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
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
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
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
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
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.