Pamela C. Corley

The Multiple-Stage Process of Judicial Review: Facial and As-Applied Constitutional Challenges to Legislation before the U.S. Supreme Court

The Supreme Court’s decision to invalidate a legislative enactment involves both the choice to strike as well as the choice whether to invalidate the statute on its face or as applied. Both choices implicate the possibility of counteraction by the legislature. In this paper, we evaluate the justices’ choices to invalidate a state or federal enactment on its face or as applied and find that the justices are responsive to congressional preferences concerning the substance of the legal challenge at both stages of judicial review. Other factors systematically affect the justices’ decisions as well, including the legal basis for the challenge, the statutory scope of the constitutional challenge, the president (through the solicitor general), and interest groups’ amicus filings. These findings suggest that the Court’s exercise of judicial review is significantly influenced by Congress and by other contextual, legal, and political factors, both as to the choice to strike as well as to the method of constitutional enforcement.

Drug-sniffing Dog in the Shared Hallway of an Apartment Building: Reasonable Expectation of Privacy? United States v. Whitaker (2016)

In United States v. Whitaker, the Seventh Circuit Court of Appeals held that when the police used a drug-sniffing dog in the shared hallway of an apartment building to gather evidence, they invaded the apartment resident’s reasonable expectation of privacy, and, consequently, their actions constituted a search under the Fourth Amendment. The police received information from a source that drugs were being sold from Whitaker’s apartment and received permission from the property manager to bring a drug-sniffing dog to the locked, shared hallway of the second floor of the apartment building where there were approximately six to eight apartments (Whitaker at 850). The dog “showed extreme interest” at Whitaker’s apartment, alerted at a different apartment, but the dog sniffed again at Whitaker’s apartment door and then alerted (Whitaker at 851). Based on the dog’s alert, the police obtained a search warrant and found drugs at the apartment (Whitaker at 851). Whitaker filed a motion to suppress the drugs, arguing that the he had a reasonable expectation of privacy in the apartment building’s common hallway, but the district court denied his motion (Whitaker at 851–852). The Seventh Circuit Court of Appeals relied on Florida v. Jardines, the United States Supreme Court case in which the Court held that the use of a drug-sniffing dog by the police on the front porch of a house to gather evidence was a search under the Fourth Amendment. Although the Seventh Circuit Court of Appeals noted that it “was clear that [the] holding [of Jardines] was based on the trespass to the defendant’s curtilage, not a violation of the defendant’s privacy interests” (Whitaker at 852), the court decided the case in accordance with Justice Kagan’s concurrence, which relied on the reasonable expectation of privacy test articulated in Katz v. United States and Kyllo v. United States. In Kyllo, the United States Supreme Court held that “police officers conducted a search by using a thermal-imaging device to detect heat emanating from within the home, even without trespassing on the property” (Whitaker at 853). The thermal imaging device was not something that was available to the general public, and by using it the police were capable of obtaining information from inside the house that they would not otherwise have been able to obtain. According to the Seventh Circuit, a drug-sniffing dog is analogous to a thermal-imaging device. Specifically, “[a] trained drug-sniffing dog is a sophisticated sensing device not available to the general public” (Whitaker at 853). The Seventh Circuit Court of Appeals distinguished two Supreme Court cases in which the Supreme Court held that a dog sniff was not a search under the Fourth Amendment based on the fact that those occurred in public places. In contrast to those cases, this case involved an apartment home, which gets the highest constitutional protection. Interestingly, the court noted that “[i]t is true that Whitaker did

Undue Burden on Women's Right to Seek an Abortion: Whole Woman's Health v. Hellerstedt (2016)

