Recently in Search and Seizure Category

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.
Continuing its mediocre record in the Supreme Court, this Administration's SG's Office lost in the Riley and Wurie cases today, failing to get a single vote.

The cases concerned, as I noted before, a complicated and important Fourth Amendment question, and I did not attempt an answer, not least because, unlike the rest of the world, I don't even carry a cell phone.  I did predict that the Court would not simply walk away from the search-incident-to-arrest rule of Robinson, and it didn't.  The Court declined to extend that rule, however, to cell phones.  It's hard to argue with the result, given, as the Chief Justice points out, that cell phones can and often do contain the owner's entire life, and that they do not present the sort of immediate physical danger to officers that the search-incident-to-arrest rule was created to contain.

The Court's opinion in the two cases is here.

Stark Raving Mad

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I have said many times that this Justice Department is politicized to a dangerous degree, bends its decisions to ideology, engages in gross overreach, and often views criminals and inmates as its constituency over normal people.  Much more often than I would like, the Supreme Court goes along with it.

But there are limits on what kind of conservative criticism is still connected to the real world, and this surpasses them by a wide, wide margin.

There are weighty questions on how much government surveillance is too much in a dangerous world, but.........ummmmm..........hello!
Although Hall v. Florida got most of the attention yesterday, the Supreme Court also decided two cases in favor of the police, both unanimous at least in part.

Plumhoff v. Rickard involves the police's use of deadly force against someone who led them on a high-speed chase over 100 miles an hour and continued trying to escape even after the police had him cornered.  There are several holdings worth noting.
The Supreme Court heard two cases last week about whether the warantless search of the digital contents of a cell phone incident to the arrest of its possessor is permissible and, if so, under what circumstances and to what extent.

This is a complicated and important question, and I'm not going to attempt an answer, not least because I don't even carry a cell phone, not wanting to be available to the entire world 24/7.  I have only two impressions about the case. First, the Court should not and isn't going to walk away from the venerable and necessary rule permitting warrantless searches incident to arrest simply because we are in a new, digital world.  Second, the Court, being divided ideologically, although somewhat of a pragmatic turn of mind on police-related questions, and prone to the dreaded balancing test, will come up with a compromise.

Fourth Amendment expert Orin Kerr gives us an education on the question here.

911 and Traffic Stops

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If a motorist calls 911 and reports having been run off the road, is that sufficient cause for police to stop a vehicle fitting the caller's description?  I would think so.  The Supreme Court decided it was this morning, in a surprisingly close 5-4 decision, Navarette v. California.

For those who like to keep track of ideological designations, the split indicates once again that a one-dimensional liberal-conservative model doesn't hack it.  Libertarianism is an different (though not necessarily orthogonal) dimension.  Justice Breyer was in the majority favoring the government; Justice Scalia wrote the dissent.

Good Faith and the Exclusionary Rule

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This morning the United States Supreme Court agreed to review a case in which police officers made a traffic stop for what they believed in good faith was a violation.  The case is Heien v. North Carolina, No. 13-604.  SCOTUSblog's case page has links to the cert-stage pleadings and the state supreme court opinion.

Can the police stop a car if one of its brake lights is out?  I always thought so.  I would consider it a favor to be told that and let off with a warning, if I were unaware of the failure.  In this case, the officer was suspicious of the vehicle for other reasons and looking for a reason to stop the car and request consent to search.  The Supreme Court held some years back that it will not look beyond the objective legality of the stop to ulterior motives.

Turns out that in North Carolina no published decision had ever held whether a car must have all brake lights working or just one, and the intermediate appellate court held in this case that one will do.  This is a clear case of a police officer obeying the law as he understands it at the time of the search, but the defendant seeks suppression based on a new interpretation of the law ex post facto.

Is this a proper case for application of the drastic remedy of exclusion of valid, probative evidence?  Not in my book.  The question the trial court needed to decide in this case was whether Heien was trafficking cocaine.  The evidence proves he was, beyond a reasonable doubt, and that evidence is not challenged on any ground relating to its reliability.  That should be the end of the criminal case.

The Fourth Amendment exclusionary rule should be abolished altogether.  The Fourth Amendment should be enforced in civil cases where its purported violation is the central issue.  Until that day comes, the exclusionary rule should be limited to bad-faith violations.

The high court also took up Johnson v. United States, No. 13-7120, asking whether a prior conviction of possession of a short-barreled shotgun is a "violent felony" for purposes of the federal Armed Career Criminal Act.

Googling the Wiretap Act

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Somewhat off-topic but interesting:  There has been a lot of controversy in recent years about the amount of data about Americans that the NSA and other government agencies have been vacuuming up.  But private businesses have been vacuuming orders of magnitude more.  Most of that activity is perfectly legal, so far, but some maybe not.

Here is the court summary of Joffe v. Google, Inc., USCA 9 No. 11-17483:

The panel granted in part a petition for rehearing, filed an amended opinion affirming the district court, and denied a petition for rehearing en banc on behalf of the court in an interlocutory appeal from the district court's order denying a motion to dismiss claims that Google violated the Wiretap Act when it collected data from unencrypted Wi-Fi networks in the course of capturing its Street View photographs.

