edited by Rolando V. del Carmen and Craig Hemmens. Lanham, MD: Rowman & Littlefield Publishers, 2010. 382pp. Hardback $49.95. ISBN: 9781442201569. Paper ISBN: 9781442201583.
Reviewed by Salmon A. Shomade, Department of Political Science, University of New Orleans. Email: sshomade [at] uno.edu.
Selecting and writing about the top twenty U.S. Supreme Court cases in any area of a law is a difficult but noble cause. CRIMINAL PROCEDURE AND THE SUPREME COURT: A GUIDE TO THE MAJOR DECISIONS ON SEARCH AND SEIZURE, PRIVACY, AND INDIVIDUAL RIGHTS proposes to present the top twenty Court decisions in criminal procedure. Noting that each of the top twenty cases was selected “based on its perceived impact on police work and daily police interaction with the public” (p.2), the editors surmise that even if the case specifics are not well understood, every case is or should be familiar to police officers and the general public. Editors Rolando V. del Carmen and Craig Hemmens complete the introductory pages by explaining the book organization – a sequential division of the twenty cases (each case constituting a chapter) into eight parts – and outlining the basic framework for each chapter generally comprised of a case introduction, analysis of the facts and opinions, updates, significance, and conclusion.
In the Introduction, Del Carmen and Hemmens maintain that many criminal procedure books used in criminal justice tend to lack in-depth discussions of cases mentioned while those used in law schools include lengthy case presentations but little case discussions or updates. The editors contend that their “book seeks to combine both approaches, choosing the most significant cases in criminal procedure, ranking them, discussing the decision in totality (including dissenting and concurring opinions), and updating and then placing them in perspective” (p.1). Del Carmen and Hemmens note that by utilizing a “vertical rather than a horizontal approach to learning criminal procedure” (p.1), readers are left with a better grasp of the most relevant decisions. Acknowledging that case ranking is a subjective enterprise, the authors claim, however if “properly used . . . rankings constitute a starting point for inquiry but should not be considered the final word. They can be useful tools for discussion and debate but should not be proxies for personal informed choices” (p.2). Not too many scholars will disagree with the selection of the twenty major cases presented, but conspicuously missing from the book is a list featuring the ranking within the cases. This is notable because the editors mention MIRANDA v. ARIZONA (1966) as “case number one” (p.2) and CARROLL v. UNITED STATES (1925) as “case number seven” (p.2) in the introduction, but the rankings of the other cases are not presented in [*124] the book. While the omission might be inadvertent or intentional, the rankings list could have been a significant contribution of this treatise to the literature. Nonetheless, the presentation of these top twenty cases written by different scholars, and complete with detailed analyses of facts, opinions, and subsequent histories, still makes the book a decent addition to one’s criminal procedure library.
Part I entitled “Reasonable Expectation of Privacy and Probable Cause” features KATZ v. UNITED STATES (1967) in Chapter 1 and ILLINOIS v. GATES (1983) in Chapter 2. Sue Carter Collins explains that the KATZ Court articulated the broad “reasonable expectation of privacy” principle in use today. Stating that the U.S. Constitution protects people and not places, the KATZ Court held that the use of electronic surveillance even if it does not involve physical penetration into a protected area is nevertheless a violation of the Constitution’s Fourth Amendment. Collins maintains that this principle generally governs the use of electronic surveillance by law enforcement even if additional laws have been created to accommodate justifiable security concerns in a post-9/11 world. In discussing KATZ, Collins amplifies the influence and role of technology in defining right to privacy. Analyzed in Chapter 2, the GATES Court held that information obtained from confidential informants can be used for “probable cause” if under the totality of the circumstances surrounding the warrant application there is “probable cause” that a crime has occurred or evidence of criminal activity will be found at a certain place. David Brody argues the significance of the GATES decision is to weaken protections: “By [the Court’s] viewing Fourth Amendment protections and standards as technicalities and [lower] courts that applied them as being unduly rigid, the Court gave a green light to more aggressive use of confidential informants and other tactics in the growing war on drugs” (p.34).
MAPP v. OHIO (1961) is the main focus of Part II which addresses the Exclusionary Rule. In MAPP, the Court held that evidence obtained in violation of the Fourth Amendment protection against unreasonable searches and seizures is inadmissible against an accused person in a state criminal prosecution. Prior to MAPP, each state decided whether to preclude such evidence, but the Court clarified that the provisions of the Fourth Amendment were made applicable to the states via the Fourteenth Amendment. Noting that MAPP might be the second most important case after MIRANDA v. ARIZONA (1966), Sue Carter Collins regards MAPP as “one of a select few criminal cases that has revolutionized the way law-enforcement officers and prosecutors conduct business on a daily basis” (p.46). Admitting that the “exclusionary rule” emanating from the case is a judicially created rule, Collins claims that its primary purpose is to deter police misconduct.
