Monday, June 22, 2015
The Supreme Court today struck a Los Angeles city ordinance that required hotels to make available their guest records "to any officer of the Los Angeles Police Department for inspection . . . ." But at the same time the ruling specifically allows the city to require hotel owners to keep and retain a guest registry and says that officers can search it if they only get a warrant (even just an ex parte administrative warrant), or satisfy an established exception to the Fourth Amendment warrant requirement.
In short, the ruling in Los Angeles v. Patel only requires officers to jump through a hoop--an important hoop, to be sure, but perhaps only a minimally challenging hoop--before reviewing hotel records.
Still, the sharply divided ruling is a clear victory for Fourth Amendment enthusiasts for two reasons. For one, the ruling requires precompliance review of some sort in the ordinary case. This means that in most cases a neutral decisionmaker would review an officer's request to search the records before the search. For another the ruling underscores the fact that challengers can bring a facial case under the Fourth Amendment.
Justice Sotomayor wrote for the Court, joined by Justices Kennedy, Ginsburg, Breyer, and Kagan. Justice Sotomayor wrote that the LA ordinance violated the Fourth Amendment on its face. In particular, she said that ordinance authorized an extra-judicial administrative search (with no prior judicial approval and no probable cause requirement), and that kind of search requires the subject to "be afforded an opportunity to obtain precompliance review before a neutral decisionmaker." The Court explained why that's important:
Absent an opportunity for precompliance review, the ordinance creates an intolerable risk that searches authorized by it will exceed statutory limits, or be used as a pretext to harass hotel operators and their guests.
Although the Court recognized that it never really defined "precompliance review," the ordinance allowed no review and therefore violated the Fourth Amendment on its face. The Court said that the ordinance has to provide a hotel owner at least an opportunity for precompliance review; but because it didn't, it violated the Fourth Amendment.
The Court emphasized "the narrow nature of our holding," saying that nothing in today's ruling prevents the city from requiring hotel owners from maintaining a guest registry with certain information, or authorizing the police to access that registry with appropriate Fourth Amendment protections, or under established Fourth Amendment exceptions.
Justice Scalia wrote the principal dissent, joined by Chief Justice Roberts and Justice Alito. Justice Scalia argued that a warrantless hotel records search was not unreasonable in every application (as required for a facial challenge), because hotels are closely regulated and therefore the government has more leeway in conducting warrantless administrative searches under New York v. Burger.
Justice Alito also dissented, joined by Justice Thomas. Justice Alito argued that the Court overreached with its facial ruling, that there are (at least) five applications of the ordinance that satisfy the Fourth Amendment, and that the Court's ruling means that LA can never enforce its "116-year-old requirement that hotels make their registers available to police officers."
Wednesday, June 17, 2015
The Second Circuit ruled today that a civil rights case by former alien detainees against former AG John Ashcroft, former FBI Director Robert Mueller, former INS Commissioner James Zigler, and officials at the Metropolitan Detention Center can move forward.
The ruling is not a decision on the merits, but instead says that the bulk of the plaintiffs' case against the officials is not dismissed and can proceed to discovery.
Still, the ruling is significant, to say the least. It means that officials at the highest level of the DOJ will have to answer in court for their actions that led directly to the wrongful detention and mistreatment of aliens who were mistakenly swept up in the 9/11 investigation, even though, as the court said, "they were unquestionably never involved in terrorist activity."
The case, Turkmen v. Ashcroft, over thirteen years old, challenges the defendants' moves that resulted in the detention and mistreatment of aliens in the post-9/11 investigation, even though they had nothing to do with the 9/11 attacks or terrorist activities. In particular, the plaintiffs claimed that they were detained between three and eight months, without individualized suspicion and because of their race, religion, ethnicity, or national origin, and subjected to various forms of mistreatment.
The plaintiffs alleged that the DOJ defendants took certain actions that resulted in their detention and unlawful treatment, with knowledge that the plaintiffs were wrongfully detained and mistreated. They also alleged that the MDC defendants took official actions that led to their abuse and knew about certain "unofficial abuse."
The defendants moved to dismiss for failure to state a claim, on qualified immunity grounds, and, for some claims, that Bivens did not extend a cause of action. The district court dismissed all claims against the DOJ defendants and some claims against the MDC defendants.
The Second Circuit (mostly) reversed and allowed the case to move forward. The court said that the plaintiffs adequately pleaded their constitutional claims (and met the Iqbal pleading standard) that the DOJ and MDC defendants acted directly to violate the plaintiffs' constitutional rights. Key to the ruling was the plaintiffs' carefully pleaded complaint, which incorporated most of two reports of the DOJ's Office of Inspector General, helping plaintiffs to meet the plausibility test. Also key was the plaintiffs' allegations that the DOJ defendants received regular information on the post-9/11 investigation, including detainees, and that they ordered and implemented certain policies and took certain actions that resulted directly in the plaintiffs' wrongful detention.
Along the way, the court ruled that the plaintiffs had Bivens claims (except for their free exercise claim), even though the DOJ defendants didn't argue Bivens on appeal. The court also ruled that the defendants weren't entitled to qualified immunity, because the law on pretrial detention and mistreatment was clear at the time.
The court concluded:
The suffering endured by those who were imprisoned merely because they were caught up in the hysteria of the days immediately following 9/11 is not without a remedy.
Holding individuals in solitary confinement twenty-three hours a day with regular strip searches because their perceived faith or race placed them in the group targeted for recruitment by al Qaeda violated the detainees' constitutional rights. To use such a broad and general basis for such severe confinement without any further particularization of a reason to suspect an individual's connection to terrorist activities requires certain assumptions about the "targeted group" not offered by Defendants nor supported in the record. It assumes that members of the group were already allied with or would be easily converted to the terrorist cause, until proven otherwise. Why else would no further particularization of a connection to terrorism be required? Perceived membership in the "targeted group" was seemingly enough to justify extended confinement in the most restrictive conditions available.
Judge Reena Raggi dissented.
June 17, 2015 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Equal Protection, Fifth Amendment, Fourth Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Recent Cases | Permalink | Comments (0)
Monday, May 18, 2015
In its opinion in Lash v. Lemke, the Court of Appeals for the District of Columbia Circuit affirmed the grant of a summary judgment in favor of law enforcement officers in a suit filed by an Occupy D.C. protestor for a violation of Fourth and First Amendment rights.
Judge Griffith, writing for the court, and joined by Chief Judge Garland and Judge Kavanaugh, described the arrest of Ryan Lash at the Occupy DC encampment in January 2012 by United States Park Police Officers Tiffany Reed, Frank Hilscher, and Jennifer Lemke:
Officer Tiffany Reed, who had been following Lash as he hurried through the tents, stepped up behind Lash and seized his arms from the rear. Lash pulled his arms away and held them in front of his body, continuing to walk away as he insisted that he was innocent. Reed again sought to restrain Lash from behind and Lash again pulled his arms away from her. Reed then took hold of Lash’s left arm while Hilsher approached and seized his right arm. Lemke approached at the same time and drew her Taser from its holster, holding it ready.
Though Lash’s arms were now held by two different officers, he continued to struggle to keep his feet while Reed and Hilsher worked for several moments to gain control of him. Lemke, standing nearby and behind the trio, fired her Taser into Lash’s lower back. He fell to the ground, and the officers handcuffed him.
Lash argued that Lemke’s use of the Taser constituted excessive force in violation of Lash’s Fourth Amendment rights and was motivated by retaliatory animus against his protected expression in violation of his First Amendment rights. The defendant officers raised qualified immunity and the district judge granted summary judgment in their favor.
Relying on Ashcroft v. al- Kidd (2011), the DC Circuit Court of Appeals concluded that the "claimed right, whether it exists or not, is by no means 'clearly established.'" In so doing, however, the court acknowledged that this inquiry cannot be abstract, but must occur "in the specific context of the case." This "context," the court further acknowledged, depended on whether Lash was "resisting arrest."
