasonable doubt that at least one of the co-conspirators had committed an overt act in furtherance of the money-laundering conspiracy. The court denied the request, and the jury returned a verdict of guilty.

The Eleventh Circuit Court of Appeals affirmed the convictions, holding that the jury instructions were proper because the money-laundering conspiracy charge (30) does not require proof of an overt act. (31) The Eleventh Circuit noted that while neither it nor the Supreme Court had previously determined whether commission of an overt act is an essential element of a conviction under the money-laundering conspiracy statute, other circuit courts were split on the issue. (32) Those circuit courts that had found that the statute required proof of an overt act relied, erroneously in the view of the Eleventh Circuit, on case law interpreting the general conspiracy statute (Title 18, U.S. Code, section 371). (33)

The U.S. Supreme Court agreed to hear the case and held that conviction for conspiracy to commit money laundering does not require proof of an overt act in furtherance of the conspiracy. Writing for a unanimous Court, Justice O'Conner looked to the case of United States v. Shabani (34) in which the Court had held that the nearly identical language of the drug conspiracy statute (Title 21, U.S. Code, section 846) does not require proof of an overt act. Justice O'Conner pointed out that, in deciding Shabani, the Court found instructive a comparison between the money-laundering conspiracy statute and the general conspiracy statute that expressly includes an overt-act requirement. Indeed, the general conspiracy statute supercedes the common law rule by expressly including an overt-act requirement. (35) The Court concluded that the rule applied in Shabani dictated the outcome here as well. (36) Because the plain text of the money-laundering conspiracy statute does not expressly make commission of an overt act an element of the conspiracy offense, the government need not prove an overt act to obtain a conviction.

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Smith v. City of Jackson, Mississippi, 125 S. Ct. 1536 (2005)

This case provided the Supreme Court an opportunity to decide whether the Age Discrimination in Employment Act (ADEA) (37) afforded complainants an opportunity to sue, not on the basis of direct discrimination (disparate treatment) but, rather, by arguing indirect discrimination, referred to as disparate impact. Smith v. City of Jackson, Mississippi, (38) involved a claim on the part of certain police and public safety officers alleging that the city's revision of a pay plan designed to bring salaries to a competitive level with other municipalities by providing more of a percentage increase for less senior officers as opposed to officers over the age of 40 had a discriminatory impact on older officers in violation of the ADEA. The Fifth Circuit Court of Appeals rejected this theory, ruling that a disparate impact theory of discrimination is not available under the ADEA. (39)

The Supreme Court reversed, holding that the ADEA should be read consistent with Title VII of the Civil Rights Act with respect to allowing for consideration of a disparate impact theory of liability under the ADEA. However, the Court ultimately held that the plaintiffs failed to establish such a claim. In so ruling, the Court concluded that while a disparate impact claim of discrimination is viable under the ADEA, language in the ADEA itself restricts its scope as compared with disparate impact discrimination under Title VII of the Civil Rights Act. The ADEA contains a provision that significantly limits its scope by allowing for an employer to take any action otherwise prohibited by the ADEA where the differentiation is based on reasonable factors other than age. (40) In other words, can the discrimination be explained by a nonage factor that was reasonable? Additionally, to establish a disparate impact claim, the plaintiffs must identify a specific test or requirement or point to a specific policy that has the disparate impact. The plaintiffs may not simply allege that a disparate impact exists. (41)

The Supreme Court concluded that the plaintiffs failed to identify a specific practice that had a disparate impact. The Court stated that "petitioners have done little more than point out that the pay plan at issue is relatively less generous to older workers than to younger workers." (42) The Court further concluded that the city's pay plan was based on a reasonable factor other than age, in this case, seniority. While recognizing the theory of liability--disparate impact--as viable under the ADEA, the Court concluded that the plaintiffs failed to establish a case.

