Recently in Search and Seizure Category

In 1985, the Supreme Court decided that a police officer's use of a level of force that the Court deemed excessive--despite being authorized by state law and consistent with a rule going back to the common law and widely adopted by the states--was an "unreasonable seizure" in violation of the Fourth Amendment. The case was Tennessee v. Garner, 471 U.S. 1. Under that case and its progeny, before a federal court can get into the question of how much force is "reasonable" it must first find a "seizure."

In a nutshell, a person is seized if either (1) he is physically stopped by the police action, or (2) he stops in obedience to the police show of authority. CJLF last briefed this issue in the Eighth Circuit case of Johnson v. Ferguson. See our brief and the post on the decision.

Yesterday, the Supreme Court took up a case presenting this issue, Torres v. Madrid, No. 19-292.
The Foreign Intelligence Surveillance Court today issued this order regarding the revelations on the FBI's conduct in the Carter Page matter.

Jason Riley on Bloomberg and Crime

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Jason Riley has this column in the WSJ with the headline/subhead "Bloomberg Grovels Over Stop and Frisk: If black lives matter, New York's former mayor has nothing to apologize for."

He traces the history of the horrific rise and subsequent fall of crime rates from the 1960s through recent years.

Minority communities bore the brunt of the crime wave and vocally criticized what they considered inadequate law enforcement. In 1967, the Harlem-based Amsterdam News editorialized that the city "can't get rid of crime by ignoring or compromising with it" and called for "restoring the legitimate, unbiased use of firearms by our police." The local chapter of the NAACP said, "It is not police brutality that makes people afraid to walk the streets at night" and demanded an end to "the reign of criminal terror in Harlem." In a 1968 report, [Vincent] Cannato writes, the civil-rights organization asked for "greater police protection in Harlem, harsher criminal penalties for murderers and drug dealers, and 'vigorous' enforcement of the city's anti-vagrancy laws."

Bloomberg's Apology

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Rafael Mangual has this article in the City Journal regarding almost-candidate Michael Bloomberg following the lead of candidate Joe Biden and apologizing for past correct positions on criminal justice.

Bloomberg's apology (again, like Biden's) ignores the role that proactive policing played in driving down crime. By exercising their authority to initiate contacts with citizens--in some cases, by legally detaining, questioning, and, yes, frisking those whom they reasonably believed to be involved in crimes and armed--NYPD officers significantly deterred crime in the city's most troubled precincts (which had large minority populations). This was the finding of a 2014 study, which addressed an important limitation in the earlier assessments of stop-and-frisk. Those assessments focused on citywide crime numbers, though many of the NYPD's stops were concentrated in high-crime neighborhoods. With a more "microlevel" analysis, the 2014 study found that NYPD stops-and-frisks had significant, albeit "modest," effects on crime.
When you access the Internet wirelessly, your computer is broadcasting information, including your MAC address (Media Access Control), a code unique to your device. The strength of your signal is also readily detectable. Do you have a privacy interest in any of that, protected by the Fourth Amendment? No, said the Ninth Circuit yesterday in United States v. Norris, No. 17-10354. The police can tune in along with everybody else.
    On a late January night in 2018, Joel Villela was pulled over for speeding.  The officer smelled alcohol on Villela's breath.  When Villela refused a roadside field sobriety test, the officer arrested him on suspicion of DUI.  Under Washington state law (RCW 46.55.360), Villela's car was impounded.  A subsequent inventory search of the vehicle revealed digital scales, sandwich bags, pipes, and a large amount of cash.  Cocaine was discovered on Villela after a search incident to arrest.  Villela was charged with DUI and possession with intent to deliver controlled substances.

    Villela filed a motion to suppress the "fruits" (drug evidence) of the inventory search of his car claiming that the mandatory impoundment was an unlawful seizure under Washington Constitution Article I, section 7.  That section provides that "no person shall be disturbed in his private affairs, or his home invaded, without authority of law."  Under Washington law, "authority of law" means a warrant or a long-standing exception to the warrant requirement. 


The U.S. Supreme Court case of Mitchell v. Wisconsin, No. 18-6210, was supposed to be about the validity of "implied consent" laws, resolving a lingering question from the 2016 case of Birchfield v. North Dakota. Today, the Court decided the case, but on an "exigent circumstance" theory.

The plurality opinion says that the driver passing out is generally sufficient to create the needed exigency for an exception to the Fourth Amendment warrant requirement. Justice Thomas concurs in the judgment based on his view that "the natural metabolization of alcohol in the blood stream ' "creates an exigency once police have probable cause to believe the driver is drunk," ' regardless of whether the driver is conscious." Under the "narrower grounds" rule of Marks v. United States, the plurality opinion controls.

