 Hello, and welcome back to part two of the Federal Judicial Center's look at the just completed term of the U.S. Supreme Court. In this part, we'll discuss some cases involving criminal law and procedure, including the right to counsel, decisions involving sentencing, incarceration, and prisoner litigation, and three cases that terms end on the rights of aliens. Let's turn now to segment one. Our first segment involves the Fourth Amendment. Here to discuss these cases are Lori Levinson of the Loyola Law School of Los Angeles and Irwin Chemerinsky of the University of Southern California School of Law. Lori will start with one of these technology cases in this term. Federal agents in Portland, Oregon thought Danny Kylo was growing marijuana inside his house, so they used a thermal imager to see if they could detect heat coming out of the house, consistent with high-intensity lands for marijuana growing. And then they had other evidence, like his utility bills, and they got a warrant to search the house. Did they need a warrant to use the thermal imager? That was the question. Now, we have a copy of the tape the police made, and let me read you how the district court described it as we take a look at this surveillance tape. The district court said it was, I'm quoting here, a non-intrusive device which emits no rays or beams and shows a crude visual image of the heat being radiated from the outside of the house. It did not show any people or activity within the walls of the structure. The device used cannot penetrate walls or windows to reveal conversations or human activities and, quoting again, no intimate details of the home were observed. Now the Supreme Court saw this device as more intrusive than did the district court or the court of appeals for that matter. That's right. Justice Scalia, writing from the majority, said that the use of a thermal imaging device was a search required a warrant required probable cause. What he said is, look at the home. The home is somewhere that has a heightened expectation of privacy. It doesn't matter that you could not see the intimate details. It's like using a high-power e-stopping device. And unless this technology is generally in use in the public, you have to get the warrant. Now what the dissent says to that is, well, what does it mean to be generally in use in the public? And the other thing is, we're not measuring what's going on inside the house. We're measuring the heat rays that are from outside the house. There was such an unusual split among the justices. Justice Scalia wrote the majority opinion, joined by Justice Thomas, Justice Souter, Justice Ginsburg, and Justice Breyer. The dissent had Justice Stevens, Chief Justice Rehnquist, and Justice Sokana and Kennedy. I think it's because for Justice Scalia, as he expressed in the majority opinion, the house is a very special place based on the text and history of the Fourth Amendment. So not inconsistent with his other jurisprudence. That's right. Thanks, everyone. Let's turn to another important search and seizure case. This came from South Carolina and grew out of events, actually, in the late 1980s when hospital authorities at the hospital, the South Carolina University Hospital, were concerned about an epidemic of crack babies. So they developed a plan in cooperation with the police and the prosecutor to provide the results of urine tests on prenatal women, women under maternity care, to the police. Crystal Ferguson and others sued the hospital after the police arrested them. Now the court has upheld drug tests in other circumstances. Why did not upheld the test here? I think what the court was saying is that it was not going to expand the special needs doctrine to allow a warrantless search here, and it did see it as a search. What it said is that the immediate objective of this program was not to provide care to these women, but to provide evidence to law enforcement. And when that's a situation, then you do need to get the warrant. Now interestingly enough, the dissent says, wait a second, this isn't a search at all. These women voluntarily gave their urine. We didn't have to extract it. But the majority saw this very much as a search and very much as the hospital working hand in hand with law enforcement. So does that mean that all reporting requirements are unconstitutional or an individual reporting by a hospital to police? No, the majority was very clear that it was not invalidating all reporting requirements. What's unconstitutional is when the government mandates tests that are a search and the results are then turned over to the police. Also I don't think this case would stop a hospital from doing testing purely for health purposes when no results are turned over to law enforcement authorities. Okay, thanks, Irwin. Let's stay with the same general theme of searches for law enforcement purposes in the Indianapolis case. James Edmond and others sued the Indianapolis Police Department, which had set up roadside checkpoints. In all cars, regardless of any suspicion of wrongdoing, were searched by a drug-snifting dog and went on their way. Now the court agreed this checkpoint violated the Fourth Amendment. What does this case add, though, to the law of the Fourth Amendment? The Supreme Court emphasized here that these drug checkpoints were being set up for law enforcement purposes to gather evidence that police and prosecutors would use in criminal cases. Earlier the Supreme Court had approved sobriety checkpoints and immigration checkpoints. But the Supreme Court said those are very limited. And when it's for general law enforcement purposes, the Fourth Amendment has to be carefully complied with. And in a footnote, Justice O'Connor, who wrote the majority opinion, said that this decision was not about setting up a sobriety checkpoint and that the police might check afterwards for drugs. That wasn't an issue here. But let me just ask you a separate question. What's the significance that