Criminal Law Library Blog
NOTE: This posting includes Professor Little’s perspective on City of Ontario v. Quon, the cfase whch includes interesting discussion about whether public employees have a reasonable expectation of privacy regarding text messages went on government owned equipment during working hours.
A Service from the ABA Criminal Justice Section, http://www.abanet.org/crimjust
This summary has been created by Professor Rory K. Little (littler@uchastings.edu), U.C. Hastings College of the Law, San Francisco, who has long presented “Annual Review of the Supreme Court’s Term” program at the ABA’s Annual Meetings. It represents his personal, unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content.
The CJS hopes these summaries will be helpful to you, because they are different from the average news or blog account, in at least three ways: first, a detailed account of the rationale of ALL the opinions issued in a case, including nuances found in separate concurring and dissenting opinions; second, an account of the decision that is essentially “neutral” — that is, not really a “perspective” in the sense of the author’s personal opinions, but rather a straightforward account that can be relied upon by lawyers of all stripes; and then third, a bit of “inside baseball” analysis of some of the twists or nuances that are not apparent in the opinion.
U.S. Supreme Court Summaries – Criminal Cases
Two decisions: June 18, 2010
Dillon v. United States;
City of Ontario v. Quon
On June 17, the Court issued two decisions related to criminal law. In Dillon, the majority’s opinion presents what would appear to be a straightforward account of federal sentencing statutes and guidelines to affirm an old, 23-year guidelines sentence. But Justice Stevens in dissent raises much larger separation-of-powers questions, post-Booker, to challenge (on very sympathetic facts) “what I have come to view as an exceptionally, and often mindlessly, harsh federal punishment scheme.”
Meanwhile, in Quon the Court addresses, but then avoids deciding, the sensitive issue of expectations of privacy regarding electronic text messaging. In a fact-specific setting of a law enforcement officer using his government-provided pager during work hours to send personal messages, the Court rules that an employer review of the messages for budgetary reasons is “reasonable” under the Fourth Amendment.
1) FEDERAL SENTENCING (upholding mandatory limit on sentence reductions for new, retroactive guidelines).
Dillon v. United States, No. 09-6338, 130 S.Ct. ___ (June 17, 2010), affirming 572 F.3d 146 (3d Cir. 2009).
Holding (7-1, Alito not participating, presumably because it is an old case from his Circuit): The Sentencing Commission policy statement that limits the amount of reduction a defendant can receive, when the Commission later revises a guideline and makes it retroactive, is not made “advisory” by Booker.
Facts: [Ed. Note: There are always more ways than one to present “facts.” One way is to start with the “legal facts” (statutes and such); another is to start with the defendant’s personal facts. The majority takes the former approach, but I’ll try the latter here. Most of the sympathetic facts come from Justice Stevens’ dissent. See if it makes a difference to you.]
Dillon was convicted in 1993, when he was 23, of a crack cocaine offense and a § 924(c) firearms offense, which by statute required a mandatory minimum of 15 years total (10 for the crack, consecutive 5 for the gun). The Sentencing Guidelines, however, recommended a higher 262-327 months for the crack offense, based on the amount of drugs and criminal history (Dillon had two prior misdemeanor convictions). The sentencing judge gave the bottom of the range (22 years), plus 5 years for the gun, for a total of 322 months, and the Third Circuit affirmed. But at Dillon’s original sentencing, the district judge said “I personllay don’t believe that you should be serving 322 months, but I feel I am bound by those Guidelines. ….I don’t think they are fair.” The Guidelines are “entirely too high for the crime committed,” and a five-year sentence would be appropriate, said the judge.
Of course, two decades later in Booker the Court made the guidelines “advisory, and in 2007 in Kimbrough the Court ruled that disagreement with the crack guidelines could support a “reasonable” below guidelines sentence. If Dillon had received the mandatory minimum 15 years, he would be out of prison today. Meanwhile, in prison Dillon has been a pretty extraordinary “good” prisoner. He has participated in the development of youth outreach programs, with two different universities, to steer youth away from drugs and violence. “Without his insight and advice, our project would not have succeeded and grown,” said one program coordinator. Dillon also completed a GED degree, taken vocational classes, “and has job prospects awaiting him upon release.”
