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The Notorious Ninth gets another unanimous summary reversal today in Ryburn v. Huff.  The case involves police entry into a home under circumstances they believed to be exigent and qualified immunity in a subsequent civil suit.

(My summaries of this morning's cases are necessarily brief.  I may expand on them later today.  Further discussion in the comments is welcome, as always.)

If police attach a GPS tracking device to someone's car and use it to track his movements over a substantial period of time, it that a "search" within the meaning of the Fourth Amendment?  Yes, said all 9 Justices of the Supreme Court today in United States v. Jones.  The Court split 5-4 on the rationale, though.  Justice Scalia for the majority (with Chief Justice Roberts and Justices Kennedy, Thomas, and Sotomayor) looked to the word "effects" in the Fourth Amendment and the trespass-based approach used before Katz v. United States in 1967.  Justice Alito, joined by Justices Ginsburg, Breyer, and Kagan, reaches the same result with the "reasonable expectation of privacy" rationale that the Court has used, for the most part, since Katz.

What's wrong with this picture?

The police get a "crime stoppers" tip that a house is a marijuana grow house.  They go out with a drug detection dog and lead the dog up to the front porch, a place anyone can go without an invitation.  The dog alerts.  The officer prepares an affidavit, the magistrate issues a search warrant, and the police conduct the search.

There is nothing wrong with this picture.  This is solid police work.  In Illinois v. Caballes, 543 U.S. 405 (2005), the Supreme Court held that a dog sniff during an otherwise lawful traffic stop does not violate the Fourth Amendment.  The dog alerts only if he detects contraband.  Unlike the thermal imager at issue in Kyllo v. United States, 533 U. S. 27 (2001), the dog does not convey any information about private but lawful activities.  (The dog himself may know that you are eating pizza with anchovies, but he can't tell anyone.)

The fact that the police are on the publicly accessible porch of a house rather than outside a lawfully stopped car does not change the essential elements on which Caballes is based.  They are lawfully at the lookin' post (or sniffin' post), and they are not using any device that would tell them private information about lawful activities.

Well, the Florida Supreme Court didn't see it that way in Jardines v. State, SC08-2101.  Today, the US Supreme Court took up the case as Florida v. Jardines, No. 11-564.  The case will probably be argued in April and decided in June.

The State of Florida is ably represented by our friend and SCOTUS veteran Carolyn Snurkowski.

The US Supreme Court took up only one case in its orders list today.  The question involves qualified immunity in a civil suit against Secret Service agents.  Plaintiff Steven Howards confronted Vice President Cheney at a Colorado shopping mall back in 2006.  His confrontation went beyond verbal into very mildly physical, and an agent arrested him when he falsely denied contact.  He claims retaliation in violation of the First Amendment.  The District Court granted the agents qualified immunity, and a divided panel of the Tenth Circuit reversed in part.

The three habeas cases we've been watching are relisted yet again for next week.

Hmmm.  Confronting the Veep.  Arrest.  First Amendment implications.  Qualified immunity.  Why do I get the feeling I've seen this movie before?

Sheri Qualters reports for the NLJ:

A nonconsensual X-ray of an arrestee's entire abdomen based on a search warrant for an anal cavity search is constitutional, the U.S. Court of Appeals for the 1st Circuit has ruled.

On Oct. 18, a unanimous panel, in Spencer v. Roche, affirmed summary judgment rulings in favor of government and hospital defendants....

In 2008, Shane Spencer sued two Worcester, Mass., police officers, the city and Saint Vincent Hospital, where the X-rays were taken following his July 2005 arrest for driving with a suspended driver's license. According to the 1st Circuit briefs, police obtained a search warrant based on an informant's tip that Spencer had placed crack cocaine in his anal cavity.

If police have a warrant to arrest someone, can they get a warrant for the cell phone provider to disclose the location of his cell phone?  Orin Kerr has this post at VC.  A federal magistrate judge said no, but Orin thinks the answer is yes.  He reasons by analogy to Steagald v. United States, 451 U.S. 204 (1981), regarding a search warrant to enter the home of a third person, where the person named in the warrant was believed to be.

The Connecticut Supreme Court ruled this week that a police officer unlawfully entered a Connecticut man's home while searching for a missing teenager and that the trial court should have granted the defendant's motion to suppress the subsequently discovered evidence, to wit, a large crocodile:

[The officer] testified that based on the facts as he knew them to be, he believed that the missing [teenager] may be in danger inside the house.

*                         *                        *

The officers searched the first floor of the house for [the missing teenager] and then proceeded upstairs.  At one point . . . [one of the officers] went into a bathroom on the second floor and noticed what appeared to be a dark figure though the bathtub shower door. ... He testified that he believed the dark figure was the missing [teenager].  In this regard, he testified as follows: I slid the door open to the tub.  To the greatest bit of relief, just a crocodile or a large lizard [was] in the tub. [The officer] estimated that the reptile was six or seven feet in length. 

The defendant was charged with illegal possession of a reptile and risk of injury to a child, but the state's high court ordered that the motion to dismiss be granted and all charges dismissed because the circumstances did not justify the officer's warrantless entry. 

[The officer] closed the shower door, and he and . . . [another officer present] continued to search the rest of the residence for the [teenager]. ... The officers, have completed their search . . . exited the residence and left the reptile still in the bathtub where they found it.

AP story here.  Hat tip to How Appealing.

Mandatory DNA sampling of people convicted of felonies to build the database has become pretty routine.  In 42 U.S.C. §14135a(a)(1)(A), Congress authorized collection "from individuals who are arrested, facing charges, or convicted or from non-United States persons who are detained under the authority of the United States."  Well, that's pretty broad.

Does that violate the Fourth Amendment?  USCA3 en banc said no 8-6.  Decision here.  Here are posts at How Appealing and Volokh Conspiracy.