Stop and Frisk is the subject of Part III and it focuses on TERRY v. OHIO (1968) and MINNESOTA v. DICKERSON (1993). In Chapter 4, Rolando del Carmen dissects how TERRY v. OHIO enhances the power and authority of law enforcement authorities to stop and frisk citizens without having to worry about Fourth [*125] Amendment challenges against unreasonable searches and seizures. Del Carmen further elaborates that the case is notable for two other reasons, one being the Court’s acknowledgment that not all police-citizen encounters amount to seizures; and the other is the Court’s adoption of a “reasonable suspicion” as the intermediate standard between mere suspicion and probable cause. In Chapter 5, del Carmen notes that Dickerson is noteworthy because it remedied problems TERRY caused. Del Carmen maintains that the TERRY Court provided unambiguous guidelines for what a police office could constitutionally do after a stop but failed to clarify the outer limits of a frisk. He claims that lower courts had always recognized plain feel as a way to establish probable cause, but it was in DICKERSON that the Court formally recognized plain feel as the clear limit for a frisk.
Two chapters featuring CHIMEL v. CALIFORNIA (1969) and UNITED STATES v. ROBINSON (1973) make up Part IV’s emphasis on Arrest. Claire Nolasco discusses CHIMEL (Chapter 6) as clarifying the guidelines for searches conducted by law enforcement incident to arrests. She contends that the guidelines offered by CHIMEL and its progeny have enabled law enforcement to better determine the scope and extent of a search without violating Fourth Amendment tenets. Nolasco concludes that although officer safety and evidence preservation were the twin justifications for the CHIMEL decision, both issues were nonetheless left unresolved. In Chapter 7, Nolasco maintains that UNITED STATES v. ROBINSON (1973) “granted law enforcement the absolute right to conduct searches incident to a custodial arrest based on probable cause regardless of the underlying offense. The fact of arrest created the absolute right to search” (p.113). Thus, Nolasco surmises, one consequence of ROBINSON and its progeny is that law enforcement officers might make arrests for minor offenses in order to justify subsequent searches.
Part V on Searches of Places and Things is the longest section with five major cases. The knock-and-announce rule was the primary issue in WILSON v. ARKANSAS (1995) which is the focus of Chapter 8. Craig Hemmens observes that the decision and related line of cases suggest that “while [the Court] still pays lip service to the principle that a person’s home is their castle, and that violations of the sanctity of the home are to be treated as serious infringements of individual liberty, the reality is that police who ignore the knock-and-announce rule will still be able to use the evidence they seize in a subsequent criminal trial” (pp.131-32). Nolasco analyzes PAYTON v. NEW YORK (1980) on warrantless arrests in Chapter 9. Craig Hemmens in Chapter 10 tells us that OLIVER v. UNITED STATES's (1984) significance is that the Court reaffirms the notion that the “reasonable expectation of privacy” standard in Fourth Amendment cases do not apply to “open field” property, but left unanswered many questions that were later answered in subsequent cases. On SCHNECKLOTH v. BUSTAMONTE (1973), covered in Chapter 11, Sue Carter Collins writes that the decision is consequential because the Court held that the Fourth and Fourteenth Amendments do not require law enforcement to inform individuals of their right to refuse consent as a [*126] prerequisite for law enforcement’s conduct of a valid search in which consent is voluntarily given. The last case in the section is GEORGIA v. RANDOLPH (2006) analyzed by David Brody in Chapter 12. In RANDOLPH, the Court ruled that when both co-occupants of a home are present, a refusal by one of the occupants renders a search based on the other occupant’s consent unreasonable and unacceptable under the Fourth Amendment. Brody argues that the RANDOLPH’s impact on law enforcement might be limited because the decision is case specific since it only applies to instances where a defendant is physically present when consent is requested for a search to take place and the defendant denies permission for the search.
Four main cases are included in Part VI on Motor Vehicles. Rolando del Carmen discusses CARROLL v. UNITED STATES (1925) in Chapter 13 and David Ross explains UNITED STATES v. ROSS (1982) in Chapter 14. Although NEW YORK v. BELTON (1981) is no longer considered good law, it is the subject of Jeremy T. Walker’s analysis in Chapter 15. In BELTON, the Court ruled that law enforcement, incident to a lawful arrest, may search the immediate area of an automobile including the passenger compartment from which the arrested person is taken. However, Walker maintains that because lower courts struggled with applying the rule, the Court essentially overturned the BELTON decision in ARIZONA v. GANT (2009) when it limited the permissible scope of passenger compartment searches. Walker also tackles WHREN v. UNITED STATES (1996) covered in Chapter 16.
