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DWI
December 2009, Page 54
Book Review
By Eric H. Sills; Erin H. Gerstenzang
Impact of Recent U.S. Supreme Court Decisions on DUI Defense Law
In its most recent term, the U.S. Supreme Court issued important decisions affecting the constitutional rights of defendants in criminal cases. Although none of the decisions involved a DUI case, several are relevant to DUI defense law. This article addresses three recent Supreme Court decisions — Melendez-Diaz v. Massachusetts,1 Herring v. United States,2 and Arizona v. Gant3 — that will have the greatest impact on DUI defense law.4
Melendez-Diaz
In Melendez-Diaz v. Massachusetts, the defendant was charged with distributing and trafficking cocaine.5 At trial, the prosecution introduced several bags that purportedly contained cocaine into evidence.6
It also submitted three “certificates of analysis” showing the results of the forensic analysis performed on the seized substances. The certificates reported the weight of the seized bags and stated that the bags “[h]a[ve] been examined with the following results: The substance was found to contain: Cocaine.” The certificates were sworn to before a notary public by analysts at the State Laboratory Institute of the Massachusetts Department of Public Health, as required under Massachusetts law.
Petitioner objected to the admission of the certificates, asserting that our Confrontation Clause decision in Crawford v. Washington required the analysts to testify in person. The objection was overruled, and the certificates were admitted pursuant to state law as “prima facie evidence of the composition, quality, and the net weight of the narcotic … analyzed.”7
The issue in Melendez-Diaz was whether Crawford8 applied to “affidavits reporting the results of forensic analysis which showed that material seized by the police and connected to the defendant was cocaine.”9 Specifically, the question presented was “whether those affidavits are ‘testimonial,’ rendering the affiants ‘witnesses’ subject to the defendant’s right of confrontation under the Sixth Amendment.”10
In a 5-4 decision, the Court held that Crawford applies to the affidavits in question (regardless of the fact that the “affidavits” were denominated “certificates”). Notably, the Melendez-Diaz majority twice referred to the case as a “rather straightforward application of our holding in Crawford.”11 In so holding, the Court reasoned as follows:
There is little doubt that the documents at issue in this case fall within the “core class of testimonial statements” [described in Crawford]. Our description of that category mentions affidavits twice. The documents at issue here, while denominated by Massachusetts law “certificates,” are quite plainly affidavits: “declaration[s] of facts written down and sworn to by the declarant before an officer authorized to administer oaths.” They are incontrovertibly a “‘solemn declaration or affirmation made for the purpose of establishing or proving some fact.’” The fact in question is that the substance found in the possession of Melendez-Diaz … was, as the prosecution claimed, cocaine — the precise testimony the analysts would be expected to provide if called at trial. The “certificates” are functionally identical to live, in-court testimony, doing “precisely what a witness does on direct examination.”
* * *
In short, under our decision in Crawford the analysts’ affidavits were testimonial statements, and the analysts were “witnesses” for purposes of the Sixth Amendment. Absent a showing that the analysts were unavailable to testify at trial and that petitioner had a prior opportunity to cross-examine them, petitioner was entitled to “‘be confronted with’” the analysts at trial.12
Critically, the Melendez-Diaz majority noted that although there may be other and/or better ways for a defendant to challenge or verify the results of a scientific test,13 “the Constitution guarantees one way: confrontation. We do not have license to suspend the Confrontation Clause when a preferable trial strategy is available.”14 In this regard, the Court rebuffed the government’s claim that scientific testing is both “neutral” and “reliable”:
Nor is it evident that what respondent calls “neutral scientific testing” is as neutral or as reliable as respondent suggests. Forensic evidence is not uniquely immune from the risk of manipulation.
* * *
Confrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well. Serious deficiencies have been found in the forensic evidence used in criminal trials.
* * *
Like expert witnesses generally, an analyst’s lack of proper training or deficiency in judgment may be disclosed in cross-examination.15
The Melendez-Diaz majority also rejected the notion that the documents in question qualified as “traditional official or business records.”16 In this regard, the Court pointed out that:
Documents kept in the regular course of business may ordinarily be admitted at trial despite their hearsay status. But that is not the case if the regularly conducted business activity is the production of evidence for use at trial.
