Recently in Search and Seizure Category

Use of Force and Suing Police Officers

Today, after multiple relistings, the U.S. Supreme Court summarily decided Mullenix v. Luna, No. 14-1143.

On the night of March 23, 2010, Sergeant Randy Baker of the Tulia, Texas Police Department followed Israel Leija, Jr., to a drive-in restaurant, with a warrant for his arrest. 773 F. 3d 712, 715-716 (CA5 2014). When Baker approached Leija's car and informed him that he was under arrest, Leija sped off, headed for Interstate 27. 2013 WL 4017124, *1 (ND Tex., Aug. 7, 2013). Baker gave chase and was quickly joined by Trooper Gabriel Rodriguez of the Texas Department of Public Safety (DPS). 773
F. 3d, at 716.

Leija entered the interstate and led the officers on an 18-minute chase at speeds between 85 and 110 miles per hour. Ibid. Twice during the chase, Leija called the Tulia Police dispatcher, claiming to have a gun and threatening to shoot at police officers if they did not abandon their pursuit. The dispatcher relayed Leija's threats, together with a report that Leija might be intoxicated, to all concerned officers.
So when the natural consequences of Leija's voluntary choices follow in due course, what does his widow do?  Sue the police officer, of course.  The person actually at fault is dead, and she has his estate anyway, such as it is.

Under Supreme Court precedent, police officers are immune from suit so long as the law is not clearly established that their acts are illegal under the circumstances.  In immunity cases, as in habeas corpus cases, lower federal courts regularly try to avoid the rule by defining the "clearly established" law at an excessive level of generality.  Summary reversal of such decisions has taken up an inordinate portion of the Supreme Court's docket for some years now.  This one is reversed with only one dissent, by Justice Sotomayor.

French Surveillance Law Upheld

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Sam Schechner and Matthew Dalton report in the WSJ:

PARIS--France's top constitutional court mostly upheld a new French surveillance law that would give intelligence services broad new powers to spy in France and abroad.

The court-backed provisions of the law allow a wide range of new surveillance techniques meant for the Internet age, including the collection of "metadata" about online traffic and the use of software that can monitor every keystroke on a computer. The court said intelligence services can use these tools without approval of a judge, though the government must still seek permission from an independent body created to oversee surveillance activities.

The court, known as the Constitutional Council, did strike down a provision of the law that would allow emergency surveillance without the approval of the prime minister or another minister in the government.

Facial v. As-Applied Attacks

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Along with the underlying Fourth Amendment question, Los Angeles v. Patel, decided today by the U.S. Supreme Court, has some interesting discussion about facial versus as-applied attacks on statutes (or ordinances).

Can a court really "strike down" a statute, as we so often casually say when discussing a constitutional case?  No, not really.  Repeal of a statute is a legislative function.  The theory of judicial review, as explained way back in Marbury v. Madison, is that the court must decide the case, and if the higher law of the Constitution points to one result and the lower law of the statute points to the other, the higher law must govern.  That does not wipe the statute off the books, though.  The statute at issue in Marbury gave the Supreme Court the authority to issue writs of mandamus, and it still had that authority under that statute after Marbury as long as it exercised the authority in its appellate jurisdiction, such as issuing it to control a lower court, and not by expanding its original jurisdiction beyond constitutional limits.

But can a court decide that a statute is completely void?


No decision in Glossip v. Gross.

The Supreme Court decided two criminal-related civil cases.  In Los Angeles v. Patel, the Court struck down as unconstitutional on its face an LA ordinance letting the police inspect the guest registries of hotels at any time without a warrant.  That is constitutional for junkyards, but, no, people are not the same as wrecked cars.

The second case is Kingsley v. Henderson.  Pretrial detainees who claim that excessive force was used against them face a lower bar to recovery than convicted criminals.

Both cases were decided 5-4, with the "liberals" plus Justice Kennedy being the majority.  (I generally don't care for those labels, but sometimes the simplistic model works.)

It also bears noting that Spider Man made an appearance in the high court in a patent/contract case, Kimble v. Marvel Entertainment LLC.  How he made it through the court's tight security in that outfit I do not know.  Justice Kagan has a good time with it, including a Spidey quote from 1962:  "[I]n this world, with great power there must also come--great responsibility."

The next decision day is Thursday.

Traffic Stops and Dog Sniffs

The U.S. Supreme Court today decided Rodriguez v. United States, No. 13-9972:

In Illinois v. Caballes, 543 U. S. 405 (2005), this Court held that a dog sniff conducted during a lawful traffic stop does not violate the Fourth Amendment's proscription of unreasonable seizures. This case presents the question whether the Fourth Amendment tolerates a dog sniff conducted after completion of a traffic stop. We hold that a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution's shield against unreasonable seizures. A seizure justified only by a police-observed traffic violation, therefore, "become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission" of issuing a ticket for the violation. Id., at 407.
Justice Ginsburg wrote the opinion.  Justice Thomas dissented, joined by Justices Kennedy and Alito.