This would seemingly make summary judgment - - - requiring no genuine disputes of material fact - - - difficult, but the court interestingly relied on multiple video-recordings of the "episode" which rendered Lash's description a "visible fiction."
Here is one of the videos of the incident:
The court further rejected Lash's arguments regarding the video as conclusive:
Lash argues that we may not rely on the videorecordings in this way because they “cannot fully convey everything that people at the scene felt” such as “how much force one person is exerting” or “the level of detail a person will experience in the moment.” This is no argument at all. The Supreme Court has explained that we determine whether a right is clearly established based on the “objective legal reasonableness of an official’s acts,” protecting officers from liability unless “it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Subjective factors like those Lash identifies here cannot shed any light on whether a reasonable officer in these circumstances would have believed her actions violated Lash’s clearly established rights. It is that objective test, not Lash’s knowledge or Lemke’s thoughts, that determines the scope of qualified immunity. The videorecordings in the record provide us all we need to determine what a reasonable officer would have known at the scene. And we do not hesitate to conclude from the videorecording that there is “no genuine issue of material fact” regarding Lash’s active resistance.
Given the increased use of videorecordings in cases against police officers, the court's discussion of 'what the video shows' might be expected to be used in other cases.
Here, however, the court concludes that Lash was "actively resisting arrest," and thus there was no clearly established right not be subject to a Taser.
As to the First Amendment claim, the court quickly found that Lash did not show the officer had "retaliatory animus."
Thursday, May 7, 2015
In its lengthy, well-reasoned, and unanimous opinion in American Civil Liberties Union (ACLU) v. Clapper, the Second Circuit today concluded that NSA's bulk telephony metadata collection is not authorized by §215 of the PATRIOT Act, 50 USC §1861(b)(2)(A). After hearing oral arguments last September, the panel reversed the district court's opinion that had rejected both the statutory and constitutional challenges to the scheme. Recall that this widespread collection has been controversial since the program was first revealed through information obtained by Edward Snowden; we've additionally discussed the issues here, here, and here.
The Second Circuit, in the opinion authored by Gerard Lynch, did agree with the district judge that the ACLU plaintiffs had standing to challenge the collection of call records. The court stated that "the government’s own orders demonstrate that appellants’ call records are indeed among those collected as part of the telephone metadata program." The court rejected the government's contention that any alleged injuries depend on the government's reviewing the information collected rather than simply collecting it: the collection is [challenged as] a seizure and the Fourth Amendment prohibits both searches and seizures. The court distinguished Amnesty International v. Clapper in which the United States Supreme Court's closely divided opinion concluded that the alleged standing was based on a "speculative chain of possibilities." Instead:
appellants’ alleged injury requires no speculation whatsoever as to how events will unfold under § 215 – appellants’ records (among those of numerous others) have been targeted for seizure by the government; the government has used the challenged statute to effect that seizure; the orders have been approved by the FISC; and the records have been collected.
The panel likewise held that the ACLU organizations have standing to assert a First Amendment violation regarding its own and its members' rights of association.
However, the court did not rule on the Fourth and First Amendment claims explicitly, although its conclusion regarding §215 occurs in the shadow of the constitutional issues, or as the court phrases it: "The seriousness of the constitutional concerns" has "some bearing on what we hold today, and on the consequences of that holding."
What the court does hold is that "the telephone metadata program exceeds the scope of what Congress has authorized and there violates §215." After a discussion of the program and §215, it first considers the government's arguments that the judiciary is precluded from considering the issue. The court interestingly observes that judicial preclusion here would "fly in the face of the doctrine of constitutional avoidance."
[I]t would seem odd that Congress would preclude challenges to executive actions that allegedly violate Congress’s own commands, and thereby channel the complaints of those aggrieved by such actions into constitutional challenges that threaten Congress’s own authority. There may be arguments in favor of such an unlikely scheme, but it cannot be said that any such reasons are so patent and indisputable that Congress can be assumed, in the face of the strong presumption in favor of APA review, to have adopted them without having said a word about them.
The court likewise held that there was no implicit preclusion.
On the merits of the §215 challenge, the court essentially found that the government's interpretation of "relevant" was too broad. The court noted that both parties relied on the grand jury analogy, supported by the statute's language and legislative history. Yet for the court, the government's argument faltered on this very ground:
Moreover, the court relies on the Privacy and Civil Liberties Oversight Board (PLCOB) Report regarding the overbreadth, noting that "counterterrorism in general" is not sufficiently narrow. Further, the court states that the government's interpretation reads the "investigation" language of §215 out of the statute, and even more specifically, §215's language "relevant to an authorized investigation (other than a threat assessment)."
Search warrants and document subpoenas typically seek the records of a particular individual or corporation under investigation, and cover particular time periods when the events under investigation occurred. The orders at issue here contain no such limits. The metadata concerning every telephone call made or received in the United States using the services of the recipient service provider are demanded, for an indefinite period extending into the future. The records demanded are not those of suspects under investigation, or of people or businesses that have contact with such subjects, or of people or businesses that have contact with others who are in contact with the subjects – they extend to every record that exists, and indeed to records that do not yet exist, as they impose a continuing obligation on the recipient of the subpoena to provide such records on an ongoing basis as they are created. The government can point to no grand jury subpoena that is remotely comparable to the real‐time data collection undertaken under this program.
May 7, 2015 in Courts and Judging, Criminal Procedure, Current Affairs, First Amendment, Foreign Affairs, Fourth Amendment, Interpretation, Opinion Analysis, Speech, Standing, State Secrets | Permalink | Comments (0) | TrackBack (0)
The en banc Eleventh Circuit ruled this week in United States v. Davis that a court order, pursuant to the Stored Communications Act, compelling the production of a telephone company's business records containing information as to cell tower locations (and linking the defendant's calls to those towers) did not violate the Fourth Amendment.
The ruling reverses an earlier panel decision, which held that the order violated the Fourth Amendment. The panel nevertheless affirmed the conviction, however, based on the good-faith exception to the exclusionary rule.
The ruling tests traditional Fourth Amendment rules against technological advances--and their ability to reveal vast amounts of highly personal data. The court applied a traditional Fourth Amendment approach, but invited Congress to revisit the appropriate balance between technology and privacy in cases like this.
The defendant, Quartavious Davis, was charged with several counts for his role in a string of robberies. At Davis's trial, the prosecution introduced telephone records from Metro PCS, obtained through an earlier court order, showing the telephone numbers for each of Davis's calls and the number of the cell tower that connected each call. An officer-witness then connected the location of the cell towers with the addresses of the robberies, placing Davis near the robbery locations around the time of the robberies. (The evidence showed the location of the cell towers that connected Davis's calls, but not the precise location of Davis or his phone.) Davis was convicted and sentenced to 1,941 months in prison.
The court order for the records was based on the Stored Communications Act. The SCA provides that a federal or state governmental entity may require a telephone service provider to disclose "a record . . . pertaining to a subscriber to or a customer of such service (not including the contents of communications)" if "a court of competent jurisdiction" finds "specific and articulable facts showing that there are reasonable grounds to believe" that the records sought "are relevant and material to an ongoing criminal investigation." This does not require a showing of probable cause. Davis argued that the order violated the Fourth Amendment.
The Eleventh Circuit rejected Davis's arguments. The court wrote that the SCA actually provides greater privacy protections than a routinely issued subpoena to third parties for a wide variety of business records (credit card statements, bank statements, and the like). This, it said, was no different. It also wrote that Davis claimed no trespass, and that he had no reasonable expectation of privacy in the location of cell towers to which he voluntarily sent call signals, or in the business records of his third-party provider. The court thus concluded that there was no "search."
