US Supreme Court Update – Birchfield v. ND

Birchfield v. North Dakota

Bernard v. North Dakota

Beylund v. North Dakota

Summary: During a DUI stop, the Fourth Amendment allows police officers to administer a warrantless breath test as a search incident to arrest, but does not allow for warrantless blood tests as a search incident to arrest. As such, because a warrantless blood draw as a search incident to arrest is prohibited by the Fourth Amendment, the State cannot criminalize the refusal to submit to warrantless blood draws as search incident to arrest under implied consent laws.

Background

Every state has some form of “implied consent” law to help law enforcement investigate whether a driver is driving drunk. An “implied consent”  requires a driver to submit to blood-alcohol content (BAC) testing. If you refuse, you could be subject to administrative penalties. In Alabama, you could have your license suspended or be forced to install an Interlock device that tests your breath for alcohol when you start your car.

North Dakota’s implied consent law took things a step further: if you refused to submit to breath or blood testing, you could be prosecuted criminally. At the heart of these DUI cases are three questions: (1) Can police force you to submit to a warrantless breath test as a search incident to a DUI arrest? (2) Can police force you to submit to a warrantless blood draw as a search incident to a DUI arrest? (3) Can a state criminalize the refusal of either under its implied consent law?

 Birchfield was convicted after refusing to submit to a warrantless blood test. Birchfield argued that the warrantless search violated the Fourth Amendment and that the Fourth Amendment prohibited criminalizing his refusal. Bernard was prosecuted for refusing to submit to a warrantless breath test and appealed the constitutionality of the search and criminal prosecution for refusing the breath test. Beylund consented to the blood draw after police told him he had to submit. Beylund appealed the voluntariness of his consent to the draw and the ND Supreme Court affirmed.

REVERSED

The Fourth Amendment allows police officers to conduct warrantless searches as incident to a lawful arrest. In the context of a DUI, the Court concluded that law enforcement may order you to submit to a breath test to check BAC as a lawful warrantless search incident to arrest. In the Court’s view, a breath test does not “implicate significant privacy concerns;” however, a blood test does implicate “significant privacy concerns” as it is obviously more intrusive to a suspect’s body. Because of the greater privacy concern and because breath testing is a less-intrusive alternative to check BAC, police cannot conduct a warrantless blood draw as a search incident to arrest. The Court left open the possibility that other warrant exceptions could apply.

The Court then applied this holding to the three cases at hand. For Birchfield, the Court said a warrantless draw of Birchfield’s blood would be unconstitutional, so he could not be prosecuted for refusing an unconstitutional search. For Bernard, the Court concluded that the police did not have to get a warrant to force him to submit to a breath test, so the warrantless search was proper under the Fourth Amendment, and thus, his prosecution was constitutional. For Beylund, the Court remanded the case back to the ND SC to determine whether his consent to the blood draw was voluntary given the inaccuracy of the police officer’s instruction.

OTHER OPINIONS

Justices Sotomayor and Ginsburg would have held that the Fourth Amendment prohibits both breath tests and blood draws as searches incident to lawful arrest. Justice Thomas, on the other hand, would have held that the Fourth Amendment allows both breath tests and blood draws as searches incident to lawful arrest.

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US Supreme Court Update – Birchfield v. ND

US Supreme Court Update – Utah v. Strieff

Background

The Salt Lake City PD received an anonymous tip regarding drug activity at a house. A detective watched the house and saw folks coming and leaving after only a short duration. To him, this evidenced drug activity going on inside. The detective observed Strieff leave the house. He followed Strieff and eventually stopped him. The detective asked for Strieff’s ID and found out that Strieff had an outstanding warrant on traffic tickets. He arrested Strieff and searched him as incident to that arrest. Of course, the detective finds meth and meth paraphernalia.

After being charged, Strieff moved to suppress the drug evidence on the grounds that the detective illegally detained him. The State conceded that the detective did not have reasonable suspicion to stop Strieff, but argued that the “existence of the warrant attenuated the connection between the unlawful stop and the discovery of contraband.” A lower court affirmed denial of the suppression motion, but the Utah Supreme Court reversed.

REVERSED

The Court concluded that the exclusionary rule did not require suppression of this evidence because the discovery of the warranted attenuated the connection between the unconstitutional police actions and the discovery of the drugs.

Long ago, the Court created the “exclusionary rule” to exclude unlawfully seized evidence, also referred to as “fruit of the poisonous tree.” The Court has stressed that it’s to be applied so long as its “deterrence benefits outweigh the societal costs.” There are several exceptions to this rule, one of which is called “attenuation doctrine” which provides that suppression isn’t proper when the connection between the unconstitutional action and the seized evidence is either “remote” or interrupted by some “intervening circumstance.” At question here is the latter concern: was the discovery of a valid warrant an event sufficient to break the chain between the unlawful stop and the discovery of the drugs.