you see here for federal judges in this case? I think this case, combined with Ferguson that we were just talking about, really emphasizes that when the search is going to be used for law enforcement purposes, gathering evidence that the police and prosecutors will use, the Fourth Amendment has to be strictly complied with. And I think the general rule here is that the special needs doctrine does not mean the special needs of law enforcement. Something else. That's a good way to sum it up. Thanks, Laurie. Irwin, another one of the closely watched cases this term involved, Gail Atwater, who was arrested for a misdemeanor violation, wasn't wearing a seatbelt. Her kids, none of them had their seatbelts on. Now, the officer could have issued a citation, but did not. Took Gail Atwater to jail and held her there for about an hour, and then she posted Bonn. And later, there was no contest about the violation. But she filed a 1983 suit against the city and the police officer for the arrest. Now, we've got a bright line rule out of this. Fourth Amendment does not prohibit arrest for misdemeanors. What's going to be the impact on federal judges of this decision? Well, what is the methodology that Justice Souter used in his majority opinion? His emphasis was entirely historical. He said in 1791, when the Fourth Amendment was adopted, it was permissible to arrest people for misdemeanors, so it's allowed today. I think it's notable that the court did not use a reasonous analysis that's been so characteristic of its other recent Fourth Amendment cases. And second, as you rightly say, the court clearly says that the police may arrest a person for any crime. This includes federal as well as local police, even as a crime that cures with it no possibility of a prison sentence. Let's pick up on that, because as you know, the dissent here, Justice O'Connor's dissent and a lot of commentary in this case, this just opens the door to racial profiling and police abuse. Do you think the federal courts are going to see more civil rights suits as a result of this? Definitely. I don't think that this case means that the police are going to arrest everybody to stop for a traffic ticket or everybody for jaywalking. I think there is a real danger, though, that the police might use this when they want to harass somebody, or at least that people perceive that they're being harassed. And thus, I think you're likely to see a wave of civil suits that the police are arresting people based on race, based on other impermissible factors. And I think we're going to see this in the next few years. Well, we'll watch for it. Thanks. I do want to clarify one thing, though, Lori. As I said, here the statute specifically authorized the officer to arrest or issue a citation, and the officer arrested at water for this misdemeanor violation. Does that mean that the officer needs a statutory authorization to arrest for a misdemeanor? No, I don't think that the officer does. I think if the statute doesn't say anything, the officer can arrest. On the other hand, if the statute says you may not arrest, then they cannot. So consistent with the Fourth Amendment, legislatures can prohibit arrests? That's right. Okay, thanks. Irwin, one final case about search and seizure came from Illinois. Illinois v. McArthur, who are out of a domestic dispute, the police were advised that Charles McArthur had drugs in his trailer. They took the wife off to get a warrant, and they refused to let him go back in. The Illinois Supreme Court said this violated the, the Illinois Court of Appeals said this violated the Fourth Amendment. The Supreme Court of Illinois didn't even want to take the case, but the court reached down, took it, and reversed eight to one. What is this add to Fourth Amendment law? The Supreme Court clearly says that the police may preclude a person from reentering a home during the time that it takes to get a search warrant. I think it's notable here that the court emphasized a reasonous inquiry, exactly what they didn't do in the outwater case. Here the court said it was going to balance the law enforcement needs against the invasion of privacy. The court said in this case the person admitted he would have flushed the drugs down the toilet, so that's an important law enforcement need in preserving evidence. And the court said there's no major intrusion onto privacy or liberty in keeping a person from a house for a couple of hours while it takes to get a warrant. But it's very much restricted to the facts of this case. That's right. Thanks. Lori, I want to talk about a case that doesn't involve the Fourth Amendment. It involves marijuana though, and you might as well discuss it here as anywhere. And that's this federal case involving the Oakland Cannabis Buyers Cooperative Act, which pursuant to California state law purchased marijuana and provided it or got a hold of marijuana and provided it to people for medical purposes. But this violated the federal drug laws. Let's just be clear. What is the state of the medical necessity defense for marijuana use on a federal level? There is no medical necessity defense for federal narcotics crimes. That's what we know from Justice Thomas' decision. Now, in this case, what Justice Thomas said, that is first, the statute did not provide such a defense. In fact, he suggested there may never be a necessity defense under common law unless the Congress permits it. But we also know that he didn't feel that, frankly, marijuana did provide medicinal purposes. We know one other thing. We know more about the equity powers of the district court, which is they have brought equity powers to come up with their rules and regulations and orders, but they cannot ignore congressional intent. OK, so no medical necessity defense, at least for distribution. There was a little by play though. Is there a medical necessity defense for possession of marijuana or use of marijuana? As you say, this case involves a law that deals with