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Judging from the grants of certiorari announced so far by the Supreme Court, the 2003-04 term is shaping up to be a signal year for criminal procedure — and a year in which law enforcement will, in all likelihood, make out like a bandit. Already, the Court has agreed to hear argument in 15 criminal procedure cases, which represents almost one-third of the Court’s current docket (50 cases). In 10 of those 15 criminal cases, it was the prosecution that sought certiorari, indicating a strong likelihood of reversal in favor of law enforcement. Moreover, the Court appears to be unusually concerned this term with efforts by lower courts to tighten up on constitutional restraints on permissible police investigative practices. Fully 10 of the 15 pending criminal cases involve either Miranda v. Arizona (1967) or Fourth Amendment search-and-seizure doctrine, the two biggest constitutional constraints on criminal investigation. Last year, by comparison, the Supreme Court decided only one Fourth Amendment case (which was resolved summarily on the certiorari papers) and only one Miranda case. Why the special emphasis in the Supreme Court this term on police practices? One answer seems as good as any: the war on terror. CONSTITUTIONAL COSTS As everyone knows, constitutional rights have costs, and these costs are particularly evident in criminal procedure. Every time a confession is thrown out for lack of a proper Miranda warning, or evidence of crime suppressed under the Fourth Amendment exclusionary rule, a dangerous person may be placed back on the streets. Under ordinary circumstances, most of us are willing to accept these kinds of costs as the price we as a society pay for guarantees against arbitrary and invasive action by police. In the Age of Terror, however, we find ourselves in circumstances that are far from ordinary. The Supreme Court — which itself was forced to evacuate its historic building due to anthrax mailings sent in the wake of Sept. 11 — can’t help but think differently about criminal procedure (and especially search-and-seizure and interrogation law) as the nation’s law enforcement agencies lead the charge in the war on terrorism. In the Age of Terror, every limitation imposed on law enforcement agencies, even in ordinary criminal prosecutions like drug cases, takes on new significance. Given the understandable national imperative to avoid another Sept. 11, the cost of substantial expansions of criminal-procedure rights in the areas of search and seizure and police interrogation may simply be too great for society to bear. Nevertheless, even in the Age of Terror — or, rather, especially in the Age of Terror — there remains another important weight on the criminal procedure scale: civil liberties. In response to the extraordinary threat our nation faces, law enforcement has been given extraordinary powers and has made aggressive use of its powers in matters related to terrorism. As the administration claims a need for even more expansive powers than those conferred by the USA Patriot Act, however, many Americans are wondering whether civil liberties are the latest casualty in the war on terror. While this important national debate rages on, the Supreme Court has the responsibility to strike sensible a balance between enforcement and liberty. One should expect that the Supreme Court, mindful of the high stakes involved, will be quick to reject efforts by lower courts to expand criminal procedure doctrines in ways that frustrate the apprehension and prosecution of terrorists. Based on the current lineup, the Supreme Court appears poised to do just that. Consider first two of the Fourth Amendment cases before the Court. In Illinois v. Lidster, to be argued Nov. 5, the Court will return to the thorny issue of the constitutionality of police roadblocks. The potential value of roadblocks should be evident to everyone in the Washington, D.C., area after last year’s sniper rampage. Members of the sniper task force quickly set up roadblocks after at least one attack and stopped every car in the vicinity in an attempt to apprehend those responsible and thereby save lives. One could easily imagine similar measures being taken in the immediate aftermath of a terrorist bombing. Should these measures be classified as reasonable investigative techniques used to protect public safety, or as efforts to end-run the Fourth Amendment requirement of individualized suspicion? The Illinois Supreme Court would apparently invalidate all such uses of police roadblocks as unconstitutional. In Lidster, the roadblock was used to gather information from motorists concerning a hit-and-run accident that had occurred around the same time of day in the same general area a few days earlier. Individualized suspicion was required, the state high court held, because in “investigating and solving any crime [through roadblocks], police efforts are directed at general crime control” and hence subject to normal Fourth Amendment standards. The trouble is, the U.S. Supreme Court, in its last treatment of police roadblocks, in Indianapolis v. Edmond (2000), recognized that such a “rigid” approach cannot be sustained in the Age of Terror. According to the Court, “Of course, there are circumstances that may justify a law enforcement checkpoint where the primary purpose would otherwise, but for some emergency, relate to ordinary crime control.” Edmond gave the example of using roadblocks “to thwart an imminent terrorist attack or to catch a dangerous criminal who is likely to flee by way of a particular route.” Edmond would seem to leave little room for the sweeping rule adopted in Lidster. KNOCK AND ANNOUNCE Another important search-and-seizure case, United States v. Banks, scheduled for argument on Oct. 15, concerns the constitutional standards governing entry into a private residence to serve an arrest warrant. The Fourth Amendment, in addition to governing when warrants may issue, likewise regulates