Alex M. Azar II *

So far, this year's Supreme Court Term has not produced many noteworthy decisions in the field of criminal law and procedure. One decision in the Court's endless effort to "clarify" its byzantine interpretations of the Fourth Amendment's so-called "warrant requirement" does, however, merit attention for its potential impact on state law-enforcement efforts. In addition, a recent decision regarding the use of conditional intent to prove a specific intent element of an offense could have far-reaching reverberations throughout the criminal law.

Some of the more interesting developments in criminal law and procedure have occurred in recent months in the Courts of Appeals. To considerable attention, the Fourth Circuit ruled that Miranda v. Arizona was overridden by statute thirty-one years ago. Additionally, the Tenth Circuit once again permitted federal prosecutors to bargain with witnesses to secure testimony, without the prosecutors being put in jail for bribery.

Knowles v. Iowa

In Knowles v. Iowa, 119 S. Ct. 484 (1998), the Supreme Court unanimously held that the police may not conduct a warrantless search of an automobile when the driver has only received a traffic citation and has not been arrested. Iowa, like many states, permits an officer either to issue a citation or to arrest an individual for a traffic offense. If the officer actually arrests the driver, the Supreme Court's case law clearly permits a full warrantless search of the passenger compartment of the car under the "incident-to-arrest" exception to the warrant requirement. Iowa law provides, however, that an officer may also conduct a full passenger compartment search even when he opts to issue only a citation.

Mr. Knowles was stopped for speeding and issued a citation. The officer then conducted a full search of the car and found marijuana and a "pot pipe" under the driver's seat. The Supreme Court, per the Chief Justice, disposed of this practice in a mere six paragraphs.

The Court noted that the two rationales for the search-incident-to-arrest exception to the warrant requirement include "(1) the need to disarm the suspect in order to take him into custody, and (2) the need to preserve evidence for later use at trial." As to the first, said the Court, the issuance of a mere traffic citation is a brief encounter more like a "Terry stop" than a formal arrest, and a "good deal less" of a threat to officer safety. The Court determined that a custodial arrest subjects the officer to more prolonged exposure to the suspect than would a simple traffic stop. In addition, an arrest results in "attendant proximity, stress, and uncertainty." Thus, rather than being able to search the entire passenger compartment, officers issuing just a traffic citation may only impose "minimal" intrusions by ordering the driver and passengers out of the car and possibly performing a Terry pat-down if the officer has reasonable suspicion that an occupant is dangerous and may gain control of a weapon. As to the second rationale — the need to preserve evidence — the Court noted that once an officer has issued a citation, he has all the evidence of that offense that he needs.

This breezy opinion is rather unsatisfying at a number of levels. First, the Court still seems intent on tinkering at the edges of its Fourth Amendment jurisprudence, torturing rationales for and against the application of exceptions to the "warrant requirement" to an endless array of factual situations, but never grappling with the fundamental question whether there really is such a requirement in the Fourth Amendment itself. (A point that recently has been the subject of considerable and lively academic debate.) No justice seemed concerned that the result of this jurisprudence is that the nine justices of the Supreme Court end up making final pronouncements as a matter of constitutional law on issues such as the degree of harm to which an officer in the field is exposed, or the practicalities of securing evidence from destruction — a task for which the Supreme Court is particularly ill-suited. For instance, one might credibly dispute the proposition the Court has taken as gospel that a full-blown search of a car and all containers therein is necessary for officer safety, as well as to protect against the destruction of evidence upon the arrest of a suspect (after all, he is handcuffed and in the police cruiser at this point). If anything, the danger to the officer might be greatest during the initial interactions between officer and suspect before the officer has even decided to issue a citation or make an arrest.

Second, the Court does not even pause to note the can of worms opened by this opinion and the likely next case that will be presented. Given that officers can conduct a comprehensive search for evidence of general criminality so long as they decide to arrest the subject, it would seem obvious that police will now decide whether to give a citation or make an arrest for a traffic offense at least in part based on their desire to search for evidence. The Court then will have to decide the host of issues that will inevitably follow, from claims of discriminatory selection for arrest to pleas to scrap the incident-to-arrest exception in cases of arrest for mere traffic offenses.

Holloway v. United States

The other significant criminal law decision so far this Term is Holloway v. United States, 119 S. Ct. 966 (1999), where the Court addressed the intent requirement of the federal carjacking statute. That statute prescribes stiff penalties (even death) for those who "with the intent to cause death or serious bodily harm" steal a car "from the person or presence of another by force and violence or by intimidation, or attempts to do so." 18 U.S.C. § 2119. The question presented was whether a defendant who intended to kill or cause serious bodily harm only if necessary to steal the car possesses the requisite specific intent.