manufacturing and distribution. Justice Stevens, in his concurring opinion, said that it's still an open question whether it might be a medical necessity defense when it comes to possession. I'm skeptical, though, whether a majority would accept that based on Justice Thomas' opinion for the court. Let me ask one other question. What does this do to state laws? I think eight laws have laws like California's, and the cooperative was acting pursuant to the state law. Right, you could still have a medical necessity defense for violation of the state laws. What you cannot have are the state laws trumping the federal laws. So at least for federal distribution narcotics laws, there are no medical necessity defenses. I do think it's worth noting that there are already pending in federal courts several lawsuits where it's argued that individuals have a constitutional right under the due process clause to use marijuana for medical purposes based on a constitutional right to receive treatment. I think it's a very difficult argument to make, but it's one that's already being brought in many courts. And that's for the use of possession, not for the distribution. OK, we'll watch that develop. Thanks. I want to ask a more general question, though, back to the Fourth Amendment. My impression is, but you know better than I, that the court has seen a lot more of these cases, or certainly a steady stream of Fourth Amendment cases. Is that true, and if so, why is it true? I think it's definitely true. I'd give a couple of factors to account for it. One is, in most cases, the Supreme Court says that the test for the Fourth Amendment is reasonous. That's inherently contextual and factual that lends itself to Supreme Court review. The other is, over the last couple of decades, the Supreme Court has created a number of specific exceptions to the warrant requirement. Each of these generates litigation and requires Supreme Court clarification. I also think we're seeing more of these cases because you see more technology. And the court has to address how the Fourth Amendment will be dealt with in this new technology era. Like the first case we saw, and presumably more technology, more cases. Well, thanks very much, Laurie. And thank you, Erwin. We'll be back shortly to consider two right to counsel cases. If you want to discuss next, two cases involving the defendant's right to counsel. Joining me again are Erwin Chemerinsky and Laurie Levinson. Erwin, a very important case is Texas v. Cobb, in which Texas police arrested Raymond Cobb for burglary, gave him his Miranda warnings. He asked for a lawyer and got one. A little while later they arrested him for murders which were committed during the burglary, gave him his Miranda warnings, but they didn't advise his counsel who had been appointed that this was going on. The Supreme Court rejected Cobb's claim that the right to counsel attached that attached early to the burglary carried over. What's the test now for determining when the right to counsel attaches when they have a situation like this? The Supreme Court said that the right to counsel is offense specific. The fact that a person invokes the right to counsel as to one crime does not create a right to counsel as to a separate crime, even if it was committed at the same time in the same place. The court said that the test to use here is the same one that's used for double jeopardy under the Fifth Amendment, under the United States versus Blockburger, with the same elements prove each of the offenses. Here the Supreme Court said the elements for burglary are different than the elements for murder, so the right to counsel that invoked as to the burglary charges didn't apply or attach as to the murder charges. Now what's going to happen as to the implementation of this rule as courts begin applying it? Well, Justice Breyer expressed real concern as dissent that the police might circumvent the right to counsel by arresting a person for one crime with the intent of hopefully questioning the person about another crime without counsel being present. If there's evidence that the police are doing that, that might lead to a new challenge, either an emotion to suppress or even in a civil case. Okay, well, watch that. Lori, I want to be clear about one thing. As I said here, Cobb got his Miranda warnings a second time around. Nothing in this decision suggests that police are not obligated to do what they did in the circumstances, isn't that right? That's right. We still have to give the Miranda warnings for the additional crimes, but the defendant only gets counsel if he invokes the right to counsel. Did you want to say something about habeas too? Yeah, I think the place where district courts might really see this is in a lot of habeas petitions that are now pending. Most of the lower courts around the country, he'd come to an opposite conclusion from where the Supreme Court went based on an earlier case, Michigan versus Jackson. And now after Texas versus Cobb is district courts handle this habeas petitions that got to apply the new rule that the right to counsel is offense-specific. You could have a big impact. That's right. Thanks, everyone. That was a five to four case. Lori, the next case was nine to nothing. This was Glover versus the United States involved federal sentencing. Could you tell us briefly what was involved there? Well, it was a claim of ineffective assistance of counsel and what the Supreme Court said is that even if the claim only leads to an additional six months on the defendant's sentence, that may be enough to meet the Strickland standard. There's no de minimis standard that's applied. It may be a factor in determining whether counsel is actually ineffective, how much damage it did to the defendant, but the court has to look at each case individually. And for Strickland, the amount of time doesn't make any difference. Right. Thanks very much. Thank you, Erwin. In a moment, we'll consider some of the term's