State v. Pena-Flores ( 2009 )

Justice ALBIN,

dissenting.

The Court ordered further arguments in the cases before us so that we might “revisit[ ] much of our prior precedent, which declared both probable cause and exigent circumstances necessary” to justify an automobile search. The majority has decided to follow and build on that precedent. In that respect, today’s decision represents the final interment of the automobile exception to the warrant requirement in New Jersey—a doctrine followed by the federal courts and most state courts in this country for more than eighty years. In my view, the majority opinion will provide neither greater liberty nor security to the people of this State, but will place greater and unnecessary burdens on law enforcement.

The abandonment of the automobile exception surely did not come about through one decisive, philosophical break with the federal constitutional standard. Rather, over the course of years, in one case after another, through a series of mistaken and unwitting steps, we have marched into our present jurisprudential quagmire. Following precedent serves many valuable and laudable goals. But sometimes in the law, as in life, we have to admit when we have traveled down the wrong path—and not continue merely because it is difficult to change course or retrace our steps. Stare decisis is not a command to follow the mistakes of the past.

Under the standard adopted by the majority, police officers— who lawfully stop a motor vehicle on a highway and have probable cause to believe that there is evidence of a crime inside the vehicle—will have to secure a search warrant before conducting a search, unless they wish to hazard a guess that they meet the majority’s formless “exigent-circumstances” test. The police officers who have the hopeless task of applying that amorphous test will find, as they do here, that there will be ample opportunity for trial courts to second-guess their actions and appellate courts to second-guess trial courts’ decisions. Caution will lead officers to impound more cars while they apply for warrants, leaving drivers and passengers in custodial limbo in the process. The liberty of the car’s occupants therefore will be sacrificed for the illusory purpose of promoting their privacy. Because that approach is not a positive development under our State Constitution, we should return to this State’s traditional automobile exception and allow police officers to conduct a warrantless search provided that they have probable cause based on unanticipated information acquired at the time of the search. Therefore, I respectfully dissent.

I.

The Fourth Amendment has had to adapt to realities unimagined by the Founders of our Republic. One new reality was the invention of the automobile. With the mass use of cars came the automobile exception to the warrant requirement. See Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct. 280, 285, 69 L.Ed. 543, 551 (1925).

Several rationales have been given for not requiring police officers to secure a warrant before conducting a search of an automobile when the officers have probable cause to believe the vehicle contains evidence of a crime. One is that the inherent mobility of the vehicle makes it impracticable to obtain a warrant and another is that a car, given its pervasive regulation by the state, is accorded a lesser expectation of privacy than, say, a house. See, e.g., California v. Carney, 471 U.S. 386, 390-92, 105 S.Ct. 2066, 2068-70, 85 L.Ed.2d 406, 412-14 (1985); South Dakota v. Opperman, 428 U.S. 364, 367-68, 96 S.Ct. 3092, 3096, 49 L.Ed.2d 1000, 1004-05 (1976); Carroll, supra, 267 U.S. at 153, 45 S.Ct. at 285, 69 L.Ed. at 551; State v. Patino, 83 N.J. 1, 9, 414 A.2d 1327 (1980). But those are not the only, and perhaps not even the most persuasive, justifications for the current application of the automobile exception to the warrant requirement.

In Chambers v. Maroney, Justice Byron White observed that when weighing Fourth Amendment values it is “debatable” whether an immediate search of a car, based on probable cause, is a “greater” intrusion than impounding the vehicle until a magistrate grants approval for a warrant. 399 U.S. 42, 51-52, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419, 428 (1970). Because in the case of a ear search it is questionable whether a warrant provides greater Fourth Amendment protection to the individual, he concluded that “[f]or constitutional purposes, [there is] no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant.” Ibid. Under the Fourth Amendment, “[g]iven probable cause to search, either course is reasonable.”¹ Id. at 52, 90 S.Ct. at 1981, 26 L.Ed.2d at 428.

