The Counterrevolution Enters a New Era: Criminal Procedure Decisions During the Final Term of the Burger Court

• Jurisdiction: United States,Federal
• Citation: Vol. 10 No. 03
• Publication year: 1987

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 10, No. 3SPRING 1987

The Counterrevolution Enters a New Era: Criminal Procedure Decisions During the Final Term of the Burger Court

Charles Whitebread and John Heilman(fn*)

I. Introduction

In its final term, the Burger Court continued its counterrevolution(fn1) in criminal procedure by issuing a series of rulings that restructure the balance between the state and the criminally accused. The elevation of Justice Rehnquist to Chief Justice and the appointment of Justice Antonin Scalia to the Court will certainly give this counterrevolution further impetus. Before making predictions, however, it is first important to identify the five major themes that have marked the Burger Court's counterrevolution in criminal procedure and demonstrate how these themes were illustrated by various decisions this term during the 1985-86 term.

The first of these five themes is that the majority of the Court is committed to the crime control model of the criminal justice system. The majority is eager to accommodate the perceived needs of law enforcement and to assist the police by eliminating legal obstacles whenever possible. Unlike the Warren Court, the Burger Court has generally presumed the regularity of police conduct. Consequently, the Court places a heavy burden on a criminal defendant to demonstrate the unlawfulness of police conduct. While the Warren Court was often concerned with bridging the gap between its perception of police practices and the constitutional ideal, the Burger Court has believed that actual police practices generally comply with the constitutional ideal.

The second theme which has marked the Burger Court counterrevolution is that certain constitutional rights of a criminal defendant are considered less important than others. This hierarchy or ranking of rights is determined by asking how much impact does the right in question have on the issue of the defendant's guilt or innocence? Because the Court views convicting the guilty as the ultimate mission of the criminal justice system, rights which most impact the determination of guilt are accorded higher status. Thus, the right to jury trial, the right to counsel, and the right to public trial have received close scrutiny from the Burger Court. The fifth amendment right to be free from compelled self-incrimination receives somewhat less scrutiny, especially when it involves the prophylactic rules of Miranda, as opposed to a truly involuntary confession. At the bottom of the hierarchy is the fourth amendment right prohibiting unreasonable searches and seizures. The Burger Court clearly has taken a negative view of the fourth amendment and its unpopular exclusionary remedy because the Court believes they interfere with, and sometimes contradict, the Court's view of the mission of the criminal justice system; to convict the guilty and acquit the innocent.

The third theme of the Burger Court has been a preference for analyzing issues on a case-by-case basis rather than announcing clear-cut rules in criminal decisions. The Court has been reluctant to set forth any rules, perhaps because of its own difficulty in reaching any broad consensus beyond the decision in the case before it. For example, the Court's decisions have even blurred formerly well-established rules such as the need to give Miranda warnings. While the Court apparently is trying to be supportive of law enforcement concerns, the Court's preference for case-by-case decision making will actually work, in the long run, to the detriment of police officers, trial courts, and criminal justice practitioners who will all be at a loss as to what police may lawfully do.

The fourth theme of the Burger Court is related to all the others, and perhaps explains the Burger Court's preference for case-by-case adjudication. The fourth theme is that the constitutional claims of a defendant are often subsidiary, in the Court's view, to the issue of whether or not the defendant is in fact guilty. This theme has created not only a fact-specific style of argument before the Court, but it has also resulted in the development and refinement of various fact-specific legal doctrines such as inevitable discovery and harmless error.

The fifth and final theme of the Burger Court counterrevolution has been the institution of a new federalism and the transfer of power from federal courts to state courts to interpret the meaning of constitutional rights in state criminal cases. The Burger Court has been so successful in closing the doors of the federal courts to state prisoners that the fifth theme has almost been dormant in recent years, although the Court this term made several important pronouncements in this area. This theme is important because it is perhaps the Burger Court's most enduring legacy in the area of criminal justice. By limiting the access of state prisoners to federal habeas review, the Burger Court has effectively insulated state criminal convictions from federal court oversight and thereby granted state judges considerable authority to interpret the Federal Constitution. The long-term implications of this theme are obvious.

II. The Crime Control Model

The crime control model of criminal justice has clearly been a predominant theme of the Burger Court and has gained considerable momentum since the appointment of Justice O'Connor. Several significant cases during the final term have demonstrated the Burger Court's determination to assist law enforcement personnel, especially in their battles against drug traffickers. In addition, the Court has also illustrated its crime control mentality by trying to assist prosecutors in several ways during the 1985-86 term.

The two aerial search cases during the final term are prime examples of the Court's crime control mentality at work. In California v. Ciraolo,(fn2) the Court held that a warrantless, naked-eye observation of a field by police officers flying at 1000 feet in a small aircraft did not constitute a search under the fourth amendment. Similarly, in Dow Chemical Co. v. United States,(fn3) the Court held that the government's warrantless taking of aerial photographs was not a search under the fourth amendment.

In Ciraolo, police officers received an anonymous tip that marijuana was growing in Ciraolo's backyard.(fn4) Police officers were unable to view the contents of the yard because it was enclosed by both a 6-foot fence and a 10-foot inner fence. The officers then obtained a private plane, flew over the yard and determined marijuana was growing. A search warrant was then obtained to seize the marijuana plants. Ciraolo was later convicted of cultivating marijuana. The California Court of Appeal reversed the conviction on the ground that the warrantless aerial observation of Ciraolo's yard violated the fourth amendment.

The Supreme Court, in a 5-4 decision, reversed, holding that Ciraolo had no constitutionally protected expectation of privacy as to his "unlawful agricultural pursuits."(fn5) The Court asserted that Ciraolo's expectation of privacy was unreasonable because anyone flying in the airspace "could have seen everything that these officers observed."(fn6) Thus police traveling in the airways are not required to obtain a warrant "in order to observe what is visible to the naked eye."(fn7)

In Dow, the Court approved the taking of aerial photographs of an industrial plant complex. The Court held 5-4 that the open areas of Dow's industrial plant complex are similar to an open field which is "open to the view and observation of persons in aircraft lawfully in the public airspace."(fn8) As such, the taking of aerial photographs by the Environmental Protection Agency did not constitute a search for purposes of the fourth amendment.

Although the decision in Dow is indicative of the crime control mentality, the Court emphasized that its holding was limited to aerial observation and photographing of an outdoor commercial facility.

In another fourth amendment case, New York v. Class,(fn9) the Court also demonstrated its commitment to the crime control model of criminal justice. In Class, the Court held 5-4 that a police officer can constitutionally reach into an automobile to move papers in order to observe the car's Vehicle Identification Number (VIN). The Court indicated that the police officer's actions were not unreasonable especially in light of the pervasive regulation of automobiles and the lesser expectation of privacy citizens have in cars, boats, planes, trains, and, since 1985, motorhomes. Clearly, the Court's opinion was designed to be supportive of law enforcement personnel. Indeed, the Court indicated that any other result in the case "would expose police officers to potentially grave risks without significantly reducing the instrusiveness of [their] ultimate conduct."(fn10)

Several other cases during the final term reflect the Court's crime control model of criminal procedure and demonstrate the Court's desire to assist not only police officers, but also prosecutors in their efforts to convict the guilty. For example, in United States v. Inadi,(fn11) the Court held 7-2 that the Confrontation Clause of the sixth amendment does not require a prosecutor to show that a co-conspirator is unavailable as a condition for admitting the co-conspirator's out-of-court statements. The majority emphasized that requiring prosecutors to make a...