But even if there were a search, the court held that it was reasonable, balancing the government interests against Davis's expectations of privacy. It said that the government had compelling interests in investigating and preventing crimes, and that Davis had, at most, a diminished expectation of privacy.
Judges Martin and Jill Pryor dissented, arguing that technological advances, "which threaten to cause greater and greater intrusions into our private lives," threaten "to erode our constitutional protections."
Tuesday, April 21, 2015
The Supreme Court ruled today in Rodriguez v. United States that the Fourth Amendment prohibits a dog sniff that extends the duration of an otherwise lawful traffic stop, as measured by the time it reasonably takes an officer to complete the mission of the stop. But the ruling doesn't end the case: The Court sent the case back to the lower court for determination of whether the dog sniff was nevertheless independently justified under the Fourth Amendment.
The case arose when an officer pulled Rodriguez over for a traffic violation, issued a warning, then engaged in a dog sniff (which revealed drugs, which led to Rodriguez's prosecution). In other words, the dog sniff came after the purpose, or mission, of the traffic stop expired and thus extended the stop beyond the period reasonably required to complete the mission. The Court previously ruled in Illinois v. Caballes that the Fourth Amendment tolerates a dog sniff in the course of an otherwise lawful traffic stop. But this case asked whether the Fourth Amendment also allowed that sniff when it extended the length of the stop.
The Court said no. Justice Ginsburg wrote for the Court, including Chief Justice Roberts and Justices Scalia, Breyer, Sotomayor, and Kagan. She wrote that a dog sniff that extends the length of the stop violates the Fourth Amendment, without some independent justification for it.
So: How to know if a dog sniff extends the length of the stop? Look to the officer's mission in making the stop in the first place: the "time reasonably required to complete [the stop's] mission."
Because the Court refused to draw a bright line at the point when an officer issues a ticket (and instead looked to the total time of the stop, whenever the mission is complete), the rule could mean that some dog sniffs in the course of a traffic stop (upheld under Caballes) would now violate the Fourth Amendment. Again, the touchstone is whether the sniff extends the "time reasonably required to complete [the stop's] mission."
The Court rejected the Eighth Circuit's holding that the sniff was reasonable because it only extended the time of the stop a little bit.
Justice Thomas wrote the principal dissent, joined by Justices Kennedy and Alito. Justice Thomas argued that because the stop was reasonably executed the sniff was OK.
He also argued that there was independent justification for the dog sniff--a point that Justice Alito also made in a separate dissent, but a point that Justice Kennedy did not join. The district court found that there was no independent justification for the sniff, but the Eighth Circuit did not rule on the question.
The case now goes back to the Eighth Circuit for a ruling on this issue. If the lower court finds an independent justification for the sniff (for reasons described by Justices Thomas and Alito, for example), then the evidence (drugs) can come in, and Rodriguez could still be convicted.
Thursday, March 19, 2015
The Brennan Center just released What Went Wrong with the FISA Court?, a history and analysis of the FISA court, its problems, and some suggested solutions, penned by Elizabeth Goitein and Faiza Patel.
The report walks through the history of FISA to show just how the law, technology, and the FISA court itself changed to create the conditions for the bulk, or programmatic, surveillance programs that we have today. The report argues that current programmatic surveillance programs raise significant Article III and Fourth Amendment problems. In order to solve these, the report suggests the following:
- End programmatic surveillance by prohibiting bulk surveillance under Section 215 and replacing Section 702 with a regime that would require an individualized court order for surveillance.
- Enact additional reforms and processes, including adding an adversarial process (an advocate against the government before the FISA court) and increasing transparency.
- Enact additional Fourth Amendment reforms, including restoring the requirement that the surveillance target is a foreign power or its agent, narrowing the definition of "foreign intelligence information," and restoring the test that requires that obtaining foreign intelligence information is the "primary purpose" of the surveillance.
- Reform programmatic surveillance, if it must continue.
Friday, March 13, 2015
The ACLU filed suit this week on behalf of several media and human rights organizations challenging the NSA's "upstream surveillance" program. The plaintiffs argue that the program violates the First and Fourth Amendments, and that NSA has implemented upstream surveillance in violation of the FISA Amendments Act of 2008. (H/t reader Darren Elliot.)
Through upstream surveillance, a program disclosed by Edward Snowden after the Court handed down Clapper v. Amnesty International (more on that below), the NSA intercepts, collects, and searches all of Americans' international communications (e-mails, web-browsing, search engine queries, and the like). The NSA intercepts communications through devices directly on the internet backbone (with the help of providers like Verizon and AT&T), and it searches that material using keywords associated with NSA targets--that is, anyone outside the United States believed likely to communicate "foreign intelligence information."
The Supreme Court dismissed the last major suit of this type. The Court said that the plaintiffs in Clapper v. Amnesty International lacked standing to challenge NSA surveillance under the FISA Amendments Act (50 USC Sec. 1881a), because they didn't allege that they'd actually be targets of surveillance (only that they'd likely be targets).
This suit addresses the standing problem by alleging that upstream surveillance has already targeted them--because upstream surveillance is up and running and collects, in a drag-net kind of way, the kinds of communications that they engage in. And by including Wikimedia (with all its international internet connections), the ACLU ensures that at least one plaintiff has certainly been a target of this program.
Friday, February 13, 2015
The D.C. Circuit ruled today that deputy federal marshals enjoyed qualified immunity from a suit for damages after they shot a 16-year-old driver who hit another marshal as he drove out of an apartment parking lot.
The case, Fenwick v. Pudimott, arose after three deputy federal marshals observed Fenwick, a 16-year-old, struggling to park a car in the lot. Fenwick exited the vehicle, entered the apartment building, and came back to his car. As he backed up, the officers instructed him to halt. Instead, he drove forward toward the parking lot exit and clipped one of the officers. The other officers fired shots and struck Fenwick with four bullets. Fenwick recovered and sued.
The D.C. Circuit held that the officers enjoyed qualified immunity from suit, because, under the second prong of Saucier v. Katz, their use of deadly force didn't violate a clearly established constitutional right. The court noted that Fenwick "posed no immediate threat to either officers or bystanders when [the officers] opened fire," but also that the officers saw pedestrians and other vehicles in the vicinity just before the shooting, and that Fenwick hit one of the officers with the car. This was enough for the court to hold that the officer's use of deadly force wasn't clearly unconstitutional.
Still, the court saw it as a very close case. Given that, and undoubtedly conscious of recent instances of police abuses around the country, the court issued this caution:
[W]e emphasize that nothing in this opinion should be read to suggest that qualified immunity will shield from liability every law enforcement officer in this circuit who fires on a fleeing motorist out of asserted concern for other officers and bystanders. Outside the context of a "dangerous high-speed car chase," deadly force, as the Supreme Court made clear in Garner, ordinarily may not be used to apprehend a fleeing suspect who poses no immediate threat to others--whether or not the suspect is behind the wheel.
Judge Karen LeCraft Henderson, who concurred, didn't see it as so close. Citing the Court's ruling last Term in Plumhoff v. Rickard (holding that officers' use of deadly force to stop a driver in a high-speed chase didn't violate the Fourth Amendment), she would have resolved the case on Saucier's first prong--that the use of deadly force didn't violate the Constitution.
Wednesday, January 21, 2015
The Supreme Court heard oral arguments today in Rodriguez v. United States, the case testing whether an officer can prolong a traffic stop to conduct a dog sniff, even if the officer lacks suspicion for the sniff.
After arguments--and maybe even before--it's clear that the problem is line drawing. On balance, that maybe more of a problem for the government than for Rodriguez.