Although Justice White and Justice Thurgood Marshall had many disagreements in interpreting the Constitution,² they both recognized the propriety and utility of the automobile exception. Justice Marshall observed that “the warrantless search [of an automobile] is permissible because a warrant requirement would not provide significant protection of the defendant’s Fourth Amendment interests.” United States v. Ross, 456 U.S. 798, 831, 102 S.Ct. 2157, 2176, 72 L.Ed.2d 572, 598 (1982) (Marshall, J., dissenting). He too noted that the “Court has refused to require a warrant in situations where the process of obtaining such a warrant would be more intrusive than the actual search itself.” Ibid. Justice Marshall found no superior Fourth Amendment benefit in compelling a police officer to impound a vehicle and take into custody its occupants, while the officer seeks the issuance of a warrant, rather than searching the vehicle on the spot. See ibid.

Despite the vastly different jurisprudential approaches that members of the United States Supreme Court have taken in construing the Fourth Amendment, even concerning automobile searches, it appears that the Justices have subscribed to the general contours of the automobile exception to the warrant requirement.³ Impounding vehicles and taking into custody their occupants while the police seek a search warrant is not a Fourth Amendment panacea. Nor is it a virtue to be extolled under Article I, Paragraph 7 of our State Constitution. Yet, although the majority opinion submits that its approach will expand the privacy interests of New Jersey’s residents, it instead will have the unintended consequence of leading to the impoundment of more vehicles and to a greater deprivation of the liberty interests of our citizens while also impairing the immediate investigation of suspected crimes.

II.

Our state-law jurisprudence has not provided a compelling, much less persuasive, reason to depart from the automobile exception to the warrant requirement. Currently, to justify a search at the scene of an automobile stop, our Court requires that, in addition to probable cause, the police officer have exigent circumstances to conduct a warrantless search. See State v. Cooke, 163 N.J. 657, 661, 671, 751 A2d 92 (2000). However, a review of our case law reveals that our Court has displayed an unwillingness, or inability, to live with the consequences of a true exigent-circumstances standard. In case after case, to rescue a search from the reach of the exclusionary rule, our Court has managed to find exigent circumstances in the most unremarkable circumstances. In my view, it is better to honestly apply the automobile exception to the warrant requirement than to resort to fictional exigencies to justify upholding the constitutionality of a search.

At least as of 1981, this Court interpreted the automobile exception to the warrant requirement under Article I, Paragraph 7 of our State Constitution no differently from the federal interpretation of the automobile exception under the Fourth Amendment. In State v. Alston, we upheld the constitutionality of the police search of the defendant’s car based on the traditional automobile exception to the warrant requirement. 88 N.J. 211, 235, 440 A2d 1311 (1981). We explained that “our decision in [State v. Ercolano, 79 N.J. 25, 397 A2d 1062 (1979) ] in no way mark[ed] a departure from the established analysis of the [automobile] exception as recognized in Carroll and Chambers.” Id. at 233, 440 A2d 1311. Indeed, relying on Chambers, we noted that “the exigent circumstances that justify the invocation of the automobile exception are the unforeseeability and spontaneity of the circumstances giving rise to probable cause, and the inherent mobility of the automobile stopped on the highway.” Ibid (citing Chambers, supra, 399 U.S. at 50-51, 90 S.Ct. at 1980-81, 26 L.Ed.2d at 428). On that basis, it was permissible to conduct a search at the place of the stop rather than impound the vehicle for the purpose of securing a search warrant. Id. at 233-35, 440 A 2d 1311.

In State v. Martin, decided the same day as Alston, the Court again—under the banner of the automobile exception—aligned our jurisprudence, seemingly, with federal law and upheld the war-rantless search of a station wagon suspected of being involved in a store robbery. 87 N.J. 561, 563-64, 436 A 2d 96 (1981). However, in Martin, the Court framed the issue as “the level of exigent circumstances sufficient to justify a warrantless search ... under the automobile exception to the Warrant Clause.” Id. at 563, 436 A.2d 96. In doing so, the Court focused on the “urgent, immediate need” requiring impoundment of the station wagon and war-rantless search of the vehicle at police headquarters: the defendants, who were armed and dangerous, were “still at large,” and aware that police suspected their involvement in the armed robbery. Id. at 569-70, 436 A.2d 96. The Court’s decision was largely informed by its perceived understanding of federal constitutional law. Id. at 568-70, 436 A.2d 96 (citing Chambers, supra, 399 U.S. at 50-52, 90 S.Ct. at 1980-81, 26 L.Ed.2d at 428-29).