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City of San Diego v. Roe, 125 S. Ct. 521 (2004)

In City of San Diego v. Roe, the Supreme Court provided guidance on the extent to which speech and expressive conduct on the part of public employees is considered as relating to a matter of public concern. This finding is crucial to the viability of a claim brought by a government employee challenging an adverse employment action on the grounds that it violates the First Amendment. The long-established framework for determining the constitutionality of taking adverse action against a government employee includes balancing the interests of the employee in engaging in the speech or expressive conduct and the interests of the employer. (43) In the seminal case of Connick v. Myers, (44) the Supreme Court announced a threshold inquiry that must be met requiring a finding that the speech or expressive conduct is a matter of public concern prior to balancing the interests of the employer versus the employee. The contours of the concept of public concern were addressed during the 2004-2005 Supreme Court term.

In City of San Diego v. Roe, a police officer was terminated after the department determined that he had been selling homemade, sexually explicit videos on an adult-only area of the Internet. The videos depicted him in vintage law enforcement uniforms but not the specific uniform of his department, nor did he identify himself as an officer of that department. The department ordered him to cease his activities. He complied to some degree but continued to sell some items. The department then fired him. The Ninth Circuit Court of Appeals ruled that Roe's activities fell within the category of speech touching on a matter of public concern, particularly as it occurred off duty and away from the employer's premises. (45) The case was remanded to the lower court to weigh the interests of the department versus those of the officer. The city appealed the Ninth Circuit's ruling to the Supreme Court.

The Supreme Court recognized that "the contours of the public concern test are not well-defined." (46) However, the Court noted that Connick did offer some guidance by directing that the "content, form, and context of a given statement, as revealed by the whole record" (47) should be considered. The Court also indicated that in Connick, it referred to the standard used in prior rulings interpreting governmental intrusions into privacy as the one that should apply in interpreting public concern. Applying these principles in Roe, the Supreme Court stated

    These cases make clear that public concern is something that is a
    subject of legitimate news interest; that is, a subject of general
    interest and of value and concern to the public at the time of
    publication. (48)

Applying these principles to the expressive conduct in the case at hand, the Supreme Court stated that "there is no difficulty in concluding that Roe's expression does not qualify as a matter of public concern under any view of the public concern test." (49) Accordingly, there is no need to apply the balancing of interests test, and the termination did not violate the First Amendment.

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Cases Set for 2005-2006

While the Court will continue to accept cases for consideration once the 2005-2006 term begins, it has agreed to hear several cases during this term of interest to the law enforcement community. Notably, the Supreme Court agreed to hear Georgia v. Randolph (50) to resolve the conflict existing in state and federal courts on whether an occupant may give valid consent to law enforcement over the objections of another occupant when both the consentor and non-consentor have authority to give consent to search the common areas of premises shared among the two. In Booker T. Hudson v. Michigan, (51) the Court will consider whether evidence seized following a violation of the knock and announce rule should be subject to a per se admissibility rule under the inevitable discovery doctrine. In an employment-related matter, the Court agreed to hear Garcetti, et al. v. Ceballos, (52) which may further clarify the concept of public concern within the meaning of the First Amendment.

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Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.

Endnotes

(1) 533 U.S. 27 (2001).

(2) People v. Caballes, 207 Ill. 2d 504, 510; 280 Ill. Dec. 277, 280; 802 N.E. 2d 202, 205 (2003).

(3) 125 S. Ct. 834, 837.

(4) 420 U.S. 696 (1983).

(5) Id. at 838.

(6) 533 U.S. 27 (2001).

(7) Id. (The U.S. Supreme Court vacated the judgment and remanded to a District Court of Appeal of Florida for further consideration in light of Caballes, a case involving the dog sniff of the exterior of a residence. See, Florida v. Rabb, 125 S. Ct. 2246 (5/16/2005). In Rabb, a Broward County Sheriff's Office detective and drug dog walked from a public roadway in front of the residence up to the front door where the dog alerted. This information was used to obtain a search warrant for the residence. The Florida court had ruled that the use of a dog sniff to reveal the presence of drugs within a home was a search in light of Kyllo. See, State v. Rabb, 881 So.2d 587 (Fla. App. 4 Dist. 2004)).

(8) 452 U.S. 692 (1981).

(9) Id. at 703.

(10) Mena v. City of Simi Valley, 332 F.3d 1255 (9th Cir. 2003).

(11) Id. at 1263.