Rodriguez, represented by Shannon O'Connor, argued for a bright line rule: when the purpose of the stop is over, any after-occuring dog sniff requires new individualized suspicion or probable cause, even if the Court has held that an officer may conduct a dog sniff during the stop. The government, on the other hand, represented by Ginger Anders, argued for a de minimis extension--that the Fourth Amendment permits a reasonable de minimis extension of a traffic stop to conduct a dog sniff.
But when is the purpose of a stop over? And how to define a de minimis extension? Those problems dominated the arguments today.
O'Connor had trouble defending her bright-line rule, and even seemed to shift once or twice. She argued that an officer cannot detain a driver beyond the point when the purpose of the stop ends, even if it ends in a mere warning. But O'Connor received significant push-back from Justices Kennedy, Scalia, and Alito, all of whom presented hypotheticals designed to show that that bright line wasn't always so bright. Moreover, it wasn't clear that O'Connor's bright line really mattered. For example, Justice Scalia pointed out that an officer can investigate all kinds of things during a traffic stop--whether a driver's license is valid, whether the car is stolen, etc., even a dog sniff--and wondered why then the officer couldn't also conduct a dog sniff after the purpose of the stop ended.
Justice Kennedy seemed to push O'Connor toward an even sharper bright line, that the purpose of the traffic stop ends at the issuing of a ticket. O'Connor at one time seemed to adopt it, but that only got her in more trouble. That's because the issuing-a-ticket position has obvious problems: traffic stops don't always end with tickets, or, as Justice Alito pointed out, any clever officer would simply delay handing over the ticket until after a dog sniff. Justice Scalia pounced, Chief Justice Roberts weighed in ("What if the officer says I need to think about this for a while?"), and even Justice Ginsburg expressed reservations with the issuing-a-ticket line.
So O'Connor backed off and reverted to her earlier position that the stop ends when the purpose of the stop ends. But that position fared no better.
But if the Court had problems with O'Connor's lines, it had maybe even more problems with the government's lines. The government argued that the Fourth Amendment permits a de minimis extension beyond the purpose of the stop. But defining "de minimis" proved difficult. It wasn't clear whether this position had the support of even Chief Justice Roberts and Justice Scalia (although it may have had the support of Justice Alito). Chief Justice Roberts pointed out that a dog sniff will probably last longer than the stop itself--is that a de minimis extension? Justice Breyer pointed out that Anders's de minimis rule isn't easily enforceable--what do you tell the police to do? Justice Kagan argued that a dog sniff outside the bounds of the stop is something like an officer taking a cigarette break--unreasonable.
Part of the problem for the government is how the case came to the Court: the lower court said that a de minimis extension was reasonable. That holding assumes that there's a point at which the purpose of the stop ends, and a de minimis extension afterward. If so, and if the courts can define that point, then any extension really is beyond the purpose of the stop. And a Fourth Amendment violation for a de minimis period is still a Fourth Amendment violation. (And what's de minimis, anyway? That's hard to say, and, for dog sniffs, may run longer than the stop itself--as Chief Justice Roberts pointed out.) This problem seemed to trouble enough Justices, including Chief Justice Roberts, that the Court may well go with Rodriguez.
Tuesday, January 20, 2015
The Supreme Court will hear oral arguments tomorrow in Rodriguez v. United States, the case testing whether an officer can extend a traffic stop for a canine sniff, without additional individualized suspicion to justify the sniff. Here's my argument preview from the ABA's Preview of United States Supreme Court Cases, with permission:
Just after midnight on March 27, 2012, Dennys Rodriguez and his passenger Scott Pollman were driving west from Omaha, Nebraska, to Norfolk, Nebraska, on Nebraska State Highway 275. Shortly into their trip, Officer Struble, who was patrolling the highway, observed the car’s passenger-side tires pass briefly over the line separating the highway from the shoulder. Officer Struble pulled the car over.
Officer Struble approached the vehicle and obtained Rodrigeuz’s license, registration, and proof of insurance. Officer Struble asked Rodriguez why he had driven onto the shoulder. Rodriguez said he swerved to avoid a pothole. Rodriguez seemed agitated when Officer Struble informed him that driving on the shoulder was a traffic violation. Officer Struble also observed Pollman in the passenger seat and noticed that Pollman seemed nervous.
Officer Struble asked Rodriguez to step out of the vehicle. Rodriguez complied. Officer Struble then asked Rodriguez to accompany him to his patrol car so that he could complete some paperwork. Rodriguez asked if he had to go to Officer Struble’s patrol car; Officer Struble said “no”; and Rodriguez said that he would rather sit in his own car. Officer Struble later testified that “in his experience” declining to sit in his patrol car was a “subconscious behavior that people concealing contraband will exhibit.”
Officer Struble returned to his patrol car (without Rodriguez) and called in a request for a records check on Rodriguez.
Officer Struble then returned to Rodriguez’s vehicle, this time to talk to Pollman. Officer Struble asked Pollman for his identification; he also asked Pollman about their trip. Pollman told Office Struble that he and Rodriguez drove from Norfolk to Omaha to look into buying an older-model Ford Mustang. They decided against buying the car, however. Officer Struble asked Pollman if he saw a picture of the car before making the trip; Pollman said that he had not.
Officer Struble returned to his patrol car. Office Struble was suspicious that Rodriguez and Pollman would drive to Omaha to look into purchasing a car without seeing a picture of it first. He was also suspicious that Rodriguez and Pollman would drive the long distance from Norfolk to Omaha late on a Tuesday night. Office Struble had a drug-detection dog in his car, and, based on his suspicions, he decided that he would “walk [his] dog around the vehicle regardless of whether [Rodriguez] gave [him] permission or not.” But he wanted a second officer to act as a back-up, because there were two persons involved in the stop. Officer Struble requested a records check on Pollman and began writing a warning ticket for Rodriguez for driving on the shoulder.
Officer Struble returned to Rodriguez’s vehicle (for the third time). He returned the documents to Rodriguez and Pollman and issued a written warning ticket to Rodriguez. Officer Struble gave the ticket to Rodriguez at about 12:25 a.m. At this point, Officer Struble had taken “care of all the business” of the traffic stop and had “got[ten] all the reason for the stop out of the way.”
Nevertheless, Officer Struble did not let Rodriguez go. Instead, he asked Rodriguez if Rodriguez had an issue with Officer Struble walking his dog around the car. Rodriguez replied that he did have an issue with that. Officer Struble then directed Rodriguez to turn off the engine, exit the vehicle, and stand in front of the vehicle until a second officer arrived.
Officer Struble’s back-up officer arrived at about 12:33 a.m. About seven or eight minutes after Officer Struble issued the warning ticket to Rodriguez, Officer Struble walked his dog around Rodriguez’s vehicle. The dog alerted, the officers searched the vehicle, and the officers found a bag of methamphetamine.
Rodriguez was charged with possession with intent to distribute 50 grams or more of methamphetamine in violation of federal law. He moved to suppress the evidence seized from his vehicle, arguing that Officer Struble violated his Fourth Amendment rights by detaining him for a dog sniff without reasonable suspicion of criminal activity. The district court denied Rodriguez’s motion, and the United States Court of Appeals for the Eighth Circuit affirmed. This appeal followed.
Under the Fourth Amendment, an officer can make a brief investigative stop, like a traffic stop, based on particularized and objective “reasonable suspicion” of illegal activity. For example, an officer can stop a vehicle after observing a driver violate a traffic law. But the stop must be related in scope to the officer’s justification for it. This means that the officer may detain the driver only for the period required to complete the tasks related to the original justification for the stop, for example, to run a records check, to interview a driver, to write a ticket, or even to conduct a dog sniff. The stop satisfies the Fourth Amendment if it is reasonable, that is, if it is reasonably related to the justification for the stop.
