| Mincey v. Arizona
(No. 77-5353)
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| Syllabus
| Opinion
[ Stewart ] | Concurrence
[ Marshall ] | CDInPart
[ Rehnquist ] |
| HTML version
PDF version | HTML version
PDF version | HTML version
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Mincey v. Arizona
CERTIORARI TO THE SUPREME COURT OF ARIZONA
MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN Joins, concurring.
I join the opinion of the Court, which holds that petitioner's rights under the Fourth and Fourteenth Amendments have been violated. I write today to emphasize a point that is illustrated by the instant case, but that applies more generally to all cases in which we are asked to review Fourth Amendment issues arising out of state criminal convictions.
It is far from clear that we would have granted certiorari solely to resolve the involuntary statement issue in this case, for that could have been resolved on federal habeas corpus. With regard to the Fourth Amendment issue, however, we had little choice but to grant review, because our decision in Stone v. Powell, 428 U.S. 465 (1976), precludes federal habeas consideration of such issues. In Stone, the Court held that,
where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.
Id. at 494 (footnotes omitted). Because of this holding, petitioner would not have been able to present to a federal habeas court the Fourth Amendment claim that the Court today unanimously upholds.
The additional responsibilities placed on this Court in the wake of Stone become apparent upon examination of decisions [p403] of the Arizona Supreme Court on the Fourth Amendment issue presented here. The Arizona court created its "murder scene exception" in a 1971 case. State v. Sample, 107 Ariz. 407, 409-410, 489 P.2d 44, 467. A year later, when the defendant in that case sought federal habeas corpus relief, the United States Court of Appeals for the Ninth Circuit ruled, as we do today, that the exception could not be upheld under the Fourth Amendment. Sample v. Eyman, 469 F.2d 819, 821-822 (1972). When the Arizona Supreme Court next gave plenary consideration to the issue, prior to our decision in Stone, it apparently felt bound by the Ninth Circuit's Sample decision, although it found the case before it to be distinguishable. State v. Duke, 110 Ariz. 320, 324, 518 P.2d 570, 574 (1974). [n1]
When the Arizona Supreme Court rendered its decision in the instant case, however, it took a different approach. The decision, issued nearly a year after Stone, merely noted that the Ninth Circuit had "disagreed" with the Arizona court's view of the validity of the murder scene exception. 115 Ariz. 472, 482 n. 4, 566 P.2d 273, 283 n. 4 (1977). It thus created an effective "conflict" for us to resolve. Cf. this Court's Rule 19(1)(b). If certiorari had not been granted, we would have left standing a decision of the State's highest court on a question of federal constitutional law that had been resolved in a directly opposing way by the highest federal court having [p404] special responsibility for the State. Regardless of which court's view of the Constitution was the correct one, such nonuniformity on Fourth Amendment questions is obviously undesirable; it is as unfair to state prosecutors and judges -- who must make difficult determinations regarding what evidence is subject to exclusion -- as it is to state criminal defendants.
Prior to Stone v. Powell, there would have been no need to grant certiorari in a case such as this, since the federal habeas remedy would have been available to the defendant. Indeed, prior to Stone, petitioner here probably would not even have had to utilize federal habeas, since the Arizona courts were, at that earlier time, more inclined to follow the federal constitutional pronouncements of the Ninth Circuit, as discussed above. But Stone eliminated the habeas remedy with regard to Fourth Amendment violations, thus allowing state court rulings to diverge from lower federal court rulings on these issues and placing a correspondingly greater burden on this Court to ensure uniform federal law in the Fourth Amendment area.
At the time of Stone, my Brother BRENNAN wrote that "institutional constraints totally preclude any possibility that this Court can adequately oversee whether state courts have properly applied federal law." 428 U.S. at 526 (dissenting opinion); see id. at 534. Because of these constraints, we will often be faced with a Hobson's choice in cases of less than national significance that could formerly have been left to the lower federal courts: either to deny certiorari, and thereby let stand divergent state and federal decisions with regard to Fourth Amendment rights, or to grant certiorari, and thereby add to our calendar, which many believe is already overcrowded, cases that might better have been resolved elsewhere. In view of this problem and others, [n2] I hope that the [p405] Court will at some point reconsider the wisdom of Stone v. Powell. [n3]
1. In its Mincey opinion, 115 Ariz. 472, 482, 566 P.2d 273, 283 (1977), the Arizona Supreme Court indicated that one case other than Sample and Duke involved the murder scene exception. State ex rel. Berger v . Superior Court, 110 Ariz. 281, 517 P.2d 1277 (1974). The two-sentence opinion in the latter case, however, provides no explanation of the underlying facts, and does not cite to either the Arizona court's or the Ninth Circuit's decision in Sample. There is thus no way to determine whether the situation in Berger was in any way comparable to those in Sample, Duke, and Mincey, nor any way to determine whether the Berger court simply disregarded the Ninth Circuit's Sample decision or instead, as in Duke (decided just two weeks after Berger), viewed Sample as distinguishable.
2. The Stone holding has not eased the burden on the lower federal courts as much as the Stone majority might have hoped, since those courts have had to struggle over what this Court meant by "an opportunity for full and fair litigation of a Fourth Amendment claim," 428 U.S. at 494. See, e.g., Gates v. Henderson, 568 F.2d 830 (CA2 1977); United States ex rel. Petillo v. New Jersey, 562 F.2d 903 (CA3 1977); O'Berry v. Wainwright, 546 F.2d 1204 (CA5 1977).
3. A bill currently pending in the Congress would have the effect of overruling Stone v. Powell. S. 1314, 95th Cong., 1st Sess. (1977); see 123 Cong.Rec. 11347-11353 (1977).
