Supreme Court Update: Mathis v. United States (15-6092), Utah v. Strieff (14-1373), Birchfield v. North Dakota (14-1468) and Taylor v. United States (14-6166)
The Court finished up OT15 this morning with decisions in Voisine v. United States (14-10154), holding that a reckless domestic assault qualifies as a "misdemeanor crime of domestic violence" under the federal felon-in-possession statute; McDonnell v. United States (15-574), holding that an "official act" for purposes of federal corruption statutes requires more than the kind of small favors that former Virginia governor Bob McDonnell was convicted of peddling; and—in what qualifies as this term's blockbuster—Whole Women's Health v. Hellerstedt (15-274), holding that Texas's restrictive regulations on abortion clinics constitute an undue burden on abortion access and therefore violate the Constitution. We'll have summaries of those decisions—as well as the cert grants from the Court's end-of-term "clean-up" conference—forthwith.
In the meantime, we've got some cleaning up of our own to do. To satiate your crim-law hunger while you wait for Voisine and McDonnell, read on for summaries of the four criminal decisions the Court handed down last week.
First up, in Mathis v. United States (15-6092), the Court rendered its obligatory end-of-term treatment of the Armed Career Criminal Act, the statute that launched a thousand sentencing appeals. The ACCA imposes a 15-year mandatory minimum on defendants convicted of possession of a firearm who have three prior convictions for a "violent felony," which is defined as including "burglary, arson, or extortion." The Supreme Court held previously in Taylor v. United States, that those crimes are meant by Congress to include only their "usual" or "generic" versions. In this case, Mathis pled guilty to being a felon in possession of a firearm. He had five prior convictions for burglary under Iowa law. While the "generic" definition of burglary covers "unlawful entry into a building or other structure," Iowa's definition is broader, covering not only a building or structure, but also a "land, water, or air vehicle." The District Court imposed an ACCA enhancement after it found Mathis had burgled buildings, not vehicles. The Eight Circuit affirmed. The Supreme Court reversed.
Writing for the majority (and joined by the Chief Justice and Justices Kennedy, Thomas, and Sotomayor), Justice Kagan's opinion rested heavily on the "categorical approach" established by the Court's ACCA precedent. The Court held definitively in Taylor that a court considering whether to impose an ACCA enhancement should look at whether the statutory elements of the crime match the generic version. If a state crime's elements are broader than the generic version, it cannot qualify as an ACCA predicate—regardless of whether the actual facts of the crime committed by the defendant match the generic version. Twenty-five years of Supreme Court case law have reaffirmed this holding. Justice Kagan acknowledged that the Court approved a "modified categorical approach" when a statute lists elements in the disjunctive, some of which would fit the ACCA. Under that approach, a court could look at a limited class of documents (such as the charging documents and plea colloquy) to determine the crime and elements a defendant was convicted of. However, the Iowa statute at issue in Mathis did not list elements in the disjunctive; rather it lists different means of satisfying the same element.
Applying the categorical approach, Justice Kagan concluded that the Iowa statute did not allow for an ACCA-enhancement. She declined to further extend the "modified categorical approach" to statutes that list alternative means of committing the same crime, rather than alternative elements of a crime. The particular facts of a defendant's crime, Justice Kagan reiterated, are irrelevant in determining whether the ACCA applies. A court's inquiry must be focused on whether the elements of a state crime are broader than the generic crime.
Justice Kagan's reasoning was rooted not only in the text of the ACCA, but also in the Court's Apprendi line of cases, which generally prohibits judges from finding facts that increase a maximum penalty, and on basic principles of fairness to defendants, who might not be vigorous in preserving the record in an early state conviction so as to protect against the future possibility that the conviction will be used as an ACCA predicate in a federal prosecution down the road. Justice Kennedy and Justice Thomas wrote short concurrences respectively attacking and defending Apprendi. Justice Kennedy would do away with Apprendi, while Justice Thomas would remove the Apprendi exception which allows judges to find the fact of a prior conviction.