But state and federal courts split over what should happen after an officer completes the tasks directly related to the original stop. Some courts say that detention beyond this point constitutes a separate seizure, requiring independent and separate justification. Others, like the Eighth Circuit in this case, say that detention beyond this point is an extension of the original stop, so long as the nature and duration of the overall stop is reasonable, because the additional detention constitutes only a de minimis intrusion on the detainee’s personal liberty.
The parties wrangle over which approach is correct. They agree that an officer may conduct a dog sniff of the outside of a vehicle during an otherwise lawful traffic stop. The Supreme Court held as much in Illinois v. Caballes, 543 U.S. 405 (2005). But they disagree about whether a dog sniff can prolong a stop, even for a short period of time. Central to this dispute is the standard the Court should use to judge the prolonged stop—independent individualized suspicion of a different illegal activity (as Rodriguez would have it), or the overall reasonableness of the stop (as the government argues).
Rodriguez argues that the Fourth Amendment permits an officer to make a traffic stop based, as here, on probable cause of illegal activity. But he claims that the stop must be reasonably related to the circumstances that justified the stop in the first place and no longer than necessary to effectuate that purpose. Rodriguez says that an officer can use a drug dog to conduct a sniff if the sniff does not delay completion of the tasks related to the traffic violation. But he contends that an officer cannot expand the boundaries of a traffic stop in order to conduct a sniff. Rodriguez says that once the officer has completed all the tasks required during a lawful traffic stop, the driver is free to go, unless the officer has reasonable suspicion of additional criminal activity.
Rodriguez claims that these principles establish a bright-line rule—that a traffic stop ends when an officer completes the tasks related to the traffic violation, and that any detention beyond that point, no matter how brief, is unreasonable (and thus violates the Fourth Amendment) unless the additional detention is independently justified by individualized suspicion. He says that this rule would provide guidance to officers in the field and protect innocent drivers from suspicionless intrusions while at the same time giving officers plenty of time to conduct valid dog sniffs during a lawful detention.
Rodriguez argues that the Eighth Circuit’s reasons for its de minimis exception to these rules are flawed. He claims that the Eighth Circuit wrongly assumed that the line marking the end of a traffic stop is “artificial,” and that under a legitimate reasonableness standard the Fourth Amendment would allow a dog sniff that could have occurred within the scope of the traffic stop to occur shortly after the stop. Rodriguez says that the line is a constitutional one, and not “artificial,” and that any other approach would allow the officers to determine the end of a traffic stop for Fourth Amendment purposes. Rodriguez also claims that the Eighth Circuit was wrong to say that a dog sniff is similar to ordering a driver out of a car during a stop—a valid de minimis intrusion under Pennsylvania v. Mimms. 434 U.S. 106 (1977). Rodriguez claims that ordering a driver out of a car during a stop justified by probable cause (as in Mimms) is far different than conducting a dog sniff after a stop based on no cause at all. He also says that a dog sniff is far more intrusive than an order to get out of a car. Finally, Rodriguez claims that the Eighth Circuit wrongly concluded that an officer may conduct a suspicionless search using a dog sniff, because a dog sniff is not a “search” under the Fourth Amendment. Rodriguez says that the dog sniff in his case violated the Fourth Amendment, because it required his continued detention even after the justification for the stop expired (and not for any reasons having to do with the dog sniff as such).
Rodriguez argues that under his bright-line rule, the Court should reverse the Eighth Circuit’s decision. He says that Officer Struble had no objectively reasonable basis for detaining him after completing the tasks related to the justification for the initial stop. He claims that any additional facts that Officer Struble considered suspicious (and that might independently justify continued detention) are “consistent with innocent travel and easily explained by the circumstances of the stop.” Rodriguez contends that because Officer Struble had no independent justification for his continued detention after he completed the tasks related to the justification for the initial stop, the dog sniff violated the Fourth Amendment.
The government argues that Officer Struble’s dog sniff was a reasonable incident to the traffic stop, even if it briefly prolonged the stop, because the overall duration of the stop was objectively reasonable. The government says that under the Fourth Amendment an officer can conduct a number of inquiries before resolving a traffic violation, just so long as the stop does not run an unreasonably long time. For example, the government claims that an officer can conduct inquiries related to the traffic stop, like verifying the validity of a driver’s license and registration or conducting a background check. The government claims that an officer can also conduct inquiries into unrelated criminal activities, even without reasonable suspicion, like asking passengers about matters unrelated to the traffic stop or conducting a dog sniff. Again, the government says that the test for these inquiries, and their effects on the duration of the stop, is the overall reasonableness of the stop.
The government argues that the sequence of an officer’s permissible tasks during a stop should not matter. In particular, the government contends that an officer’s issuing a traffic ticket before a dog sniff does not alone render that dog sniff unconstitutional. Instead, the government claims that the Court should apply a test of overall reasonableness and look to the total duration of the stop (compared to the duration of stops under similar circumstances), the proportion of the stop dedicated to the dog sniff, and the officer’s diligence throughout.
The government contends that Rodriguez’s argument for a bright-line rule has several problems. For one, the government says that a bright-line rule prohibiting a dog sniff after an officer issues a ticket would not reduce delays in the stop; it would only force an officer to re-sequence his or her tasks related to the stop (by conducting the dog sniff before issuing a ticket). The government claims that this would unduly constrain officers’ discretion to conduct inquiries in the order warranted by the particular stop. For another, the government contends that a bright-line rule, in treating the motorist like a newly pulled-over motorist after the officer issues a ticket, ignores the fact that the officer previously detained the motorist on probable cause that he or she committed a traffic violation. The government says that its test, overall reasonableness, does not have these problems. The government claims that lower courts have applied this test without difficulties to dog sniffs conducted both before and after an officer issues a ticket.
Applying its overall reasonableness test, the government argues that the dog sniff in this case did not unreasonably prolong Rodriguez’s traffic stop. The government claims that the overall duration (about 29 minutes) was within the range of other similar traffic stops. It says that the seven- or eight-minute delay to conduct the dog sniff was not an unreasonably large portion of the stop. Moreover, the government contends that the delay was warranted by Officer Struble’s need for backup. And the government says that Officer Struble acted diligently throughout the stop.
Finally, the government argues that Rodriguez’s detention to conduct a dog sniff was independently justified by Officer Struble’s reasonable suspicion of other unlawful activity.
This case will resolve a split in the federal and state courts over whether the Fourth Amendment allows a de minimis detention beyond an officer’s original traffic stop. (Indeed, as Rodriguez points out in his cert. petition, the split reached this very case: Rodriguez’s case would have turned out differently if it had been tried in Nebraska state court instead of in a Nebraska federal court.)
On the one hand, the case goes to the duration of a traffic stop, and an officer’s ability to conduct additional investigations (like a dog sniff) after he or she completed the tasks directly related to the original stop. Rodriguez’s bright-line rule could potentially shorten stops and restrict an officer’s ability to conduct these investigations; the government’s overall reasonableness approach could lengthen stops (at least incrementally, as here) and give an officer more flexibility in conducting additional investigations.
But on the other hand, the case may not significantly affect either the duration of a stop or an officer’s ability to conduct a dog sniff in most cases. That’s because, as the government argues, even a ruling for Rodriguez might only force officers to re-sequence their activities during a traffic stop, for example, to conduct a dog sniff before the officer issues a ticket.
Friday, January 16, 2015
The ACLU and the federal government settled Al-Kidd v. United States, the case challenging the government's post-9/11 practice, pursuant to the Material Witness Statute, of imprisoning Muslim men as material witnesses without any basis for holding them.
The case was on remand from the United States Supreme Court. The Court ruled in 2011 that then-defendant John Ashcroft was entitled to qualified immunity against Al-Kidd's Fourth Amendment claim. (All eight participating justices agreed that Ashcroft did not violate a "clearly established" Fourth Amendment right at the time of Al-Kidd's arrest and detention. Justice Kagan was recused.) However, four of the eight justices agreed that there were serious questions about the statutory claim, that is, "whether the Government's use of the Material Witness Statute in [Al-Kidd's] case was lawful." The Court remanded the case to the district court for further proceedings as to the remaining defendants.
