Supreme Court Preview—November Cases of Note

Two interesting cases are being heard this month by the United States Supreme Court, and it was announced today that a third interesting case will be heard this coming spring.

Georgia v. Randolph
The first is Georgia v. Randolph,^[1] scheduled to be heard tomorrow, November 8. At issues is who holds the “trump” card when co-occupants with common authority disagree on giving consent to a search.

In this case, Scott Randolph and his wife were having marital problems; Mrs. Randolph at one point separated from Mr. Randolph and took their child to Canada.^[2] About a month later, Mrs. Randolph and the child returned to Mr. Randolph’s house, and a couple of days later, she called the police to report a domestic disturbance.^[3] When the police arrived, Mrs. Randolph was alone and complained that Mr. Randolph had taken their child away from the house, and accused her husband of using large amounts of cocaine.^[4] Shortly thereafter, Mr. Randolph returned, explaining that he had taken the child to a neighbor’s house because he feared that Mrs. Randolph would leave the country with the child again; he also accused his wife of being “highly inebriated and an alcoholic.”^[5] The police officer accompanied Mrs. Randolph to the neighbor’s house to retrieve the child, and when they returned, the officer asked Mr. Randolph for consent to search the residence.^[6] Mr. Randolph unequivocally said “no,” and the officer turned to Mrs. Randolph and asked for her consent.^[7] She readily agreed to the search, which yielded a “piece of cut straw” which appeared to have some white residue on it.^[8] The officer collected an evidence bag and called the district attorney’s office, which told the officer to stop the search and obtain a warrant; Mrs. Randolph then withdrew her consent to search the house.^[9] A warrant was eventually obtained, and a number of drug-related items were seized.^[10] Mr. Randolph was indicted for cocaine possession, and he moved to suppress the evidence of the drugs, claiming that search of the residence over his objection violated his Fourth Amendment rights.^[11] The trial court denied the motion, and the Georgia Court of Appeals granted Mr. Randolph’s application for an interlocutory appeal.^[12]

The Georgia Court of Appeals found “persuasive” the idea that “if one person with equal rights in a place refuses to honor a co-occupant’s objection, such refusal hints of underlying trouble in the relationship and should raise a question as to why consent was given.”^[13] Furthermore, “[i]f ‘common authority’ is the bases for allowing one co-occupant to consent to a search on behalf of all occupants, it seems reasonable that ‘common authority’ should permit a co-occupant to exercise privacy rights on behalf of all occupants.”^[14]

The State filed a petition for a writ of certiorari with the Georgia Supreme Court, which was granted “to decide whether an occupant may give valid consent to search common areas of a premises shared by another occupant who is present and objects to the search.”^[15] The Georgia Supreme Court concluded that “the consent to conduct a warrantless search of a residence given by one occupant is not valid in the face of the refusal of another occupant who is physically present at the scene to permit a warrantless search.”^[16]

Thus, both the Georgia Court of Appeals and the Georgia Supreme Court would have allowed the evidence to be suppressed. The State of Georgia filed a petition for a writ of certiorari, which was granted, and the United States will be examining this question closely.

Maryland v. Blake
The second interesting case this month, Maryland v. Blake,^[17] was heard on November 1. It involves the question whether an incriminating statement is admissible if a defendant was improperly questioned earlier.

In this case, Leeander Jerome Blake was indicted an Anne Arundel County, Maryland, grand jury for the offense of first degree murder, second degree murder, and manslaughter.^[18] Mr. Blake moved to suppress his incriminating statements, which was granted by the Circuit Court.^[19] Mr. Blake was arrested, taken to an “intake room,” and when he was advised of his Miranda rights, Mr. Blake “invoked his right to counsel, indicating he did not wish to speak with the police officers without an attorney.”^[20] With a detective, Detective Johns, and an officer, Officer Reese, present, Mr. Blake was then given a print-out of the charges against him, and the penalty, as stated on the document, was boldly proclaimed as “DEATH,” even though Mr. Blake was under 18 and not eligible for the death penalty.^[21]

According to Detective Johns, after he handed Mr. Blake the charging document and turned to leave, Officer Reese—“in a tone Detective Johns characterized as loud and confrontational”—said “’I bet you want to talk now, huh!’”^[22] Detective Johns claimed that he told Officer Reese that Mr. Blake did not want to talk, that he had already asked for a lawyer, and that he was concerned that Officer Reese’s outburst would violate Mr. Blake’s request for a lawyer.^[23] Roughly half-an-hour after this exchange, Detective Johns returned to Mr. Blake’s cell with some clothing, and at that point, according to Detective Johns, Mr. Blake initiated contact with the detective, and told him that he would like to talk; the detective re-administered the Miranda warnings, and Mr. Blake provided an incriminating statement in absence of an attorney.^[24]

Mr. Blake’s account of what happened in the holding cell differed from Detective Johns’ testimony. According to Mr. Blake, he was cold and wet in his cell, and scared after seeing he would be, he thought, facing the death penalty.^[25] In Mr. Blake’s version, the detective reinitiated the conversation by saying “Mr. Blake, do you wish to talk to me?” to which Mr. Blake said “May I still talk to you?”^[26] The trial court decided that who re-initiated contact first was somewhat irrelevant, and suppressed the statement.^[27] Maryland’s intermediate appellate court reversed the trial court’s decision, but Maryland’s high court, the Court of Appeals, held that the statement was rightly suppressed.