Justice Breyer, joined by Justice Ginsburg, wrote a lengthy dissent. He found the Court's "elements" vs. "means" test to be unworkable. According to Justice Breyer, there's little practical difference between an element of a crime and a means of committing a crime for sentencing purposes. Further, trying to draw a line between means and elements in state statutes is likely to be very difficult, as there is little state case law addressing that question. Under the Court's decision, "[w]hat was once a simple matter will produce a time-consuming legal tangle." Precedent, according to Justice Breyer, didn't compel the Court's holding because no prior case had squarely addressed the issue before the Court.
Justice Alito also weighed in separately, with a dissent that compared the Court to Sabine Moreau, a Belgian woman who set off in her car to pick up a friend at the Brussels train station an hour away, but blindly followed her GPS all the way to Zagreb, Croatia, more than two days and 900 miles from home. Similarly, Justice Alito maintained, the Court's blind application of the categorical approach has gone too far. The route between Taylor and Mathis has resulted in the anomaly that burglary convictions under the laws of "a great many States" will not qualify as ACCA predicates even though the statute itself expressly identifies "burglary" as a qualifying predicate offense. Like Justice Breyer, Justice Alito focused on the difficulty that federal judges will have in identifying whether state law considers a statutory term to be a "means" or an "element," though Alito (a former prosecutor) added a bit of real-world color, imagining the following plea colloquy:
PROSECUTOR: I am informed that the defendant wishes to plead guilty to the charge set out in the complaint, namely, "on June 27, 2016, he broke into a house at 10 Main Street with the intent to commit larceny."
DEFENSE COUNSEL: That is correct.
COURT: Mr. Defendant, what did you do?
DEFENDANT: I broke into a house to steal money and jewelry.
COURT: Was that the house at 10 Main St.?
DEFENDANT: That's it.
COURT: Now, are you sure about that? I mean, are you sure that 10 Main St. is a house? Could it have actually been a boat?
DEFENDANT: No, it was a house. I climbed in through a window on the second floor.
COURT: Well, there are yachts that have multiple decks. Are you sure it is not a yacht?
DEFENDANT: It's a little house.
PROSECUTOR: Your Honor, here is a photo of the house.
COURT: Give the defendant the photo. Mr. Defendant, is this the place you burglarized?
DEFENDANT: Yes, like I said.
COURT: Could it once have been a boat? Maybe it was originally a house boat and was later attached to the ground. What about that?
DEFENSE COUNSEL: Your honor, we stipulate that it is not a boat.
COURT: Well, could it be a vehicle?
DEFENDANT: No, like I said, it's a house. It doesn't have any wheels.
COURT: There are trailers that aren't on wheels.
DEFENSE COUNSEL: Your Honor, my client wants to plead guilty to burglarizing the house at 10 Main St.
Even on this record, under the Court's holding in Mathis, the defendant couldn't be found to have committed the predicate offense of burglary because the categorical approach forbids looking beyond the elements of the offense. This is, according to Justice Alito, "pointless formalism," which has led to "the legal equivalent of Ms. Moreau's Zagreb."
The Court was also active on the Fourth Amendment front last week, issuing two police-friendly decisions. First, in Utah v. Strieff (14-1373), the Court held that drugs found during an initially unlawful investigatory stop could still be admitted into evidence because the discovery of a valid outstanding arrest warrant attenuated the connection between the unconstitutional investigatory stop and the evidence seized incident to the lawful arrest.
Strieff was stopped by a narcotics detective who had seen him leaving a suspected drug house. After detaining him, the detective discovered Strieff had an outstanding arrest warrant for a traffic violation. He arrested Strieff pursuant to the outstanding warrant, searched him incident to that arrest, and found a bag of meth. Though the prosecution admitted that the initial stop was unconstitutional because the detective had no probable cause to detain Strieff, the state trial court nevertheless admitted the drugs, finding that the discovery of the arrest warrant made them admissible under the attenuation doctrine. The Utah Supreme Court, however, reversed.