The district court granted summary judgment to Al-Kidd on most claims; a defendant (an FBI agent) filed an interlocutory appeal with the Ninth Circuit; and the Ninth Circuit heard oral arguments in May 2014. The parties settled this week.
The government issued a statement: "The government acknowledges that your arrest and detention as a witness was a difficult experience for you and regrets any hardship or disruption to your life that may have resulted from your arrest and detention." It also agreed to pay Al-Kidd $385,000.00.
Friday, January 2, 2015
Cyrus Favier, over at ars technica, surveys the candidates of current litigation- - - five! - - -that might bring the issues of the constitutionality of NSA surveillance to the United States Supreme Court.
Favier looks at the dueling opinions in Klayman v. Obama and ACLU v. Clapper, as well as lesser known cases winding their ways through the courts. And as he implies, regardless of the status of these particular cases, there are plenty more percolating:
Case name: N/A
Moreover, the Court's unanimous recent opinion in Riley v. California finding a cell phone search requires a warrant and the continuing uncertainty over the 1979 "pen register" case Smith v. Maryland gives some credence to the speculation.
ConLawProfs looking for something accessible yet substantively provocative for the first day of classes should take a look at Favier's article.
Tuesday, December 16, 2014
The Supreme Court ruled yesterday in Heien v. North Carolina that the Fourth Amendment does not prohibit an officer from making a stop based on a reasonable mistake of law. We posted an argument preview here and review here.
The ruling puts a heavy thumb on the scale in favor of law enforcement and puts the burden of vague or ambiguous laws, or an officer's reasonable misunderstanding of law, on ordinary citizens.
Chief Justice Roberts wrote for the 8-justice majority that the "reasonable suspicion" standard required for a stop allows for an officer's mistake of law, no less than it allows for an officer's mistake of fact:
The officer may be reasonably mistaken on either ground. Whether the facts turn out to be not what was thought, or the law turns out to be not what was thought, the result is the same: the facts are outside the scope of the law. There is no reason, under the text of the Fourth Amendment or our precedents, why this same result should be acceptable when reached by way of a reasonable mistake of fact, but not when reached by way of a similarly reasonable mistake of law.
Chief Justice Roberts was careful to emphasize that a mistake must be objectively reasonable--a point emphasized by Justice Kagan (joined by Justice Ginsburg) in concurrence. Still, an officer's reasonable mistake of law is now enough to justify reasonable suspicion for a stop.
Justice Sotomayor filed the lone dissent. She argued that an officer's reasonable mistakes of fact are different from an officer's reasonable mistakes of law: officers are better at judging indeterminate and evolving facts on the street, but the courts are better at the law:
After all, the meaning of the law is not probabilistic in the same way that factual determinations are. Rather, "the notion that the law is definite and knowable" sits at the foundation of our legal system. And it is courts, not officers, that are in the best position to interpret the laws.
She also argued that the majority's approach is a blow to civil liberties and police-community relations, and that it has "the perverse effect of preventing or delaying the clarification of the law."
Wednesday, December 3, 2014
Eleventh Circuit Finalizes Rejection of Constitutionality of Florida Drug Testing of Welfare Recipients
In its 54 page opinion today in Lebron v. Sec't Florida Dep't of Children & Families, a unanimous panel of the Eleventh Circuit held that Florida Statute §414.0652 requiring drug testing of all persons who receive public benefits is unconstitutional.
Recall that a previous panel (of three different judges) had affirmed a district judge's grant of a preliminary injunction against the statute. The district judge then entered a permanent injunction and this appeal followed.
Today's opinion holds that the statute violates the Fourth Amendment because Florida "failed to meet its burden of establishing a substantial special need to drug test all TANF applicants without any suspicion." Importantly, the court also held that
the State cannot circumvent constitutional concerns by requiring that applicants consent to a drug test to receive TANF payments. When a government benefit is conditioned on suspicionless drug testing, the voluntariness of the program is properly viewed as a factor baked into the special needs reasonableness analysis, not as an exception to it.
The court rejected Florida's reliance "on unconstitutional conditions cases that arose in different contexts," such as Rust v. Sullivan, stating that "the consent inquiry is included within the special needs analysis" in the Fourth Amendment context.
The court concludes:
the State cannot use consent of the kind exacted here -- where it is made a condition of receiving government benefits -- to wholly replace the special needs balancing analysis. We respect the State’s overarching and laudable desire to promote work, protect families, and conserve resources. But, above all else, we must enforce the Constitution and the limits it places on government. If we are to give meaning to the Fourth Amendment’s prohibition on blanket government searches, we must -- and we do -- hold that § 414.0652 crosses the constitutional line.
While Florida and its governor have been adamant in defending the constitutionality of mandatory drug-testing, the federal courts have been just as adamant that such drug-testing is unconstitutional. But perhaps Florida will seek certiorari and a chance to validate this policy.
Monday, November 10, 2014
In its opinion in Williams v. City of Cleveland, a panel of the Sixth Circuit faulted the district judge for over-extending Florence v. Board of Chosen Freeholders of County of Burlington (NJ) to include a challenge to a practice by Cleveland that "compelled pretrial detainees who were being processed into the facility to undress in the presence of other detainees and to have their naked genitals sprayed with delousing solution from a pressurized metal canister."
Recall that the United States Supreme Court in Florence upheld the authority of jail authorities to strip search a person accused of a minor crime without individualized suspicion under the Fourth Amendment. As we stated when the decision was rendered in April 2012, "Writing for the 5-4 majority, Kennedy's relatively brief opinion could be summed up in a single word: deference."
Yet that deference was not total and today's holding from the Sixth Circuit elaborates on the limits of Florence. The complaint in Williams was stayed pending resolution of Florence, and after Florence, the plaintiffs sought to amend their complaint to distinguish Florence. The district judge denied the motion to amend as "futile" because there was no real constitutional issue raised by the manner of the delousing.
Reversing, the unanimous panel of the Sixth Circuit noted that Florence "took pains to emphasize that its holding applied only to the blanket policy before it, which required a visual strip search and a compulsory shower with self-applied delousing solution." This means, according to the court, that the particular method of conducting a search must still be reasonable, and that this reasonableness is weighed against the level of intrusion.
As the panel described the allegations, the "hose treatment" included the plaintiffs being "ordered to crouch naked on the floor with several strangers in the room while corrections officers" directed a pressurized hose of delousing liquid aimed at their intimate body parts. The incident also included for one plaintiff being hosed off by another detainee and for another plaintiff, the delousing liquid "penetrating her anus." For the panel, "simply spraying the detainee with a hose as if she was an object or an animal," is problematical because
it is not obvious that it would be impracticably onerous for the jail to permit self-application of the delousing solution while reserving the “hose treatment” for instances where individual detainees misapply or refuse to properly apply the provided solution.
However, the panel noted that in "the final analysis" "the jail may have had good reasons for conducting these procedures in the particular manner in which it did." However, "that is a matter for resolution either at trial or on summary judgment, not on the pleadings."
Thus, the case will proceed at the trial level.
Tuesday, October 7, 2014
The Supreme Court on Monday heard oral arguments in Heien, the case asking whether the Fourth Amendment permits an officer to make a car stop based on a mistake of law. (Our argument preview is here.) The petitioner put the Fourth Amendment--and only the Fourth Amendment--in front of the Court. But based on questions yesterday, the Court seemed to look for ways to wiggle around that framing--and possibly rule on something more, or less.