Nevertheless, the Court did not explain what “exigent circumstances” or “urgent, immediate need” justified not obtaining a search warrant once the vehicle was safely removed to headquarters. Nor did the Court explain the “exigent circumstances” that compelled law enforcement to leave the scene instead of staking out the vehicle if it was believed the robbers would return to the instrumentality of a crime.

In State v. Colvin, the Court, again believing that it had “harmonized [its] seareh-and-seizure law with Supreme Court precedent,” upheld the warrantless search of a drug suspect’s parked car. 123 N.J. 428, 437, 587 A2d 1278 (1991). Shortly after the suspect’s arrest, an informant advised the police that drugs were stashed in the suspect’s car “and that other people knew about the arrest and would attempt to remove the drugs from the ear.” Id. at 430, 587 A.2d 1278. The “police entered the unlocked car, searched it, and found tinfoil packets of cocaine underneath the dashboard.” Ibid.

Although using the automobile-exception nomenclature to justify the search, the Court spoke in terms of exigent circumstances, noting that the police had lost the element of surprise, confederates might remove the contraband from the car, and a special detail would be needed to guard the vehicle while a warrant was procured. Id. at 434-35, 587 A2d 1278 (citing Coolidge v. New Hampshire, 403 U.S. 443, 462, 91 S.Ct. 2022, 2036, 29 L.Ed.2d 564, 580 (1971)). Despite its avowed adherence to the automobile exception under federal law, the Court concluded with a pure exigent-circumstances analysis, finding that

[t]he justification to conduct a warrantless automobile search does not turn on whether the vehicle is parked or moving. The justification turns on the circumstances that make it impracticable to obtain a warrant when the police ha,ve probable cause to search the ear. When, as here, the police have no advance knowledge of the events to unfold, no warrant is required to search a parked car if the police have probable cause to believe that the ear contains criminal contraband and have articulable reasons to search the vehicle immediately to prevent the loss or destruction of the evidence.

[ Id. at 437, 587 A.2d 1278 (emphasis added).]

Colvin did not express an intent to break "with federal law but, in its exigent-circumstances analysis, it nevertheless laid the seeds for the overthrow of the automobile exception as articulated as recently as in Alston, supra.

The final blow to the automobile exception was struck in Cooke, swpra,. There, the Court had to confront head-on the United States Supreme Court’s decision in Pennsylvania, v. Labron, which held that a separate finding of exigent circumstances was not a component of the Fourth Amendment’s automobile exception. See Cooke, supra, 163 N.J. at 661, 751 A2d 92 (discussing Pennsylvania v. Labron, 518 U.S. 938, 116 S.Ct. 2485,135 L.Ed.2d 1031 (1996)). Until Cooke, as shown, the Court believed it had been following the federal standard.

In Cooke, for the first time, this Court explicitly departed from the Federal Constitution’s automobile-exception jurisprudence and decreed that Article I, Paragraph 7 of our State Constitution required exigent circumstances before law enforcement officers, armed with probable cause, could undertake the warrantless search of a car. Id. at 661, 671, 751 A.2d 92. In that case, in upholding the constitutionality of the search, the Court found exigent circumstances, but a close look at the facts suggests that there was no emergency that made it impracticable to secure a warrant.

While conducting surveillance, a police officer observed the defendant, after engaging in a drug transaction with another individual, place suspected drugs in a Ford Escort. Id. at 662, 751 A.2d 92. The defendant and the other individual drove off in another car, but were stopped by police officers serving as a perimeter team. Ibid. Those officers took from the defendant his keys to the Escort and conducted an on-scene search of the car, which uncovered illicit drugs. Id. at 663, 751 A.2d 92.

To reach its exigent-circumstances conclusion, the Court came to a number of findings either not supported by the evidence or irrelevant to the ease: “it would have been impracticable to require” the officer conducting surveillance to leave his post to guard the Escort; “the element of surprise was lost” because of the defendant’s arrest; “third parties had knowledge of the location of the Escort” and the stored drugs and “could have attempted to remove or destroy the drugs in the time necessary to obtain the warrant”; and “other parties in this known drug-trafficking area could have removed the car itself.” Id. at 675, 751 A.2d 92.