In a 5-3 opinion, the Supreme Court reversed again, holding that the evidence was admissible under the attenuation doctrine. Writing for the majority (and joined by the Chief Justice and Justices Kennedy, Breyer, and Alito), Justice Thomas evaluated three factors set forth in Brown v. Illinois (1975) to determine whether the evidence seized was sufficiently attenuated from the initial police misconduct to warrant its admission: (1) the "temporal proximity" between the unlawful stop and the search; (2) the "presence of intervening circumstances"; and (3) the "purpose and flagrancy of the official misconduct." On the first point—the amount of time between the stop and the seizure—only a few minutes had gone by, so Justice Thomas found this weighed in favor of suppressing the drugs. However, on the second point, Thomas found that existence of a valid outstanding arrest warrant was a significant intervening circumstance weighing heavily in the State's favor. Once the detective knew about the warrant, he was obligated to arrest Strieff, and could legally conduct a search incident to that arrest. Finally, with respect to the third factor, Justice Thomas concluded that the detective made "two good faith mistakes"—he didn't know how long Strieff had been at the suspected drug house, and he demanded, rather than asked, Strieff to speak with him. This misconducted amounted to mere "negligence" and was not purposeful or flagrant enough to tip the balance and warrant suppression of the evidence seized.
Justice Kagan, joined by Justice Ginsburg, dissented in colorful fashion. Each of the three Brown factors is a strike, she wrote, and three strikes means the evidence is out. The State took strike one looking, because everyone acknowledged that the "temporal proximity" between the illegal stop and the discovery of the evidence was almost immediate. Justice Kagan also concluded that the official misconduct was purposeful, since the detective admitted that he'd stopped Strieff with the purpose of investigating him. "Swing and a miss for strike two." And, applying principles of intervening cause from tort law, Kagan also called the payoff pitch a strike because the discovery of the arrest warrant was "an eminently foreseeable consequence of stopping Strieff," given the "staggering number" of arrest warrants on the books. According to Justice Kagan, the Court's opinion "practically invites" other law enforcement officers to illegally stop suspects in the hopes they have an outstanding arrest warrant.
Justice Sotomayor's dissent went even further in criticizing both the majority's decision, and the sort of investigatory tactics that led to Strieff's arrest. Parts I-III of her dissent, joined by Justice Ginsburg reiterated the points Justice Kagan had made, noting in particular the fact that there are 7.8 million arrest warrants outstanding nationwide, making it virtually irresistible for police officers to stop someone merely for the purpose of finding out if there's an arrest warrant that would allow them to search incident to arrest. But in Part IV, Justice Sotomayor, "writing only for [her]self and drawing on [her] professional experiences," channeled the anger of the Black Lives Matter movement and other critics of police misconduct, excoriating the majority for giving police added incentives to arbitrarily target pedestrians and "treat members of our communities as second-class citizens." As Sotomayor noted, most Americans—even those who have been pulled over or stopped for jaywalking—simply don't understand "how degrading a stop can be when the officer is looking for more." Writing in the third person, Sotomayor catalogued all the things a police officer can do to "you," without a warrant, thanks to the Court's decisions in this area. Although Strieff, the defendant in this case, was white, Sotomayor noted that "it is no secret that people of color are disproportionate victims of this type of scrutiny," requiring "black and brown parents" to give "their children ‘the talk'—instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them." The Court's decision, Justice Sotomayor maintained, "implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be catalogued."
Sotomayor and Ginsburg found themselves in (partial) dissent again in Birchfield v. North Dakota (14-1468), where the Court considered whether the Fourth Amendment allows states to make it a crime for suspected drunk drivers to refuse to take a test that measures their blood alcohol level.
Every state has long had laws on the books that prohibit people from driving when they're intoxicated—i.e., when they have a blood alcohol content ("BAC") that exceeds a designated number. A person's BAC is typically measured using a breath test machine or a blood test. To get people to agree to submit to these BAC tests, every state has adopted so-called "implied consent" laws. Under these laws, agreeing to cooperate with BAC tests is a condition of the privilege of driving on state roads. If you refuse to take a BAC test, your driver's license will be suspended or revoked. Yet some drivers still don't cooperate, perhaps reasoning that the consequence of refusing to take a BAC test is less than the consequence for being caught driving with a high BAC. Some states have therefore taken a new approach to the issue. Instead of just relying on "implied consent" laws that will result in the suspension or revocation of a driver's license if the driver refuses to take a BAC test, twelve states have enacted laws that make it a crime to refuse to take the test.