The petitioner worked mightily at argument and in briefing to distinguish between the underlying Fourth Amendment right and the remedy (exclusion of the evidence). That's because North Carolina automatically excludes evidence if the search violated the Fourth Amendment (without a good-faith exception)--a rule favorable to the petitioner, assuming a Fourth Amendment violation. (The state also interprets its own state constitutional provision in lock-step with the Fourth Amendment.) So the petitioner argued that if the Supreme Court ruled in his favor on the Fourth Amendment (alone), the Court should remand the case for a state-court ruling on the remedy (exclusion of the evidence, under North Carolina law). This, of course, hinged on the Supreme Court ruling on the Fourth Amendment alone.
The Court seemed skeptical. Led by Justice Scalia, questions pressed the petitioner on why it should separate the rights analysis from the remedy, when usually the two go hand-in-hand. Moreover, it wasn't clear why the petitioner should be able to take advantage of a federal Fourth Amendment ruling plus a state exclusionary rule in order to get the evidence excluded. The petitioner had answers (including the fact that the parties only barely briefed the remedy question), but it was clear that this was a sticking point.
On the other hand, some on the Court wondered whether the Court needed to get to the presented Fourth Amendment issue at all. That's because this was a consensual search (after the officer stopped the car). Justice Ginsburg led this line of questioning, but others joined in. Again, the petitioner had answers (fruit of the poisoning tree--the tree being the initial stop based on a mistake of law), but this, too, may be a sticking point.
In all, there were relatively few questions (and few indications one way or the other) on the presented question, whether the Fourth Amendment permits an officer to make a stop based on a mistake of law.
Friday, October 3, 2014
The Supreme Court will consider that question on First Monday, when it hears oral arguments in Heien v. North Carolina. Here's my oral argument preview, from the ABA Preview of United States Supreme Court Cases (with permission):
An officer in the Surry County Sheriff’s Department stopped the petitioner’s vehicle along an interstate highway because it had a broken right brake light. (The left brake light worked.) Upon a subsequent consensual search of the vehicle, the officer found cocaine, and the petitioner was charged with trafficking. The petitioner moved to suppress the evidence, arguing that the officer’s stop violated the Fourth Amendment. In particular, he argued that state law required only one operable brake light (an interpretation that the State does not dispute), that the officer based his stop on the mistaken belief that the petitioner violated state law, and that the officer therefore did not have reasonable suspicion that the petitioner broke the law.
Early one morning in April 2009, Nicholas Heien and Maynor Javier Vasquez were traveling on Interstate 77 through Surry County, North Carolina, in Heien’s Ford Escort. Vasquez was driving, and Heien was sleeping in the back seat.
Officer Matt Darisse of the Surry County Sheriff’s Department was patrolling the interstate. He noticed the car and followed it. As the Escort approached a slower-moving vehicle, Darisse saw that the car’s left brake light functioned properly, but that the car’s right brake light was out. Darisse pulled the car over and told Vasquez and Heien that he stopped them “for a nonfunctioning brake light.”
North Carolina law requires all vehicles to have “a stop lamp.” More particularly, the law says that “[n]o person shall . . . operate on the highways of the State any motor vehicle . . . manufactured after December 31, 1955, unless it shall be equipped with a stop lamp on the rear of the vehicle.” (Emphasis added.) No North Carolina appellate court had ever construed this statute to require two working stop lights. But a different statute requires that “[e]very motor vehicle . . . shall have all originally equipped rear lamps . . . in good working order[.]” (Emphasis added.) And yet another provision permits brake lighting systems to be “incorporated into a unit with one or more other rear lamps.” (Emphasis added.)
Darisse issued Vasquez a warning citation for the malfunctioning brake light. He then told Vasquez to step out of the car and asked him questions about where he was going. At the same time, another officer, who arrived sometime after the initial stop, walked to the back window of the car and asked Heien similar questions. Vasquez and Heien gave different answers. Darisse then asked Vasquez if he would “mind if we made a quick check to make sure you don’t have any drugs or guns or anything like that” in the car. Vasquez told Darisse that he would have to ask Heien, because the car belonged to Heien. Heien consented.
The officers then searched Heien’s car and found a plastic sandwich baggie containing cocaine.
The State charged Heien with trafficking in cocaine. (The State also charged Vasquez. He pleaded guilty to attempted cocaine trafficking.) Heien filed a motion to suppress the evidence that the officers found in his car, arguing that the search violated the Fourth Amendment. In particular, Heien claimed that Darisse lacked “reasonable articulable suspicion that criminal activity had been committed or was being committed, or that a motor vehicle traffic offense or infraction had occurred” when Darisse stopped Heien’s car. (If the stop was illegal, then the subsequent search was illegal, and the court would have to suppress the evidence.) Heien also argued that his consent to the search was invalid. The trial court denied these motions.
Heien pleaded guilty to two variations of drug trafficking and was sentenced to two consecutive prison terms of ten to twelve months. But he reserved the right to appeal the denial of his motion to suppress the evidence.
On appeal of Heien’s motion to suppress, the North Carolina Court of Appeals reversed the trial court, but a sharply divided North Carolina Supreme Court reserved the Court of Appeals (and affirmed the denial of Heien’s motion to suppress). Importantly, the State did not argue to the North Carolina Supreme Court that the state law required more than one working brake light, and the North Carolina Supreme Court did not rule on that question. Instead, the state high court assumed that the law required just one working brake light.
The North Carolina Court of Appeals and Supreme Court both later rejected Heien’s challenge to the validity of his consent and upheld his conviction and sentence. This appeal followed.
Under the Fourth Amendment, an officer may stop a vehicle based only on reasonable suspicion that a crime has been committed. The Supreme Court has held that “reasonable suspicion” includes a reasonable mistake of fact. This means that an officer may stop a vehicle based on reasonable suspicion, even when that reasonable suspicion is, in turn, based on an officer’s mistake of fact. This rule is designed to balance the intrusion on an individual’s privacy in a car stop, on the one hand, and the state’s interest in allowing officers to stop a vehicle when there is a chance of illegal behavior, on the other. In short, the rule gives officers some leeway to make a quick factual judgment, under conditions of uncertainty, that a law has been broken.
This case tests whether this rule extends to an officer’s reasonable mistake of law. If so, then an officer could stop a vehicle based on a reasonable mistake of law that a crime has been committed, just as the officer could stop a vehicle based on a reasonable mistake of fact that a crime has been committed.
Heien argues that an officer’s reasonable suspicion must be measured against a correct interpretation (and not a misinterpretation) of the law. He says that the purpose of the reasonable suspicion standard is to constrain the discretion of an officer and to avoid arbitrary stops, and that a stop based on any misinterpretation of the law (including a reasonable misinterpretation) undermines that core purpose. He claims that our tradition supports this—that the common law has long held officers liable for mistakes of law—and that familiar legal precepts support this, too (for example, the precept that “ignorance of the law is no excuse”). He contends that various canons of statutory construction “reinforce the principle that government should not benefit from mistaken interpretations of ambiguous or otherwise confusing criminal laws.”
Heien acknowledges that the Fourth Amendment tolerates stops based on reasonable mistakes of fact. But he says that the reasons for this rule do not carry over to reasonable mistakes of law. In particular, he claims that the Fourth Amendment recognizes that officers often have to make quick factual assessments under conditions of uncertainty, and that the doctrine gives officers the flexibility to make good-faith mistakes of fact. He says that an officer’s legal judgment is different, however, because knowledge of the law does not require ad hoc, case-by-case assessment; instead, it is fixed and determinate and susceptible to ex ante analysis by the courts.
