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Riley and Retroactivity

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Last month the U.S. Supreme Court held that under the Fourth Amendment to the U.S. Constitution, officers can’t search a cell phone as a search incident to arrest. Riley v. California, __ U.S. __, 134 S.Ct. 2473 (2014). For background on those cases, see the blog post here. Since then I’ve had a bunch of calls asking: Does Riley apply retroactively to my trial if the search was done pre-Riley? My answer: Riley applies but it’s not a retroactivity issue.

Under Griffith v. Kentucky, 479 U.S. 314, 328 (1987), new rules apply to all cases that are pending on direct review or yet not final. See Schriro v. Summerlin, 542 U.S. 348, 352 (2004) (citing Griffith, 479 U.S. at 328). As a general rule, a conviction is final when a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari to the U.S. Supreme Court has elapsed or a timely petition for certiorari has been finally denied. See Griffith, 479 U.S. at 321 n.6. For our purposes, that means if the trial hasn’t occurred yet, the case isn’t final and Riley applies. But defense lawyers don’t get too excited! The State will likely argue for application of the good faith exception to the exclusionary rule, an issue Jeff will address in a follow up post.

But back to retroactivity. Retroactivity comes into play when the question is whether the new rule applies to cases that became final before the rule was issued. Thus, retroactivity doesn’t become an issue until the post-conviction stage—in N.C., typically a motion for appropriate relief (MAR). While all of the questions I’ve gotten so far have dealt with pending cases, it’s only a matter of time until the first Riley MAR gets filed. And when that happens, retroactivity will be front and center. Here’s your cheat sheet.

In NC, there are two rules for retroactivity: One for new rules based on federal law (as Riley is) and one for new rules based on state law. For new federal rules, the Teague anti-retroactivity test applies. Teague v. Lane, 489 U.S. 288, 311 (1989) (Teague was a plurality decision that later became a holding of the Court. See Gray v. Netherland, 518 U.S. 152 (1996); Caspari v. Bohlen, 510 U.S. 383 (1994)). Under Teague, a new rule isn’t retroactive unless it’s substantive or it’s a watershed rule of criminal procedure. A substantive rule is one that “narrow[s] the scope of a criminal statute by interpreting its terms” and “place[s] particular conduct or persons covered by the statute beyond the State’s power to punish.” Schriro, 542 U.S. at 352. This exception should cover decisions like Lawrence v. Texas, 539 U.S. 558, 578 (2003), which held that criminalizing consensual adult sodomy was unconstitutional. It’s pretty clear that Riley isn’t a substantive rule.

Nor is Riley likely to fall within the second Teague exception for “watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.” O’Dell v. Netherland, 521 U.S. 151, 157 (1997) (quotation omitted). The Court has said that it’s “unlikely” that such rules have yet to emerge. Teague, 489 U.S. at 313; Tyler v. Cain, 533 U.S. 656, 666 n.7 (2001); Beard v. Banks, 542 U.S. 406, 417 (2004) (quotation omitted). And although the Court repeatedly has referred to Gideon v. Wainwright, 372 U.S. 335 (1963) (establishing an affirmative right to counsel in all criminal trials for serious offenses), as the type of rule that would fall within this exception, see, e.g., Gray, 518 U.S. at 170, the Court has never once held a rule to fall within this Teague exception. See Beard, 542 U.S. at 417. Meanwhile it has repeatedly rejected arguments that particular rules constitute watershed rules. See, e.g., Whorton v. Bockting, 549 U.S. 406, 416-21 (2007) (Crawford is not a watershed rule of criminal procedure); Schriro, 542 U.S. at 356-58 (same as to Ring rule); Beard, 542 U.S. at 418-20 (same as to Mills rule); O’Dell, 521 U.S. at 167 (same as to Simmons rule); Lambrix v. Singletary, 520 U.S. 518, 539-40 (1997) (no retroactivity for rule of Espinosa v. Florida, 505 U.S. 1079 (1992)); Goeke v. Branch, 514 U.S. 115, 120 (1995) (same as to rule relating to fugitive dismissal); Sawyer v. Smith, 497 U.S. 227, 241-45 (1990) (same as to Caldwell v. Mississippi, 472 U.S. 320 (1985)); Gray, 518 U.S. at 170 (same as to rule concerning notice of evidence to be used against defendant); Caspari, 510 U.S. at 396 (same as to new rule that Double Jeopardy Clause prohibits successive non-capital sentence proceedings); Graham v. Collins, 506 U.S. 461, 477-78 (1993) (same as to rule regarding mitigating evidence in capital sentencing); Gilmore v. Taylor, 508 U.S. 333, 345 (1993) (same as to new rule regarding jury instructions); Butler v. McKellar, 494 U.S. 407, 416 (1990) (same as to Arizona v. Roberson, 486 U.S. 675 (1988)); Saffle v. Parks, 494 U.S. 484, 495 (1990) (same as to rule that a judge in a capital case was barred from telling the jury to avoid any influence of sympathy). Thus, while there is a chance that Riley will be held to be a watershed rule of criminal procedure, most wouldn’t be willing to put a lot of money on that bet.