In a trio of consolidated cases—two from North Dakota and one from Minnesota—the Court decided that the Fourth Amendment permits such laws in the case of breath tests but not blood tests. Writing for a majority consisting of the Chief and Justices Kennedy, Breyer, and Kagan, Justice Alito began with the well-established proposition that a BAC test qualifies as a search under the Fourth Amendment. Ordinarily, a state can't make it a crime for someone not to submit to a breath test or blood test unless a warrant authorizing the testing has been issued by a judge. But, like Utah v. Strieff, this case involved the search-incident-to-arrest exception to the warrant requirement. Under this doctrine, a police officer carrying out a lawful arrest generally can search a person being arrested as well as the area within his or her immediate control. Although this categorical rule has "ancient pedigree," "the founding era does not provide any definitive guidance as to whether [breath or blood BAC tests] should be allowed incident to arrest." To decide whether the BAC searches fit within the search-incident-to-arrest exception, Justice Alito engaged in a balancing test—considering on the one hand "the degree to which [the BAC tests] intrud[e] upon an individual's privacy" and on the other hand "the degree to which [they are] needed for the promotion of legitimate governmental interests."
The Court had little difficulty concluding that this balance weighed in favor of allowing breath tests without a warrant. These tests do not implicate significant privacy concerns, the Court explained. To begin with, the "physical intrusion is almost negligible." Moreover, the breath test reveals just one bit of information: the amount of alcohol in a person's breath. Law enforcement won't learn any highly sensitive personal information from this test. When balancing the slight privacy intrusion against the very important state interest in preserving public safety and creating deterrents to drunk driving, the Court concluded that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving. The fact that an officer might have time in a particular case to get a warrant won't matter, because the legality of a search incident to arrest is judged on the basis of categorical rules. In short, the Fourth Amendment allows states to categorically criminalize a drunk-driving suspect's refusal to submit to a warrantless breath test.
The Court reached a different conclusion with respect to warrantless blood tests. According to the Justice Alito, blood tests are "significantly more intrusive than blowing into a tube." They require "piercing the skin and extract[ing] a part of the subject's body." And a blood test—unlike a breath test—gives law enforcement officials a blood sample from which they can extract a wealth of sensitive personal information. Balancing the significant bodily intrusion of a blood test against the state's very important interest in fighting drunk driving, the majority concluded that the Fourth Amendment does not allow warrantless blood tests. There are circumstances where a blood test might be preferable, such as where substances other than alcohol are impairing a driver's ability to operate a car or where the driver is unconscious. In those rare cases, the police will have to obtain a warrant. For most cases, however, the Court noted that "breath tests are significantly less intrusive than blood tests and . . . amply serve law enforcement interests." Accordingly, "a breath test, but not a blood test, may be administered as search incident to a lawful arrest for drunk driving."
Justice Sotomayor concurred in part and dissented in part, in an opinion joined by Justice Ginsburg. According to Sotomayor, the Court got was right that warrantless blood tests are not allowed by the Fourth Amendment. But she parted ways with her colleagues as to warrantless breath tests. According to Sotomayor, "no governmental interest categorically makes it impractical for an officer to obtain a warrant before measuring a driver's alcohol level"—whether by a breath test or a blood test. She noted that breath tests are typically "conducted well after an arrest is effectuated." Although police make a drunk-driving arrest roadside, they don't usually administer a breath test until much later after the suspect has been arrested and transported to a police station. Many states require a window of time to give the arrested driver an opportunity to contact an attorney before taking the BAC test. And oftentimes a breath machine takes a while to warm up. According to Justice Sotomayor, police could easily seek warrants "[d]uring this built-in window."