At SCOTUSblog, Orin Kerr has this summary of the Fourth Amendment cases for the U.S. Supreme Court term just ended.  There were five, but only three were decided on the merits:  Kentucky v. King on exigent circumstances, Davis v. United States on a good-faith exception to exclusion for a change in case law, and Ashcroft v. al-Kidd on qualified immunity from civil suit.  I think it is worth noting (though Orin does not) that only one of the three was a substantive Fourth Amendment issue.  The other two were about remedies.

What's the take-away from the Term's Fourth Amendment cases?   Three quick observations come to mind.

First, the current Court is rather friendly to the government in Fourth Amendment cases.    Of the three cases on the merits, the government's side won 23 votes and lost only 3 votes.   This Term, at least, none of the Fourth Amendment cases were even close.  Second, it's interesting that Justice Alito wrote two of the three cases....

Finally, it's particularly interesting that neither of the two newest Justices, Justices Sotomayor and Kagan, voted for a defendant or civil plaintiff in any of the three cases.

Today the California Supreme Court decided People v. Maikhio, S180289.  From the Notice of Forthcoming Filing:

This case includes the following issue: Is a fish and game warden statutorily authorized to stop a vehicle occupied by a person the warden reasonably believes has recently been fishing or hunting to request the display of all fish or game that the angler or hunter has caught or taken, even when there is not reasonable suspicion that the angler or hunter has violated a fish and game statute or regulation? If so, does such a suspicionless stop of a vehicle by a fish and game warden violate the Fourth Amendment?

Answers: Yes and no.  This is an authorized administrative search.  It is well established that those who engage in hunting and fishing must show their licenses and catch on request.  The game warden in this case saw the fisherman catch something and then get in his car.  Just making it to your car doesn't get you out of an otherwise authorized inquiry.  Oh, and lying to the warden is not a good idea.  Telling him you caught nothing when you saw you catch something, even though he's not sure what, results in getting your car searched.

Tony Mauro has this story in the NLJ on yesterday's decision in Davis v. United States:

The Supreme Court on Thursday took direct aim at the exclusionary rule, with a 7-2 majority saying that evidence collected during a police search can be used against a defendant, even if the search is of a type that is later found unconstitutional.

New justices Elena Kagan and Sonia Sotomayor joined in the majority's hostile approach toward the exclusionary rule, leading a dissenter to wonder if the rule -- already weakened by recent decisions -- might be on life support.

Marcia Coyle covers the Miranda case, J.D.B. v. North Carolina.  Adam Liptak has this story in the NYT on all of yesterday's decisions, highlighting J.D.B.

Like chopping down an oak tree with a hatchet, the Supreme Court today took another chunk out of the abominable rule that courts must blind themselves to valid, probative evidence as a means of enforcing the Fourth Amendment.  The vote was 7-2 overall.  Justice Alito wrote the opinion, joined in full by Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and, interestingly, Kagan.  Justice Sotomayor wrote a separate opinion concurring in the judgment and noting that the rule established was not as broad as the dissent implied, but she did not express any disagreement with anything in the majority opinion.  The opinion in United States v. Davis is here.  CJLF's amicus brief is here.

The Supreme Court established nearly thirty years ago in United States v. Leon that evidence should not be suppressed when the police rely on a magistrate's decision to issue a search warrant.  If good-faith reliance on a magistrate's assessment of probable cause is good enough, shouldn't reliance on a decision of law by a United States Court of Appeals be good enough?  Obviously, so the defendant had to get creative to argue to the contrary.  One argument was that applying the good-faith exception to this circumstance would effectively return to the old framework for retroactivity law abandoned in Griffith v. Kentucky and Teague v. Lane.  Another was that suppression of evidence was needed to create the incentive and standing needed to bring cases questioning precedent to the Court for review.

From the syllabi:

Davis: "Searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule."

J.D.B.: "A child's age properly informs Miranda's custody analysis."

Tapia:  18 U.S.C. "Section 3582(a) does not permit a sentencing court to impose or lengthen a prison term in order to foster a defendant's rehabilitation."

Bond:  "Bond has standing to challenge the federal statute on grounds that the measure interferes with the powers reserved to States."

The Ninth Circuit yesterday granted rehearing en banc in United States v. Pool, previously noted here.

The notorious Ninth Circuit has been reversed yet again by the US Supreme Court in a crime-related case.  Yet again, not a single member of the high court thought the Ninth's judgment was correct.  Yet again, the Ninth was warned by a strong dissent from denial of rehearing en banc by many of its own judges.

The key question in Ashcroft v. al-Kidd is whether a Fourth Amendment attack on a seizure can be made by claiming an invalid subjective motivation, even though the seizure is objectively valid, meeting the requirements of the Fourth Amendment for a seizure of that type.

We thought we had killed that argument off 15 years ago in Whren v. United States, 517 U.S. 806 (1996), but like the monster in a formula horror movie it springs back to life and attacks again.  Despite Whren and a host of other Supreme Court precedents on this question, the Ninth Circuit held to the contrary based on a strained inference from the drug checkpoint case, Indianapolis v. Edmond, 531 U.S. 32 (2000).  That case involved stops with no individualized suspicion.  To think that Edmond is more closely analogous to this case, involving a material witness warrant issued by a magistrate on an individualized showing, than the cases where the Supreme Court has rejected subjectivity, is an enormous stretch.

Far worse than its merits holding, though, was the Ninth Circuit's assertion that the law was "clearly established" in favor of its holding.  That is absolutely preposterous.  All eight Justices participating agree that this holding is wrong, see the first paragraphs of all three concurring opinions, and the opinion of the Court includes a severe but thoroughly deserved rebuke.