Riley and Retroactivity

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.