Ferguson Civil Case Dismissed

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The U.S. Court of Appeals for the Eighth Circuit, en banc, has reversed an order of the District Court and ordered Dorian Johnson's suit against Officer Darren Wilson, the City of Ferguson, and the former Chief of Police dismissed. Johnson was the companion of Michael Brown in the notorious 2014 incident. Johnson claimed that Brown had his hands up at the time of the shooting. Riots ensued. A subsequent investigation by USDoJ found that Johnson's story was false, and Brown attacked Officer Wilson.

Despite being the cause of such horrific damage, Johnson actually sued, claiming that his Fourth Amendment rights were abridged. Because this case is decided pretrial, Johnson's version of events is assumed to be correct. The court held that even with that assumption, Johnson was never seized within the meaning of the Fourth Amendment. He was simply ordered to stop walking down the middle of the street, which is illegal, and move to the sidewalk where pedestrians are supposed to walk.

The case is Johnson v. City of Ferguson, No. 16-1697. CJLF filed an amicus brief in support of the defendants.
The U.S. Supreme Court released an orders list and decisions today. There are no criminal cases of note, but there is action in two civil suits against law enforcement officers.

On the orders list, the El Paso cross-border shooting case of Hernandez v. Mesa is back for a sequel. "Once more into the breach, dear friends ..." Update: Brent Kendall has this story on the case in the WSJ.

Nieves v. Bartlett, No. 17-1174, involves a claim of retaliatory arrest when the police did, in fact, have probable cause to make the arrest. The presence of probable cause generally defeats a First Amendment retaliatory arrest claim. However, for a warrantless misdemeanor arrest, the "no-probable-cause requirement should not apply when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been."

The opinion of the Court is by Chief Justice Roberts, joined in full by Justices Breyer, Alito, Kagan, and Kavanaugh. Justices Thomas, Gorsuch, and Ginsburg concur in varying parts. Only Justice Sotomayor dissents entirely. The line-up analyzers will have fun with that one.
Tomorrow, the U.S. Supreme Court hears oral argument in Mitchell v. Wisconsin, No.18-6210. Amy Howe has this preview at SCOTUSblog.
FamilyTreeDNA, an at home consumer genetic testing company similar to 23andMe and Ancestry.com, has been sharing DNA data with the FBI.  The FBI uses this information in its investigation of violent crimes and/or cold cases.  Reading this article by Matthew Haag in the NY Times made me think a good friend of mine from college.  In the summer of 1997, she was attacked, tied up, and raped by a stranger in her Chico, CA apartment.  When her assailant left the room, she broke free of the restraints and grabbed a pair of scissors.  When he returned to the room, she stabbed him in the arm.  The blood he left on a pillow case provided investigators with the evidence they would use over twenty years later to identify him as Roy Charles Waller, the so-called "NorCal Rapist."

Investigators entered his DNA into the GEDMatch website, which provided them with a list of his close DNA relatives.  That information quickly led them to Waller.  Waller sexually assaulted and/or attacked at least seven victims across six Northern California counties over a 15-year period (1991-2006).  

In 2016, the U.S. Supreme Court decided Birchfield v. North Dakota on the issue of warrant requirements for tests of apparently intoxicated drivers. See Kym's posts here and here. Today the high court granted certiorari to review a decision of the Wisconsin Supreme Court in Mitchell v. Wisconsin, No. 18-6210. From the state court decision:

¶2 Gerald Mitchell was convicted of operating while intoxicated and with a prohibited alcohol concentration, based on the test of blood drawn without a warrant while he was unconscious, pursuant to Wis. Stat. § 343.305(3)(b) (2013-14). Mitchell contends that the blood draw was a search conducted in violation of his Fourth Amendment rights.

¶3 We conclude that Mitchell voluntarily consented to a blood draw by his conduct of driving on Wisconsin's roads and drinking to a point evidencing probable cause of intoxication. Further, through drinking to the point of unconsciousness, Mitchell forfeited all opportunity, including the statutory opportunity under Wis. Stat. § 343.305(4), to withdraw his consent previously given; and therefore, § 343.305(3)(b) applied, which under the totality of circumstances herein presented reasonably permitted drawing Mitchell's blood. Accordingly, we affirm Mitchell's convictions.

The case will likely be argued on the April calendar and decided near the end of the term in June or thereabouts.