* * *
The analysts’ certificates — like police reports generated by law enforcement officials — do not qualify as business or public records for precisely the same reason.17
Finally, the Melendez-Diaz majority made clear that, in requiring the live testimony of the analysts whose scientific analyses are sought to be introduced into evidence against the defendant at trial — absent either a waiver by the defendant18 or a showing that the analysts are unavailable to testify at trial and that the defendant had a prior opportunity to cross-examine them19 — “the sky will not fall.”20
Melendez-Diaz has important implications for DUI cases. First, it seems clear under Melendez-Diaz that the operator of the State’s chemical test is a necessary witness within the meaning of Crawford. On the other hand, it seems equally clear that the Supreme Court does not feel the same way about technicians who perform routine maintenance and repairs on chemical test instruments, and whose “certificates of calibration” are routinely admitted into evidence without their live testimony. In this regard, the Melendez-Diaz majority stated:
Contrary to the dissent’s suggestion, we do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution’s case.
* * *
Additionally, documents prepared in the regular course of equipment maintenance may well qualify as nontestimonial records.21
Herring
In Herring v. United States,22 a warrant check revealed that there was an active warrant for the defendant’s arrest. For that reason alone, the police followed the defendant’s vehicle, pulled him over, and arrested him.23 A subsequent search of the defendant and the vehicle revealed illegal drugs and an illegal pistol.24
“There had, however, been a mistake about the warrant.”25 Specifically, “the warrant had been recalled five months earlier.”26 The bookkeeping error that led to the defendant’s arrest was found to be an isolated incident of bookkeeping negligence, and the arresting officer had diligently attempted to corroborate the existence of the warrant (leading to the discovery of the “mixup” within 10-15 minutes).27
It was conceded that a Fourth Amendment violation had occurred; the issue was whether the exclusionary rule was an appropriate remedy therefor.28 In another 5-4 decision, the Herring Court held that, in the circumstances presented, the fruits of the illegal arrest should not be suppressed.29 In so holding, the Court reasoned as follows:
1. The fact that a Fourth Amendment violation occurred — i.e., that a search or arrest was unreasonable — does not necessarily mean that the exclusionary rule applies. … [O]ur precedents establish important principles that constrain application of the exclusionary rule. First, the exclusionary rule is not an individual right and applies only where it “‘result[s] in appreciable deterrence.’”
* * *
In addition, the benefits of deterrence must outweigh the costs. … The principal cost of applying the rule is, of course, letting guilty and possibly dangerous defendants go free — something that “offends basic concepts of the criminal justice system.”
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2. The extent to which the exclusionary rule is justified by these deterrence principles varies with the culpability of the law enforcement conduct.
* * *
3. To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence. The error in this case does not rise to that level.
* * *
4. We do not suggest that all recordkeeping errors by the police are immune from the exclusionary rule. In this case, however, the conduct at issue was not so objectively culpable as to require exclusion.
* * *
If the police have been shown to be reckless in maintaining a warrant system, or to have knowingly made false entries to lay the groundwork for future false arrests, exclusion would certainly be justified under our cases should such misconduct cause a Fourth Amendment violation.
* * *
In a case where systemic errors were demonstrated, it might be reckless for officers to rely on an unreliable warrant system. But there is no evidence that errors in Dale County’s system are routine or widespread.
* * *
In light of our repeated holdings that the deterrent effect of suppression must be substantial and outweigh any harm to the justice system, we conclude that when police mistakes are the result of negligence such as that described here, rather than systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not “pay its way.” In such a case, the criminal should not “go free because the constable has blundered.”30
Like Melendez-Diaz, Herring has important implications for DUI cases. Many drivers are pulled over solely because a police officer (or automated license scanner) has “run” a license plate and determined that the owner’s driver’s license or registration is suspended or revoked. However, such records are routinely inaccurate and/or not up-to-date, and thus many people are stopped illegally based upon erroneous computer records. Pursuant to Herring, an otherwise lawful DUI arrest arising from such an illegal stop would be valid unless it could be demonstrated that the relevant recordkeeping system was plagued by such systemic or widespread errors that it would be reckless for the police to rely on it.
