In the most recent term, the U.S. Supreme Court decided several cases of interest to law enforcement. Three addressed legal issues implicated in the taking of statements in criminal investigations. In these cases, the Supreme Court provided additional clarification and guidance concerning the long-standing requirements set forth in Miranda v. Arizona, including 1) the circumstances governing when law enforcement may initiate contact with a subject who previously has invoked the Miranda right to counsel; 2) what will constitute a waiver of the Miranda right to silence; and 3) what must be conveyed to a subject to satisfy Miranda.¹

Another case considered the constitutionality of a warrantless entry into a residence due to concerns about the safety and well-being of occupants inside. The Supreme Court also addressed the reasonableness of a search conducted by a police department targeting an officer’s department-issued pager, the constitutionality of a civil commitment statute allowing for the continued commitment of federal inmates determined to be sexually dangerous, and whether the Second Amendment applies to states.

This article provides a brief synopsis of these cases. As always, law enforcement agencies must ensure that their own state laws and constitutions have not provided greater protections than the U.S. constitutional standards.

The Supreme Court explained that the subject’s mere silence in the face of questioning was not a clear and unambiguous invocation of his right to remain silent. Previously, the Court had ruled that to effectively invoke the Miranda right to counsel, a subject must do so clearly and unambiguously.⁵ In Berghuis, the Court acknowledged that there was no reason to apply different standards, depending on whether the subject invokes the Miranda right to counsel or right to silence. Accordingly, the invocation of either the right to silence or the right to counsel must be clear and unambiguous to be effective.

The Supreme Court also considered the defendant’s claim that his statement still should be suppressed because he never adequately waived his right to silence. At first blush, this argument appears to have merit in light of the language in the original Miranda opinion emphasizing the heavy burden imposed on the government to demonstrate that a valid waiver was obtained and that “a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.”⁶ However, the Supreme Court has clarified its position in post-Miranda cases, emphasizing that Miranda is designed to ensure that the subject is advised of and understands certain rights and that, if invoked, these rights are safeguarded.⁷ In Berghuis, the Court held that “Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused’s uncoerced statement establishes an implied waiver of the right to remain silent.”⁸ By responding to the detective’s question, the suspect demonstrated a willingness to waive his right to silence.

The Supreme Court also rejected the defendant’s argument that even if he provided a valid waiver, the detectives were not permitted to question him until they obtained the waiver first. The Court noted that there are practical reasons why a waiver should not be required for an interrogation to begin as the interrogation can provide the subject with additional information to help the subject decide whether to invoke or to talk with law enforcement. As stated by the Court, “As questioning commences and then continues, the suspect has the opportunity to consider the choices he or she faces and to make a more informed decision, either to insist on silence or to cooperate.”⁹ Miranda is satisfied “if a suspect receives adequate Miranda warnings, understands them, and has an opportunity to invoke the rights before giving any answers or admissions.”¹⁰ Accordingly, “after giving a Miranda warning, police may interrogate a suspect who has neither invoked nor waived his or her Miranda rights.”¹¹

Maryland v. Shatzer, 130 S. Ct. 1213 (2010)

In Maryland v. Shatzer, the Court ruled on the legal significance and definition of a break in custody within the context of the Fifth Amendment privilege against self-incrimination.¹² Post-Miranda cases expanded on the protections afforded an in-custody subject. In Edwards v. Arizona¹³, the Supreme Court ruled that once defendants invoke their Miranda right to counsel, any interrogation must cease, and there can be no further police-initiated interrogation without the presence of counsel. Edwards creates a presumption that once in-custody subjects invoke their right to counsel, any subsequent waiver of Miranda rights prompted by police-initiated interrogation is itself the result of improper police coercion and, thus, not voluntary.¹⁴ The Maryland v. Shatzer case presented an opportunity to clarify at what point the Miranda-Edwards protection would be lifted, permitting police-initiated interrogation following an invocation of the Miranda right to counsel.

In Shatzer, the defendant was serving a sentence stemming from a child sexual abuse prosecution. A detective attempted to interview the incarcerated subject regarding allegations that he sexually abused his 3-year-old son. Shatzer initially waived his rights, believing that the detective was there to talk with him about why he was in prison, but, upon realizing the detective was there to talk about the new allegation, Shatzer declined to speak without his attorney present. Shatzer was returned to the general prison population. Nearly 2 ½ years later and after developing new evidence, another detective went to the prison to talk with Shatzer about the allegations that he molested his son. The detective advised him of hisMiranda rights, and, this time, Shatzer waived his rights in writing. Subsequently, Shatzer made incriminating statements. He later was charged with various sexual abuse charges and sought to have the statements he provided suppressed.