“Interrogation means more than direct, explicit questioning and includes the functional equivalent of interrogation.”^[28] And while the test of whether the police should know their words or actions are likely to elicit a response is objective, if a police officer “acts with a purpose of getting a suspect to talk, it follows that the officer has reason to know that his or her conduct was reasonable likely to elicit an incriminating response.”^[29] In holding that Officer Reese’s comment was the functional equivalent of interrogation, the Maryland Court of Appeals noted that “any reasonable officer had to know that his comment was reasonably likely to elicit an incriminating response. When the charging document was given to [Mr. Blake], containing a false statement of the law with respect to the penalty of death, it was accompanied by an officer’s statement which served no legitimate purpose other than to encourage petitioner to speak.”^[30]

The United States Supreme Court granted certiorari to determine whether Maryland’s Court of Appeals properly applied Fifth Amendment precedent when it allowed the suppression of Mr. Blake’s statements.

Hamdan v. Rumsfeld
The final case, Hamdan v. Rumsfeld,^[31] concerns the government’s military tribunals for foreign terror suspects. This case, which will be heard in the spring, is interesting for a number of reasons, not the least of which is that Chief Justice Roberts ruled on the case at the appellate level, and there will likely be, at that time, a new associate justice to replace Justice O’Connor.

Hamdan v. Rumsfeld involves the case of a man, Salim Ahmed Hamdan, who was captured by Afghani militia forces in Afghanistan in late November of 2001.^[32] Mr. Hamdan was turned over to American military personnel and then transported to the Guantanamo Bay Naval Base, where he was initially kept in the general detention facility.^[33] A year-and-a-half later, however, President Bush determined “that there is reason to believe that [Hamdan] was a member of al Qaeda or was otherwise involved in terrorism directed against the United States,” which made him designated for trial before a military commission.^[34] Five months later, he was removed from the general population at Guantanamo, placed in solitary confinement, and given counsel for the initial purpose of plea negotiation.^[35] In April 2004, Hamdan filed a petition for habeas corpus, and while his petition was pending before the district court, “the government formally charged [him] with conspiracy to commit attacks on civilians and civilian objects, murder and destruction of property by an unprivileged belligerent, and terrorism.”^[36] According to an affidavit, Mr. Hamdan was Osama bin Laden’s personal driver.^[37]

On November 8, 2004, the district court granted in part Mr. Hamdan’s habeas corpus petition, holding that “Hamdan could not be tried by a military commission unless a competent tribunal determined that he was not a prisoner of war under the 1949 Geneva Convention governing the treatment of prisoners.”^[38] The district court “therefore enjoined the Secretary of Defense from conducting any further military commission proceedings against Hamdan.”^[39]

A large part of the D.C. Circuit’s decision rested on denying the District Court’s determination that the Geneva Conventions created a private cause of action in domestic courts.^[40] “[I]nternational agreements, even those directly benefiting private persons, generally do not create private rights or provide for a private cause of action in domestic courts. … We believe the [district] court’s conclusion disregards the principles just mentioned and is contrary to the [Geneva] Convention itself,”^[41] and that the 1949 Geneva Convention does not confer a right to enforce its provisions in court.^[42] When the Supreme Court examines this aspect, it will be interesting to see if it acknowledges its discussions of the Vienna Convention on Consular Relations, which we previously discussed here.

Assuming arguendo, however, that Mr. Hamdan had a private cause of action under the Geneva Convention, he is not helped because the Convention applies only to prisoners of war, and “[o]ne problem for Hamdan is that he does not fit the Article 4 definition of a ‘prisoner of war’ entitled to the protection of the Convention.”^[43]

The district court’s decision was reversed, and Mr. Hamdan has been granted a writ of certiorari. “Bush administration lawyers urged the Supreme Court to reject the appeal. They said the courts should avoid interfering with military proceedings and that Hamdan’s attorneys could raise any issues after the trial.”^[44] Mr. Hamdan’s attorneys, however, argue that the Court should hear the challenge now, “rather than waiting until after the trial was conducted and the appeals exhausted—a process that could take years.”^[45]

Chief Justice Roberts did not take part in considering Mr. Hamdan’s petition, and has said that he would not take part in any Supreme Court case on any matter in which he had participated while on the appeals court^[46]

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[1] Docket No. 04-1067 (on petition from State v. Randolph, 604 S.E.2d 835 (Ga. 2004) (PDF), cert. granted Georgia v. Randolph, 125 S. Ct. 1840 (2005)).
[2] Randolph v. State, 590 S.E.2d 834, 836 (Ga. Ct. App. 2003) (not readily available online).
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id. at 837.
[14] Id.
[15] State v. Randolph, 604 S.E.2d 835, 836 (Ga. 2004).
[16] Id.
[17] Docket No. 04-373 (on petition from Blake v. Maryland, 849 A.2d 410 (Md. 2004) (PDF), cert. granted Maryland v. Blake, 125 S. Ct. 1823 (2005)).
[18] Blake v. Maryland, 849 A.2d 410, 412 (Md. 2004).
[19] Id.
[20] Id. at 412-13
[21] Id. at 413
[22] Id.
[23] Id.
[24] Id. at 413-14.
[25] Id. at 414.
[26] Id.
[27] Id. at 415.
[28] Id. at 418.
[29] Id.
[30] Id. at 420.
[31] Docket No. 05-184 (on petition from Hamdan v. Rumsfeld, 415 F.3d 33 (D.C. Cir. 2005) (PDF), cert. granted Hamdan v. Rumsfeld, __ S.Ct. __, 2005 U.S. LEXIS 8222 (2005)).
[32] Hamdan v. Rumsfeld, 415 F.3d 33, 35 (D.C. Cir. 2005).
[33] Id.
[34] Id.
[35] Id.
[36] Id.
[37] Id. at 35-36.
[38] Id. at 36.
[39] Id.
[40] Id. at 38-39.
[41] Id. at 39.
[42] Id. at 40.
[43] Id.
[44] James Vicini, High Court to Review Military Trials, Reuters, Nov. 7, 2005, available here.
[45] Id.
[46] Id.