Recently in Search and Seizure Category

The US Supreme Court today took up once again the problem of searches by consent when one lawful occupant of the property consents and another, the defendant, refuses.  In Fernandez v. California, No. 12-7822, the Court decided to review the decision of the California Court of Appeal in a Los Angeles case, People v. Fernandez, 208 Cal. App. 4th 100, 145 Cal. Rptr. 3d 51 (2012).  An excerpt follows the jump.

Do police need a warrant to take a blood sample from an apparently intoxicated driver without his consent?  The U.S. Supreme Court today decided Missouri v. McNeely, No. 11-1425:

We granted certiorari to resolve a split of authority on the question whether the natural dissipation of alcohol in the bloodstream establishes a per se exigency that suffices on its own to justify an exception to the warrant requirement for nonconsensual blood testing in drunk-driving investigations.

The answer is no, they need a warrant, but the Court is surprisingly fractured in this case.

On the narrow question stated above, the Court ruled 8-1 that the dissipation of alcohol alone does not amount to an exigent circumstance.  The opinion by Justice Sotomayor (the opinion of the Court at this point) distinguishes Schmerber v. California, 384 U.S. 757 (1966), a rare case where Justice Brennan cast the deciding vote in favor of the prosecution and wrote the opinion.  Schmerber involved additional facts supporting exigency beyond dissipation alone.  Also, advances in technology make quick issuance of a warrant much easier now than it was then.

So what else is needed?  Justice Sotomayor's opinion provides little guidance, and this is where four Justices split off.  Chief Justice Roberts writes for himself and Justices Breyer and Alito:

A police officer reading this Court's opinion would have no idea--no idea--what the Fourth Amendment requires of him, once he decides to obtain a blood sample from a drunk driving suspect who has refused a breathalyzer test. I have no quarrel with the Court's "totality of the circumstances" approach as a general matter; that is what our cases require. But the circumstances in drunk driving cases are often typical, and the Court should be able to offer guidance on how police should handle cases like the one before us.

Justice Kennedy seems sympathetic to this view, but he would wait for another case to provide that guidance.

Mary Kissel of the WSJ has this video interview with NYPD commissioner Ray Kelly on the stop and frisk policies of the NYPD.  These policies are part of the reason New York has seen a dramatic plunge in its murder rate and in crime generally, so naturally they are under attack in the courts.

Against the charge of racism made with statistics, Kelly notes what I call the Fallacy of the Irrelevant Denominator.  Comparing the racial statistics of stops to the general population, it would seem that the police are unfairly targeting minorities.  The reality, though, is that the racial statistics are proportional to the perpetrators of violent crime, the correct basis of comparison.

Kelly also explains that the "activists" challenging the policies do not speak for all people of their particular racial groups.  Minorities are disproportionately the victims of crime, and many support the policies.

This may be the Year of the Snake in China, but it's the Term of the Dog in the US Supreme Court.  Last month, the high court decided unanimously in Florida v. Harris that a trained dog's alert is probable cause for possession of drugs without the strict requirements laid down by the Florida Supreme Court.  See prior post here.

Today, the other shoe dropped in another Florida case, Florida v. Jardines.  From the syllabus:

Police took a drug-sniffing dog to Jardines' front porch, where the dog gave a positive alert for narcotics.  Based on the alert, the officers obtained a warrant for a search, which revealed marijuana plants; Jardines was charged with trafficking in cannabis. The Supreme Court of Florida approved the trial court's decision to suppress the evidence, holding that the officers had engaged in a Fourth Amendment search unsupported by probable cause.

Held: The investigation of Jardines' home was a "search" within the meaning of the Fourth Amendment.

The opinion was written by Justice Scalia and joined by Justices Thomas, Ginsburg, Sotomayor, and Kagan.  Justice Alito dissented, joined by Chief Justice Roberts, and Justices Kennedy and Breyer.  This division does not follow the simplistic "liberal/conservative" lineup, but it is not particularly surprising in a Fourth Amendment case where the question is the substantive reach of the constitutional protection as distinguished from the scope of the exclusionary remedy.  This is the kind of case where we sometimes see Scalia and Thomas showing their libertarian streak and Breyer siding with the government.

In the opinions we see some interesting discussion about the Fourth Amendment and property versus privacy and the special status of the home.

No criminal law decisions from the US Supreme Court today.  The Court did decide a case on "standing," an issue that comes up occasionally in civil suits against law enforcement practices and in cases of death row "volunteers."  The case is Clapper v. Amnesty International:

Section 702 of the Foreign Intelligence Surveillance Act of 1978, 50 U. S. C. §1881a (2006 ed., Supp. V), allows the Attorney General and the Director of National Intelligence to acquire foreign intelligence information by jointly authorizing the surveillance of individuals who are not "United States persons" and are reasonably believed to be located outside the United States. Before doing so, the Attorney General and the Director of National Intelligence normally must obtain the Foreign Intelligence Surveillance Court's approval. Respondents are United States persons whose work, they allege, requires them to engage in sensitive international communications with individuals who they believe are likely targets of surveillance under §1881a. Respondents seek a declaration that §1881a is unconstitutional, as well as an injunction against §1881a-authorized surveillance. The question before us is whether respondents have Article III standing to seek this prospective relief.