Shatzer argued that because he remained in continuous custody following his invocation of his Miranda right to counsel, law enforcement could not initiate any contact with him while he remained in custody and that any waiver of his Miranda rights provided at the request of law enforcement was not valid. The trial court disagreed with Shatzer’s assertion, concluding that given the passage of time, a sufficient break in custody occurred, permitting detectives to reinitiate contact with Shatzer despite his continued incarceration.¹⁵ The Maryland Court of Appeals reversed the trial court’s ruling, holding that the passage of time alone will not suffice to create a break in custody for purpose of the Miranda-Edwards rule.¹⁶ The Supreme Court agreed to hear the case to clarify what will constitute a sufficient break in custody and the impact of incarceration on the Miranda-Edwards protection.

The Supreme Court ruled that a break in custody alone will not end the Miranda-Edwards protection. The Court instead called for a “cooling off” period, prohibiting law enforcement from attempting to interview a subject who previously invoked his Miranda right to counsel for 14 days from his release from custody. According to the Court, 14 days gives “plenty of time for the suspect to get reacliminated to his normal life, consult with friends and counsel, and shake off any residual coercive effects of prior custody.”¹⁷

Applying this principle to Shatzer who was incarcerated, as opposed to pretrial detention, the traditional freedom-of-movement test does not resolve the issue of custody. The Court distinguished between incarceration in the general prison population and pretrial detention and found that there was a sufficient break in custody (over 14 days) following Shatzer’s initial interrogation until the detective reinitiated contact with him.¹⁸ Thus, the waiver obtained from Shatzer was not the product of coercion, and his statements were admissible.

Florida v. Powell, 130 S. Ct. 1195 (2010)

In this case, the Supreme Court addressed the adequacy of Miranda warnings contained within standard advice-of-rights forms used by the Tampa, Florida, Police Department (TPD). The defendant alleged that the form insufficiently advised him of his right to have counsel present during an interrogation. In Miranda, the Supreme Court held that prior to custodial interrogation, a defendant must be advised that he has, among other rights, “the right to consult with a lawyer and to have the lawyer with him during interrogation.”¹⁹ The TPD form did not expressly state this, but, rather, advised the defendant of his right to talk with an attorney before answering any questions and that he could invoke this right “at any time...during the interview.”²⁰

The Florida Supreme Court concluded that the form did not satisfy the mandate of Miranda.²¹ The U.S. Supreme Court reversed, holding that the form communicated the essential message of Miranda despite the lack of adherence to its precise language. The Supreme Court again refused to require rigid compliance to precise language, instead focusing on whether, taken as a whole, the language adequately communicated to the defendant that he had the opportunity to consult with counsel during the interview.²² The defendant was advised of his right to consult with counsel before answering any questions and that he could invoke this right during the interrogation. The Supreme Court stated, “in combination, the two warnings reasonably conveyed [the] right to have an attorney present, not only at the outset of interrogation, but at all times.”²³

Michigan v. Fisher, 130 S. Ct. 546 (2009)

Police officers responded to a disturbance call, and, as they approached the area, a couple directed them to a residence where they said a man was “going crazy.” The officers continued to the home and found property damaged, as well as drops of blood on the hood of a pickup truck parked in front, clothes sitting inside of it, and one of the doors leading into the house. Through a window, they could see Jeremy Fisher inside the house, yelling and throwing objects.

The officers knocked on the door, but Fisher refused to answer. He also ignored their inquiries as to whether he needed medical attention and directed them to get a search warrant. One of the officers then pushed the front door partially open and saw Fisher pointing a gun in his direction. Eventually, the officers gained control over Fisher and secured the premises.

Fisher was charged with assault with a dangerous weapon and possessing a weapon during the commission of a felony.²⁴ The trial court granted Fisher’s motion to suppress the gun, agreeing with him that it was seized in violation of his Fourth Amendment rights. This was upheld by the Michigan Court of Appeals after it concluded that the warrantless entry violated Fisher’s Fourth Amendment rights as the situation “did not rise to the level of an emergency justifying the warrantless intrusion into a residence.”²⁵ The court continued by noting that while there was some indication of a possible injury, “the mere drops of blood did not signal a likely serious, life-threatening injury.”²⁶ The Michigan Supreme Court agreed to hear the case, but, after hearing oral arguments, vacated its order and let the lower court ruling stand.