The Wiretap Act imposes liability on a person who intentionally intercepts any electronic communication, subject to a number of exemptions. In the amended opinion, the panel held that data transmitted over a Wi-Fi network is not a "radio communication" exempt from the Wiretap Act under 18 U.S.C. § 2511(2)(g)(i) as an "electronic communication" that is "readily accessible to the general public."

The panel held that the phrase "radio communication" in 18 U.S.C. § 2510(16) excludes payload data transmitted over a Wi-Fi network, and that as a consequence, the definition of "readily accessible to the general public [ ] with respect to a radio communication" set forth in § 2510(16) does not apply to the exemption for an "electronic communication" that is "readily accessible to the general public" under § 2511(2)(g)(I).

The certiorari petition asking the US Supreme Court to review this case was filed March 27 as Google, Inc. v. Joffe, No. 13-1181.
1998:  The California Legislature provides for DNA testing of everyone convicted of certain felonies.

2004:  The voters expand the sampling and testing to everyone arrested for any felony, effective in 2009.

2009:  U.S. District Judge Charles Breyer denies a preliminary injunction against the law.

2012:  A three-judge panel of the Ninth Circuit affirms, finding the program valid.  Five months later the court grants rehearing en banc.

2013:  The Supreme Court decides in Maryland v. King that DNA testing of all persons arrested for violent crimes is valid.  The Ninth orders supplemental briefing and reargument.

Today: The en banc Ninth Circuit affirms the denial of the preliminary injunction on the ground that plaintiffs asked for an injunction against DNA testing of anyone arrested for a felony, and that they are obviously not entitled to.  After King, the law is clearly valid as applied to the arrestees for violent crimes, and the court of appeals will not consider an injunction limited to the arrestees for nonviolent crimes until such a motion has been made and heard in the district court.

Well that was a long trek for not much.  If you read a news story that says California's program was upheld today by the Ninth, don't believe it.

The upside, though, is that there is no injunction in place against the program, and the ACLU has wasted years of litigation effort as a result of overreaching and asking for too much.  We will take a little satisfaction in that.

To be continued ....

Car Chase Argument

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The US Supreme Court heard oral argument today in yet another case where the family of a person killed by police while engaging in extremely reckless, life-endangering conduct claims it is the police's fault rather than the deceased's, and therefore the police (and ultimately the taxpayers) should pay them big bucks.  The transcript in Plumhoff v. Rickard, No. 12-1117, is here.

Adam Liptak reports for the NYT:

The Supreme Court seemed to have little trouble concluding during an unusually one-sided argument on Tuesday that Arkansas police officers who had used deadly force to end a high-speed car chase could not be sued by the family of the driver.

The Long Arm Gets A Little Shorter

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Walden v. Fiore is a law-enforcement-related civil case decided yesterday by the U.S. Supreme Court.

Does a police officer conducting a seizure in one state subject himself to civil suit in another state (in this case, on the other side of the country) merely because the seizure will have a foreseeable effect in that other state due to the property owner's residence there?  No, said the Supreme Court unanimously.  Assertion of jurisdiction on such a tenuous basis denies the sued officer due process of law.
The Fourth Amendment forbids unreasonable searches and seizures.  The Supreme Court has said this generally requires a warrant to enter a home, with some exceptions.

It has long been established, as a general rule, that police may enter a home without a warrant if an occupant of the home with full authority over it invites them in.  As a matter of property law and generally understood social convention, of course you can go in if one roommate invites you.  You don't have to go around and get consent from every roommate.

This cohabitant rule might be considered an application of the general rule actually in the Constitution.  Such an entry is not unreasonable.  It might be considered an exception to the court-created warrant requirement.  Either way, it is well established.

Eight years ago, in Georgia v. Randolph, the Supreme Court made an exception.  Randolph, present at the time, objected to the entry of the police into his house, but his wife "readily gave" consent.  This was held to be a violation of the Fourth Amendment in a 5-4 decision.  "The question here is whether such an evidentiary seizure is likewise lawful with the permission of one occupant when the other, who later seeks to suppress the evidence, is present at the scene and expressly refuses to consent."

What if the objector is not present?  That was the question in the case decided yesterday, Fernandez v. California.
I have, on more than one occasion, denounced the rule that evidence obtained through a search or seizure subsequently determined to be a violation of the Fourth Amendment must be suppressed as evidence.  The rule is not in the Constitution, and it is bad policy.  I am in good company in that view, including John Henry Wigmore and Benjamin Cardozo.

Whatever arguments may be made for such a rule when the police do the searching, it is nearly beyond belief that anyone but the most extreme crackpots would think that evidence should be suppressed in a criminal trial because a private party violated a privacy statute.  Yet statutes providing for such exclusion do exist.  Eugene Volokh at the Volokh Conspiracy has this post on a case in which, to paraphrase Cardozo, the child molester may go free, to molest again, because the brother-in-law blundered.

SCOTUS April Arguments

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The US Supreme Court's calendar for its last session of the term, April 21-30, is now available.

Cell phone search day is Tuesday, April 29.  Everyone attending the argument will have to check their cell phones at the door.  They are verboten.

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