The Court also took up two more cases under the problematic federal law on crime and guns, 18 U.S.C. §924.  Quarles v. United States, No. 17-778 dives again into what is "burglary" for sentencing recidivist criminals, given the varying definitions under which a defendant may have been convicted of a prior burglary in state court. Does it matter whether the defendant decided to steal something before or after he broke into the building?

Rehaif v. United States, No. 17-9560 concerns the mental state of a defendant accused of violating the prohibition on possession of a firearm by an illegal alien. What does it mean to "knowingly" violate this law? Must the defendant only know he possesses a gun or must he also know he is illegal?

In addition to the criminal cases, the Court took up a crime-related civil case, McDonough v. Smith, No. 18-485. The case concerns the statute of limitations for civil rights suits under 42 U.S.C. §1983 based on fabrication of evidence.

The Border Shooting Case Returns

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In its term two years ago, the U.S. Supreme Court considered two cases involving suits for allegedly wrongful uses of force against noncitizens. Back in the 1970s, the Court had created civil remedies for constitutional violations by federal government officers, but later cases have uniformly declined to extend that line to new contexts.

Ziglar v. Abbasi, No. 15-1358, declined to extend the Bivens line to the case of  aliens detained in New York on suspicion of terrorism. The Court decided not to decide this issue in the second case, that of a border patrol agent who shot a teenage boy across the border. The agent was in El Paso, Texas, and the boy and others with him were in Juarez, Mexico. That case was Hernandez v. Mesa, No. 15-118. The Supreme Court remanded the case to the Fifth Circuit Court of Appeals to reconsider the Bivens issue in light of Abbasi.

It did not seem like a hard case on remand, given Abbasi's strict approach to extending Bivens and its endorsement of leaving issues involving foreign affairs to the elected branches.  Sure enough, the Fifth decided 13-2 in favor of Agent Mesa.

Today the Court asked for the views of the Solicitor General. That makes sense. It presently only has the brief of Agent Mesa's private counsel in opposition to the certiorari petition, and the interest of the government in foreign affairs is an important factor under Abbasi.

CJLF filed an amicus brief in support of Agent Mesa the first time, and we probably will again if the Court grants certiorari. They shouldn't, though. The Fifth Circuit opinion is correct. With Bivens, as with many dubious opinions of the 60s and 70s, the Court does not necessarily need to overrule it, but it should freeze it in place and not extend it.

Cell Phone Data Case Decided

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This morning the U.S. Supreme Court decided the long-awaited case on police access to cell-phone location records, Carpenter v. United States, No. 16-402.  Chief Justice Roberts' opinion for the bare majority trims back the "third party" doctrine that one has no reasonable expectation of privacy in information belonging to and in the custody of a third party such as a telephone company.  As a result, police will need a warrant supported by probable cause to obtain cell phone location records.  The dissenting opinions have a variety of interesting perspectives, including questioning whether "reasonable expectation of privacy" is a valid basis for deciding the reach of the Fourth Amendment at all.

As important as all this is, none of it has anything whatever to do with the justice of the criminal case actually before the Court.  Was Timothy Carpenter or was he not the mastermind of a series of robberies in which his henchmen "entered the store, brandished their guns, herded customers and employees to the back, and ordered the employees to fill the robbers' bags with new smartphones"?  If he was, justice for the employees terrorized in these crimes requires that he go to prison for a long, long time.  If he gets off because of today's decision that is a miscarriage of justice, and nothing in the text or history of the Fourth Amendment requires it.
In Lozman v. City of Riviera Beach the U.S. Supreme Court claimed to be establishing a "narrow" rule on a civil suit for retaliatory arrest even when the arrest is supported probable cause.  I have my doubts.  We have seen "narrow" rules grow like cancer before.

Plaintiff Fane Lozman had some ongoing disagreements with the city.  He may have been right; it doesn't matter.  At the public comment portion of a city council meeting he starts going off about the arrest of an official in another jurisdiction with no apparent connection to the meeting.  When he won't shut up and won't leave, the council has him arrested.  The Court has the video on its web site.  He claims the arrest was retaliation for his outspoken criticism and not just for his conduct on this occasion.

Generally speaking, the Supreme Court says a seizure supported by probable cause is legal and does not permit going behind the cause for an ulterior motive.  Whren v. United States, 517 U.S. 806 (1996) rejected a claim that a traffic stop violated the Fourth Amendment because the real motive was to investigate possible drug trafficking.  In the First Amendment context, the law is not so clear.

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