cases on sentencing and prisoner litigation. The four cases we'll take up next involve appellate review of sentencing, civil commitment, a provision of the Prison Litigation Reform Act, and regulation of inmate lawyering. Joining me to discuss them is Lori Levinson. Lori, these four cases we'll discuss are all important to district judges. They're not highly contentious. I mean, and only one was there even one dissent, but they're all important. And we'll start with Buford versus the United States. This arose out of a federal sentencing of Paula Buford. The question was about her state convictions and whether she had career offender status. If they were all grouped or consolidated together, she would not, but if there were two offenses, she would. What did the court say? What the court said is that the district court has to decide whether they were functionally consolidated. And district court judges, because they do a lot of sentencing, are in the best position to decide that. Therefore, the court said that the standard that should be used is a very deferential one, the one of clear error. So this is a case about giving the most power to the district courts to make that type of decision. This was a split between the circuits that was festering the Seventh Circuit Court of Appeals really asked the court almost to take it and resolve this split about the standard of review. Do you think there's implications for other sentencing decisions involving criminal history? Well, not directly. Of course, if it's the type of decision that requires factual analysis, something that the district court has some expertise in, I think you'll see the same type of standard of clear error. But this was limited to this provision in the sentencing guidelines. Okay, thanks, Lori. Let's move to the one decision, one case in this group that has a dissent, eight to one, which grew out of Washington's civil commitment for sexual predator statute. It was the first state in the country to have such a statute which provides at the end of a criminal sentence for some sexual crime, this state can move to have the inmate committed and there's a series of protections in regular review. The court sustained a Kansas statute, recall back in 1997 that was modeled after the Washington statute, against the charge that it was really a criminal statute. Here, Andrew Young sued claiming that whatever you call it as applied to him, it was a criminal statute and he wanted to treat it that way for double jeopardy and exposed factors reasons. And the Supreme Court said no. The Supreme Court says you do not use the as applied standard to do an end around. This is a statute that was seen as a civil statute, not a punitive one. And because of that, he could not bring an exposed factor or double jeopardy claim against it. They basically said is that we know when it's a civil, when we know it's a punitive and once that decision's made, as applied does not apply. Is this gonna have implications you think for other civil commitment statutes beyond the sexual predator category? Well, I think it may apply in those situations where you have defendants have been found guilty but mentally ill and then subject to civil commitment. You'll see the same type of rule applied. Well, does it raise the bar for challenging those kinds of commitments? It doesn't raise the bar on the due process claim. And the court still leaves open the possibility that when you initially evaluate a statute, you take a look at how it is functioning to decide whether it's punitive or civil. But what it does say is once that decision's made, you don't use an as applied standard to make an end around to do an exposed factor or double jeopardy challenge. I'm not gonna look behind it. Okay, thanks. Back to another nine to nothing decision. This is our decision about the prison litigation reform act. And specifically that part of the act that requires inmates to exhaust their administrative remedies before they come to federal court. Timothy Booth in Pennsylvania wanted money damages from the Pennsylvania State Prison Authorities and the prison administrative procedure didn't provide money damages. So the Supreme Court had to parse this phrase from the statute. Let me just read it here. So we're all on the same page. No federal lawsuits, quote, until such administrative remedies as are available are exhausted. Now as I say, he wanted monetary damages and this couldn't provide it. How did Justice Souter parse this language? Well, what Justice Souter said was exhausted means exhausted. And it doesn't matter that the administrative procedure may not get him the remedies that he's seeking in his civil lawsuit. He still has to go through those administrative processes. And the court said that, look, this is different from prior language that we've ruled on where it said it had to be an effective exhaustion and it's effective remedy. In this situation, if there's any possible remedy you have to go through the process. Because Congress had, Congress had in a sense written the law to change an earlier doctrine. That's right. Let me ask you this also. It is important though, isn't it, that the prison can offer something. I mean, it has to be able to offer some remedy even though it's not what Booth in this case wanted. That's right. Booth here wanted monetary damages, but let's say that what this offered instead that it would reprimand the guard or change the policies in the prison, that would be enough of a possible remedy that he has to exhaust. Now there are obviously exhaustion requirements that are not limited to the prison context. Is this gonna have some impact, do you think, on other exhaustion requirements or because of the prison litigation reform act? Is it really quite restricted? No, I don't think this should be read as a general exhaustion rule. I think it's a rule that's limited to the change in language from this act. Okay, finally, Lori, Shavie Murphy. This is another nine to