After Kimbrough, the Sentencing Commission amended the Guidelines to reduce the crack offense levels by two points, and ordered that the amendment be retroactive. But the Commission also issued a “policy statement” directing that any reduction must not be “less than the minimum for the amended guideline range.” The amended Guidelines that permit a retroactive reduction for crack offenses are an exception to the normal statutory rule that a federal court “may not modify a term of imprisonment once it has been imposed.” 18 U.S.C. § 3582(c).
Dillon moved for the sentencing reduction, and the district judge reduced his 262 months for crack to 210 months, the bottom of the amended range. But Dillon asked the court to go lower, arguing that the guidelines were now advisory under Booker and that the new sentencing proceeding permitted the court to sentence freely under Kimbrough and § 3553. The district court, however, found no authority permitting it to ignore the mandatory limit on the sentencing reduction found in the policy statement, and the Third Circuit affirmed.
Sotomayor (joined by all Justices except Stevens, who dissents, and Alito who did not participate in the review of his old Circuit’s decisions): The limited sentencing reduction permitted for a retroactive amended Guideline is not a general “resentencing,” so the wide-open, discretionary sentencing authority under § 3553 and Booker does not come into play. Congress has made it clear that an imprisonment sentence may not be modified except in limited circumstances, and the exception for reductions when Guidelines are amended is “only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding.” Section 3582(c) authorizes a reduction only “if such a reduction is consistent with applicable policy statements.” Here, the policy statement limits the reduction to the bottom of the amended guideline range. Booker does not require or permit us to eliminate the mandatory limits on reductions that Congress and the Commission have announced. (“We do not respond” to Justice Stevens’ separation of powers discussion, which was not briefed and is not within the question presented here.) There is no constitutional right to a reduction, and the reduction proceeding itself does not implicate Booker or Apprendi, because the judge in a reduction proceeding only exercises discretion within the statutory range. “None of the confusion or unfairness that led us” to the Booker remedy is present here. The constitutional errors, if any, in Dillon’s original sentencing (i.e., basing the Guidelines sentence on facts not found by the jury such as the amount of drugs, and thinking that the Guidelines were mandatory) “are outside the scope of the [sentencing reduction] proceeding.”
Stevens dissenting: “Neither the interests of justice nor commonsense” support this result. “I thought Booker had dismantled the mandatory Guidelines regime. The Court ought to finish the job.” Moreover, the idea that the Commission can, in a mere “policy statement,” mandatorily order district courts in this instance, despite Booker, is of “dubious” constitutionality — Justice Scalia’s criticisms of the Commission on separation of powers grounds in Mistretta might well apply here. “I do not think the Commission’s authority encompasses the ability to promulgate binding guidelines via policy statements.” [Ed. Note: However, neither Justice Breyer, who wrote Booker, nor Justice Scalia, who dissented in Mistretta saying the entire Sentencing Commission was unconstitutional on separation of powers grounds, joins or comments on Justice Stevens’ discussion of those two cases here.]
Although I joined the majority in Mistretta, “it became apparent during the next two decades” that the mandatory guidelines “produced a host of excessively severe sentences” and also deprived defendants of “long-settled constitutional protections” (thus leading to Apprendi and Booker). And although I dissented in Booker, the fact that Congress has allowed it to stand “demonstrates not only that Justice Breyer is more clairvoyant than I … but also that Congress has acquiesced to a discretionary Guidelines regime.” We should not leave in place the “narrow sliver” of mandatoriness in the policy statement at issue here. Finally, the Commission makes the “subtle threat” that if we remove its limit on sentencing reductions, it won’t make amended Guidelines retroactive in the future. We ought not be influenced that in our decision here, and it seems unlikely.
2. FOURTH AMENDMENT (reasonableness of searching electronic text messages of public employees sent on government–owned equipment during work hours)
City of Ontario, California, v. Quon, No. 08-1332, 130 S.Ct. ____ (June 17, 2010), reversing 529 F.3d 892 (9th Cir. 2008).