The answer is no, 5-4.

The second Fourth Amendment case decided today involves the scope of detention of a person incident to the execution of a search warrant.  Over 30 years ago, the Supreme Court decided in Michigan v. Summers that the police can detain people on the premises or in the immediate vicinity when they execute a search warrant. Today's decision in Bailey v. United States, No. 11-770, involves people observed leaving the premises as the police prepare to execute the warrant and detained several blocks away.

The Supreme Court decided 6-3 that the reasons justifying the Summers rule do not apply to this context, at least not strongly enough to warrant an exception to the usual rules that the police need probable cause to arrest someone or reasonable individualized suspicion to briefly detain them.  The possibility that a person will attack the officers or interfere with the search is obviously greatly attenuated when he has left the premises.  (He could return, of course, and then the police could detain him.)  The third interest of preventing flight was not deemed strong enough to justify extension of the Summers rule.

Justice Kennedy wrote the majority opinion.  Justice Scalia wrote a concurrence emphasizing that Summers is a categorical rule, not one based on weighing the costs and benefits in the individual case.  Justice Breyer wrote the dissent, arguing that the distance from the premises in this case was not materially different from Summers.

Why is the Court willing to be more categorical in this case than in the dog sniff case decided today?  That case involves the question of whether there is probable cause for a search or seizure, the inherently vague standard that is actually in the Constitution.  The Justices are reluctant to impose rigid rules that will inevitably forbid some searches and seizures that actually are supported by probable cause, particularly when the result is the draconian remedy of exclusion of valid, probative evidence.  They are more willing to risk that result when the particular search or seizure at issue is not itself supported by probable cause but rather comes within a court-created exception such as being incident to another search or seizure.  Arizona v. Gant was such a case, and Bailey is another.

The US Supreme Court today unanimously reversed the Florida Supreme Court's attempt to subject routine dog sniffs to a battery of rigid tests.

It is good to see the current Supreme Court unanimous in its acceptance of the Rehnquist Court's reform of probable cause, without a single Justice wanting to go back to the old Warren Court approach.

Justice Kagan wrote the opinion.

All we have required [for probable cause] is the kind of "fair probability" on which "reasonable and prudent [people,] not legal technicians, act." [Ill. v. Gates, 462 U.S.] at 238, 231 (internal quotation marks omitted).

In evaluating whether the State has met this practical and common-sensical standard, we have consistently looked to the totality of the circumstances. See, e.g., Pringle, 540 U. S., at 371; Gates, 462 U. S., at 232; Brinegar v. United States, 338 U. S. 160, 176 (1949). We have rejected rigid rules, bright-line tests, and mechanistic inquiries in favor of a more flexible, all-things-considered approach. In Gates, for example, we abandoned our old test for assessing the reliability of informants' tips because it had devolved into a "complex superstructure of evidentiary and analytical rules," any one of which, if not complied with, would derail a finding of probable cause. 462 U. S., at 235. We lamented the development of a list of "inflexible, independent requirements applicable in every case." Id., at 230, n. 6. Probable cause, we emphasized, is "a fluid concept--turning on the assessment of probabilities in particular factual contexts--not readily, or even use- fully, reduced to a neat set of legal rules." Id., at 232.

The city of Oakland, California has hired Bill Bratton, former police chief in LA and NY, as a consultant.  Naturally, the usual "activists" are up in arms.  Matthai Kuruvila and Justin Berton report for the SF Chron:

Famed lawman William Bratton was pilloried by hundreds of Oakland activists who fear he will bring "stop-and-frisk" tactics to the city.

But they're already here.

In fact, the practice is widely used by police across the country and hardly new: The U.S. Supreme Court affirmed its legality nearly a half century ago.

That case, BTW is Terry v. Ohio, an opinion by CJ Earl Warren.

Orin Kerr has a Q & A post at SCOTUSblog with Tracey Maclin, author of The Supreme Court and the Fourth Amendment's Exclusionary Rule.  The post is titled "Ask the author: Tracey Maclin on the Court and the Fourth Amendment."  But it's not about the Fourth Amendment.  It's about the exclusionary rule, a judicial invention conjured up almost a century after the ratification of the Fourth Amendment.  Here is the question on the future of the rule:

Question:
Based on my reading of your book, it sounds like you expect the Justices to narrow the exclusionary rule in the future so that it will apply only in egregious cases - the kinds of cases that would not trigger qualified immunity. Can you elaborate on where you think the exclusionary rule is headed?