InWhole Woman’s Health v. Hellerstedt, the United States Supreme Court, in a 5–3 decision, held that two provisions of a Texas law—an admitting privileges requirement and a surgical center requirement—constituted an undue burden and therefore violated the Constitution. Justice Breyer wrote the majority opinion and was joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan. Justice Ginsburg wrote a concurring opinion, Justice Thomas wrote a dissenting opinion, and Justice Alito wrote a dissenting opinion, joined by Justice Thomas and Chief Justice Roberts. The admitting privileges provision required that a doctor performing an abortion have admitting privileges at a hospital no more than 30 miles from the abortion facility and the surgical center provision required that an abortion facility meet minimum standards for “ambulatory surgical centers” (Whole Woman’s Health, majority slip op. at 2). After deciding that the claims were not barred by res judicata, the Court reviewed the constitutionality of the two provisions. The Court began with the rule from Casey v. Planned Parenthood [505 U.S. 833 (1992)]. A state law placing a substantial obstacle in the path of a woman seeking an abortion imposes an undue burden on a woman’s right, even if the state is pursuing a legitimate interest. And “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden....” (Whole Woman’s Health, majority slip op. at 19). Thus, according to the majority, courts must consider both the burdens and benefits of a law and courts have a constitutional duty to independently review factual findings given that constitutional rights are involved. The Court first evaluated the admitting privileges requirement. The Court noted that before the new law, prior law required that doctors performing abortions either have admitting privileges or have a “working arrangement” with a doctor who has admitting privileges with a local hospital (Whole Woman’s Health, majority slip op. at 21). Although the state’s asserted interest was to protect the health of women who experience complications from abortions, evidence presented at trial showed that there were low rates of abortion complications and that those complications rarely required hospital admissions and those that did happened days after the abortion and women would go to the nearest hospital. In fact, “when asked directly at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case” (Whole Woman’s Health, majority slip op. at 23). Thus there was nothing to support that the new law advanced the state’s interest of protecting women’s health.

Investigative Stops and 911 Calls: Navarette v. California (2014)

In a 5–4 decision written by Justice Thomas (joined by Chief Justice Roberts, and Justices Kennedy, Breyer, and Alito), the Court held that an anonymous 911 tip reporting that a driver had run her off the road gave police reasonable suspicion to stop that driver’s vehicle because the driver may be driving under the influence. Justice Scalia (joined by Justices Ginsburg, Sotomayor, and Justice Kagan) wrote a dissent. After being notified about a 911 call reporting that a pickup truck ran the caller off the road, the police observed the truck for five minutes and then stopped it. During that time, the police did not observe the truck violating any traffic laws. The police approached the truck, smelled marijuana, and then searched the truck bed, finding 30 pounds of marijuana. The police arrested the driver and passenger, and they subsequently moved to suppress the evidence, arguing that the Fourth Amendment was violated because the police did not have reasonable suspicion of criminal activity to justify the traffic stop. In order to justify an investigative stop, Terry v. Ohio [392 U.S. 1 (1968)] requires that police have reasonable suspicion, which is based on the totality of the circumstances. The Court takes into account the content of the information that the police have and how reliable that information is. When it comes to anonymous tips, the tip must be sufficiently reliable in order for the police to base reasonable suspicion for the stop on the tip. Thus the first issue before the Court was whether the 911 call was sufficiently reliable to give the police reasonable suspicion that the truck had run the caller off the road. The Court relied on two previous cases involving anonymous tips, Alabama v. White [496 U.S. 325 (1990)] and Florida v. J.L. [529 U.S. 266 (2000)]. In White, the Court held that the corroboration of predictive details made the anonymous tip sufficiently reliable. Specifically, the police were told that “a woman would drive from a particular apartment building to a particular motel in a brown Plymouth station wagon with a broken tail light. The tipster further asserted that the woman would be transporting cocaine” (Navarette, at 1688). The police then confirmed what they were told by the tipster. However, in J.L., the anonymous tip did not include predictive details that were corroborated and therefore was deemed by the Court to be insufficiently reliable to justify a stop. Specifically, although the anonymous tipster told the police that a young black man wearing a plaid shirt at a bus stop was carrying a gun, the tipster did not explain how he knew about the gun, and the tip did not include any predictive information that could be corroborated by the police (Navarette, at 1688). The Court pointed out that, in contrast to J.L., the anonymous caller in this case was claiming eyewitness knowledge, which supports the reliability of the tip. Additionally, the location of the truck at the time the police saw it “suggests that the caller reported the incident soon after she was run off the road. That sort of contemporaneous report has long been treated as especially reliable” (Navarette, at 1689). The Court distinguished these facts from J.L., where there was no indication that the tip was made at the same time the tipster observed the man carrying a gun. Finally, the Court brought up the fact that the caller used the 911 system, which indicates its veracity since “[a] 911 call has some features that allow for identifying and tracing callers, and thus provide some safeguards against making false reports with immunity” (Navarette, at 1689).

