Supreme Court Update: Missouri v. McNeely (11-1425), McBurney v. Young (12-17) and Moncrieffe v. Holder (11-702)

May 10, 2013 Supreme Court Update

Greetings, Court fans!

Today, we bring you a trio of recent decisions beginning with the letter "M": Missouri v. McNeely (11-1425), finding that the natural metabolization of alcohol does not present a per se exigent circumstance permitting officers to obtain blood samples from suspected drunk drivers without a warrant; McBurney v. Young (12-17), holding that a Virginia law limiting state Freedom of Information Act access to Virginia citizens does not violate the Privileges and Immunities Clause or the dormant Commerce Clause, and Moncrieffe v. Holder (11-702), holding that a conviction for a marijuana offense that does not involve remuneration or more than a small amount is not an "aggravated felony" under the Immigration and Nationality Act precluding a noncitizen from receiving discretionary relief from removal.

In Missouri v. McNeely (11-1425), the Court held, in a fractured decision, that the natural dissipation of alcohol in the bloodstream does not necessarily give rise to an exigent circumstance justifying a warrantless blood draw in every instance. A Missouri police officer stopped McNeely on suspicion of drunk driving after seeing him exceed the speed limit and repeatedly crossing the center line. McNeely was in bad shape: bloodshot eyes, slurred speech, unsteady on his feet, and alcohol on his breath. He admitted to having consumed "a couple of beers." But he refused to submit to a breathalyzer, then refused to consent to a blood test after the officer placed him under arrest and transported him to a nearby hospital. The officer ordered a blood draw anyway, without obtaining a warrant. The results, unsurprisingly, placed McNeely well over the legal limit, and he was charged with driving while intoxicated. McNeely moved to suppress the results, arguing that the warrantless draw violated his rights under the Fourth Amendment. The trial court agreed with McNeely, as did the Missouri Supreme Court.

As did the Court, in a 5-4 decision with four separate opinions. Justice Sotomayor, joined by Justices Scalia, Kennedy, Ginsburg, and Kagan, rejected Missouri's argument that exigent circumstances always exist whenever an officer has probable cause to believe that an individual has been driving under the influence of alcohol, due to the evanescent nature of alcohol in the bloodstream. In general, the Court looks to the "totality of the circumstances" in each case to determine whether exigent circumstances justify acting without a warrant. The Court did "not doubt that some circumstances will make obtaining a warrant impractical such that the dissipation of alcohol from the bloodstream will support an exigency justifying a properly conducted warrantless blood test." But the Court hesitated to create a per se exception to the totality of the circumstances approach for suspected drunk driving cases. Among the circumstances that might affect the reasonableness of acting without a warrant are the time it takes to transport the suspect to a facility that is able to perform blood draws, and advances in technology making it easier to reach a prosecutor and magistrate to obtain a warrant. Turning to the case before it, the Court found that Missouri failed to prove any facts supporting exigent circumstances in McNeely's case, having placed all its eggs in the per se rule basket. Finally, in sections not joined by Justice Kennedy, Justice Sotomayor proceeded to criticize the State's desire for a bright-line rule, as well as what she called the Chief Justice's "modified per se rule," which would excuse the warrant requirement if an officer could not obtain one in the time it takes to get to a medical facility to perform the draw. That approach, in her view, could distort law enforcement incentives, possibly discouraging efforts to expedite the warrant process, or encouraging officers to make a rush for the hospital at the expense of other law enforcement goals.

Justice Kennedy, concurring in part, wrote separately to underscore his view that while this case did not present the proper framework for opining on the rules and guidelines that should be given to arresting officers, the Court may find it "appropriate and necessary" to do so in a future case.

The Chief, joined by Justices Breyer and Alito, concurred in part and dissented in part. They agreed with the Court's "totality of the circumstances" approach as a general matter, but would offer the police more specific guidance. They would require an officer to seek a warrant if one can be obtained before the blood can be drawn. In other words: the officer should start driving to the hospital or wherever the blood is to be drawn, but should also call in or e-mail an application for a warrant. If the warrant comes by the time he arrives with the suspect, great. If not, the officer can still proceed with the blood draw if he concludes that the warrant won't come in time. In the view of these Justices, these guidelines would at least increase the likelihood that a neutral, detached judicial officer will review the case, while avoiding the destruction of evidence through delay.

