Part II: Samson v. California (04-9728), Davis v. Washington (05-5224), Hammon v. Indiana (05-5707) and Youngblood v. West Virginia (05-6997)

June 20, 2006 Supreme Court Update


Greetings, Court fans!

The Court is working overtime to get those final opinions out – causing us to do the same. Here are the rest of the decisions from Monday in what was a mixed week for criminals.

In Samson v. California (04-9728), the Court ruled 6-3 that the Fourth Amendment does not prohibit police from performing a suspicionless search of a parolee. Under California law, to be eligible for release on parole, a prisoner must agree in writing that he may be searched or seized at any time "with or without a search warrant and with or without cause." Samson was stopped by a police officer while walking down the street and searched solely on the basis of his status as a parolee. The search uncovered a bag of methamphetamines, and Samson was charged with possession. At trial, Samson moved to suppress because the search violated the Fourth Amendment; the motion was denied and Samson was convicted and sentenced to seven years. The California Court of Appeals affirmed, finding that suspicionless searches of parolees are permitted under California law and "reasonable within the meaning of the Fourth Amendment." The Court, led by Justice Thomas, agreed. Under the Fourth Amendment, the reasonableness of a search is based on "the degree to which it intrudes upon an individual's privacy and . . . the degree to which it is needed for the promotion of legitimate government interests." Just last Term, in United States v. Knights, 534 U.S. 112 (2005), the Court upheld a warrantless search of a probationer based on reasonable suspicion and his probationary status. In doing so, the Court noted that probationers have a diminished expectation of privacy, given that probation is on the continuum of punishments ranging from solitary prison confinement to community service. Parolees, the majority reasoned, have even lower expectations of privacy since, on the continuum of punishments, parole is closer to prison – in fact, parolees remain in the legal custody of the Department of Corrections. Further, California has an overwhelming interest in effectively supervising parolees given the extremely large number it must monitor and their incredibly high recidivism rate. Therefore, California's approach of conducting suspicionless searches of parolees is reasonable under the Fourth Amendment. The majority did not address California's additional arguments that Samson consented to the search by signing the parole agreement and that the search was valid as a "special needs" search under Griffin v. Wisconsin, 483 U.S. 868 (1987).

Justice Stevens, joined by Souter and Breyer, dissented, arguing that the Fourth Amendment provides at least some protection to parolees and, therefore, suspicionless searches by police with no special relationship to the parolee cannot be considered "reasonable." The dissenters argue that this is the first time the Court has ever found a search reasonable in the absence of either individualized suspicion or "special needs." Further, the majority's near-equating of parolees to prisoners, while perhaps superficially appealing, is unsupported by precedent and by the policies allowing such searches in prison (i.e., the need to maintain order within the facility). Special needs searches by parole officers, who have a close relationship to a parolee, might be acceptable, but a blanket authorization allowing a parolee to be searched by any police officer is not. Further, the dissenters worry that there are no procedural protections in the California law to ensure that searches are performed evenhandedly (though the statute does preclude arbitrary, capricious and harassing searches).

Criminal defendants fared better in the combined cases of Davis v. Washington (05-5224) and Hammon v. Indiana (05-5707), where a nearly unanimous Court provided guidance on what constitutes a "testimonial statement" subject to the requirements of the Sixth Amendment's Confrontation Clause. Justice Scalia penned the majority opinion (for all but Justice Thomas), which holds that statements made to enable police to meet an ongoing emergency are not testimonial in nature and thus not subject to the strictures of the Confrontation Clause, whereas statements made primarily to assist police in investigating past events are testimonial and must be subject to cross examination. In Davis, Michelle McCottry called 911 to report an assault by her boyfriend; during the course of the frantic call, she identified Davis. While McCottry did not testify against Davis (and therefore could not be cross-examined), the 911 tape was admitted and Davis was convicted. Hammon also involved a police response to a domestic violence incident. Upon the officers' arrival at her home, Amy Hammon initially denied that anything had happened, but upon further interrogation away from her husband, Hershel, she explained that he had broken furniture and shoved her onto the floor into broken glass. She also provided a written statement to that effect. Hammon was subpoenaed but did not show up to testify; her statements were admitted under the "present sense impression" and "excited utterance" exceptions to the hearsay rule, and Hershel was convicted. The majority found that McCottry's statements to the 911 operator (at least her initial statements, including her ID of Davis) were not testimonial because they were made while McCottry was in an unsafe situation for the purpose of obtaining assistance in an ongoing emergency. In contrast, Hammon's statements were made primarily for an investigatory purpose since there was no ongoing threat and police were attempting to obtain details about a past alleged criminal event. Therefore, those statements were testimonial in nature and had to be subject to cross-examination. The majority found no need for the statements to be made in the context of a formal setting (such as a deposition or at the police precinct) for the cross examination requirement of the Confrontation Clause to apply – it was enough that the primary purpose of the interrogation was to establish or prove events potentially relevant to later criminal prosecution.

