It has not been long since my last cannabis update, but there are some interesting new developments to report, most notably on drug identification and marijuana. Read on for the details. Continue reading
Tag Archives: teague
On October 13, 2015, the U.S. Supreme Court will hear oral argument in Montgomery v. Louisiana, a case that presents the question whether Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455 (2012), applies retroactively to convictions that became final before Miller was decided. In Miller the Court held that under the Eighth Amendment a sentencing scheme that mandates life without parole for defendants less than 18 years old at the time of their crimes is unconstitutional. Miller did not categorically ban a life without parole sentence for juvenile offenders; rather it mandated that the sentencer must consider an offender’s youth and attendant characteristics before imposing such a penalty. Miller applies to all cases that were pending when it was decided as well as to all future cases. Griffith v. Kentucky, 479 U.S. 314 (1987). The question of retroactivity is whether the Miller rule applies to cases that became final before the decision was issued. As I noted in a blog post here, the lower courts are divided on the issue. The Court’s decision in Montgomery might finally resolve it. Continue reading →
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.
Almost two years after the United States Supreme Court decided Miller v. Alabama, the question of whether the case applies retroactively to convictions that became final before it was decided continues to be a thorny one for the nation’s courts. Miller held that under the Eighth Amendment a sentencing scheme that mandates life without parole for defendants less than eighteen years old at the time of their crimes is unconstitutional. Miller of course applies to all cases that were pending when it was decided as well as to all future cases. The question of retroactivity is whether the Miller rule applies to cases that became final before the decision was handed down. And that’s not just a theoretical question. After Miller was decided many defendants with old convictions filed post-conviction motions, challenging their sentences under the Eighth Amendment. See, e.g., Diatchenko v. Dist. Attorney for Suffolk Dist., 466 Mass. 655 (2013) (when Miller was decided–thirty years after the defendant’s conviction became final–the defendant filed a post-conviction motion challenging his sentence).
In a nutshell, here’s how the retroactivity issue plays out. In the federal courts, the question of retroactivity is decided under what’s called the Teague test (so named for the seminal U.S. Supreme Court case). Under the Teague test, new constitutional rules are presumed to apply prospectively only, unless one of two exceptions applies. First, if the rule is substantive, it applies retroactively. And second, if the rule is procedural and it constitutes a watershed rule of criminal procedure, it applies retroactively. The United States Supreme Court had never held any rule to be a watershed rule of criminal procedure. As a result, the focus of retroactivity analysis typically is on whether a rule is substantive or procedural. Teague doesn’t limit the authority of the state courts to give broader effect to new federal rules in their own post-conviction proceedings than is required by the Teague test. Danforth v. Minnesota, 552 U.S. 264 (2008). Put simply, the states are free to adopt their own more permissive rules regarding the retroactive application of new federal constitutional rules. North Carolina, like many states, however, applies the Teague test to determine whether new federal constitutional rules apply retroactively in state post-conviction proceedings. This is admittedly a brief summary of a complicated area of the law. If you want more detail about retroactivity in general, I’ve provided it in a paper here—with many case citations.
So back to Miller. The question of Miller’s retroactive application to convictions that became final before it was decided has split the nation’s high courts. To date, three state supreme courts have held that Miller is not retroactive. They include:
- Com. v. Cunningham, 81 A.3d 1 (Pa. 2013).
- Chambers v. State, 831 N.W.2d 311 (Minn. 2013).
- State v. Tate, 130 So. 3d 829 (La. 2013), reh’g denied (Jan. 27, 2014).
Each of these cases applies the same reasoning: Under Teague, Miller is a procedural rule that doesn’t qualify as a watershed rule of criminal procedure. See also In re Morgan, 713 F.3d 1365 (11th Cir. 2013) (holding, in the context of deciding whether the petitioner should be granted permission to file a successive post-conviction petition, that Miller is a procedural rule; admittedly a different analysis but one with very clear Teague overtones).
On the other side are five high court decisions, all finding that Miller is a new substantive rule. They include:
- People v. Davis, __ Ill.__ (Mar. 20, 2014) (available online here).
- State v. Mantich, 287 Neb. 320 (2014).
- Diatchenko v. Dist. Attorney for Suffolk Dist., 466 Mass. 655, 675 (2013).
- State v. Ragland, 836 N.W.2d 107, 122 (Iowa 2013).
- Jones v. State, 122 So. 3d 698 (Miss. 2013), reh’g denied (Sept. 26, 2013).
Additionally, a number of state intermediate appellate courts and lower federal courts have decided the issue. By the looks of it, the issue may be ripe for consideration by the U.S. Supreme Court.
On June 1, 2010, the N.C. Court of Appeals applied Arizona v. Gant in State v. Johnson and held that the defendant’s Fourth Amendment rights were violated when the police searched his vehicle incident to his arrest. There is nothing particularly significant about that holding, as it involved a fairly straightforward application of Gant. However, one aspect of the holding already has generated some traffic on my phone line. Specifically, in its decision, the court stated: “because [Gant] applies retroactively, we conclude that the warrantless search of the defendant’s car following his arrest . . . was unconstitutional.” (emphasis added). My callers have been asking: “Does this mean Gant applies retroactively to cases for which the direct appeal process ended years ago?” The answer to that question is no; Johnson didn’t hold that Gant applies retroactively to cases that became final before Gant was decided.
As I discuss in much more detail in a paper here, retroactivity, as it applies to judge-made rules, is a term referring to a new rule of criminal procedure that applies to cases that became final before the decision adopting the new rule was rendered. Notwithstanding the Johnson court’s use of the term “retroactively,” retroactivity wasn’t at issue in that case. [editor’s note: my summary of Gant is here, and my discussion of Gant and retroactivity is here.]