Gant
In Arizona v. Gant,31 the Court reconsidered and modified its holding in New York v. Belton.32 Belton applied the “search-incident-to-arrest” exception to the Fourth Amendment warrant requirement33 to vehicle searches, and held that:
[W]hen a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.
It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach. Such a container may, of course, be searched whether it is open or closed. …34
Gant concluded that a “broad reading of Belton”35 had resulted in countless unconstitutional searches in the 28 years since Belton had been decided.36 In this regard, the Court stated:
[T]he State seriously undervalues the privacy interests at stake. Although we have recognized that a motorist’s privacy interest in his vehicle is less substantial than in his home, the former interest is nevertheless important and deserving of constitutional protection. It is particularly significant that Belton searches authorize police officers to search not just the passenger compartment but every purse, briefcase, or other container within that space. A rule that gives police the power to conduct such a search whenever an individual is caught committing a traffic offense, when there is no basis for believing evidence of the offense might be found in the vehicle, creates a serious and recurring threat to the privacy of countless individuals. Indeed, the character of that threat implicates the central concern underlying the Fourth Amendment — the concern about giving police officers unbridled discretion to rummage at will among a person’s private effects.
* * *
Construing Belton broadly to allow vehicle searches incident to any arrest would serve no purpose except to provide a police entitlement, and it is anathema to the Fourth Amendment to permit a warrantless search on that basis.
* * *
Although it appears that the State’s reading of Belton has been widely taught in police academies and that law enforcement officers have relied on the rule in conducting vehicle searches during the past 28 years, many of these searches were not justified by the reasons underlying the Chimel exception. Countless individuals guilty of nothing more serious than a traffic violation have had their constitutional right to the security of their private effects violated as a result. … If it is clear that a practice is unlawful, individuals’ interest in its discontinuance clearly outweighs any law enforcement “entitlement” to its persistence.
* * *
The experience of the 28 years since we decided Belton has shown that the generalization underpinning the broad reading of that decision is unfounded. We now know that articles inside the passenger compartment are rarely “within ‘the area into which an arrestee might reach,’” and blind adherence to Belton’s faulty assumption would authorize myriad unconstitutional searches. The doctrine of stare decisis does not require us to approve routine constitutional violations.37
Accordingly, in yet another 5-4 decision, the Gant Court held that:
Police may search a vehicle incident to a recent occupant’s arrest only if [1] the arrestee is within reaching distance of the passenger compartment at the time of the search or [2] it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.38
In assessing Gant’s applicability to DUI cases, two issues immediately come to mind. First, will the courts create a “DUI exception” to Gant, concluding that it is always reasonable to believe that relevant evidence (e.g., open containers of alcohol) might be found in the vehicle of a person arrested for DUI? Second, if such a search-incident-to-arrest is permissible, will its scope be limited to locations where it is likely that relevant evidence might be found, or rather will a full-blown Belton search of every container in the vehicle be authorized?
Regardless, a critical aspect of Gant is the Court’s comment that even where a search-incident-to-arrest would be improper, a warrantless vehicle search can nonetheless be conducted where “another exception to the warrant requirement applies.”39 In DUI cases, such a search can routinely be conducted pursuant to the “inventory search” exception to the warrant requirement.40 Notably, however, an inventory search is easier to challenge, as such a search must be conducted pursuant to “standardized criteria” or an “established routine” limiting the “latitude” and “discretion” of the officer(s) conducting it, and “must not be a ruse for a general rummaging in order to discover incriminating evidence.”41
Conclusion
As this article demonstrates, although Melendez-Diaz, Herring, and Gant are not DUI cases, they will likely have a meaningful impact on DUI defense law.
Notes
1. 129 S. Ct. 2527 (2009).
2. 129 S. Ct. 695 (2009).
3. 129 S. Ct. 1710 (2009).