nothing decision. This involved a suit by Kevin Murphy who's an inmate in Montana and he saw permission to give legal advice to another inmate. The prison authority said, no, we have a rule against contact between inmates with different security classifications. And he said, no, wait, my First Amendment right to provide legal advice overrides that. But nine to nothing, Justice Thomas for the court said, uh-uh, it does not. That's right, the Supreme Court said, look, there is no special First Amendment rule that gets you around the Turner Doctrine. But the Turner Doctrine says is basically if there's a rule that has a legitimate penological interest, and second of all, there's a rational relation between the rule and that interest, then you don't have the right to represent these inmates. And so in this situation, they said there was no special First Amendment right for the prisoner to represent the other inmates. Okay, thanks very much, Lori. Finally, there were three important cases involving alien offenders. We'll discuss them in just a moment. Three decisions at the end of the term dealt with the application of 1996 laws concerning aliens convicted of criminal offenses. To discuss them are Ernie Young of the University of Texas School of Law in Lori Levinson. Ernie, the first two cases, both involving the INS and Calchino Martinez and also Sainte-Cyr, dealt with two cases. One is the kind of judicial review available to aliens facing deportation. And the other, of course, is the retroactivity of discretionary waiver authority in the Justice Department. This is a rather complicated opinion by Justice Stevens. Can you just tell us what the court decided? Well, the court adopted the position taken by most of the circuit about how these deportation orders ought to be reviewed. First, they held that the federal courts of appeal lacked jurisdiction to hear these cases on direct petitions for review of final deportation orders. That's the Calchino Martinez case. Sainte-Cyr then confirms that the federal district courts do have jurisdiction to hear habeas petitions challenging deportation for the same class of persons. Now, in retroactivity, the court held that the Immigration Reform Act of 1996 does not apply retroactively to bar discretionary waivers of deportation for persons who pleaded guilty to a deportable offense prior to the effective date of the act, even though the INS did not commence deportation proceedings against them until after the effective debate. Now, that may be a substantial number of people involved in that. The remaining question is whether the same retroactivity rule will apply to people who are facing a straight conviction situation rather than a plea bargain. The more general importance of the case, though, lies in the court's approach to what is a very longstanding problem in federal court's law, and that is the limits of Congress's authority to restrict the power and jurisdiction of the federal courts. The court really avoided that constitutional question by deciding the case on statutory construction grounds. The court applies a very strong, clear statement rule. Basically, the court says that unless Congress actually states in the statute no judicial review, including by habeas, we really mean it, then the court is not going to interpret the statute to bar habeas review. The court's use of the clear statement rule is particularly strong because it overcomes the normal chevron deference that the INS's own interpretation of the statute would otherwise get. Now, the court is using clear statement rules a lot these days. In the solid waste case, for instance, the court avoids an important federalism question. And the Zed Vitas case may also be an example. This is the other immigration case. Let's ask Lori about that. The little background, Kastutis Zed Vitas is an alien. He was born in Germany in a displaced person's camp, evidently of Lithuanian parents. And after he'd served his sentence for some drug convictions, those two countries would not take him. Nor would Jamaica, the country of his wife. So he sat incarcerated. And finally sought a habeas petition to get out. And what did the court do? Well, what the court did is say that, in fact, these illegal aliens cannot be indefinitely detained. And it set up this rule that the INS has about six months to figure out where to send these people. And after six months, they have to release them under some type of supervision, unless the INS can show that in the foreseeable future, there will be someplace to send them, or that they pose some type of danger to society, either perhaps because they're mentally ill or there are terrorists or something along those lines. So this was a Supreme Court ruling that said all aliens in the United States, whether they're here legally or illegally, do have due process rights. And the dissent thought about that? Well, Justice Scalia said, wait a second, the illegal aliens don't have a right to be free from restraint, so they don't have a right to go through and be released into the public. And Justice Kennedy went right to the due process point and he said, look, the only due process that they're entitled to is what they get through the immigration INS hearings. They're not entitled to this judicial review or release. That's the dissent. The holding is they do have these rights, including the six month period that you described, which the court created in its opinion. That's right. And this is a very significant case, not simply because of the due process ruling, because also we know there are about 3,000 cases out there that this is going to apply to. Okay, thanks very much, Lori. And thank you, Ernie. That concludes part two of our review of October term 2000. In a few minutes in the third and final part, we'll consider some decisions involving the structural aspects of the government, as well as habeas corpus in the more traditional sense, and some decisions affecting commercial litigation.