Does the Exclusionary Rule Apply to Knock-and-Announce Violations When Executing an Arrest Warrant? United States v. Weaver (2015)

In Hudson v. Michigan, the United States Supreme Court held that the exclusionary rule does not apply to violations of the knock-and-announce rule when executing a search warrant. In United States v. Weaver, the D.C. Circuit Court limited the holding of Hudson by finding that the exclusionary rule is the appropriate remedy when the knock-and-announce violation occurs when the police are executing an arrest warrant. Circuit Judge Cornelia T. L. Pillard wrote the majority opinion and was joined by Circuit Judge Judith W. Rogers. Circuit Judge Karen LeCraft Henderson filed a dissenting opinion. In Weaver, the police officers went to Weaver’s apartment in 2012 to execute an arrest warrant issued in 2010. According to the court, although the officers did knock and announce that they were the police, they violated the knock-and-announce rule because they did not “announce their purpose before entering Weaver’s apartment” (Weaver, majority opinion at 33). As the officers used a key that they had received from the concierge to open the door, Weaver tried to keep it closed, but the police pushed it open, struggled with Weaver, and then arrested him. As the officers were arresting Weaver, they smelled marijuana and saw marijuana bags on the counter in the kitchen. A search warrant was issued based on that observation, and additional evidence was seized. Weaver moved to suppress the evidence seized at his apartment, arguing that Hudson did not prevent the application of the exclusionary rule in this particular case. According to the majority opinion, since Hudson involved a search warrant rather than an arrest warrant, the court must analyze whether the logic of Hudson applies to this situation. The court decided that search warrants and arrest warrants protect different privacy interests, because if the police have a search warrant to search the home, the police have the right to enter the home and search for the items described in the warrant wherever they may be. However, if the police have an arrest warrant, they can enter the home to execute the warrant only if they have reason to believe the person is there, and then they can only search for the person in places where the person might be. The court viewed a person’s privacy interest in his home to be much greater in the arrest warrant context and, furthermore, that “[a]n arrestee’s location at the time of arrest is likely to depend on whether the officers comply with the knock-and-announce rule” (Weaver, majority opinion at 39). Thus, according to majority, an arrestee can protect his privacy by coming to the door, which limits the right of the police to enter the home. Because of these differences between arrest and search warrants, the majority analyzed causation and the costs and benefits of exclusion. First, the court found that if the police do violate the knock-

Does the Speedy Trial Guarantee Apply to the Sentencing Phase? Betterman v. Montana (2016)

In Betterman v. Montana, the United States Supreme Court unanimously held that the Sixth Amendment’s speedy trial guarantee does not apply to the sentencing phase. However, the Court did note that defendants may be protected from long delays in sentencing by the Due Process Clause. Justice Ginsburg wrote the majority opinion, and there were two concurring opinions, one written by Justice Thomas and joined by Justice Alito, and the other written by Justice Sotomayor. In Betterman, the defendant pleaded guilty to bail jumping and then waited in jail for over 14 months before he was sentenced to seven years in prison. Betterman appealed, arguing that the 14-month delay between his conviction and sentencing violated his Sixth Amendment right to a speedy trial. According to the Court, the speedy trial guaranteed by the Sixth Amendment applies only to the period of time between arrest or indictment and conviction, and, in fact, “the right detaches upon conviction” (Betterman, majority slip op. at 3). The Court reasoned that the reason for guaranteeing a speedy trial is to protect “the presumptively innocent” (Betterman, majority slip op. at 4). The Court relied on the intent of the framers, noting that historical understanding was that “the innocent shall not be worn and wasted by long imprisonment, but...speedily come to his tria[l]” (Betterman, majority slip op at 5). The Court also relied on the text of the Amendment, specifically focusing on the words “accused” and “trial.” The word “accused” clearly describes a defendant before conviction, and “trial” means something different from “judgment.” Furthermore, according to the Court, the only remedy for a violation of the speedy trial clause is that the charges against the defendant are dismissed. This remedy makes sense before conviction; however, after conviction a dismissal would be “an unjustified windfall” (Betterman, majority slip op at 7). The Court refused to entertain Betterman’s suggestion that his sentence be reduced by the 14-month delay. The Court also relied on federal and state speedy trial guarantees, noting that they match the Court’s interpretation of the clause. Finally, the Court recognized that defendants are protected against long delays between conviction and sentencing. The Federal Rules of Criminal Procedure provide that sentences must be imposed “without unnecessary delay,” and states have similar provisions, some even giving specific time limits (Betterman, majority slip op. at 10). And even though the defendant did not argue that the delay violated the Due Process Clause, and thus the Court “express[ed] no opinion on how he might fare under that more pliable standard” (Betterman, majority slip op. at 11), the Court did leave open the possibility that the Due Process Clause would protect a defendant from a long delay between conviction and sentencing. Justice Sotomayor wrote a concurring opinion, arguing that the Barker factors, which include “the length of the delay, the reason for the delay, the defendant’s assertion of his right, and the prejudice to the defendant” (Betterman, Sotomayor concurrence slip op. at 1), should be used in the future when analyzing delayed sentencing. Responding to that concurring opinion, Justice Thomas (joined by Justice Alito), disagreed with Justice Sotomayor. “I would not prejudge that matter. The factors listed in