Justice Thomas also concurred in part and dissented in part, but for the opposite reasons; he would have held that both types of warrantless tests are permissible under the exigent-circumstances exception to the Fourth Amendment. To Thomas, the majority's distinction between breath tests and blood tests was an "arbitrary line in the sand" that "makes little sense." When looked at through the lens of exigent circumstances, rather than searches incident to arrest, Thomas felt that Instead, "[b]oth warrantless breath and blood tests are constitutional because the natural metabolization of [BAC] creates an exigency once police have probable cause to believe the driver is drunk."
Finally, in Taylor v. United States (14-6166), the Court took another backwards step in what once looked like a steady march toward limiting Congress's power to criminalize local conduct under the Commerce Clause. Once upon a time, five justices on the Supreme Court believed Congress lacked authority to prohibit the possession of guns in a school zone. But, in Taylor, seven justices concluded that robbing a drug dealer of locally grown marijuana "substantially affects" interstate commerce, enabling Congress to act, prompting one holdover—Justice Thomas—to write a scathing dissent lambasting the Court's recent Commerce Clause cases.
David Taylor was a criminal long on plans, but short on success. A member of the "Southwest Goonz," Taylor and his compatriots targeted marijuana dealers in two home invasions. Perhaps adherents to the farm-to-table movement, Taylor and the Goonz said that they only targeted dealers who sold locally grown marijuana. In both cases, Taylor broke into the dealers' homes, attacked the residents, and demanded drugs and money. But he found neither in abundance, and only managed to steal $40, three cell phones, and one marijuana cigarette. The Government nonetheless indicted Taylor under the Hobbs Act, which makes it a federal crime to commit or attempt a robbery that affects interstate commerce. Mr. Taylor moved for acquittal, arguing that his crimes did not affect interstate commerce because the dealers he targeted had obtained their marijuana through intrastate means. This argument failed to persuade either the District Court or the Fourth Circuit.
The Supreme Court affirmed, with Justice Alito writing for everyone but Thomas. Alito noted that Congress has long had the power to regulate "those activities that substantially affect interstate commerce." This is not limited to individual acts that affect the interstate flow of goods, but include activities that "substantially affect" commerce in the aggregate such as (in the classic case of Wickard v. Fillburn (1942)) a farmer growing wheat for his own use. The Court had already made the leap from wheat to weed in Gonzales v. Raich (2005), where it held that the Commerce Clause gives Congress authority to regulate the national market for marijuana, including purely intrastate production, possession and sale. Justice Alito said that logic dictated that a robber who affects the intrastate sale of marijuana necessarily affects interstate commerce. In other words, if the government proves a robber targeted a marijuana dealer's drugs or proceeds, it has proven that the crime affects interstate commerce. "As long as Congress may regulate the purely intrastate possession and sale of illegal drugs," Alito reasoned, "Congress may criminalize the theft or attempted theft of those same drugs."
In dissent, Justice Thomas argued that the Hobbs Act "punishes robbery when the Government proves that the robbery itself affected interstate commerce." Thomas was hard-pressed to understand how "robbery" could be commerce. Thus, Congress can only punish robbery to the extent that doing so is "necessary and proper" to execute Congress's powers under the Commerce Clause. He could not see how punishing a local robbery bore a direct relationship to that power. Instead, Thomas reasoned, the majority was granting Congress a general police power that encroached on the States' traditional police powers to define criminal law. Thus, Thomas would hold that the Government had to prove beyond a reasonable doubt that the robberies affected interstate commerce. Taking aim at the majority opinion, Thomas said that Court had now abandoned "any limits on Congress' commerce power—even the slight limits recognized by out expansive modern precedents." He argued that the substantial-effects approach "has no stopping point," as "[o]ne could always draw the circle broadly enough to cover an activity that, when taken in isolation, would not have substantial effects on commerce." Indeed, Thomas noted that Congress could now regulate any robbery because any activity would likely have substantial effects on commerce. In the criminal context, Thomas noted, the substantial-effects test was particularly problematic because it relieved the government of a burden of proof, weakening longstanding protections for criminal defendantsThat'll do it for today. Stay tuned for summaries of the last three decisions of the term.