The "only" in the last sentence is disputed in this case and remains open.  The government contends that the officer did have an individualized basis for suspicion that the car contained drugs.  Justices Thomas and Alito would affirm on that basis.  Justice Kennedy agrees with the majority that the point is not properly before the Supreme Court because the Court of Appeals did not decide it.

Although the issue discussed in that Part [of Justice Thomas's dissent] was argued here, the Court of Appeals has not addressed that aspect of the case in any detail. In my view the better course would be to allow that court to do so in the first instance.

GPS, Searches, and Civil v. Criminal

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The U.S. Supreme Court summarily reversed a decision of a North Carolina court regarding GPS monitoring of sex offenders and the Fourth Amendment.  The North Carolina court's error illustrates once again how far too many lawyers in the post-Mapp world have come to view the Fourth Amendment and the exclusionary rule as the same thing.  They are not.  Not even close.
Earlier this morning, Bill noted that the U.S. Supreme Court decided Heien v. North Carolina, No. 13-604, and copied an accurate summary of the decision from the Heritage Foundation. I want to explore a little further the important distinction between the substantive scope of the Fourth Amendment and the judge-made rule of exclusion of evidence found to have been obtained in violation of that amendment.

Today's decision answers a question that does not arise that often.  Is a search "unreasonable" within the substantive scope of the Fourth Amendment if the police officer acts on an interpretation of the law that is reasonable (and not contrary to any precedent existing at the time) but that a court subsequently finds to be incorrect?  The Supreme Court says no, 8-1, but both the majority and the concurrence note that this is a more demanding standard than the generous one provided for qualified immunity for civil liability.  As Justice Kagan puts it in the concurring opinion,

If the statute is genuinely ambiguous, such that overturning the officer's judgment requires hard interpretive work, then the officer has made a reasonable mistake. But if not, not. As the Solicitor General made the point at oral argument, the statute must pose a "really difficult" or "very hard question of statutory interpretation." 
I look forward to citing the "really difficult standard" in a brief.  Justice Kagan goes on to say these cases will be "exceedingly rare."  That is perhaps a tad of an overstatement, but I do not expect them to be common.

This case got to the Supreme Court with this question because, as Justice Sotomayor notes in the dissent, "unlike most States, North Carolina does not provide a good-faith exception as a matter of state law."  An exception, that is, to the rule that once a Fourth Amendment violation is found the evidence must be suppressed.  States can, if they wish, have broader exclusionary rules than federal law requires, so they do not have to follow the various good-faith exceptions that the U.S. Supreme Court has recognized.    This is why CJLF passed on the case and did not file an amicus brief.  Our interest is in the broader exclusionary rule question, not the interesting but rarely occurring substantive Fourth Amendment issue decided today.

So here is the bombshell question not answered today but reserved for a future case:  Should the U.S. Supreme Court stop carving out individual good-faith "exceptions" to an overall rule of suppression of evidence and instead make "bad faith" a required element of a defendant's motion to suppress evidence?
The Supreme Court today decided Heien v. North Carolina, No. 13-604, involving the propriety under the Fourth Amendment of a police search.  The Heritage Foundation aptly describes the decision this way:

The Fourth Amendment prohibits (inter alia) "unreasonable" searches and seizures.  For the past 50 years, the Supreme Court has crafted rules for law enforcement officers to follow, in order to make it easier for the police to know what is and is not reasonable.  Additionally, the Court has construed that term to allow the police to make reasonable mistakes of fact, reasoning that the "probable cause" necessary to effect a search or seizure does not require an officer to be absolutely right, just "reasonable."

Today, Roberts, writing for an 8-1 Court, ruled that the term "reasonable" includes reasonable mistakes of fact and law.  An officer, who mistakenly but reasonably believed that the driver of a vehicle had violated a state traffic law by having only one working brake light, stopped the vehicle and ultimately found cocaine, which was used to convict the driver and passenger.  Because the officer's interpretation of the traffic law was reasonable, Roberts concluded, there was no Fourth Amendment violation.  Kagan wrote a separate opinion, joined by Ginsburg, to emphasize the narrowness of the Court's opinion.  Sotomayor dissented on the ground that, regardless of how the exclusionary rule should be applied, there is no "mistake of law" exception to the Fourth Amendment.
Sudhin Thanawala reports for AP:

A California appeals court Wednesday struck down a state law that requires the collection of DNA from anyone arrested on suspicion of committing a felony.

The 1st District Court of Appeal said Wednesday that the state Constitution's ban on unreasonable search and seizure prohibited the DNA collection using a cheek swab. The law was approved by voters in 2004.

*                                                   *                                          *

There was no immediate order stopping police in California from continuing to collect DNA, and the appellate court's ruling could be appealed.