(12) 125 S. Ct. 1465, 1470.

(13) Id.

(14) Id.

(15) Id. at 1471. Mena underscores a distinction between the categorical rule that permits the detention of occupants while serving a search warrant and the more limited rule that permits the use of handcuffs only when it is reasonable to do so. Detention of occupants always is permitted without further justification while the search is completed, but the use of handcuffs will be evaluated as a use of force that must be justified on the basis of the circumstances confronted.

(16) 125 S. Ct. 1465, 1470

(17) Id. at 1471.

(18) Id. (It should be noted that the Court remanded the case on the question of whether Mena could show that she had been detained after the search was completed. This suggests that routine detention should end once the search is completed.)

(19) Deck v. Missouri, 125 S. Ct. 2007, 2009 (2005). Lower court opinion can be found at 136 S.W.3d 481 (Mo. 2004) (en banc).

(20) Deck was originally convicted and sentenced to death by the same jury. However, on appeal, the Missouri Supreme Court upheld his conviction but set aside the sentence [68 S.W.3d 418, 432 (Mo. 2002)], requiring the state to proceed with a new sentencing proceeding.

(21) 125 S. Ct. at 2010.

(22) Id. at 2016 (Thomas, J., dissenting).

(23) 125 S. Ct. at 2010.

(24) Id. at 2013 (citation omitted).

(25) 125 S. Ct. at 2014.

(26) Id. at 2013.

(27) Id.

(28) Id. at 2015.

(29) Id. at 2014. (A recent example of the type of tragedy alluded to was the March 11, 2005, courthouse shooting in Fulton County, Georgia. In that particular case, Brian Nichols was to appear before Judge Rowland Barnes. Prior to the day's proceedings, Barnes overpowered two sheriff's deputies and used one of their service weapons to kill Barnes and his court reporter. He then killed a sheriff's deputy he encountered while escaping from the courthouse. Nichols was apprehended the following day.)

(30) 18 U.S.C. [section] 1956(h).

(31) U.S. v. Hall, 349 F.3d. 1320, 1324 (11th Cir. 2003).

(32) Fourth and Ninth Circuits did not require the indictment to allege an overt act; Fifth and Eighth Circuits required proof of an overt act for conviction.

(33) Id. at 1323.

(34) 513 U.S. 10 (1994).

(35) 25 S. Ct. 687, 691 ("As we explained in Shabani, these decisions 'follow the settled principle of statutory construction that, absent contrary indications, congress intends to adopt the common law definition of statutory terms.'"). settled principle of statutory construction that, absent contrary indications, congress intends to adopt the common law definition of statutory terms.'").

(36) Id.

(37) Age Discrimination in Employment Act of 1967, Pub. L. 90-202, codified at 29 U.S.C. [section][section]621, et. seq.

(38) 125 S. Ct. 1536 (2005). Lower court case can be found at 351 F.3d 183 (5th Cir.).

(39) 351 F.3d 183.

(40) 29 U.S.C. [section]623, commonly referred to as the RFOA provision.

(41) See Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989). As a result of this decision Congress amended Title VII of the Civil Rights Act to address this burden of proof issue to expand the protections afforded employees under Title VII. However, Congress did not amend the ADEA. Accordingly, the Supreme Court held that the Wards Cove standard applies to the ADEA. See 125 S. Ct. at 1545.

(42) Smith at 1545.

(43) Pickering v. Board of Education of Township High School Dist. 205 Will Cty., 391 U.S. 563 (1968).

(44) 461 U.S. 138 (1983).

(45) 356 F.3d 1108 (2004).

(46) Roe at.

(47) Id, citing Connick at 146-147.

(48) Id.

(49) Id.

(50) 604 S.E.2d 835 (Ga. 2004), cert. granted, 04-1067 (2005).

(51) Unpublished, cert. granted, 04-1360 (2005).

(52) 849 A.2d 410 (Md.App. 2004), cert. granted, 04-373 (2005).

(53) 361 F.3d 1168 (9th Cir. 2004), cert. granted, 04-473 (2005).

By the FBI ACADEMY LEGAL INTSRUCTION UNIT