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Supreme Court 2008-2009, the Final Wrap...
Written by Randy Means
During the 2008 term of court, which includes the following cases from 2009, the Supreme Court issued a number of opinions affecting law enforcement. We addressed some of the most significant ones in previous articles, but this month we are providing a final summary of several others of particular interest to law enforcement.
Kansas v. Ventris
In Kansas v. Ventris, a suppressed statement was admissible for impeachment. An informant who was planted in the defendant’s cell overheard the defendant admit that he had committed the murder and robbery with which he was charged. The prosecution conceded that there was “probably a violation” of the defendant’s 6th Amendment right to counsel, but argued that the statement was nonetheless admissible for impeachment purposes, given that when the defendant took the stand in his own defense his testimony contradicted the story he told his cellmate.
The trial court allowed the statement for impeachment, and the defendant was convicted of aggravated burglary and aggravated robbery. In its review of the case, the Supreme Court noted that the prosecution’s concession regarding a violation of the right to counsel may not have been necessary, citing Kuhlmann v. Wilson (1986), but they accepted that position for the purpose of their analysis.
The Court determined that a defendant’s statement which is deemed inadmissible due to a violation of the 6th Amendment right to counsel may still be used to impeach the defendant as a witness. If the defendant testifies in his own defense, and if he tells a story on the stand that is different from the statement he made previously, then the statement may be admissible as evidence of his lack of credibility as a witness. He has now told two conflicting stories, and both of them can’t be true.
The statement is not admissible to prove elements of the case against him because it was obtained in violation of his right to counsel, but it is admissible for the limited purpose of demonstrating that he is not a truthful witness. That is precisely how it was used in this case, and the Supreme Court approved. The Court stated that the statement could not be used by the prosecution to affirmatively prove their case against the defendant, but that the defendant was not entitled to a “shield against…his untruths.”
Once the defendant takes the stand in his own defense, if his testimony contradicts his own words, his prior statements may be used to illustrate his untruthfulness, which is the essence of impeachment. However, if the original statement is obtained through coercion or under duress, then it is not admissible for any purpose.
Montejo v. Louisiana
Montejo v. Louisiana overturns Michigan v. Jackson in that Miranda warnings are sufficient even if appointment of counsel has been ordered (or requested) at arraignment. Montejo was charged with first-degree murder and at his initial hearing, which in Louisiana is known as a “72-hour hearing,” the judge ordered that an attorney be appointed for him.
Montejo did not affirmatively request an attorney, and he did not respond when the judge ordered that he be appointed one. Later that day, police detectives visited him in the prison and requested that he accompany them in their search for the murder weapon. The detectives read him his Miranda rights; he waived his rights and agreed to go with them. While on this excursion with law enforcement, he wrote an apology letter to the victim’s widow, which was later used against him in trial.
Montejo objected to the admissibility of the letter as a violation of his 6th Amendment right to counsel, noting that the judge at the preliminary hearing had ordered the appointment of an attorney for him prior to the outing with the detectives which resulted in this apology letter. The trial court admitted the letter over his objection, and he was convicted and sentenced to death.
On appeal, Montejo relied on Michigan v. Jackson, which stated, “If police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid.” The Louisiana Supreme Court decided that Jackson did not apply because the judge ordered appointment of counsel for Montejo without his input; thus he never “asserted” his right to counsel at the hearing, failing to trigger Jackson.
The Supreme Court rejected that position, stating that distinguishing between appointed counsel and requested counsel at preliminary hearings led to inconsistent results among the states, due to the different procedures they applied at these hearings. After describing the layers of problems associated with its application, the Supreme Court specifically overruled Michigan v. Jackson.
The Court then determined that the use of the letter was not a violation of Montejo’s 6th Amendment right to counsel, but remanded the case to permit him to challenge the admissibility of the letter under Edwards v. Arizona, reiterating that Miranda and Edwards govern police interrogations. Edwards prohibits police from initiating contact with the defendant after “an accused has invoked his right to have counsel present during custodial interrogation.”
So, if Montejo made a clear assertion of his right to counsel when the detectives approached him about locating the weapon, then Edwards prohibits any further police-initiated interrogation, including this request for assistance in locating the weapon.
Under Jackson, the different state rules that applied at initial hearings often made it unclear when, exactly, the police were no longer permitted to approach a defendant in an effort to obtain a waiver of rights and pursue interrogation efforts. Montejo resolves this issue, stating that the Miranda warning and voluntary waiver procedure which police currently use can result in a valid waiver of the right to counsel, whether the defendant is already represented by counsel or not.
