On September 25, the justices will meet for their first conference after their summer recess, which is also known as the “long” conference. At that conference, they will consider more petitions than they do at any time of the year (usually somewhere around 2,000) but will grant relatively few – last year, the number was eight. Last month I began a series of posts that will focus on the cases that have been distributed for the “long” conference; this is the third post in that series.
The Alien Tort Statute gives federal district courts the power to hear civil lawsuits brought by non-citizens “for a tort only, committed in violation of the law of nations or a treaty of the United States.” Four years ago, the Supreme Court ruled that the “presumption against extraterritoriality” – that is, the principle that U.S. laws generally apply only to events in the United States – applies fully to the ATS, so that plaintiffs will not normally be able to rely on the law to bring lawsuits arising from actions that took place in another country. But the court left open the possibility that lawsuits could still be brought when the plaintiffs’ “claims touch and concern the territory of the United States” “with sufficient force.” The justices have now been asked, in Adhikari v. Kellogg Brown & Root, to clarify exactly what it means for a claim to “touch and concern” the United States.
The case was brought by Ramchandra Adhikari and 23 other Nepali citizens, who allege that either they or their family members were victims of human trafficking: An intermediary working for KBR, which provides logistical support on U.S. military bases in Iraq, recruited the men, purportedly for work in hotels and stores in Jordan. However, the intermediary pulled a bait and switch, instead taking away the men’s passports, locking them inside a walled compound, and then driving them to a military base in Iraq. On the way there, 11 of the 12 men were captured by Iraqi insurgents and killed. The 12th man made it to the base, where he was forced to work for 15 months, even after he asked to go home. He and the victims’ families filed this lawsuit, alleging that KBR had (among other things) violated the ATS.
The district court ruled that it lacked authority to review the plaintiffs’ ATS claims, and a divided panel of the Fifth Circuit agreed. It concluded that the “focus” of the ATS was “conduct that violates international law,” and it declined to consider conduct by KBR in the United States – for example, the company’s payments to the intermediary and its employees’ knowledge that there had been allegations of human trafficking on the Iraqi bases – or the plaintiffs’ assertions about the effect on U.S. foreign policy interests if their lawsuit was stymied.
In June, the plaintiffs asked the Supreme Court to weigh in, telling the justices that five different courts of appeals have applied five different tests to determine whether a claim under the ATS “sufficiently touches and concerns” the United States; those tests, the plaintiffs contend, run the gamut from a “bright-line rule,” like the Fifth Circuit’s, that looks only at whether the conduct at issue happened overseas, to the Fourth Circuit’s much more expansive approach, which looks at a broader range of facts. And the question is important, the plaintiffs argue, because otherwise they and others who are similarly situated will not be able to hold KBR accountable in any court anywhere in the world.
Opposing review, KBR stresses that, in another recent case involving the presumption against extraterritoriality, the Supreme Court explained that, “if the conduct relevant to the focus” of the statute “occurred in a foreign country, then the case involves an impermissible application” of the statute, “regardless of any other conduct that occurred in U.S. territory.” That ruling means, KBR says, that the courts of appeals are not actually divided on the question presented by this case, because all of them should now reach the same conclusion on when the ATS applies to actions outside the country; at a minimum, it suggests, the justices should wait until more courts of appeals have had a chance to consider the question in the wake of the recent decision.
Under the Fourth Amendment, a search conducted without a warrant is presumed to be unconstitutional unless one of a limited number of exceptions to the warrant requirement applies. One such exception is the “automobile exception,” which dates back nearly a century. It provides that a warrant to search a car is not necessary if a police officer believes that the car contains evidence of a crime or contraband.
In Collins v. Virginia, the justices have been asked to clarify the scope of the “automobile exception” – specifically, whether it applies to a car parked on private property, close to a home.
The case arose when officers looking for a motorcyclist who had eluded them saw a picture of a motorcycle on petitioner Ryan Collins’ Facebook page, found the house where Collins spent at least several nights each week, and located the motorcycle under a tarp toward the back of the driveway, near the house. A police officer walked into the driveway and removed the tarp to find the motorcycle’s Vehicle Identification Number and license tag, from which he learned that the motorcycle was stolen. When Collins was charged with receiving stolen property, he countered that evidence regarding the motorcycle should be suppressed because the police officer had entered the area around his house without a warrant, in violation of the Fourth Amendment.
The state courts rejected his argument. Although the state conceded that the police officer’s actions constituted a search under the Fourth Amendment, for which a warrant would normally be required, the Supreme Court of Virginia concluded that the “automobile exception” applied because the car was “readily mobile” and the police officer had “several reasons to believe the motorcycle was contraband.” This was true, the court continued, even though the motorcycle was on private property.
In February, Collins asked the Supreme Court to review the state court’s ruling, which he described as a “serious constitutional error.” He acknowledges that the “automobile exception is easily applied to most circumstances,” but he contends that the Supreme Court “has always stopped short of applying that rule on private, residential property” – which, he stresses, “implicates heightened privacy interests” compared with cars driving around in public. “If police can search a car wherever they find it with no warrant,” he warns, “this Court’s protection of the curtilage” – the area immediately surrounding a home – “will lose much of its value.” Moreover, he adds, the Virginia Supreme Court’s decision conflicts with the decisions of other federal and state courts of appeals.