Answer:
I believe four of the Justices (Chief Justice John Roberts, and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito) want to abolish the exclusionary rule. Justice Scalia's majority opinion in Hudson v. Michigan has prepared the foundation for that result. If abolition is unobtainable, the Court will confine exclusion to cases of deliberate and culpable forms of illegal searches or seizure. Chief Justice Roberts's majority opinion in Herring v. United States has already achieved that result, although many of the lower courts have yet to follow suit. (By the way, my view of Herring and its impact on the rule was reaffirmed in Davis v. United States. I explain all of this in Chapter 8 of the book.)

Let's hope so.

Ellen Nakashima reports in the WaPo:

Congress approved a measure Friday that would renew expansive U.S. surveillance authority for five more years, rejecting objections from senators who are concerned the legislation does not adequately protect Americans' privacy.

The bill passed the Senate 73 to 23. The House approved it in September and President Obama is expected to sign it before the current authority expires on Monday.

The lopsided Senate vote authorized a continuation of the government's ability to eavesdrop on communications involving foreign citizens inside the United States without obtaining a specific warrant for each case. The surveillance has been credited with exposing several plots against U.S. targets, but also drawn fire from civil liberties advocates.

The US Supreme Court announced today it has taken up four cases for full briefing and argument, two of them criminal.  Maryland v. King, 12-207, involves collecting DNA from arrestees not yet convicted for burglary or violent crimes.  Prior posts here and here.  The second case, Peugh v. United States, 12-62, has to do with retroactive application of changes to federal sentencing guidelines.

The big news, though, is a civil case, Shelby County v. Holder, 12-96.  Under the Voting Rights Act, people in some places in the United States (e.g., San Benito County, California) can make changes in their local government without prior approval of anyone, while others (e.g., Monterey County, California, right next door) have to go beg Washington for permission.  The difference is not based on anything they have done, but rather on what the people living on that turf 50 years ago did.  Lyle Denniston at SCOTUSblog says the case is "a challenge to Congress's power to protect [minority] groups' rights at the polls," as if this bizarre form of geographic discrimination were actually necessary.

The "dog days" are usually in August, but Halloween was dog day in the US Supreme Court, as the high court heard two Florida cases on the use of drug-sniffing dogs.  Transcripts are now available in Florida v. Jardines and Florida v. Harris.  Orin Kerr gives his assessment at VC.

Based on the arguments, my guess is that the state will win one and lose one. The Court will probably agree that the Fourth Amendment was violated in Jardines, in which the officer brought the dog to the front door and the dog sniffed for drugs. On the other hand, the Court will probably rule that the Fourth Amendment was not violated in Harris because the training the dog received was sufficient.

In recent years, when cases have focused on the core Fourth Amendment question -- what the police can and cannot do -- the defense side has had their share of wins.  Sometimes I agree with the defense myself.  These cases fall in the substantive category.  When the case focuses on the distinct question of whether evidence should be excluded from the criminal trial, however, the high court has steadily taken one notch after another out of the exclusionary rule.  There are no cases of the latter type on the docket for this term yet.

The Ninth Circuit decided an interesting case today of a card counter versus a casino, Tsao v. Desert Palace, No. 09-16233.

The case does not (and does not need to) resolve whether counting cards in blackjack is a crime.  A casino can, however, declare a person persona non grata, after which that person's entry into the casino is a trespass.  [I got thrown out of a casino on that ground once myself, many years ago.]  The case actually involves the options available to casino security guards, who are not police officers but do have a kind of citation authority, along with citizen's arrest.  It's complicated.  Anyhow, the Ninth resolves the federal questions in favor of the casino and remands to district court to decide if it still wants to exercise pendent jurisdiction over the state-law claims.

The US Supreme Court has taken up the case of Missouri v. McNeely, No. 11-1425.  A Missouri Highway Patrol officer stopped McNeely for speeding.  McNeely appeared to be intoxicated and refused the breathalyzer test.  The officer took him to a hospital for a blood test without consent or a warrant.  The Missouri Supreme Court held that this violated the Fourth Amendment.

The Question Presented, as framed by counsel for Missouri, is "Whether a law enforcement officer may obtain a nonconsensual and warrantless blood sample from a drunk driver under the exigent circumstances exception to the Fourth Amendment warrant requirement based upon the natural dissipation of alcohol in the bloodstream."

Maryland has filed its certiorari petition, asking the US Supreme Court to review the decision of Maryland's high court striking down DNA testing of persons who have been arrested, not convicted, for burglary or violent crimes.  Chief Justice Roberts previously issued a stay of that ruling, discussed here and here.

The case is Maryland v. King, No. 12-207.