The Supreme Court reversed, concluding that the state courts rulings were inconsistent with its long line of cases interpreting the Fourth Amendment in the context of exigent circumstances, particularly the Court’s recent ruling in Brigham City v. Stuart.²⁷ In Brigham City, the Supreme Court recognized the need for law enforcement to make warrantless intrusions into a person’s home “to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.”²⁸ In considering the reasonableness of the entry, the officer’s subjective motivation behind the entry—what did the officer really want to look for—and the seriousness of the crime for which they were originally investigating are not relevant. The relevant consideration is whether the officer has an “objectively reasonable basis for believing that a person is in need of aId.”²⁹

Applying this standard to the facts of the case, the Court found ample support for application of the emergency aid exception, stating, “Officers do not need ironclad proof of a likely serious, life-threatening injury to invoke the emergency aid exception.”³⁰ The Court concluded by stating:

It does not meet the needs of law enforcement or the demands of public safety to require officers to walk away from a situation like the one they encountered here. Only when an apparent threat has become an actual harm can officers rule out innocuous explanations for ominous circumstances. But ‘[t]he role of a peace officer includes preventing violence and restoring order, not simply rendering aid to casualties.’³¹

City of Ontario v. Quon, 130 S. Ct. 2619 (2010)

A police officer sued his agency and the city he worked for on the grounds that the department’s review of text messages sent to and from his department-issued pager violated his Fourth Amendment rights. The Ninth Circuit Court of Appeals concluded that the officer maintained an expectation of privacy in the contents of the pager and that the review of the messages constituted an unreasonable search.³² The Supreme Court agreed to hear the case.

The pager at issue was provided to the officer by the department to facilitate communication among SWAT team members. The agency had a “Computer Usage, Internet and E-Mail Policy” that did not specifically include pagers, but the department made it clear to employees that it would treat text messages the same as e-mails.³³ The department’s contract with the service provider covered a specific number of characters. For several billing cycles, the officer exceeded his allotted character limit. His supervisor informed him that while he could review the messages, he would refrain from doing as long as the officer paid for the excess charges. After several months of exceeding the character limit, management decided to review the messages to determine the necessity of a contract modification. The service provider supplied transcripts of the messages, which, with respect to Officer Quon, were found to contain numerous nonwork-related, inappropriate messages.³⁴

The Supreme Court refrained from addressing the issue of whether the officer had an expectation of privacy in the messages sent to and from the pager. The Court noted that the department made it clear that the pager was considered within the scope of the computer use policy. However, it recognized that whether an expectation of privacy existed was uncertain given the impact of statements by the officer’s supervisor that he did not intend to review the pager’s messages as long as the officer paid the overage. The Supreme Court stated:

Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices.³⁵

The Supreme Court instead based its holding on the reasonableness of the search, assuming there was an expectation of privacy in the contents of the pager. Applying the long-standing workplace search principles set forth in O’Connor v. Ortega,³⁶ the Court concluded that the review of the text messages was reasonable in light of the work-related, noninvestigatory purpose—to determine the adequacy of the contract with the service provider—and that it was conducted in a reasonable manner. The Court saw the review of the transcripts as “an efficient and expedient way to determine whether Quon’s overages were the result of work-related messaging or personal use” and not overly intrusive.³⁷

United States v. Comstock, 130 S. Ct. 1949 (2010)

Federal inmates challenged the constitutionality of a federal civil-commitment statute authorizing the U.S. government to detain a federal inmate certified as sexually dangerous beyond the time the individual otherwise would be released. The Supreme Court concluded that the statute is consistent with Congress’ authority to enact laws that are “necessary and proper” for carrying out the powers vested to the federal government by the Constitution.

The statute at issue passed as part of the Adam Walsh Child Protection and Safety Act and codified at Title 18, U.S. Code, section 4248 and allows a federal district court to order at the government’s request the civil commitment of an inmate determined to be sexually dangerous.³⁸ The inmate is afforded a hearing in which the government must support the claim by presenting clear and convincing evidence.

Inmates targeted by this statute challenged its constitutionality on a number of grounds, including that it amounted to a criminal, not civil, action, thus violating the Double Jeopardy Clause, and contained an insufficient legal standard asserting this type of action required proof beyond a reasonable doubt. In addition, they asserted that it exceeded Congress’ authority under the Commerce Clause.³⁹ The district court agreed with the challengers’ contentions.⁴⁰ On appeal, the Fourth Circuit Court of Appeals declined to address the standard-of-proof question, instead agreeing that the statute exceeded congressional authority.⁴¹ The government sought Supreme Court review.⁴²

