The Appellate Corner
  Alex M. Azar, II*

Commentators have proclaimed the Supreme Court's October Term 1996 the "Term of the Decade." That may be so, with groundbreaking developments in areas such as federalism, separation of powers, voting rights, free speech, free exercise, the Establishment Clause, and substantive due process. The Court has shown little willingness, however, to rethink in any fundamental manner its criminal law and procedure jurisprudence. Instead, it prefers to tinker at the edges of its established precedents.

That is not to say that this Term's criminal law and procedure cases are trivial; they do affect in a real way the administration of our nation's criminal justice system. Space unfortunately does not permit a review of all of the Court's important, although not landmark, criminal decisions from this Term. The selection covered here includes three significant Fourth Amendment decisions and one important sentencing case.

In the Fourth Amendment field, the Court recently has seemed committed, at times, to a case-by-case "totality of the circumstances" analysis of reasonableness and, at others, to per se determinations of the reasonableness of police conduct. The Court does appear, however, to have generally eschewed the creation of any additional Warren/Burger-era type prophylactic prohibitions on police conduct. Each of these trends is reflected in the trio of Fourth Amendment decisions handed down by the Court this Term.

In Ohio v. Robinette, 117 S. Ct. 417 (1996), the Court held that the Fourth Amendment does not require that a lawfully seized defendant be advised that he is "free to go" before his consent to search will be recognized as voluntary. The defendant in that case had been stopped for speeding. The officer checked Robinette's license through the computer system and found that he had no prior violations. He then returned to Robinette's car, asked him to step out of his car, issued a verbal warning to Robinette, and returned his license. At that point, the officer stated that he had "[o]ne question before you get gone," and asked Robinette whether he was carrying anything illegal in his car. Robinette answered "no," and the officer asked for consent to search. After securing the consent, the officer discovered drugs in the car. The Ohio Supreme Court held that citizens stopped for traffic offenses must be clearly and expressly informed that they are free to go before an officer attempts to engage in a consensual interrogation. That court also held that when the "motivation" behind a police officer's continued detention is unrelated to the purpose of the original, valid stop and is not based on any suspicion of additional illegal activity, the continued detention is an illegal seizure. Since the officer had already decided not to give Robinette a ticket when he asked Robinette to get out of the car, the Ohio court held the detention unlawful.

Chief Justice Rehnquist, writing for the Court, held first that the subjective intentions of the officer in continuing the detention were irrelevant under the Fourth Amendment. Instead, the fact that the officer objectively had probable cause to stop Robinette for speeding justified his asking Robinette to get out of the car. As to the central failure-to-warn issue, the Chief Justice concluded that it would be unrealistic to require police officers always to inform detainees that they are free to go before a consent to search may be deemed voluntary. Rather, held the Court, voluntariness is a question of fact to be determined from all the circumstances.

Justice Ginsburg concurred in the judgment, expressing her agreement with the Court's conclusion, but suggesting that the Ohio Supreme Court might want to adopt a "free to go" warning requirement as a matter of state law. Even though Justice Stevens agreed with the Court's holding on the warning issue as a matter of federal constitutional law, he dissented because he believed the consent to have been secured during the course of an unlawful detention. For him, the officer's statement that he had one question "before you get gone" was inconsistent with the assumption that Robinette would have reasonably believed he had no duty to respond. Thus, Robinette was still being detained at the time he was asked for consent. Moreover, for Justice Stevens, that continued detention was unlawful because the lawful traffic stop had already ended with Robinette's having been given a warning. The continued detention could only be justified if the officer had some other grounds for suspicion.

As expected, the Court in Maryland v. Wilson, 117 S. Ct. 882 (1997), extended to passengers the rule that police officers may, as a matter of course, order the driver of a car to exit the vehicle. The Chief Justice, again writing for the Court, found that the same public interest in officer safety justifies this rule as to passengers. He did note that the personal liberty intrusion is somewhat greater with passengers than drivers, since there is probable cause to believe the driver has committed an offense. Nonetheless, the Chief Justice deemed the intrusion minimal because the passenger was already stopped and inconvenienced by virtue of the traffic stop.