Why were those findings unsupported by the evidence or irrelevant? The surveillance officer did not have to leave his post because he had a view of the Escort and could have alerted the officers on the perimeter team if confederates sought access to the Escort. Ordinarily, the police attempt to apprehend as many of the culprits involved in an illicit scheme. Here, the Court is suggesting—without any apparent basis—that the police needed to take flight out of fear that the confederates would arrive on the scene. More importantly, for purposes of the exigent-circumstances analysis, because the Escort was used as the instrumentality in a crime, it was obvious that it would be impounded and taken to police headquarters. Once the car was removed from the scene, no exigency required forgoing the warrant procedure.

Under the automobile exception set forth in Alston, supra, the search clearly would have been permissible because of the “un-foreseeability and spontaneity of the circumstances giving rise to probable cause.” Alston, supra, 88 N.J. at 233, 440 A2d 1311. However, the Court eschewed that standard for a pure exigent-circumstances test, relying, in large part, on Colvin as precedent. See Cooke, supra, 163 N.J. at 667-76, 751 A2d 92. As revealed, the Court resorted to fictional exigencies to justify the search. The totality-of-the-circumstances standard the Court enunciated, moreover, has become so open-ended that our trial and appellate courts can reach almost any desired result in determining the constitutionality of a search under state law.

That brings us to the cases now before this Court.

III.

In Penar-Flores, at approximately 11:00 p.m., a police officer stopped a car, which had dark-tinted windows, for a motor vehicle violation in Cranford. When the officer approached the driver’s window, he smelled the strong odor of raw marijuana. The officer directed the driver to step from the vehicle. When a back-up police officer arrived on the scene, the passenger also was removed from the car. Without first securing a warrant, one of the officers entered the vehicle and conducted a search, uncovering a substantial amount of drugs and a handgun. Both the driver and passenger were charged with committing various drug and gun offenses. At a pretrial hearing, the trial court found no exigent circumstances justifying the search and suppressed all the evidence that the police discovered in the car, except two bags of marijuana that were retrieved from the passenger-side floor. The Appellate Division, also finding no exigency for the search, upheld the trial court’s decision.

The majority, however, now reverses Pena-Flores, finding exigent circumstances because “[t]he ratio of police officers to suspects was two-to-two, and there was no available backup.” Ante at 30, 965 A.2d at 129. But given the presence of probable cause based on the overwhelming smell of marijuana wafting from the car and the fact that the ear ultimately was towed and impounded with just the two officers on the scene, it is difficult to discern the exigent circumstances for not securing a search warrant when the car was going to be impounded in any event.

In Fuller, in the afternoon, a state trooper stopped a car driven by the defendant for a motor vehicle violation in Camden. The defendant handed the trooper a driver’s license, which identified him as Charles Bradley and which contained a photograph that did not resemble the defendant. The trooper also quickly determined that the license plate and the bill of sale tendered by the defendant did not correspond to the car that the defendant was driving. The officer noticed traffic summonses on the backseat of the car, which the defendant then gave to the officer. Those summonses were issued to a Charles Bradley, which the officer soon learned from dispatch was an alias for the defendant. A pat-down of the defendant uncovered two large bundles of money in the side pocket of his pants.

With the aid of another trooper who arrived on the scene, a warrantless search was conducted of the car, revealing a gun wedged between the console and driver’s seat and, in the console, bottles of Xanax without a proper prescription. A further search of the car disclosed marijuana in a dashboard compartment and underneath the backseat, where a sword also was hidden. The trial court denied the motion to suppress, but the Appellate Division reversed, finding no exigent circumstances for the search.

The majority, however, upheld the search of the handgun and the bottles of Xanax because the trooper discovered them inadvertently while looking for evidence of the car’s ownership. Ante at 31, 965 A.2d at 129. However, before entering the car for the purported purpose of looking for registration or other proof of ownership, the trooper already had probable cause to arrest the defendant for possession of a stolen ear, and, as in Pena-Flores, a justifiable basis to impound the car, which ultimately was towed from the scene. Therefore, under the majority’s exigency standard, the search could have been postponed until after the car was impounded at which time the troopers could have secured a warrant.