Thomas dissented. He would have found both McCottry's and Hammond's statements to be nontestimonial since neither were made with any trapping of formality normally associated with statements considered to be testimonial for Sixth Amendment purposes. Thomas chided the majority for developing a test (based on the primary purpose for the interrogation) that (according to Thomas) is "neither workable nor a targeted attempt to reach the abuses forbidden by the Clause."

Finally, the Court issued a per curiam decision in Youngblood v. West Virginia (05-6997), in which it granted cert, and vacated and remanded ("GVR'd") the decision of the Supreme Court of Appeals of West Virginia for fuller review of Youngblood's Brady claim. (Warning: this decision may contain adult content not suitable for young readers.) Youngblood was convicted of sexual assault, brandishing a firearm and indecent exposure, based mainly on evidence from three young women who claimed he held them hostage. Several months after being sentenced, Youngblood sought to set aside the verdict, claiming that an investigator located a note written by two of the girls in which they allegedly taunted Youngblood and a friend for having been played for fools, warned him that the girls had vandalized the house to which they had been taken, and thanked Youngblood for performing oral sex on the third girl. According to Youngblood, the note had been provided to a police officer, who "declined to take possession of it" and instead told the person who produced it to destroy it. Relying on Brady v. Maryland, 373 U.S. 83 (1963), Youngblood argued that the state violated its constitutional obligation to disclose evidence favorable to the defense. The trial court rejected Youngblood's claim on the theory that the note provided only impeachment, not exculpatory evidence, and because the prosecutor could not be faulted for failing to give the evidence to Youngblood since the officer never gave it to the prosecutor. The West Virginia court narrowly affirmed, finding no abuse of discretion by the trial court, but without independently examining the Brady claim. The Court GVR'd, but not without first citing precedent that Brady applies to both impeachment and exculpatory evidence and extends to a failure to disclose evidence even where that evidence is known only to a police investigator and not the prosecutor. At that point, it would seem that a simple reversal would be in order, but no – the Court vacated and remanded because it would be "better to have the benefit of the full Supreme Court of Appeals of West Virginia on the Brady issue."

Now, the fun part comes not in the substance of the Court's decision, but in Scalia's scalding rebuke of the Court's use of the GVR procedure "in light of nothing." For Scalia, joined by Thomas (and Kennedy, who dissented separately), the GVR procedure is inappropriate where the Court simply seeks additional analysis by the lower court. It should be used only where (1) an intervening factor, such as a change in the law, has arisen, (2) where clarification is necessary to assure the Court's jurisdiction, and (3) where the appellee acknowledges error in the judgment below – none of which applies to this case. Instead, Scalia chides, the Court here used the procedure to obtain what is in effect an amicus brief from the state court to facilitate the Court's possible future review of the merits. Worse, the Court may be using the procedure to push the state court to reverse itself without doing so directly – lower courts have previously interpreted GVR orders in this manner and "[h]ow much more is that suspicion justified when the GVR order rests on nothing more than our statement that it would be ‘better' for the lower court to reconsider its decision (much as a mob enforcer might suggest that it would be ‘better' to make protection payments)." (Together with his Rapanos plurality, Scalia was truly in rare form this week – adding a little spice to what, until now, has been a decidedly "respectful" and somewhat dull Term.) For Scalia, Thomas and Kennedy, the Court should either decide the case or not grant cert at all; it should not use its authority to impose a "tutelary remand, as to a schoolboy made to do his homework again."

With that, we are caught up – until Thursday, when we expect more decisions. Thanks for reading!

Kim & Ken

From the Appellate Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart, Ken Heath, Aaron Bayer, or Jeff Babbin at 203-498-4400