4. A fourth case decided by the Supreme Court this year, Arizona v. Johnson, 129 S. Ct. 781 (2009), deserves brief mention. In Johnson, a unanimous Court held that when a vehicle is lawfully stopped for a traffic infraction, (a) everyone in the vehicle is “seized” for Fourth Amendment purposes, id. at 784, (b) passengers in the vehicle are neither free to leave nor free to move about at will, id. at 788, and (c) “just as in the case of a pedestrian reasonably suspected of criminal activity,” a passenger in the vehicle may be subjected to a “Terry frisk” where the police “harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous.” Id. at 784. Since Johnson deals with the constitutional rights of passengers as opposed to drivers, it will not affect motorists accused of DUI. However, it may have a significant impact on those who choose to travel with them.
5. 129 S. Ct. 2527, 2530 (2009).
6. Id. at 2530-31.
7. Id. at 2531 (citations omitted).
8. 541 U.S. 36, 124 S. Ct. 1354 (2004).
9. Melendez-Diaz, 129 S.Ct. at 2530.
10. Id.
11. Id. at 2533. See also id. at 2542 (“This case involves little more than the application of our holding in Crawford v. Washington. The Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits, and the admission of such evidence against Melendez-Diaz was error.“) (citation omitted).
12. Id. at 2532 (citations omitted).
13. “Though surely not always. Some forensic analyses, such as autopsies and breathalyzer tests, cannot be repeated, and the specimens used for other analyses have often been lost or degraded.” Id. at 2536 n.5 (emphasis added).
14. Id. at 2536 (emphasis added).
15. Id. at 2536-37 (emphasis added) (citations omitted).
16. Id. at 2538.
17. Id. (citation omitted).
18. Id. at 2534 n.3 (“The right to confrontation may, of course, be waived, including by failure to object to the offending evidence; and States may adopt procedural rules governing the exercise of such objections.“).
19. Id. at 2532.
20. Id. at 2540.
21. Id. at 2532 n.1 (citation omitted).
22. 129 S. Ct. 695 (2009).
23. Id. at 698.
24. Id.
25. Id.
26. Id.
27. Id.
28. Id.
29. Id.
30. Id. at 700, 701, 702, 703, 704 (emphasis added) (citations omitted).
31. 129 S. Ct. 1710 (2009).
32. 453 U.S. 454, 101 S. Ct. 2860 (1981).
33. See Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034 (1969).
34. Belton, 453 U.S. at 460-61, 101 S. Ct. at 2864 (citations and footnotes omitted). The Belton Court defined the term “container” as “any object capable of holding another object. It thus includes closed or open glove compartments, consoles, or other receptacles located anywhere within the passenger compartment, as well as luggage, boxes, bags, clothing, and the like. Our holding encompasses only the interior of the passenger compartment of an automobile and does not encompass the trunk.” Id. at 460 n.4, 101 S. Ct. at 2864 n.4 (emphasis added).
35. Gant, 129 S. Ct. at 1719, 1720 & n.5, 1721, 1722, 1723.
36. Id. at 1722-23.
37. Id. at 1720, 1721, 1722-23, 1723 (citations and footnote omitted).
38. Id. at 1723-24 (emphasis added). See also id. at 1714 (“[W]e hold that Belton does not authorize a vehicle search incident to a recent occupant’s arrest after the arrestee has been secured and cannot access the interior of the vehicle. ... [W]e also conclude that circumstances unique to the automobile context justify a search incident to arrest when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle”); id. at 1719 (“[W]e ... hold that the Chimel rationale authorizes police to search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.“); id. (“Although it does not follow from Chimel, we also conclude that circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is ‘reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.‘“) (citation omitted).
39. Id. at 1724.
40. See, e.g., Florida v. Wells, 495 U.S. 1, 110 S. Ct. 1632 (1990); Colorado v. Bertine, 479 U.S. 367, 107 S. Ct. 738 (1987). See also Maryland v. Dyson, 527 U.S. 465, 119 S. Ct. 2013 (1999) (discussing the “automobile exception” to the warrant requirement).
41. Wells, 495 U.S. at 4, 110 S. Ct. at 1635.
© Eric H. Sills and Erin H. Gerstenzang, 2009. All rights reserved. |
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