Three cases comprise Part VII on Interrogation and Lineups. The famous case of MIRANDA v. ARIZONA (1966) leads the pack in this section. Marvin Zalman argues that the decision, famous for generating the popular phrase on the right to remain silent and the right to counsel used by U.S. law enforcement everyday, was met with disapproval from law enforcement and politicians when it was rendered. However, Zalman notes, the political uproar over the decision proved to be unfounded as many suspects easily waive their rights. Zalman also writes about SCHMERBER v. CALIFORNIA (1966) in Chapter 18 and in chapter 19 he discusses a trilogy of cases – UNITED STATES v. WADE (1967), KIRBY v. ILLINOIS (1972), and UNITED STATES v. ASH (1973) – which collectively address the constitutional right to the presence of a defense lawyer at live and photographic lineups. The last subject, Police Liability, in Part VIII has TENNESSEE v. GARNER (1985) as the major case with Jeffrey Walker dissecting the Court’s provision of better guidelines on police use of deadly force. The book concludes with a Part IX featuring synopses of what the editors identify as the “next significant twenty (or so) most significant cases” written by Valerie Bell. Appendix I has a chronological listing of both sets of cases while Appendix 2 includes brief biographies of the Court’s justices that wrote the majority opinion of one or more of the initial top twenty cases.
Overall, CRIMINAL PROCEDURE AND THE SUPREME COURT is a useful addition to the criminal procedure literature if only for the reason that it features groundbreaking Court decisions many scholars would agree constitute [*127] the framework for interactions between law enforcement and the public. But the glaring omission or the decision not to include the rankings list is likely to cause consternation among some readers, especially since the editors frame the list as one of the geneses for the book’s contribution to the literature. To be certain, and as the editors clearly admit in the introduction, case ranking is a subjective exercise and might be difficult to do given that the cases cover different areas of criminal procedure. Nonetheless, since the editors consider MIRANDA as the number one case (which many readers will agree), some of these readers would also be curious to see which case the editors deem number two, number three, and so forth. Moreover, it seems erroneous for the editors to claim on page 3 that certain cases (BELTON AND GANT) are not included among the top twenty cases, but one of them (BELTON) is covered as the main focus in Chapter 15. I believe this error and the missing list could easily be addressed by a different introductory section that emphasizes the book’s major contribution as a one-stop shop for groundbreaking criminal procedure cases decided by the U.S. Supreme Court.
ARIZONA v. GANT, 556 U.S. ---, 129 S.CT. 1710 (2009).
CARROLL v. UNITES STATES, 267 U.S. 132 (1925).
CHIMEL v. CALIFORNIA, 395 U.S. 752 (1969).
GEORGIA V. RANDOLPH, 547 U.S. 103 (2006).
ILLINOIS v. GATES, 462 U.S. 213 (1983).
KATZ v. UNITED STATES, 389 U.S. 347 (1967).
KIRBY v. ILLINOIS, 406 U.S. 682 (1972).
MAPP v. OHIO, 367 U.S. 643 (1961).
MINNESOTA v. DICKERSON, 508 U.S. 366 (1993).
MIRANDA v. ARIZONA, 384 U.S. 436 (1966).
NEW YORK v. BELTON, 453 U.S. 454 (1981).
OLIVER v. UNITED STATES, 466 U.S. 170 (1984).
PAYTON v. NEW YORK, 445 U.S. 573 (1980).
SCHMERBER v. CALIFORNIA, 384 U.S. 757 (1966).
SCHNECKLOTH v. BUSTAMONTE, 412 U.S. 218 (1973).
TENNESSEE v. GARNER, 471 U.S. 1 (1985).
TERRY v. OHIO, 392 U.S. 1 (1968).
UNITED STATES v. ASH, 413 U.S. 300 (1973).
UNITED STATES v. ROBINSON, 414 U.S. 218 (1973).
UNITED STATES v. ROSS, 456 U.S. 798 (1982).
UNITED STATES v. WADE, 388 U.S. 218 (1967).
WHREN v. UNITED STATES, 517 U.S. 806 (1996).
WILSON v. ARKANSAS, 514 U.S. 927 (1995).
© Copyright 2011 by the author, Salmon A. Shomade.