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
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.