Holding (9 (7-1-1) to 0): Without deciding generally whether public employees have a reasonable expectation of privacy in their text messages sent on government-owned equipment during work hours, the review of Quon’s messages here, for a legitimate work-related purpose and not excessive, was reasonable under the Fourth Amendment.
Facts: Quon’s city police department employer gave him a text-messaging device for use in his work as a member of the SWAT team. The city made it clear that texts could be monitored and that he should have no expectation of privacy regarding them. However, when the city became concerned that it was paying too much for “overages” on its plan, Quon’s supervisor told Quon that, if Quon paid for the overages, then his texts would not be “audited.” Quon then started paying monthly overage charges himself, and says this created a “reasonable expectation of privacy” that his messages would not be reviewed. Later, however, the city became tired of being a “bill-collector” and decided to audit the texts to see whether the level of messages paid for was adequate for the policing job. The city restricted its review to text messages sent during work hours, and only for two months. Still, it found that Quon was sending lots of texts for personal reasons (they revealed his romantic, and sometimes sexually explicit, messages), and he was disciplined. Officer Quon and other people he messaged with sued, alleging their Fourth Amendment rights were violated by this government “search” of their messages. The district court rejected the claim after a jury found that the audit was conducted for a legitimate government purpose, but the Ninth Circuit reversed and remanded, finding that “less intrusive means” could have been used to achieve that purpose.
Kennedy (for all Justices except Scalia in one Part): This case “touches issues of far-reaching significance,” and we “must proceed with care when considering the whole concept of privacy expectations in” modern electronic mechanisms. “It is not so clear that courts are at present on so sure a ground” so as to opine authoritatively on these issues. “Prudence counsels caution before the facts of this case are used to establish far-reaching premises.” (The Court cites to Olmstead, which early on held that wire-tapping was not a constitutional issue, which took some 45 years to reverse in Katz (1967).)
Meanwhile, this Court has disagreed as to the proper analysis for workplace Fourth Amendment concerns. In O’Connor v. Ortega (1987), the Court agreed that a worker in a government office does not necessarily lose all privacy expectations. However, only a plurality said that “operational realities of the workplace” must be examined. Justice Scalia rejected this idea, and said that “reasonable” workplace searches should simply be upheld. We do not resolve this dispute here. Even assuming that Quon had a reasonable expectation of privacy in his text messages here, we think the review of his messages was reasonable. It was for a “legitimate work-related” purpose, and it was not excessive. Quon had only a “limited expectation of privacy” at best, because “a reasonable employee” in a law enforcement job would know that his messages might be reviewed. [Ed note: Here the Court appears to be answering the questions, at least in part, that it said it would not answer, above.] It was error for the Circuit to rule on a “less intrusive means” analysis, because a hindsight court “can almost always imagine some alternative means,” and we have “repeatedly refused to declare that only the least intrusive search practicable can be reasonable under the Fourth Amendment” (Vernonia, 1995).
Stevens, concurring: I want to point out that Justice Blackmun, in dissent in O’Connor, offered a third approach, more protective of workplace privacy, and his approach is not yet “foreclosed.” However, “Quon, as a law enforcement officer who served on a SWAT team, should have understood that all of his work-related actions – including all of his communications on his official pager – were likely to be subject to public and legal scrutiny.”
Scalia, concurring in part and in the judgment: First, Justice Blackmun’s approach is foreclosed, he was the losing dissenter in O’Connor. More importantly, the “operational realities rubric” of the O’Connor plurality is “standardless and unsupported,” so I can’t join that part of the majority’s discussion. And finally, the Court’s “digression” on the general issue is “unnecessary,” “exaggerated,” and “self-defeating” because it “underscores the unworkability of that standard.” [Ed. Note: Justice Scalia is particularly unhappy with the majority’s speculation that electronic “gadgets” might be necessary, even in the workplace, for “self-expression, even self-identification,” which does indeed seems like an unnecessary, and typically Kennedy-ian, poetic description.]
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