The Court employs a three-part test to answer this question: (1) What is the temporal proximity between the illegal conduct and the discovery of evidence? (2) What are the intervening circumstances?   (3) What was the purpose of the conduct and how flagrant was it?

While the Court found that the short time between the constitutional violation and discovery of the evidence favored suppression, the last two facts strongly favored not applying the exclusionary rule. Under the second prong, the existence of a valid warrant was a significant intervening circumstance. Once he discovered it, he was under an obligation to arrest Strieff. With respect to the final prong, the Court didn’t believe the detective’s actions were flagrant or part of “systemic or recurrent police misconduct”: while the initial detention was “at most negligent,” his actions after the stop were “lawful.”

The dissents in this case are quite strong. Justice Kagan’s dissent states that this decision effectively invites police to make illegal stop.

My Thoughts

If you look at this case objectively, the Court’s decision makes sense: if a police officer happens to learn someone has an outstanding valid warrant for their arrest, that officer has the duty to arrest them. If an arrest is made pursuant to a lawful warrant, police may search the arrestee. Thus, the search extends from the valid warrant.

But if you look at this case subjectively, the Supreme Court has given police officers leeway to engage in unconstitutional behavior. There’s really no way around it. The Court has told officers who would rather investigate outside the boundaries of the Fourth Amendment, “Hey, we’ve got your back in the borderline cases.” Count me in Justice Kagan’s camp.

US Supreme Court Update – Utah v. Strieff

CCA Update – Hurst Mandamus

Friday we saw the Alabama Court of Criminal Appeals uphold the constitutionality of Alabama’s capital-sentencing scheme in light of a ruling by Jefferson County Circuit Court Judge Tracie Todd that the scheme was unconstitutional under the recent US Supreme Court decision of Hurst v. Florida.

Too long, don’t want to read version: Alabama’s capital scheme is not unconstitutional under Hurst, but Hurst will prevent judicial override in cases where (a) the guilt phase verdict does not automatically establish an aggravating circumstance under § 13A-5-49, and (b) the jury finds in the penalty phase that no aggravating circumstance exists beyond a reasonable doubt.

Ex parte State of Alabama

In re: Kenneth Eugene Billups (CR-15-0619)

In re: Stanley Brent Chapman (CR-15-0622)

In re: Terell Corey McMullin (CR-15-0623)

In re: Benjamin Todd Acton (CR-15-0624)

Background.

This case involves the ruling from Judge Tracie Todd of the Jefferson Circuit Court in which she held that the Alabama capital sentencing scheme is unconstitutional. In unrelated cases, Billups and Acton are charged with capital murder-robbery, a violation of § 13A-5-40(a)(2). In cases involving the same murders, Chapman and McMullin are each charged with two count capital murder-robbery (§ 13A-5-40(a)(2)), two counts each of capital murder-burglary (§ 13A-5-40(a)(4), and one count each of capital murder for killing more than one person in the same course of conduct (§ 13A-5-40(a)(10)).

Prior to their trials, the defendants moved to bar the imposition of the death penalty on the grounds that Alabama’s capital scheme is unconstitutional under Hurst. The Court granted the motion, finding the Alabama capital scheme unconstitutional. The State filed a petition for a writ of mandamus asking the Court of Criminal Appeals to order Judge Todd to vacate her order.

Holding

The Court begins its analysis by reviewing SCOTUS’s rulings in Apprendi v. New Jersey and Ring v. Arizona, emphasizing how Apprendi holds “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proven beyond a reasonable doubt.” Ring simply applied Apprendi to Arizona’s capital sentencing scheme. In looking at Hurst, the Court of Criminal Appeals observed that the Hurst opinion, like the Ring opinion, did nothing more than apply Apprendi to Florida’s capital sentencing scheme. The CCA explained:

“The [Hurst] Court noted that “[t]he analysis the Ring Court applied to Arizona’s sentencing scheme applies equally to Florida’s.” Hurst, 577 U.S. at ___, 136 S.Ct. at 621-22. Florida’s capital sentencing scheme as it then existed was similar to Arizona’s in that the maximum sentence authorized by a jury verdict finding a defendant guilty of first-degree murder was life imprisonment without the possibility of parole; the defendant became eligible for the death penalty only if the trial court found the existence of an aggravating circumstance and found that there were insufficient mitigating circumstances to outweigh the aggravating circumstances.”

Ex parte State at * 14. The CCA concluded that Hurst “did nothing more than apply its previous holdings in Apprendi and Ring to Florida’s capital sentencing scheme. The Court did not announce a new rule of constitutional law, nor did it expand its holdings in Apprendi and Ring. As the State correctly argues, “Hurst did not add anything of substance to Ring.” (Petitions, p. 6.)”