the manner in which police execute warrants. Absent exigent circumstances permitting a “no knock” entry, police must first knock and announce their purpose and wait a reasonable time before breaking into a dwelling. In Banks, federal drug agents waited 15 to 20 seconds after announcing their purpose before kicking in the door and arresting the defendant as he emerged from the shower. The court of appeals ruled that, where an entry requires property destruction, 15 seconds may not be long enough and that, in the case at bar, the agents should have waited “an even more substantial amount of time.” Just how much longer, the court curiously declined to say. This conclusion seems like precisely the kind of rigid rule that has no place in the Age of Terror. Judging cases by the totality of the circumstances is the better route. Requiring agents to wait an extended and essentially indeterminable period of time before forcibly entering creates opportunities for terrorists and other suspects to conceal or destroy key pieces of evidence, or to mount armed resistance to the unsuspecting agents. It is hard to believe that the Supreme Court will deem these risks to be tolerable. TAINTED FRUITS? Two Miranda cases, both dealing with the extent to which the “fruits” of unwarned confessions must be excluded from evidence, and scheduled for Dec. 9, are before the Court: Missouri v. Seibert and United States v. Patane. All agree that, absent a recognized exception, confessions that are not preceded by Miranda warnings must be suppressed. These two cases involve situations where an unwarned confession led to the discovery of other incriminating evidence, such as physical evidence or a later, properly “Mirandized” confession by the same suspect. The Supreme Court previously ruled, in Oregon v. Elstad (1985), that where the second confession is voluntarily given after administration of Miranda warnings, the admissibility of that confession is not undermined by the fact that the police failed to administer Miranda warnings to the suspect on an earlier occasion. In Seibert, the Missouri Supreme Court held that Elstad does not apply, and that suppression is required, where the failure to give the Miranda warnings before the first confession was intentional rather than negligent. In Patane, the 8th Circuit limited Elstad in a different way: Elstad, in the view of the court of appeals, only limits suppression of voluntary confessions, and therefore does not allow prosecutors to make use at trial of physical evidence, such as an illegal firearm or drugs, obtained only as a result of an unwarned confession. These cases, too, implicate the war on terror. A vital source of information for the intelligence and law-enforcement community has been interrogation of enemy combatants and of U.S. residents and citizens held as “material witnesses.” These interrogations may often be initiated without any expectation that the persons being interrogated will be charged in U.S. courts with crimes. To the extent Miranda applies to the initial interrogation (which is not clear with foreign enemy combatants), these rules would make it more difficult to develop the base of information on which effective counterterrorism efforts depend, and from which leads supporting criminal prosecution might emerge. Even apart from its potential for impeding the war on terror, the Seibert rule is most unlikely to be sustained. The Supreme Court has never distinguished between intentional and unintentional Miranda violations, and has repeatedly expressed a preference for objective rules that do not turn on the subjective state of mind of individual officers. Elstad, fairly read, seems to support the bright-line rule, advocated by the government, that a voluntary confession made following advice and waiver of Miranda rights cannot be suppressed on the basis of an earlier failure to give that advice. The Court will find Patane to be a much harder case than Seibert. On the one hand, the government is surely right that Elstad did distinguish between suppression as a remedy for Fourth Amendment violations as compared to Miranda violations. Suppression has a broader reach in the former context than in the latter. On the other hand, the Court’s unequivocal holding in Dickerson v. United States (2000) that Miranda is required by the Fifth Amendment does undermine the view taken in Elstad that Miranda is merely a prophylactic doctrine that is not itself constitutionally required. The fact that an unwarned confession is now regarded as compelled under the Fifth Amendment runs the government smack into Kastigar v. United States (1972). There, the Court held that a grant of immunity from prosecution can abrogate a witness’s privilege against self-incrimination only if it encompasses both the “use” of the compelled statement against him and “derivative use” thereof. The fact that protection against “derivative use” is required clearly suggests that the scope of exclusion reaches at least some evidence discovered by virtue of that statement. In the end, Patane may end up being one of the few cases this term where the Court believes the balance tilts against, rather than for, law enforcement, even in the Age of Terror. In light of these and other criminal procedure cases under review, it will be a very interesting year for the criminal justice system. I predict that law enforcement should rack up an impressive string of victories. If this prediction turns out to be right, then the lower courts’ ultimate failing in those cases may not be that they misread the Constitution and applicable precedents. Instead, it may be that they misread the times in which we live. Stephen F. Smith is a professor at the University of Virginia School of Law, where he teaches criminal law and criminal procedure. He also serves as the university’s liaison to the FBI National Academy in Quantico, Va. The views expressed here are solely those of the author.

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