Justice Thomas dissented. He would allow a warrantless blood draw whenever police have probable cause to believe that a person has been driving under the influence: exigent circumstances excusing a warrant are present because the body's metabolization of alcohol "inevitably destroys evidence of the crime." Thomas took no comfort in the majority's assessment that police are generally able to obtain warrants before all alcohol has been dissipated. Any delay could mean the difference between being able to detect a blood alcohol concentration that called for more severe punishment, or one that was punishable at all. For example, if officers observed a suspect burning bundles of what they had probable cause to believe was marijuana, they wouldn't have to sit and wait for a warrant just because they thought the suspect wouldn't be able to destroy all the evidence before they obtained a warrant. The analysis should be no different when the crime is drunk driving.

Virginia's Freedom of Information Act ("FOIA") took center stage in McBurney v. Young (12-17). Like similar laws in other states, the Virginia FOIA grants the state's citizens access to all public records, but doesn't accord any such right to non-Virginians. Two out-of-state petitioners whose requests for public documents were denied based on their citizenship sued, alleging that Virginia's FOIA violated the Privileges and Immunities Clause and, in the case of one petitioner, the dormant Commerce Clause. In an opinion by Justice Alito, a unanimous Court disagreed.

The Court was unimpressed with each of four arguments grounded in the Privileges and Immunity Clause. The aim of the clause – which provides that "[t]he Citizens of each State [are] entitled to all Privileges and Immunities of Citizens in the several States" – is to "strongly constitute the citizens of the United States [as] one people" by "plac[ing] the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned." But the clause protects only those privileges and immunities that are "fundamental." The Court first rejected a claim that Virginia's FOIA hampered one petitioner's ability to earn a living in his chosen profession of obtaining property records, concluding that Virginia did not enact its statute for the protectionist purpose of providing a competitive economic advantage for Virginians. Next, the Court determined that the Act did not encumber the right to own and transfer property in Virginia, since non-Virginians could access all documents necessary to transfer property through means other than the FOIA. Third, the Justices found that the Virginia FOIA did not impermissibly burden a petitioner's "access to public proceedings" by creating an "information asymmetry between adversaries" based on citizenship; in light of Virginia law providing for discovery and for access to judicial records, noncitizens are not precluded from obtaining documents needed in litigation. Finally, the Court rejected the petitioners' claim that Virginia's FOIA denies them the right to access public information on equal terms with Virginia citizens. The Court simply found no constitutional right to obtain the information available under FOIA laws, and refused to find "such a sweeping right ‘basic to the maintenance or well-being of the Union.'"

The Court made even shorter work of the dormant Commerce Clause challenge. While the dormant Commerce Clause limits states' ability to burden the flow of interstate commerce, the Court concluded that the Virginia FOIA doesn't impose any such burden. Instead, it provides local citizens a service that would not be available in the law's absence. Virginia's law does not prohibit access to a market or impose burdensome, protectionist regulations like those the Court has struck down on Commerce Clause grounds. Furthermore, to the extent that the petitioner alleged a burden on a "market" for public documents in Virginia, that market is solely "for a product that the Commonwealth has created and of which the Commonwealth is the sole manufacturer." Commerce Clause jurisprudence has long held that where a state creates a market through a state program, it may limit the benefits of that program to its own citizens and taxpayers.

Justice Thomas penned a separate concurrence noting his view that the dormant Commerce Clause has no Constitutional basis.

Finally, in Moncrieffe v. Holder (11-702), the Court held that conviction for possession of a small amount of marijuana with intent to distribute but no remuneration – i.e., to share, not to sell – will not preclude a noncitizen from receiving discretionary relief from removal. The Immigration and Nationality Act (INA) allows the Government to deport noncitizens who commit various offenses. The Attorney General has discretion to grant relief from removal. The Attorney General lacks such discretion, however, when it comes to noncitizens who have been convicted of an "aggravated felony." A "felony" is an offense for which the maximum authorized term of imprisonment is more than one year; the list of "aggravated felonies" includes "illicit trafficking in a controlled substance." Petitioner Adrian Moncrieffe is a Jamaican national who came to the United States legally as a young child. During a 2007 traffic stop, the police found 1.3 grams of marijuana in his car (the equivalent of two or three marijuana cigarettes, the Court helpfully explains). Moncrieffe pleaded guilty to possession of marijuana with intent to distribute under a Georgia statute that makes it a crime to "possess, have under [one's] control, manufacture, deliver, distribute, dispense, administer, purchase, sell, or possess with intent to distribute marijuana." Notwithstanding the fact that Moncrieffe, as a first-time offender, actually received no jail time (just five years' probation, after which his charge will be expunged), the Government initiated removal proceedings. The Immigration Judge ordered removal, a decision backed by the Board of Immigration Appeals and the Fifth Circuit. These bodies rejected Moncrieffe's reliance on a provision of the federal Controlled Substances Act (CSA), which makes marijuana distribution punishable only as a misdemeanor if the offense involves a small amount of marijuana for no remuneration.