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The appeals court in Wednesday's ruling was reviewing an earlier decision it issued on the law in light of a 2013 U.S. Supreme Court ruling that upheld a similar Maryland law. The earlier ruling also found the California law unconstitutional.

The appeals court said the Supreme Court decision did not apply in this case in part because of significant differences between Maryland's law and California's law. Maryland's law, for example, only allows the DNA of suspects to be tested after they have been charged with a crime. California's law allows testing even before charges are filed. The California law also applies to all felony suspects who are arrested regardless of the seriousness of the alleged crime.

The reason that there is no order stopping police from collecting is that this is an appeal from a criminal conviction and not a civil action for an injunction.

Looks like criminal law and law enforcement are going to be a bigger part of this Term of the U.S. Supreme Court.  The Court's Monday orders list took up for full briefing and argument three criminal and related cases:

Chappell v. Ayala, No. 13-1428, the Ninth Circuit decided in favor of California death row inmate Hector Ayala.   The case involves the interaction between harmless error analysis and the deference owed to state court decisions when an inmate takes his rejected claims to the federal courts on habeas corpus.  If I'm not mistaken, the Ninth Circuit's batting average in California capital cases, once certiorari is granted, is .000.

Los Angeles v. Patel, No. 13-1175:  Does a hotel have a privacy interest in its guest register, so that police cannot inspect it at will even though a local ordinance says they can?  There are a lot of heavily regulated industries that have such requirements.  The government can go through an auto wrecking yard checking the VINs for stolen vehicles, for example.  No warrant or particularized basis of suspicion required.  How about hotels?

Henderson v. United States, No. 13-1487:  What to do with a defendant's guns when, as a result of his conviction, he can no longer legally possess them?

More on Heien v. North Carolina

On Monday, I wrote this post on the oral argument in Heien v. North Carolina, a case where the defendant wants evidence resulting from a traffic stop suppressed.  A police officer stopped the car for having only one of two brake lights working, and the state court of appeals, to the surprise of just about everyone, decided that was not a violation in North Carolina.

If the U.S. Supreme Court agrees with the North Carolina Supreme Court that the officer's good faith belief about the law makes this a reasonable seizure, then the case is simple.  If not, it gets complicated.  Rory Little has this analysis at SCOTUSblog predicting that the Court will indeed take the simple route and affirm the state court on the substantive Fourth Amendment question, leaving the complicated issues to another day.
FBI Special Agent John Cauthen has this article in the FBI Law Enforcement Bulletin.
It's not a good sign when most of your argument before the U.S. Supreme Court is taken up with being grilled by the Justices on whether you have asked the right question, without all that much discussion of whether you have the right answer.  That happened today in the argument of Jeff Fisher for the petitioner in Heien v. North Carolina, No. 13-604.  The transcript is here.

Questions and potential questions in this case include:

1.  Is it legal to drive in North Carolina with only one of the two originally installed brake lights working?

2.  If so, does a police officer's stop of a vehicle in the reasonable belief it is not (there being no published decision to the contrary and the statute being ambiguous at most) violate the Fourth Amendment and the parallel provision of the North Carolina Constitution?

3.  If so, is suppression of the resulting evidence (drugs in the car) required?
UC Irvine Law Dean Erwin Chemerinksy has this op-ed in the NYT, titled "How the Supreme Court Protects Bad Cops." 

Chemerinsky is upset about the doctrine of qualified immunity in civil suits against police officers for excessive force.  Okay.  Although I generally support it, at times I have had some qualms about some aspects and applications of that doctrine myself.  But just looks at what he says to support this argument.
As Bill noted Wednesday, the United States Supreme Court in Riley v. California declined to extend to contemporary phones the doctrine that when a person is arrested everything on him can be searched without a warrant.

This case involves applying a two-century-old constitutional provision to technology that was nearly unimaginable even twenty years ago, much less two hundred.  The approach used in Chief Justice Roberts' unanimous opinion for the Court is to assess the degree of intrusion and balance that against government interests.  I think we should also look at the Fourth Amendment itself and see if anything is closely analogous.  The First Congress's handiwork, ratified by the requisite number of states, goes out of its way to protect "papers."  The emails stored on a modern smart phone have the same informational content as the "papers" of 1791.  It is the message, not the medium, that matters here, Marshall McLuhan notwithstanding.

The asserted justifications for searching the phone immediately without a warrant are weak.  The police can seize the phone, remove the battery, and put it in the evidence locker.  It's not going anywhere, and neither is the data, while they explain to a magistrate why they need to search it.  I have no problem with the substantive Fourth Amendment holding in this case.

But the police were not, or should not have been, the ones on trial in the case of the People of the State of California v. David Riley.  The questions to be decided in that case were whether Riley carried concealed and loaded weapons and whether he did so to benefit a criminal street gang.  Should the contents of the phone, surely admissible if the police had gotten a warrant, be excluded from evidence on the gang question simply because they did not know they needed to get one?

The Supreme Court did not say, and it was not asked to say.  But I think the question is important.

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