Mr. Holloway and an armed accomplice were serial carjackers. In each instance, the accomplice approached the driver, produced a gun, and threatened to shoot unless the driver handed over the keys. The accomplice testified that the plan was to steal the cars without harming the victims, but that he would have used his gun if any of the victims had given him a "hard time." Fortunately, such violence never proved necessary. The district court instructed the jury on conditional intent, explaining that it could convict if it found that Mr. Holloway intended to cause death or serious bodily harm only if the victims refused to turn over their cars.

Ruling on Mr. Holloway's objection to this instruction, the district court noted that the statute as originally enacted in 1992 contained no intent element but covered all carjackings committed by a person "possessing a firearm." An amendment in 1994 deleted the firearm requirement, but inserted the specific-intent limitation. For the district court, construing the statute to apply only to those rare criminals who go into a carjacking intending to kill or cause harm regardless of the outcome of the auto theft would lead to an absurd limitation on the scope of the statute, excluding most of the crimes the statute was intended to address. A divided panel of the Second Circuit affirmed on essentially the same rationale.

Writing for seven members of the Court, Justice Stevens concluded that at the relevant moment of demanding possession of the car, "the offender plainly does have the forbidden intent," even if that intent is conditioned on the disobedience of the victim. The Court rejected Mr. Holloway's argument that if Congress intended to prohibit conditional intent, it would have included the words "if necessary" into the intent provision. Instead, the Court found that the "commonsense reading" of the statute is that Congress "intended to criminalize a broader scope of conduct than attempts to assault or kill in the course of automobile robberies."

Mr. Holloway's reading would transform a statute intended to prohibit a particular type of robbery into "one that focuses on attempting to harm or kill a person in the course of the robbery of a motor vehicle." In fact, noted the Court, Mr. Holloway's proposed reading is so unnatural that adding his proposed "if necessary" construction to the statute would mean that the statute then would not cover the case of unconditional intent to kill or harm even if not necessary to complete a carjacking, a ridiculous result. For the statute to apply (under Mr. Holloway's reading) to both types of offenses, it would have to cover those who intend to kill or harm "if necessary or even if not necessary," modifiers that effectively cancel each other out. That, concluded the Court, suggests that the original unadorned intent-to-kill-or-harm requirement, as ordinarily understood, similarly applies to both conditional and unconditional intent.

The Court also reasoned that this reading of the intent requirement in this particular statute is confirmed by the broad congressional purpose to deter carjackings as reflected in the legislative history, which nowhere suggests that Congress meant to criminalize only those carjackings in which the offender intends to harm or kill regardless of whether the victim accedes to the offender's threat of violence.

Justice Scalia filed a stinging dissent, arguing that in customary English usage, "intent" does not apply to a purpose that is subject to any conditions precedent, in particular to conditions the speaker hopes will not occur. For Justice Scalia, the unmodified term "intent" applies only to unconditional intent, but not conditional intent or feigned intent. As he said, "[c]onditional intent is no more embraced by the unmodified word `intent' than a sea lion is embraced by the unmodified word `lion.'"

Justice Scalia conceded that, in ordinary usage, one might speak of having an "intent" to do something, even though there are some remote and unlikely contingencies that might prevent it. But for Justice Scalia, one does not speak of having an "intent" to do something when one's plans are contingent upon an event that is not virtually certain, and that one hopes will not occur. Thus, explained Justice Scalia, when one has a friend who is seriously ill, one would not say that "I intend to go to his funeral next week," but only that "I intend to go to his funeral next week if he dies." Similarly, the carjacker who intends to kill only if met with resistance has an intent to kill if resisted, not an intent to kill.

Justice Scalia concluded that, in fact, the majority's decision is based not on the general usage of the term "intent" but, rather, on the meaning of that term in this particular statute when viewed in light of the Court's view of the congressional purpose. He noted that many other statutes contain specific-intent requirements that surely do not apply to conditional intent. Justice Scalia used as an example the crime of possession of drugs with intent to distribute them. If an individual who acquires a small quantity of cocaine for personal use and actually consumes it himself thought at the time he acquired the drugs that in case of a financial emergency he could resell the drugs, he would be guilty of possession with intent under the majority's theory. Accordingly, for Justice Scalia, each specific intent statute will have to be examined by the Court to determine whether the broader congressional purpose requires that conditional intent suffice. Further, he disputed the notion that Congress must have intended to criminalize conditional intent to harm or kill in the course of a carjacking. He noted that at the time the statute was passed, there had been many carjackings in which the victims were senselessly harmed. He concluded that "[i]t is not at all implausible that Congress should direct its attention to this particularly savage sort of carjacking."