To inform the exigent-circumstances analysis in an automobile-stop case, which it applied in Penctr-Flores and Fuller, the majority set forth a number of factors to be considered, such as

the time of day; the location of the stop; the nature of the neighborhood; the unfolding of the events establishing probable cause; the ratio of officers to suspects; the existence of confederates who know the location of the car and could remove it or its contents; whether the arrest was observed by passersby who could tamper with the ear or its contents; whether it would be safe to leave the car unguarded and, if not, whether the delay that would be caused by obtaining a warrant would place the officers or the evidence at risk.

[Ante at 29, 965 A2d at 128.]

That multi-factor test will lead to widely divergent outcomes and allow trial courts and appellate courts routinely to second-guess the officers on the scene and eventually themselves. It is asking too much of law enforcement officers, who are responding to fast-moving and -evolving events, to process the type of complex and speculative information contained in that formula and expect uniform and consistent decision-making. In the above exigent-circumstances analysis, for a permissible automobile search, what is the acceptable ratio of officers to suspects, what should the officer know about the neighborhood, how is he to know if confederates are skulking about, and what does it mean to consider leaving the car unguarded when the car can be safely towed and impounded? The exigent-circumstances formula expounded by the majority will leave many police officers with an unwillingness to hazard a guess, fearing that a mistaken decision will result in the suppression of critical evidence. Thus, in many cases, the prudent police officer will impound the vehicle and later secure a warrant. For those who venture to use the formula, our courts will be kept busy for years ironing out the meaning and application of its various components.

Society pays an exorbitant price when otherwise relevant evidence is suppressed not because police officers have acted in flagrant violation of the law, but rather because they erred while attempting to follow judicially-imposed rules too difficult for the average officer or constitutional scholar to understand. Moreover, as explained earlier, I do not believe the regime adopted by the majority expands the privacy and liberty interests of the people under Article I, Paragraph 7. That is probably the reason why the majority of jurisdictions have not taken the road the majority continues to traverse. See Commonwealth v. Rosenfelt, 443 Pa.Super. 616, 638, 662 A2d 1131 (1995), appeal denied, 544 Pa. 605, 674 A2d 1070 (1996) (collecting cases); see also 3 Wayne R. LaFave, Search and Seizure § 7.2(b), at 557 n. 79 (4th ed. 2007) (same).

Under the Alston automobile-warrant exception, the search of the vehicles in both Penar-Flores and Fuller would have been constitutional because the “unforeseeability and spontaneity of the circumstances [gave] rise to probable cause.” Alston, supra, 88 N.J. at 233, 440 A2d 1311. Let me be clear that I do not fully subscribe to the current federal doctrine, which does not set forth an “unforeseeability and spontaneity” requirement. The standard articulated in Alston provides greater protection to the people of New Jersey than the United States Supreme Court’s decision in Labron, supra, and to that extent I would depart from the federal standard under Article I, Paragraph 7 of our State Constitution. Police officers who know in advance that there is contraband in a car and have sufficient time to obtain a search warrant should do so. The Attorney General conceded that law enforcement could work effectively with that standard.

IV.

Through the passage of time and benefit of hindsight, experience reveals that sometimes a state’s highest court, or even the highest court in the land, has made a mistake, however well-meaning the original intention. The United States Supreme Court, as well as this Court, has acknowledged that stare decisis is not a compelling reason to uphold an erroneous or improvident interpretation of law. Stare decisis, surely, furthers the important purpose of according respect “to the judgments of the Court and to the stability of the law,” but “[i]t is not ... an inexorable command.” Lawrence v. Texas, 539 U.S. 558, 577, 123 S.Ct. 2472, 2483, 156 L.Ed.2d 508, 525 (2003) (reversing seventeen-year precedent that interfered with liberty interests of homosexuals to engage in certain sexual conduct); see also Payne v. Tennessee, 501 U.S. 808, 828, 111 S.Ct. 2597, 2609, 115 L.Ed.2d 720, 737 (1991) (“Stare decisis is not an inexorable command; rather, it is a principle of policy and not a mechanical formula of adherence to the latest decision.” (citation and internal quotation marks omitted)).