Consider the procedural history of the case:
|July 8, 2008||Trial court denies defendant Johnson’s motion to suppress|
|Jan. 13, 2009||Defendant pleads guilty, preserving the right to appeal the denial of his suppression motion|
|Jan. 14, 2009||Defendant files notice of appeal|
|April 21, 2009||Gant is decided|
|June 1, 2010||Court of Appeals’ decision on Johnson’s direct appeal is issued|
As is readily apparent, Gant was decided while Johnson’s appeal was pending. Gant thus applies to Johnson’s case under clearly established law that new judge-made rules of criminal procedure apply to all cases pending and not yet final on appeal at the time the decision was rendered. In fact the Johnson opinion recognizes this when it states: “Gant applies retroactively to this case, since this case is currently on direct review, and is not yet final.” (Slip op. at 11-12 (citing Griffin v. Kentucky, 479 U.S. 314 (1987)). Although the court’s repeated use of the word “retroactively” initially may create confusion, a careful look at the case’s procedural history makes clear that Johnson was not a case in which Gant was applied to a conviction that was final when Gant was decided. In order for a court to apply Gant in that way, it would have to conclude that the case warrants retroactive application under the Teague retroactivity standard. The United States Supreme Court has not had occasion to apply the Teague test to the Gant rule. Nor did Johnson do so. More information on the Teague retroactivity test is provided in the paper mentioned above.
The fallout from the Supreme Court’s recent decision in Arizona v. Gant, see my initial post here, has been fast and furious. Most questions I’ve received have been about how it applies to existing and past cases, not to future searches. Here are a couple of common questions and answers.
1. Does Gant apply to searches, at issue in pending cases, that were conducted before the decision was handed down? Yes. It applies to all pending cases, whether at the trial or at the appellate level. See Griffith v. Kentucky, 479 U.S. 314 (1987) (holding that new constitutional rules of criminal procedure apply to all cases that are not yet final). This is illustrated by Gant itself — the search in that case was obviously conducted before the Gant decision, yet the rule announced in Gant was applied to the search. Although some people have asked me about this issue in terms of “retroactivity,” it isn’t what courts talk about when they consider the retroactivity of new cases — true retroactivity is discussed in connection with question 3, below.
2. Does that mean that all evidence obtained as a result of vehicle searches incident to arrest must be suppressed? No. In some cases, searches will be permissible under Gant, such as when the arrestee was unsecured and near the vehicle, or when the arresting officer had reason to believe that evidence of the crime for which the arrest was made would be found in the vehicle. As discussed in my earlier post, the scope of the “reason to believe” prong of Gant is unclear and potentially elastic.
Furthermore, in some cases, there will be an independent legal basis that supports the search, as when the officer had probable cause to search the vehicle. The fact that the officer subjectively thought of himself as conducting a search incident to arrest doesn’t preclude the possibility that the search was justified on a different theory.
Even if no theory justified the search, in some cases, the inevitable discovery rule may operate to “save” evidence recovered during the search. For example, if the vehicle was legally impounded and inventoried after the arrest, any evidence found during the search that would likely also have been found during the inventory is probably admissible.
Finally, if none of the above arguments apply to a particular situation — and my sense is that often none will — a prosecutor attempting to “save” evidence might argue that the officer who conducted the search acted in good faith and thus suppression should not be required under Herring v. United States, __ U.S. __ (2009). I posted about Herring here. Such an argument would require an extension of Herring, and perhaps one that courts will reject, but it may be an argument worth making.
3. Does Gant apply to cases that have already been disposed of? This is the retroactivity question — can a defendant whose conviction has become final, i.e., whose direct appeals have been concluded, or whose time for appeal has expired, seek relief based on Gant? The answer to this question isn’t clear, though given courts’ general reluctance to make changes in the law retroactive, my guess is no. (Let me emphasize that this is only a guess — we’ll have cases soon enough, I’m sure.)
Generally, whether criminal law decisions apply retroactively is determined under Teague v. Lane, 489 U.S. 288 (1989). This is a bit of a simplification, especially after Danforth v. Minnesota, __ U.S. __ (2008), but bear with me. Under Teague, a decision is retroactive if (1) it is an “old rule,” i.e., a decision dictated by prior precedent, or (2) it is a new substantive rule that narrows the scope of criminal liability, or (3) it is a new “watershed” procedural rule that is fundamental to the fairness of criminal proceedings. (For a detailed discussion of Teague, see Jessica Smith’s excellent paper, here.)
Gant isn’t a new substantive rule, and given the Supreme Court’s frequently-expressed skepticism that there are any yet-undiscovered “watershed” procedural rules, it isn’t likely to be retroactive on that basis, either. The best argument for retroactivity is that Gant is an “old rule,” dictated by Belton. This argument is plausible because the Gant majority claimed to be interpreting Belton, not overruling it; indeed, the majority stated that there was both “textual and evidentiary support” for its reading of Belton, arguably suggesting that Gant was dictated by Belton. But my guess is that courts will nonetheless view Gant as a new rule, since it upsets the interpretation of Belton that was widely adopted by lower courts. Even the Gant majority admitted that the automatic-search reading has “predominated,” indeed, to such an extent that officers who acted based on that reading are entitled to qualified immunity. I suspect that will lead courts to find Gant to be a new rule and so not retroactive.
I’m sure that others have views on the retroactivity issue. If you think I’ve got it wrong, let me know.