In a very brief dissent, Justice Thomas argued that the question whether the specific intent to commit an act may be conditional is unsettled, and that absent a more settled tradition, he does not presume that Congress was familiar with this alternative usage when it passed the statute.

United States v. Dickerson

The judicial courage award goes to Judge Karen Williams of the Fourth Circuit for her opinion in United States v. Dickerson, 166 F.3d 667 (4th Cir. 1999). In that decision, joined by Senior District Judge Kiser, she held that Congress in 1968 overruled Miranda v. Arizona, making confessions admissible in federal court if "voluntarily given" — whether or not the suspect received the prescribed Miranda warnings.

Under interrogation, Mr. Dickerson confessed to the FBI of robbing a series of banks. The district court suppressed this confession, finding incredible an FBI special agent's testimony that Mr. Dickerson had been given his Miranda warnings prior to his confession. The court nonetheless found that the confession was made "voluntarily" within the meaning of the Due Process Clause and, therefore, concluded that the evidence found as a result of this tainted confession was admissible.

In its motion for reconsideration of the suppression order, the United States for the first time argued that because the confession was voluntary, it was admissible under the mandate of 18 U.S.C. § 3501. Section 3501 provides that in federal prosecutions, a confession "shall be admissible in evidence if it is voluntarily given." In determining voluntariness, the court is required to "take into consideration all the circumstances surrounding the giving of the confession, including [among other things] . . . (3) whether or not such defendant was advised or knew that he was not required to make any statement and that any such statement could be used against him, (4) whether or not such defendant had been advised prior to questioning of his right to the assistance of counsel; and (5) whether or not such defendant was without the assistance of counsel when questioned and when giving such confession." 18 U.S.C. § 3501(b). The district court denied the motion for reconsideration, and the case went to the Fourth Circuit.

The United States did not brief section 3501 on appeal. Indeed, the Justice Department prohibited the U.S. Attorney's Office from doing so. Given section 3501's tortured history, this order was less remarkable than the fact that the U.S. Attorney's Office had raised section 3501 in the first place.

Section 3501 was passed in 1968, just two years after the Supreme Court decided Miranda. Through section 3501, Congress expressly sought to overrule the prophylactic rule set forth in Miranda. For over three decades, administrations — Republican and Democratic alike — have steadfastly refused to permit AUSA's from asserting section 3501 to preserve the admissibility of confessions taken in technical violation of Miranda. In recent years, that stance has brought down the wrath of many judges and justices. For instance, in a concurrence in Davis v. United States, 512 U.S. 452 (1994), Justice Scalia chastised the Department because its failure to take a position on the applicability of section 3501 has "caused the federal judiciary to confront a host of `Miranda' issues that might be entirely irrelevant under federal law" and may have let free "dangerous felons, enabling them to continue their depredations upon our citizens." Id. at 465.

Moreover, when AUSA's have attempted to assert section 3501 in court, they have been overruled by the Justice Department. Judge Williams noted a particular example in which the U.S. Attorney's Office in Alexandria, Virginia urged the Fourth Circuit to uphold a confession based on section 3501. The Justice Department actually ordered the U.S. Attorney's Office to withdraw its brief, so the Court allowed the

Washington Legal Foundation and the Safe Streets Coalition to file an amicus curiae brief asking the Court to consider the admissibility of the confession under section 3501. Soon thereafter, in a similar case, the Fourth Circuit ordered the Justice Department to address the effect of section 3501 on the admissibility of a confession taken in violation of Miranda. In response, Attorney General Reno finally informed Congress — pursuant to her statutory duty to do so, 2 U.S.C. § 288k(b) — that the Department would not defend the constitutionality of section 3501.

In the Dickerson case, the Justice Department similarly prohibited the U.S. Attorney's Office in Alexandria, Virginia, from arguing admissibility under section 3501, a decision that Judge Williams characterized as "elevating politics over law." In light of that position, the Court again allowed the Washington Legal Foundation and the Safe Streets Coalition to brief and argue a defense of the constitutionality of the statute. Even then, the Justice Department barred the U.S. Attorney's Office from briefing or even discussing section 3501, whether in favor of or against its constitutionality.

In reaching the merits, Judge Williams did an admirable job tracing through the history of constitutional strictures on the admissibility of confessions prior to Miranda, concluding that for nearly 180 years, "confessions were admissible at trial if made voluntarily." She then rejected any notion that the rule in Miranda was constitutionally based, reciting repeated protestations from the Supreme Court in Miranda and elsewhere that the required warnings are only prophylactic measures, not constitutionally mandated in and of themselves. Judge Williams concluded that Congress had the power under its authority to prescribe the rules of procedure and evidence in federal courts to alter that rule. She noted that police officers will still have every incentive to "Mirandize" suspects because the issuance of those warnings will weigh in the voluntariness inquiry under section 3501. The Court's ruling, however, prevents technical errors in administering those warnings from invalidating otherwise valid and voluntary confessions.