Likewise, New Jersey courts have not viewed the doctrine of stare decisis as a straitjacket preventing us from making appropriate and necessary course corrections to our law. Chief Justice Vanderbilt recognized in his dissent in Fox v. Snow. “The doctrine of stare decisis [does not] render[ ] the courts impotent to correct their past errors____The doctrine when properly applied operates only to control change, not to prevent it.” 6 N.J. 12, 23, 76 A.2d 877 (1950) (Vanderbilt, C.J., dissenting); see also White v. Twp. of N. Bergen, 77 N.J. 538, 550-52, 391 A.2d 911 (1978) (noting acceptance of “Vanderbilt thesis”). We re-heard arguments in the cases before us to grapple with the underlying rationale of the current law controlling automobile searches. Stare decisis should not be a sufficient basis for staying our hand from taking corrective action.

V.

In conclusion, I believe that the majority, while faithfully following precedent, perpetuates and expands an exigent-circumstances standard that will continue to confound law enforcement and our courts. We should not continue with a failed and unrealistic policy governing automobile-search cases. If there was some compensating benefit to the majority’s approach—a true extension of privacy and liberty interests under Article I, Paragraph 7, despite the negative impact on law enforcement—that might be a worthwhile approach. But, in the end, it is better to have a real standard that can be genuinely applied to achieve uniform results than a standard that pretends to give greater rights to the people when, in fact, it is likely to weaken our citizens’ rights and unnecessarily impede law enforcement in performing its duties.

Therefore, I respectfully dissent.

For reversal and remandment—Justices LONG, LaVECCHIA, WALLACE; and HOENS—4.

For affirmance—Chief Justice RABNER and Justices ALBIN and RIVERA-SOTO—3.

For affirmance in part, reversal in part, and remandment— Justices LONG, LaVECCHIA, WALLACE, and HOENS-4.

For Dissent—Chief Justice RABNER and Justices ALBIN and RIVERA-SOTO—3.

1 In Chambers, the Court also held that a police officer who could conduct a warrantless search of a car at the scene pursuant to the automobile exception could likewise conduct a warrantless search of the car at headquarters. 399 U.S. at 52, 90 S.Ct. at 1981-82, 26 L.Ed.2d at 428-29.

Here, I would depart from the United States Supreme Court’s extension of the automobile exception. Whatever inherent exigency justifies a warrantless search at the scene under the automobile exception certainly cannot justify the failure to secure a warrant after towing and impounding the car. The Fourth Amendment should not be sacrificed to take exigencies. I am not suggesting, however, that under appropriate circumstances an inventory of a car at headquarters cannot be undertaken pursuant to State v. Slockbower, 79 N.J. 1, 397 A.2d 1050 (1979), and State v. Ercolano, 79 N.J. 25, 397 A.2d 1062 (1979). Therefore, under Article I, Paragraph 7 of the New Jersey Constitution, I would limit the automobile exception to on-scene warrantless searches.

2 See, e.g., Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981); Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980); United States v. Havens, 446 U.S. 620, 100 S.Ct. 1912, 64 L.Ed.2d 559 (1980); Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 291 (1980).

3 In Pennsylvania v. Labron, a majority of the United States Supreme Court held that "[i]f a car is readily mobile and probable cause exists to believe it contains contraband, the [automobile exception of the] Fourth Amendment thus permits police to search the vehicle without more." 518 U.S. 938, 940, 116 S.Ct. 2485, 2487, 135 L.Ed.2d 1031, 1036 (1996). Justices Stevens and Ginsburg did not disagree with the majority’s reasoning, but dissented only because they believed that the Pennsylvania Supreme Court's decision, which the majority reversed, was based on "the Pennsylvania court's independent consideration of its own Constitution.” Id. at 941-42, 116 S.Ct. at 2487-88, 135 L.Ed.2d at 1036-37 (Stevens, J., dissenting).

In Maryland v. Dyson, the Court affirmed Labron by holding that the federal automobile exception "does not have a separate exigency requirement." 527 U.S. 465, 467, 119 S.Ct. 2013, 2014, 144 L.Ed.2d 442, 445 (1999). Although dissenting from the majority's summary reversal. Justices Breyer and Stevens nonetheless "agree[d] that the Court’s per curiam opinion correctly states the law.” Id. at 468, 119 S.Ct. at 2014, 144 L.Ed.2d at 446 (Breyer, J., dissenting).