Now, regardless of whether counsel is requested by the defendant or appointed by the court at a preliminary hearing (or if the defendant is otherwise represented), police may still approach the defendant for the purpose of obtaining a Miranda waiver and pursuing interrogation. During the Miranda protocol, if the defendant clearly asserts his right to counsel, police must cease questioning and refrain from initiating any further interrogation efforts, as Edwards still requires.
Melendez-Diaz v. Massachusetts
In Melendez-Diaz v. Massachusetts, lab reports are not admissible without the testimony of the chemist. During their investigation of what appeared to be a drug transaction, Boston police seized numerous clear plastic bags containing a substance that resembled cocaine. They submitted the substance to the state laboratory for chemical analysis.
The analysts generated “certificates of analysis” and swore to their validity in the presence of a notary public, as required by Massachusetts law. At trial the prosecution introduced these certificates as evidence to prove that the substance contained in the plastic bags, which were connected to the defendant, was in fact cocaine.
The defense objected to the use of the certificates as a violation of the defendant’s 6th Amendment right to confront the witnesses who testify against him, because the documents were admitted into evidence without testimony from the chemist who conducted the tests. The trial court allowed the use of the certificates, finding that they complied with state law requirements. Melendez-Diaz was then convicted of trafficking in and distributing cocaine.
The Supreme Court, in its review of this case, determined that the certificates were improperly admitted as evidence against the defendant because they violated the defendant’s right to confront the witnesses who testify against him. By permitting the certificates to be used against the defendant, the trial court had denied the defense any opportunity to cross-examine the actual witness—the chemical analyst. These certificates were created by analysts for the sole purpose of establishing the composition and weight of the substance in trial, and they were used in this trial for precisely that purpose, pursuant to the requirements of Massachusetts law.
However, the Supreme Court ruled that this procedure violates the Constitutional right of “confrontation.” The defense is entitled to challenge the qualifications and the truthfulness of a witness by “confronting” the witness at trial, but if the witness is not present and the substance of his testimony is presented through an affidavit, this procedure deprives the defense of that right.
This right to confrontation is also satisfied if the analysts are “unavailable” for trial in the legal context (something more than inconvenienced), and the defense had a prior opportunity to cross-examine them. If the prosecution can’t satisfy both of these conditions, then they must present the lab results through the testimony of the analyst. Law enforcement should anticipate that chemical analysts will be required to testify in court regarding their test results, and merely presenting their affidavits or lab reports will not be permissible.
Safford Unified School District #1 v. Redding
In this decision, a strip search of a middle school student for Ibuprofen was found to be unreasonable. Wilson, the Assistant Principal of a middle school in Arizona, suspected that Redding, a 13-year-old female student, was in possession of and had possibly provided Ibuprofen and Naproxen to another student at the school.
A student provided a white pill to Wilson and said that Glines, a student who was friends with Redding, had given it to him. Wilson got both girls out of class (first Glines, then Redding) and a search of Glines produced four prescription-strength Ibuprofen pills (400mg) and one over-the-counter Naproxen.
When asked about the pills, Redding denied any knowledge of them and gave consent for Wilson to search her belongings. He and an administrative assistant, Romero, searched her backpack and found nothing, but then he instructed Romero to take her to the nurse’s office to search her clothes. There Redding was asked to remove her stretch pants and T-shirt (neither of which had pockets), and was then told to pull her bra out and shake it, and to pull out the elastic of her underpants, exposing her private areas to some degree. No pills were found on her.
Redding sued Safford Unified School District #1 and the involved school employees, alleging that they violated her Fourth Amendment rights. When appeals reached the Supreme Court, it found that the school employees violated the Fourth Amendment by conducting an unreasonable search of Redding’s body.
This opinion leaves the landmark T.L.O. standard intact, permitting schools to search students on a reasonable suspicion (rather than probable cause) standard, but rules that this search went too far. T.L.O. requires that a search be both “justified at its inception” and “permissible in its scope,” considering the age and gender of the student and the nature of the suspected infraction.
In this case, a search of Redding’s backpack and outer clothing was reasonable but the degree of intrusion involved with removing her clothing and exposing her body was unreasonable, particularly in light of the fact that what the school officials were seeking was a small quantity of a common medication which posed essentially no threat to the school.
Randy Means is a partner in the Charlotte, NC law firm of Thomas and Means, LLP, and specializes entirely in police operations and administration. He is the primary legal instructor for the IACP. He can be reached at email@example.com. In her 20-year career, Pam McDonald has worked as a patrol officer, a felony investigator, a felony prosecutor, and a college professor specializing in police issues. She is currently assisting Randy Means. She can be reached via e-mail at firstname.lastname@example.org.
Published in Law and Order, Oct 2009
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