Justice Stevens (joined by Justice Kennedy) dissented. In his view, officers should not be permitted to seize passengers who are not suspected of having violated the law. He would rather require, à la Terry v. Ohio, 392 U.S. 1 (1968), that the officer have a reasonably articulable suspicion of danger before ordering passengers out of the vehicle. Justice Kennedy wrote separately to emphasize his view that officers should have little difficulty making the Terry showing suggested by Justice Stevens.

In Richards v. Wisconsin, 117 S. Ct. 1416 (1997), the Court rejected the Wisconsin Supreme Court's determination that police officers are never required to knock and announce their presence when executing a search warrant in a felony drug investigation. Two years before, in Wilson v. Arkansas, 514 U.S. 927 (1995), the Supreme Court had held that the Fourth Amendment generally requires that police knock and announce before attempting forcible entry. The Court left open the door, however, to the possibility that countervailing law-enforcement interests might render unannounced entry reasonable under the Fourth Amendment in certain circumstances.

The Wisconsin court held that it was reasonable to assume that all felony drug crimes will involve "an extremely high risk of serious if not deadly injury to the police as well as the potential for the disposal of drugs by the occupants prior to entry by the police." Finding that these exigent circumstances would be present in any felony drug investigation, that court held that no-knock entries are per se reasonable in such cases, even in the absence of specific information about danger to the officers or risk of destruction of evidence.

In a unanimous opinion written by Justice Stevens, the Supreme Court rejected this blanket exception to the knock-and-announce rule. The Court disagreed with what it called the "considerable overgeneralization" of the Wisconsin court that all felony drug investigations present the types of exigent circumstances justifying an exception to the rule. More generally, the Court seemed to close the door to any other types of per se exclusions from the knock-and-announce rule, concluding that the Fourth Amendment's reasonableness requirement would be meaningless if such an exception were permitted for each category of criminal investigation that included a considerable risk of danger to officers or destruction of evidence.

The Court held instead that in order to justify a no-knock entry, the police must have a "reasonable suspicion" that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for instance, permitting the destruction of evidence. Applying this standard to the facts in Richards, the Court found the actions of the police reasonable. (The defendant initially opened his door in response to a knock from an officer disguised as a maintenance man. When the defendant saw a uniformed officer in the background, he slammed the door closed.)

Two footnotes buried in the Court's opinion in Richards merit further attention. First, in footnote seven, the Court approved the practice of a number of states of issuing "no-knock warrants" so long as the officers can demonstrate ahead of time a reasonable suspicion that entry without prior announcement would be appropriate in a particular context. We can expect more jurisdictions to authorize these no-knock warrants and police requests for them to become commonplace. Even so, officers who for any reason cannot make out the advance showing to secure such authorization will be left by the Court's rejection of a clear per se rule having to apply the Court's fact-based test on the scene, certainly not an enviable prospect.

Another footnote appears to have escaped the notice of commentators even though it reflects a major victory for constitutional originalism. In footnote four, the unanimous Court adopted Justice Scalia's earlier formulation that the purpose of the Fourth Amendment's requirement of reasonableness "'is to preserve that degree of respect for the privacy of persons and the inviolability of their property that existed when the provision was adopted - even if a later, less virtuous age should become accustomed to considering all sorts of intrusion "reasonable."'" 117 S. Ct. at 1421 n.4 (quoting Minnesota v. Dickerson, 508 U.S. 366, 380 (1993) (Scalia, J., concurring)). That is a remarkable.

*Alex M. Azar II is an attorney at Wiley, Rein & Fielding in Washington, D.C. He clerked for Justice Antonin Scalia and Judge J. Michael Luttig of the Fourth Circuit and recently served as an Associate Independent Counsel on the Whitewater investigation. The views expressed are solely those of Mr. Azar. Readers are encouraged to e-mail the author at "AAZAR@WRF.COM" with suggestions of noteworthy or notorious cases for discussion in future issues.


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