The CCA zeroed in on how Ring and Hurst, applying Apprendi, focus on death penalty “eligibility,” the objective component of a death sentence. This, of course, is distinct from the subjective component of whether a death sentence is actually appropriate in a given case. The Court observed that the Alabama scheme only requires the jury to find one aggravating factor under § 13A-5-49 in order for a defendant to be “eligible” for a death sentence.

Under Apprendi, Ring, and Hurst, the crucial question is — does the required finding that an aggravating circumstance exists expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict alone? In Alabama, unlike Arizona and Florida, the answer to that question depends on the capital offense at issue.

The CCA discussed how the Alabama capital statute includes “overlap” and “non-overlap” capital offense. A guilt-phase conviction of an “overlap” offenses automatically establishes the one aggravating circumstances under § 13A-5-49 required to impose a death sentence under § 13A-5-47. For example, a conviction of capital murder-robbery under § 13A-5-40(a)(2) “overlaps” with the aggravating factor that the murder was committed during a robbery pursuant to § 13A-5-49(4). On the other hand, a conviction for a non-overlap offense, such as murder committed by shooting from a vehicle, does not “overlap” with an aggravating factor found in § 13A-5-49.

In looking at “overlap” offenses, the Court concluded that there is no Hurst problem because the guilt-phase determination finds beyond reasonable doubt an aggravating factor under § 13A-5-49, which would make the defendant death-eligible under Apprendi, Ring, and Hurst. Likewise, the Court held that in non-overlap cases, if a jury finds beyond a reasonable doubt that an aggravator exists, he too is death eligible under Apprendi, Ring, and Hurst.

The Court recognized that Apprendi, Ring, and Hurst will foreclose a death sentence in a situation where a defendant is convicted of a “non-overlap” offense and the jury in the guilt phase determines that no aggravating circumstance exists. In this situation, the trial court can only sentence the defendant to LWOP.

Getting Really Technical

The CCA also considered the very technical question of whether it had jurisdiction to consider the State’s request for a writ of mandamus.

In criminal cases, the State of Alabama has very few opportunities to appeal an adverse ruling. At times the State must ask for what’s called a “writ of mandamus” — basically, an order from a higher court (the Court of Criminal Appeals or the Supreme Court) to mandate that a circuit court do something.  Mandamus is rarely granted and very hard to get. Basically, you have to show (a) you’re clearly entitled to the relief you seek, and (b) there’s no other option for you. The State often has to revert to mandamus requests because their right to appeal is so limited. Defendants have an even harder time getting mandamus since they have a broader right to appeal, and thus, a chance to rectify legal wrongs.

With respect to this issue, the Court found that there is no statute authorizing a state appeal on this question. Since a writ of mandamus can be issued to “prevent a gross disruption in the administration of criminal justice,” the Court concluded that it had jurisdiction to consider granting the writ because the situation at hand threatened a “gross disruption in the administration

CCA Update – Hurst Mandamus

Alabama Criminal Law Round-Up June 15th

Here are a few of the criminal law stories that occurred around the state of Alabama this past week:

Alabama Criminal Law Round-Up June 15th

Ninth Circuit Court of Appeals: Second Amendment Ruling

A huge Second Amendment ruling just came out of the Ninth Circuit Court of Appeals. The court has ruled that the Second Amendment does not protect the carrying of concealed firearms by a vote of 7-4, upholding the legality two California counties’ restrictive “for good cause” showing requirements.

There’s a very good chance we’re going to see this case before the US Supreme Court next term.

Read the decision HERE.

Ninth Circuit Court of Appeals: Second Amendment Ruling

Lethal Injection Drugs in South Carolina & Alabama

A blog I follow — the Sentencing Law and Policy Blog — had an interesting recent post of note…

The article looks at how both South Carolina and federal prosecutors are seeking the death penalty for Dylann Roof’s allegedly race-based, mass shooting at a Charleston church in 2015. This case poses a unique situation since this is the first modern case where both state and federal want execution after both rejected Roof’s plea to serve life in prison. However, with South Carolina running out of the drugs used for lethal injections in 2013 and manufacturers recently cutting off supplies of the drug to the states, prosecutors could be waiting a long time for Roof’s punishment to be fulfilled even if he is condemned to death by the jury.

Alabama faced a similar issue when the production of the first drug used in the three-drug cocktail of the state’s lethal injection, sodium thiopental, was halted by the manufacturer. Several other drug companies such as Pfizer and Akorn have stopped selling drugs used in executions to state prisons. These decisions have significantly slowed down executions in states using the death penalty and has led to a myriad of new legal challenges under the Eight Amendment’s ban on “cruel and unusual punishment.” The state is currently working to use compounding pharmacies that will make customized batches of drugs, but they have had difficulties with their recent recruitment attempts.