The Court reversed, 7-2. Justice Sotomayor wrote for the Court. The Court generally takes a "categorical approach" in determining whether a conviction for a state offense qualifies as an "aggravated felony" under the INA. That is, the Court looks to whether "the state statute defining the crime of conviction" categorically fits within the "generic" federal definition of a corresponding aggravated felony. The particular facts of a case are irrelevant. This approach avoids the need for mini-trials relitigating past convictions long after the fact. Under the categorical approach, courts must presume that the conviction rests on the least of the acts criminalized, then determine whether even those acts are encompassed by the generic federal offense. Thus, the question in this case was whether possession of marijuana with intent to distribute is necessarily conduct punishable as a felony under the federal CSA. Section 841(b)(1)(D) of the CSA provides that a person convicted of possession with intent to distribute less than 50 kilograms of marijuana "shall, except as provided in paragraphs (4) and (5) of this subsection, be sentenced to a term of imprisonment of not more than 5 years." Moncrieffe hung his hat on the exception in paragraph 4: "Notwithstanding paragraph (1)(D) of this subsection, any person who violates subsection (a) of this section by distributing a small amount of marihuana for no remuneration shall be treated as" a simple drug possessor, punishable only as a misdemeanor. The Court agreed with Moncrieffe that, in light of §841(b)(4), conviction for possession with intent to distribute under Georgia law did not necessarily involve facts punishable as a felony under federal law. Thus, under the categorical approach, he was not convicted of an aggravated felony.

The Court rejected the Government's argument that §841(b)(4) is irrelevant to the categorical analysis because it is not one of the elements of the offense. The categorical approach looks not only to elements of an offense, but also to the punishment. Section 841(b)(4) is more than a mere "mitigating exception"; it helps to define whether a marijuana distribution conviction is a misdemeanor or a felony. The Government's approach would lead to situations in which undisputed state and even federal misdemeanors were categorized as felonies simply because they fell under the umbrella of "possession with intent to distribute." The Court also rejected the Government's alternative suggestion that noncitizens be given the opportunity (and burden) to demonstrate during removal proceedings that their predicate marijuana distribution convictions involved only a small amount of marijuana and no remuneration. That approach was inconsistent with the INA and would largely undermine the categorical approach. The Court also dismissed the Government and Justice Alito's fears that its holding would hamper the Government's ability to remove serious drug traffickers. Not only would serious drug traffickers likely be convicted under more serious offenses requiring more than a "small amount," its decision only permitted the Attorney General to exercise his discretion to grant relief from removal; it did not require the Attorney General to grant such relief. In any event, the Court preferred to "err on the side of underinclusiveness because ambiguity in criminal statutes referenced by the INA must be construed in the noncitizen's favor."

Justices Thomas and Alito wrote separate dissenting opinions. Justice Thomas criticized the Court for what he saw as departures from the application of the categorical approach to the plain meaning of the CSA in this and two other recent cases: "The only principle uniting [the three cases] appears to be that the Government consistently loses."

Justice Alito criticized the Court's holding for allowing even serious drug traffickers to be eligible to remain in this country, depending on how the state of conviction described the offense of possession with intent to distribute. In his view, a pure categorical approach would not consider §841(b)(4) because it is only a mitigating sentencing guideline, as every Court of Appeals that has considered the question has held. Justice Alito agreed that the application of a pure categorical approach in this case would "lead to results that Congress surely did not intend." Instead of the Court's hybrid approach, however, he would openly depart from the categorical approach and allow case-specific evidence where the state conviction at issue was based on a state statute that encompasses both conduct that qualifies under the federal standard and conduct that does not. "[C]andidly acknowledging that the categorical approach is not the be-all and end-all" would avoid both the harsh results of the pure categorical approach and the dangers and inconsistencies of the Court's hybrid approach.

We'll be back when the Court issues more decisions. Until then, thanks for reading, and enjoy the weekend!

Kim, Jenny & Julie

From the Appellate and Complex Legal Issues Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart or any other member of the Practice Group at 203-498-4400