As noted, Riley was decided under the Fourth Amendment to the U.S. Constitution. The N.C. Supreme Court has expressly adopted the Teague test for determining whether new federal rules apply retroactively in state court MAR proceedings. State v. Zuniga, 336 N.C. 508, 513 (1994). However, should a defendant assert a “Riley claim” under the N.C. Constitution, the retroactivity issue might come out differently. That’s because State v. Rivens, 299 N.C. 385 (1980), sets out the relevant retroactivity test for rules grounded in North Carolina law. See Zuniga, 336 N.C. at 513. Under Rivens, overruling decisions are presumed to operate retroactively unless there is a compelling reason to make them prospective only. See Rivens, 299 N.C. at 390. And that’s clearly a more permissive test than the Teague rule. For more on Rivens retroactivity, see my blog post here.

9 comments on “Riley and Retroactivity

  1. I’m curious whether Riley will have implications on warrantless searches conducted by probation / parole officers in NC.

  2. Have we had a NC appellate court rule on whether our state is going to follow along with the good faith exception as decided by Davis V. United States? I would imagine State v Carter rejecting the good faith exception in NC would bind the court of appeals to side with defendants until the Supreme Court finally overturns the terrible law found in State v Carter.

    It looks like STATE v. ELDER Case 41A14 currently pending before the NC Supreme Court will finally be an opportunity for North Carolina to overturn it and bring good faith exceptions to North Carolina. The General Assembly already asked the Supreme Court to reconsider it so I would hope the will of the people and common sense will prevail.

    • The “will of the people” is expressed in the state and federal constitutions, which are supposed to protect us from the power of the State to engage in unreasonable searches and seizures, whether in good faith or not. Those two documents are supposed to trump whatever the weak and pandering General Assembly has asked for or wants.

  3. What makes Riley a new rule? Chimel->Robinson->Gant, I would think makes Riley’s holding not a surprise at all. The content the officers are looking for when searching smart phones incident to arrest is very unlikely to cause them security concerns. My question is (hopefully) it is not a new rule just because many (but not all) police depts have been regularly searching phones without a warrant. Scotus had never said those searches do not violate the 4th Am., so is that the same as a new rule or am I missing something?

  4. @DefenderPerson
    There are many jurisdictions that had ruled search incident to arrest a cell phone lawful and thus there will be arguments made for good faith exceptions under the Scotus ruling in Davis V. US. It obviously was not as universal as the search incident to arrest issues in Gant, but nonetheless I think the argument will prevail under good faith like the cases in the post Gant world. North Carolina obviously needs to overturn the ruling in State V Carter first which I fully anticipate occurring in the pending State v Elder case.

    • North Carolina “obviously” does NOT need to overturn State v. Carter. The good faith exception is yet another example of the courts engaging in results-based jurisprudence to convict as many people as possible, constitutional rights and freedom from unreasonable search and seizure be d***ed. Our legislators are gutless when it comes to our rights as well. North Carolina courts should be proud of their refusal to go along with such a terrible rule. A right violated is a right violated, regardless of what excuse law enforcement can come up with in time for a suppression hearing.

  5. I disagree with the assertion that Carter is terrible law. I mean, I suppose if I am a cop it is terrible law. And I suppose if I am “one of the good people” that never does anything “wrong” so I do not fear the unwanted intrusion, then it might not be great law. But the truth is, the “good faith exception” is stupid. If you are going to intrude on someone’s rights, then you should have to do it exactly the right way. Not kind of. Not, well you meant to. Not, you thought you were right. You have to do it exactly right, and if you don’t, too bad. The good faith exception encourages sloppy police work as “close enough”. “”It is better that ten guilty persons escape than that one innocent suffer.”

  6. “[T]he terrible law found in State v Carter? What terrible law would that be? That if you invade someone’s privacy when you shouldn’t have that you cannot just say, “Well I meant to do it right”? Is that the terrible law to which you refer?

  7. Great Article. Thanks for the info. Does anyone know where I can find a blank “2007 CA MC-051” to fill out?

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