Lethal Injection Drugs in South Carolina & Alabama

CCA Caselaw Update – June 2016

Malone v. State (CR-14-1326)

Malone was charged with second-degree assault and moved before trial for an immunity hearing under § 13A-3-23(d). During the incident in question, Malone stabbed the other party after the other person grabbed Malone by the throat, Malone left, and the other person caught up to Malone and grabbed him by the throat again. Malone’s self-defense claim wasn’t based upon a Stand-Your-Ground defense. The circuit court denied his request on the grounds that it did not have the authority to decide the question of immunity at a pretrial hearing. REVERSED. This case appears to be a pretty formative decision in the area of self-defense and the on-going interpretation of the 2006 amendment. The Court resolved two pretty big questions in favor of defendants.

1.     Using deadly force is permissible under § 13A-3-23 outside of the stand-your-ground situations discussed in § 13A-3-23(b). One of the questions presented here was whether the 2006 Stand-Your-Ground amendment to § 13A-3-23(b) limited the use of deadly force in self defense to only those situations covered by the amendment to § 13A-3-23(b) — where (a) a defendant is in a place he/she has a right to be and (b) isn’t involved in unlawful activity. Effectively, the State argued that if your situation didn’t follow under this dynamic — i.e., like Malone’s — the use of deadly physical force is not permitted. On the other hand, Malone argued that the common-law duty to retreat still applied in situations not covered by § 13A-3-23(b). The Court of Criminal Appeals agreed, holding that the amendment didn’t abrogated the common law duty to retreat before using deadly physical force — the amendment just gave another justification for using deadly physical force.

2.     A § 13A-3-23(d) immunity hearing is not limited to only Stand-Your-Ground situations but rather any circumstance in which someone is possibly justified in using self defense. Again, the State tried to read the 2006 amendment in a narrow manner that simply isn’t justified by the plain wording of the statute. As such, the CCA held that an immunity hearing is authorized under § 13A-3-23(d) to adjudicate any self-defense claim, not just stand-your-ground claims.

Woods v. State (CR-14-0845)

Woods pleaded guilty to DUI in the Montgomery District Court and appealed for a trial de novo in the circuit court. During the circuit court trial, the State introduced over Woods’ objection a redacted copy of his guilty-plea conviction in the district court. On appeal, Woods argued that the guilty-plea shouldn’t have been allowed in a trial de novo; however, the State argued that under Phillips v. City of Dothan, 534 So. 3d 381 (Ala. Crim. App. 1988), the plea was admissible. REVERSED. The CCA decided that Phillips doesn’t comport with the idea that a trial de novo “wipes the slate clean” relying on language in Yarbrough v. City of Birmingham, 535 So. 2d 75 (Ala. Crim. App. 1977) and Ex parte Sorsby, 12 So .3d 139 (Ala. 2007). As such, the Court overruled Phillips and held that the admission of the guilty plea was reversible error.

Smith v. State (CR-97-1258)

In a death case that saw numerous remands and orders new sentencing hearings for a myriad of reasons, the circuit court held a fourth penalty-phase hearing wherein it excluded the public during the jury selection phase of the proceeding over the defense’s objection. The circuit court offered a generic justification regarding the small size of the courtroom to support its decision. The jury recommended death by a vote of 10-2 and the court followed that recommendation. REVERSED The Court of Criminal Appeals reversed, finding that the circuit court failed to show how closing the courtroom was justified under Waller v. Georgia, 467 U.S. 39 (1984).

Ingmire v. State (CR-14-1447)

Ingmire was charged and convicted of one count second-degree theft and one count receiving stolen property in connection to the theft/sale of a four-wheeler. At trial, the circuit court allowed the State to introduce a NCIC report where the four-wheeler was listed as stolen. The defense objected. REVERSED. Here, the CCA held that the NCIC report was hearsay and was not, in this trial, show to be a business record and worthy of exception under Rule 803(6) because there was no evidence that the report fit within the business-records exception. The Court left open the possibility that NCIC reports could one day be held to fit within the exception, but such a showing was not made in the trial below.

Benn v. State (CR-14-0714)

Benn was convicted of seven counts of capital murder and the jury recommended death by a vote of 10-2. On December 12, 2014, the circuit court held a judicial-sentencing hearing and took the arguments under advisement. On January 29, 2015, the court issued a written sentencing order sentencing Benn to death. On appeal, Benn argued that the CCA lacked jurisdiction to consider this matter because the circuit court failed to enter a judgment of conviction as required by law. APPEAL DISMISSED. Relying on the AL SC’s recent decision in Ex parte Kelley, [Ms.  1131451] (Ala. 2015) and § 12-22-130, the CCA held that trial court must pronounce in open court both an adjudication of guilt and sentence.

Glaze v. State (CR-15-0553)

This was a DUI case involving a municipality wherein the appeal was dismissed for the same reason in Benn v. State

CCA Caselaw Update – June 2016