The Supreme Court rejected the Commerce Clause challenge to the statute, holding that the Constitution provides Congress with ample authority to enact the civil commitment statute at issue.⁴³ The Court concluded that consistent with congressional authority under the Commerce Clause, the statute is “rationally related to the implementation of a constitutionally enumerated power.”⁴⁴ The Court referenced the inherent authority Congress has with respect to matters relating to the handling of federal prisoners, including decisions pertaining to the provision of mental health care and the need to act to protect the public from the dangers these prisoners may pose, and concluded that the statute in question is rationally related to Congress’ authority.⁴⁵ In addition, the Court rejected the argument that the statute violated the Tenth Amendment to the Constitution, which states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Finding that the statute is within the scope of congressional authority, this area, thus, is not within those matters “not delegated to the United States.” Further, the statute takes into account the interests of the states by requiring coordination with the state in which the prisoner is domiciled or tried and encourages the state to assume custody of the individual.⁴⁶

McDonald v. City of Chicago, 130 S. Ct. 3020 (2010)

In this case, the Supreme Court ruled that the Second Amendment right to keep and bear arms for the purpose of self-defense applies not only to the federal government, as determined by District of Columbia v. Heller,⁴⁷ but to the states under the Due Process Clause of the Fourteenth Amendment. In reaching this decision, the Court concluded that the right to bear arms for self-defense is “fundamental to our scheme of ordered liberty” and “deeply rooted” in this nation’s history.⁴⁸ Consistent with , the Court emphasized that this right is not absolute and that the holding “does not imperil every law regulating firearms.”⁴⁹

CASES FOR NEXT TERM

Several cases of interest to the law enforcement community are already scheduled to be heard by the Supreme Court. These include the five presented here.

Thompson v. Connick, 578 F.3d 293 (5th Cir. 2009), cert. granted, Connick v. Thompson, 130 S. Ct. 1880 (2010)

In a lawsuit brought against the New Orleans District Attorney’s Office, a former criminal defendant sued and was awarded 14 million dollars after a jury determined that the prosecutor’s office failed to adequately train the prosecutor in the handling of exculpatory evidence. The Supreme Court will consider whether liability imposed on the D.A.’s office for failing to train the prosecutor in a single case is contrary to the traditional strict culpability standards by the Court in Canton v. Harris⁵⁰ and Board of Commissioners of Bryan County v. Brown.⁵¹

People v. Bryant, 768 N.W.2d 65 (2009), cert. granted, Michigan v. Bryant, 130 S. Ct. 1685 (2010)

The Supreme Court again will address the parameters of the accused’s Sixth Amendment right to confront witnesses against him in a case involving statements made by a victim shortly after a shooting. The defendant was prosecuted for shooting the victim, who died shortly after being shot and after telling the police that it was the defendant who shot him. The Michigan Supreme Court held that the statements made by the victim were testimonial in nature within the Supreme Court’s rulings in Crawford v. Washington⁵² and Davis v. Washington⁵³ and, thus, could not be used against him in his trial given he could not confront the witness against him.

Staub v. Proctor Hospital, 560 F.3d 647 (7th Cir. 2009), cert. granted, 130 S. Ct. 2089 (2010)

This case explores the scope of liability under the Uniform Services Employment and Reemployment Rights Act. The Court will consider whether a supervisor’s discriminatory animus against an employee’s military service should be imputed to the employer, even if that supervisor is not the ultimate decision maker with respect to the employment action taken against the employee claiming discrimination.

Thompson v. North American Stainless LP, 567 F.3d 804 (6th Cir. 2009), cert. granted, 130 S. Ct. 3542 (2010)

In recent terms, the Supreme Court has taken a number of cases to clarify what constitutes unlawful retaliation within the meaning of Title VII of the Civil Rights Act.⁵⁴ For the next term, the Supreme Court has agreed to hear another retaliation case to address who may claim retaliation within the meaning of the statute. The Court will consider whether the Sixth Circuit Court of Appeals was correct in ruling that the statute requires a party claiming retaliation to have actually been engaged in a protected activity within the meaning of the statute. This would require a showing that the person either complained of discrimination or opposed the employer’s discriminatory practices. In this case, an employee complained of discrimination, and, three weeks later, her fiancé was fired. The fiancé filed his own action alleging retaliation. The Sixth Circuit Court of Appeals dismissed his suit, finding that he did not engage in a protected activity and rejecting a theory of associational retaliation.

Snyder v. Phelps, 580 F.3d 206, cert. granted, 130 S. Ct. 1737 (2010)

This case stems from protest activity by members of the Westboro Baptist Church at the funeral of a soldier killed in combat. This group contends that the deaths of U.S. soldiers are punishment for this country’s tolerance of homosexuality and presence of gays in the military. The father sued for the pain the protest activity at his son’s funeral caused him. A federal judge awarded the father five million dollars. The Supreme Court will consider whether a private individual is permitted state protection from this type of activity and the scope of the First Amendment protection afforded.