Reasonable Mistakes of Law and the Fourth Amendment: Heien v. North Carolina (2014)

The issue in Heien v. North Carolina [574 U.S. (2014)] was whether a reasonable mistake of law by the police can support the reasonable suspicion needed to stop a vehicle under the Fourth Amendment. In an 8–1 decision, the Court held that the Fourth Amendment was not violated. Chief Justice Roberts wrote the majority opinion, Justice Kagan wrote a concurring opinion, joined by Justice Ginsburg, and Justice Sotomayor was the lone dissenter. A police officer following a suspicious vehicle noticed that only the left brake light was working. He stopped the vehicle, became suspicious during the course of the stop, and asked to search the vehicle. Heien, the owner of the vehicle, consented to the search, and the police officer found cocaine. Heien was charged with attempted trafficking of cocaine, and he moved to suppress the evidence seized from the vehicle, arguing that the stop and subsequent search violated the Fourth Amendment. Specifically, he argued that since the law required only one working brake light, the police officer did not have reasonable suspicion to stop the vehicle; therefore, his consent to search was not valid. The trial court denied the suppression motion, but the North Carolina Court of Appeals reversed. The state appealed, and the North Carolina Supreme Court reversed. According to the North Carolina Supreme Court, “[a]n officer may make a mistake, including a mistake of law, yet still act reasonably under the circumstances” (Heien majority slip op. at 4). According the United States Supreme Court, “[t]o be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials” (Heien majority slip op. at 5). The majority noted that consent to search a home is still valid even when the consent is given by someone who is not, in fact, a resident of the home as long as the police reasonably believe the person is a resident. Although that case involved a mistake of fact,

Take Me Out to the Ball Game? Baseball, Hot Dogs, and Assumption of the Risk in the Missouri Supreme Court's Coomer v. Kansas City Royals Baseball Corp. Decision

Does a spectator at a baseball game assume the risk of being injured from a mascot’s hot dog toss? According to a unanimous opinion by the Missouri Supreme Court, the answer is no.1 “That risk is no more inherent in watching a game of baseball than it is inherent in watching a rock concert, a monster truck rally, or any other assemblage where free food or T-shirts are tossed into the crowd to increase excitement and boost attendance” (Coomer at 188). The “Hotdog Launch” is a feature that has occurred at every Kansas City Royals home game since 2000. Sluggerrr, the mascot, uses an air gun to shoot hot dogs out into the crowd or tosses hot dogs to those spectators seated nearby. On September 8, 2009, John Coomer was attending a baseball game with his father. They were seated about 15 to 20 feet from Sluggerrr when the mascot started tossing hot dogs. Although Coomer never saw Sluggerrr throw the hot dog that allegedly hit him, he testified that something hit him in the face. According to Coomer, he did not report the incident to the Royals because he did not realize he was injured. However, a couple of days later he realized something was wrong with his eye, and he saw a doctor approximately eight days after the game and was diagnosed as having a detached retina. Coomer underwent surgeries to repair the damage, and in February 2010 he filed a lawsuit alleging negligence.2 The jury was instructed to decide whether the risk of being injured by Sluggerrr’s hot dog toss is one of the inherent risks of watching a Royals baseball game, and the jury found in favor of the Royals. Coomer objected to the jury instruction, arguing that this question is not a question for the jury, but a question of law for the court. The trial court overruled the objection, and Coomer appealed.