The commonwealth of Virginia urges the justices to deny review, telling them that the Virginia Supreme Court’s decision is correct and that the “motorcycle’s location in the driveway of the residence makes no constitutional difference.” And in any event, it continues, the same factors justifying the automobile exception also apply to a scenario like this one, because Collins’ motorcycle could easily be driven out of the driveway and on to the roads, away from the investigating officers. “Indeed,” he notes, “courts routinely hold that driveways are subject to a lessened expectation of privacy, particularly when the driveway, as in this case, is plainly visible from the street.” But the likelihood that the Supreme Court will have the last word on this topic is increased by Virginia’s apparent concession that there is a division among the courts of appeals on this question, even if it contends that any split is a “shallow one, the resolution of which would have no bearing on the outcome of this case.”
The Fourth Amendment is also at the heart of Aksu v. California, another case distributed for the September 25 conference. Under the Fourth Amendment, police do not need a warrant to conduct a search if the person being searched has voluntarily consented. The question that the justices have been asked to decide centers on the standard that appeals courts should use to review a trial court’s holding that a defendant’s consent was voluntary.
The case arose when law enforcement officials in Ventura County, California, became concerned about the possibility that petitioner Murat Aksu – a naturalized U.S. citizen of Turkish descent – might be planning a possible terrorist activity. A sheriff’s deputy asked Aksu whether he could search his briefcase and his body; the deputy testified that, although he could not remember the “exact words” that Aksu used to respond, it was something along the lines of “yes, it was fine.” The deputy found a video camera in Aksu’s briefcase, which Aksu acknowledged may have been inadvertently used to film up a woman’s skirt. When Aksu was charged with violating a California law that makes it a crime to secretly film someone using a concealed camera, he argued that the evidence against him should be suppressed because the sheriff’s deputy had violated his Fourth Amendment rights. Prosecutors countered that Aksu had voluntarily consented to the search, and the trial court agreed. Aksu was sentenced to 60 days in jail and required to register as a sex offender.
On appeal, the court viewed the question whether Aksu had voluntarily consented to the search as a factual one, which warrants a high degree of deference to the trial court’s determination. But Aksu contends that other appellate courts would treat the question as a mixed question of law and fact, which an appeals court would review “de novo” – that is, as if it were operating with a clean slate, without deferring to the trial court’s ruling. He urges the Supreme Court to step in to resolve the conflict.
California appears to acknowledge that different appellate courts may have applied “differing standards of review” to the voluntary consent question, but it disputes Aksu’s contention that the Supreme Court’s intervention is warranted: Few of these appellate courts have actually analyzed the issue in any detail, it says, the standard of review rarely makes a difference (including in this case), and – in any event – California applies the correct standard. The case was first distributed to the justices on May 30 of this year, but the court requested the trial court record several days later, which suggests that someone is interested in taking a closer look at the facts of the case (including, perhaps, whether California is correct that Aksu would lose under either standard). The record arrived in early July, and the case was distributed to the court again one week later.
The Constitution’s double jeopardy clause protects a defendant from repeat prosecutions for the same offense. This can be a fairly straightforward question when a defendant is tried on a specific charge and then acquitted; prosecutors cannot then retry him on the same charge. But it can become more complicated when a defendant is indicted on multiple charges and consents to having them tried separately: In that case, does he benefit from an acquittal at the first trial, or do the protections of the double jeopardy clause evaporate? That is the question that the Supreme Court has been asked to review in Currier v. Virginia.
The petitioner in the case, Michael Currier, was indicted on three charges — breaking and entering, grand larceny, and being a felon in possession of a firearm — arising out of the theft of a safe that contained a large amount of cash and 20 guns. To avoid having the jury’s verdict on the theft charges tainted by them knowing that Currier had previously been convicted of a felony, prosecutors and Currier agreed to try those two charges first, followed by a separate trial on the felon-in-possession charge. The central question in the first trial was whether Currier was involved in stealing the safe; Currier’s lawyers argued that he was not, and the jury agreed, finding him not guilty of both charges.
Prosecutors opted to move forward with the felon-in-possession charge, despite Currier’s contention that the double jeopardy clause barred them from trying to persuade a second jury that he had been involved in the theft of the safe. If Currier did not steal the guns, he emphasized, he certainly could not have possessed them. Prosecutors relied on “the same basic theory as the first trial” – that Currier had helped to break into the home where the safe was stored and helped to steal it. This time Currier was convicted and sentenced to five years in prison.
Both the trial court and the appeals court rejected Currier’s argument that the prosecution violated his rights under the double jeopardy clause. Even if the jury in the first trial had rebuffed the theory on which prosecutors had relied in the second trial, the lower courts reasoned, the double jeopardy clause was still not implicated because prosecutors had opted for two separate trials to protect Currier, rather than because they were “overreaching” – which, the lower courts contended, is one of the other evils against which the double jeopardy clause is intended to guard. Currier then went to the Supreme Court, where he tells the justices that the federal courts of appeals and state supreme courts are divided on the question presented by his case.
Opposing review, Virginia pushes back against Currier’s suggestion that the lower courts are divided: It concedes that there is a “limited split of authority” but contends that the split is “neither a pronounced nor a mature” one. Moreover, the commonwealth adds, review of the lower court’s decision in Currier’s case is not necessary because it is correct. Specifically, it concludes, nothing in the Supreme Court’s cases “sanctions a rule that would deprive the Commonwealth of its one fair opportunity to try a defendant for illegally possessing a firearm when the only reason the charge was not resolved at an earlier trial was for the defendant’s benefit and with his consent.”
