With the U.S. Supreme Court's new term underway, commentators are waiting to see what effect, if any, the replacement of Justice John Paul Stevens with Elena Kagan will have on the court's criminal decisions.
It is worth looking at two criminal procedure cases the Supreme Court just accepted for review Nov. 1. One case — dealing with the "good faith exception" of the Fourth Amendment exclusionary rule — looks like an opportunity for the pro-prosecution Roberts Court to further restrict the types of search and seizure errors that mandate suppression of evidence. But the court's decision in the second case may actually make it easier for the defense to exclude confessions under Miranda v. Arizona. The cases are, respectively, Davis v. U.S., No. 09-11328, and J.D.B. v. North Carolina, No. 09-11121.
The Fourth Amendment case arose out of a vehicle search in Alabama. U.S. v. Davis, 598 F.3d 1259 (11th Cir. 2010). During a routine traffic stop, passenger Willie Davis was arrested for giving the police a false name. The police handcuffed Davis and placed him in the back of the patrol car. They then searched the car, recovered a revolver in Davis' jacket, and charged him with unlawful possession of a weapon.
At the time the search was conducted, it was a proper "search incident to arrest" under New York v. Belton, 453 U.S. 454 (1981). Belton was a bright-line rule that allowed an officer arresting a recent occupant of a car to search the entire passenger compartment, including all closed containers. The weapon found in Davis' jacket was admissible under Belton.
Yet by the time Davis' motion to suppress was considered by the 11th Circuit, Belton was no longer good law. That's because in 2008 the Supreme Court rejected Belton in Arizona v. Gant, 552 U.S. 1230. Gant narrowed Belton by allowing the search of a vehicle's passenger compartment pursuant to the arrest of a recent occupant in only two circumstances: 1) if the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search; or 2) if it is reasonable to believe evidence relevant to the crime in question might be found in the vehicle.
The search in Davis was obviously unconstitutional under the new rules of Gant. The issue thus was whether suppression of evidence was the proper remedy. The 11th Circuit noted the federal circuit split on the issue. The 9th Circuit has held that the evidence recovered in a pre-Gant search merited suppression. U.S. v. Gonzalez, 578 F.3d 1130 (9th Cir. 2009). The 10th Circuit, on the other hand, has held that the evidence should be admitted because at the time of the search the police in "good faith" relied on the then-applicable rule in Belton. U.S. McCane, 573 F.3d 1037 (10th Cir. 2009), citing U.S. v. Leon, 468 U.S. 897 (1984). The Davis court agreed with the latter case and allowed the evidence.
So how will the Supreme Court rule? In the past several years, the Roberts Court has issued two opinions seriously restricting use of the exclusionary rule. The court held, 5-4, that the exclusion of evidence was not needed for a "knock and announce" violation because "Suppression of evidence … has always been our last resort, not our first impulse." Hudson v. Michigan, 547 U.S. 586 (2006). More recently, the court held, 5-4, that exclusion of evidence should be the remedy only if it "serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence." Herring v. U.S., 129 S.Ct. 695 (2009). If Kagan votes the way Stevens would have voted, I am guessing the prosecution wins Davis by the identical 5-4 margin.
Where is Illinois on this issue? Last year the Illinois Supreme Court took the defense position of suppressing evidence carried out in a pre-Gant car search incident to arrest. People v Bridgewater, 235 Ill.2d 85 (2009). But "lockstep" insures that if the U.S. Supreme Court goes for the prosecution, the Illinois Supreme Court will follow suit. See People v. Caballes (Caballes II), 221 Ill.2d 282 (2006).
But the news might be better for the defense in the second case the U.S. Supreme Court accepted Nov. 1, J.D.B. v. North Carolina. In this case the court will decide what role, if any, the age of the suspect should play in determining whether he is in "custody" for purposes of Miranda.
J.D.B. was a 13-year-old special education student. Police came to his school to talk with him about some house break-ins. He was taken from class and brought to a conference room for questioning, where he was met by a police officer and three school employees. He was not given Miranda warnings; nor was he offered a chance to speak to a parent or guardian before questioning; nor was a parent or guardian even contacted before his removal from class. Questioning by the officer eventually resulted in the student's producing a written statement containing incriminating information. The session lasted from 30 to 45 minutes.
In the juvenile's motion to suppress, he contended that his age should be a factor a court should use in determining whether he was in police "custody" and thus should have been read Miranda warnings. Over three dissents, the North Carolina Supreme Court rejected this argument. In re J.D.B., 363 N.C. 664 (2009).
The U.S. Supreme Court accepted the case because it has never directly held whether age is a factor in deciding custody for Miranda purposes. (The closest it has come is deciding in a habeas corpus case that it was not "unreasonable" under deferential AEDPA review for a state court to not use age as a factor. Yarborough v. Alvarado, 541 U.S. 652 (2004).)
My hunch is that the defense-friendly facts in J.D.B. may indicate the court will hold that age is a proper factor, especially where, as here, it was obvious to the police that the suspect was a 13- year-old seventh-grader. If the four expected defense votes (Justices Breyer, Ginsburg, Sotomayor and Kagan) can add Justice Kennedy, the defense should win, 5-4.
What effect would there be in Illinois if the prosecution, rather than the defense, wins? The Illinois Supreme Court has on several occasions included age as a factor in its test for whether a suspect is in Miranda custody. People v. Slater, 228 Ill.2d 137 (2008); People v. Braggs, 209 Ill.2d 492 (2003). And unlike its "lockstep" approach to following the U.S. Supreme Court in the area of search and seizure, the Illinois Supreme Court has on occasion broken with the U.S. Supreme Court on Miranda issues. See People v. McCauley, 163 Ill.2d 414 (1994) (refusing to follow the U.S. Supreme Court's decision construing Miranda in Moran v. Burbine, 475 U.S. 412 (1986)). Thus, regardless of the U.S. Supreme Court's decision in J.D.B., Illinois should continue to consider age as a factor.
Both Davis and J.D.B. should be argued in March, with decisions due by June. Predictions are always risky, but in these two cases I see the prosecution and defense settling for a split.