Judge Michael filed a brief dissent as to this portion of the Court's decision. He made no effort to confront the merits of the majority's decision, but instead raised concerns as to whether the Court should even reach the merits given the fact that the Justice Department, as the real party in interest, declined to assert section 3501 as a basis for the admissibility of the confession. He argued that reaching the question interferes with the executive's discretion in the conduct of criminal prosecutions and violates the prudential practice of avoiding issues not raised by the parties. To the majority's contention that if the Court does not press the use of section 3501, no one else will, Judge Michael responded that it would be more appropriate for Congress to take up, through its oversight powers, the Executive's failure to use section 3501.

In fairness, Judge Michael raises potentially valid prudential reasons cautioning against the Court reaching the question of section 3501. But even he does not argue that the Court may not decide the issue. The majority does, indeed, overstate the situation somewhat in stating that it "cannot avoid deciding the constitutional question associated with § 3501." In fact, the majority itself rather cryptically appears to have concluded in a footnote that the district court erred in its factual finding that Mr. Dickerson was not apprised of his Miranda rights prior to his confession. 166 F.3d at 675 n.6. The Court obviously did not dispose of the case on this basis — as it could have — but seems to hint that this might offer an alternative basis to support the result. Perhaps the majority was just trying to muddy the waters enough to make this case a poor vehicle for review by the Supreme Court. Nonetheless, Judge Williams clearly was correct that the Court had the discretion to reach the issue of section 3501, in spite of the silence of the parties.

Judge Michael does raise a good point, however, in that Congress should certainly conduct oversight regarding the Justice Department's constitutional determination, especially given this finely reasoned contrary opinion of the Fourth Circuit. At the same time, Congress could consider extending section 3501 to federal court review of state criminal prosecutions — a step that would represent a major advance for federalism.

United States v. Singleton

In United States v. Singleton, 165 F.3d 1297 (10th Cir. 1999) (en banc), a divided en banc Tenth Circuit removed a blight from the face of American criminal law jurisprudence. Readers of the last edition of The Appellate Corner will recall that a panel of the Tenth Circuit had held that the federal criminal prohibition on giving anything of value to a witness because of his testimony, 18 U.S.C. § 201(c)(2), criminalizes a federal prosecutor's promise of leniency to a witness in consideration of that witness' testimony. The full Tenth Circuit disagreed by a vote of 9 to 3.

Interestingly (and perhaps incorrectly), the Court (in an opinion written by Judge Porfilio) concluded that the term "whoever" in the statute does not include federal prosecutors acting in the course of their official duties. It chose not to take the alternative approach of viewing "anything of value" as excluding traditional and accepted forms of leniency extended for witness cooperation. The Court's basic reasoning was that an Assistant United States Attorney is the United States, so applying the prohibition to him means applying it to the United States, and the concept that the United States can commit a crime against itself is "patently absurd." In addition, said the Court, the term "whoever" connotes a being, whereas the United States is an inanimate entity. (The Court did concede, however, that Congress could mandate such a patent absurdity if it made the application to the United States "clear and indisputable" in a case such as this, involving depriving the sovereign of a recognized prerogative, namely the longstanding practice of exchanging leniency for testimony.)

The majority dances around one of the major problems with its rationale by noting that this conclusion does not permit prosecutors to make an offer to a witness other than one traditionally exercised by the sovereign. Thus, a prosecutor who pays a witness for false testimony is not acting as an official of the United States and is, therefore, a "whoever" under the statute.

Judge Lucero, joined by Judge Henry, concurred in the result but was not prepared to sign on to the majority's construction of the term "whoever." He chose instead to construe the anti-gratuity statute in the context of other federal statutes that allow the government to trade items "of value" — including the substantial assistance reduction, immunity, and witness relocation and protection — for testimony,. Use of the "something of value" provision may be more coherent than the majority's definition of "whoever," but the concurrence's total reliance on the context of these other statutory provisions and refusal to employ what Judge Henry described in his separate concurrence as "the widespread and common practice of government lawyers" as a critical element of his statutory construction was perhaps a mistake. The three original panel members dissented, essentially for the reasons they had proffered in their original opinion, i.e., that "whoever" means whoever, including federal officers.

* Alex M. Azar II, a former law clerk to Justice Antonin Scalia and Judge J. Michael Luttig of the Fourth Circuit, is a partner at Washington, D.C.'s Wiley, Rein & Fielding. The views expressed are solely those of Mr. Azar. Readers are encouraged to e-mail him at "AAZAR@WRF.COM" with suggestions of noteworthy or notorious cases for discussion in future issues.