Next, Heien argues next that an officer’s mistake of law is sometimes relevant, but only to the remedy, and not to the underlying Fourth Amendment right. He means that an officer’s mistake of law is relevant in determining whether the evidence obtained should be excluded, or whether an officer enjoys qualified immunity for the Fourth Amendment violation, that is, to questions of remedy for Fourth Amendment violations. But he says that the same mistake of law is not relevant in determining whether the officer violated the underlying Fourth Amendment right—the issue in this case. He says that a long line of Supreme Court cases supports this interpretation, and shoe-horning the mistake-of-law inquiry into the Fourth Amendment question would be difficult to administer, lead to varying results (and thus varying versions of the Fourth Amendment), and undermine our very system of individual rights protection.
Finally, Heien argues that even if the Court considers Darisse’s mistake of law on the question of the underlying right, the Court should still rule that Darisse violated the Fourth Amendment. Heien claims that Darisse’s mistake was not based on his reasonable reliance on assurances from courts or legislatures (as in other cases), but instead on “his own overly aggressive interpretation of the law.” Moreover, Heien contends that other problems could arise if the Court concluded that Darisse did not violate the Fourth Amendment because of his mistake. In particular, Heien says that police departments would be discouraged from educating officers on the law, that they would be discouraged from asking legislatures to clarify ambiguous laws (because that would shrink officer discretion), and that motorists could be subject to stops for nearly any reason—so long as the officer made a reasonable mistake. Heien claims that it is the legislature’s job, not the officers’ job, to determine what traffic laws are necessary to promote safety; but allowing an officer to dodge the Fourth Amendment by making a mistake of law would, in essence, put the law solely in the officer’s hands.
The State argues that reasonable mistakes of law, just like reasonable mistakes of fact, can support an officer’s reasonable suspicion to make a traffic stop. The State says that the reason for allowing mistakes of law to support an officer’s reasonable suspicion—to give officers some room, given the often ambiguous situations in which they execute their duties—applies equally to mistakes of law. It also claims that the law has recognized that mistakes of law can be objectively reasonable, and that the Supreme Court has upheld officer actions based on mistakes of law. And it contends that any effort to distinguish between mistakes of fact and mistakes of law would be fruitless, because mistakes of fact and mistakes of law are often difficult to distinguish.
Next, the State argues that an officer’s mistake of law is not only relevant to the question of remedy, but also the question of right. In particular, the State claims that the exclusionary rule doctrine does not limit the consideration of an officer’s mistake of law to the remedy (exclusion of evidence). And it says that under the qualified immunity doctrine, reasonableness for the purpose of officer immunity is different than reasonableness for the purpose of the Fourth Amendment violation itself. Therefore, the State contends, contrary to Heien, that the qualified immunity doctrine says nothing about whether a mistake of law might support the question of the right itself. The State claims that even if an officer’s mistake of law does not support an investigatory stop, the good-faith exception to the exclusionary rule would apply, and the evidence would come in. (Note that the good-faith exception to the exclusionary rule is not part of the Question Presented in the case, and Heien does not argue it.)
Finally, the State argues upholding stops based on reasonable mistakes of law advances the interests underlying the Terry doctrine. In particular, the State says that the Supreme Court in Terry v. Ohio, 392 U.S. 1 (1968), recognized that officers often had to take “swift action predicated upon on-the-spot observations,” and therefore allowed investigatory stops based on mere reasonable suspicion (and not the higher standard, probable cause). The State claims that those same considerations support the use of an officer’s reasonable mistakes of law in making a stop. The State says that an officer may make a mistake of fact for any number of perfectly reasonable reasons. The State claims that this is a case in point: “The unsettled question of law here involved the interpretation of a statute that had been on the books for more than fifty years. No one had ever challenged the interpretation that all brake lights were required to be in working order.” The State says that there is no reason to believe that Darisse would have received any different advice if he could have asked for an interpretation of law in the field. In other words, the State claims that Darisse’s interpretation of the law was reasonable.
The government, as amicus curiae on the side of the State, argues first that the Fourth Amendment, where the ultimate touchstone is reasonableness, allows an officer to perform a car search when the officer reasonably believes that conduct violates the law, even if the officer’s belief turns out to be mistaken. The government says that this rule properly balances the suspect’s right to liberty and the state’s duty to control crime. The government claims that this only allows an officer to “start the judicial process,” and the courts can sort out the legality of the stop later. The government contends that a different rule would hamper law enforcement by discouraging officers from “starting the judicial process” in the first place.
Next, the government argues that courts since the Founding have held that officers could make a brief seizure when they acted on reasonable interpretations of the law, even when those interpretations turned out to be wrong. The government claims that courts since the Founding have even allowed mistakes of law in determining probable cause (a higher bar than the reasonable suspicion applicable here). The government says that more recent Supreme Court decisions similarly hold that an officer does not violate the Fourth Amendment when the officer acts on a reasonable mistake of law, and that those cases do not distinguish between the remedy question and the rights question, as Heien contends.
The government argues further that the same justifications that allow an officer to stop a vehicle upon a mistake of fact also allow an officer to stop a vehicle upon a mistake of law, that is, that mistakes of law should be treated the same as mistakes of fact for Fourth Amendment purposes. In particular, the government contends that “the strong public interest in bringing suspects into court when criminal conduct is probable but not certain” should justify allowing an officer’s mistakes of law as well as mistakes of fact to support a stop. The government claims that Heien’s attempts at distinguishing between mistakes of fact and mistakes of law are unavailing. It also says that the Court should not draw on the legal maxims or other rules from other areas of the law, as Heien argues, and that the good-faith exception to the exclusionary rule only reaffirms the fact that reasonable suspicion allows for reasonable mistakes.
Finally, the government argues that Darisse’s stop was supported by reasonable suspicion. The government claims that Darisse’s interpretation of North Carolina law was reasonable—that he reasonably interpreted the statutes to outlaw a broken brake light—and that he therefore had the requisite reasonable suspicion to make the stop.
This case will determine who should get the benefit of the doubt—a police officer, or a suspect—with regard to any evidence obtained when an officer makes a reasonable mistake of law leading to a traffic stop. That’s because an officer’s reasonable mistake of law necessarily means that the suspect did not actually engage in illegal activity justifying a stop. If the benefit goes to the suspect, then, the stop was invalid, and any evidence obtained in a subsequent search must be excluded. If the benefit goes to the officer, the stop was valid (even if based on a mistake of law), and the evidence can be used against the suspect.
But this benefit of the doubt could have other serious implications. For example, Heien and amici supporting him claim that giving the benefit of the doubt to the officer will lead to all sorts of public policy problems. These include decreased incentives for officer education; decreased incentives for clarifying uncertain law; increased incentives for stops for lawful conduct (so long as the state can gin up a reasonable post-hoc statutory rationalization for the stop); and even officer credibility in the community. One amicus points out that traffic stops disproportionately affect racial minorities. Another amicus points out that a ruling for the State would mean that police officers would be required to know less about the law than the general public (because, as Heien argues, “ignorance of the law is no excuse” for the general public).
On the other side, the State and its amici, including Wisconsin, eighteen other states, and the District of Columbia, say that giving the benefit of the doubt to a suspect would discourage valid stops and hamper law enforcement. They say that giving the benefit to the officer strikes the right balance between individual privacy and law enforcement. And the government suggests that if there are problems with a stop (for example, when a stop is based on an unreasonable interpretation of the law), the courts can sort them out later.
The case is also important because it will resolve a split in the federal and state courts. According to Heien’s Petition for Writ of Certiorari, the majority of federal courts of appeals and state high courts have concluded that a mistake of law cannot provide the reasonable suspicion necessary to justify a traffic stop. The North Carolina Supreme Court’s ruling is in the minority.
Wednesday, September 3, 2014
The Second Circuit heard oral arguments yesterday in a challenge to the NSA program involving mass collection of telephone call details under Section 215 of the Patriot Act. The full argument was broadcast on C-Span and is available here. (The embed code wasn't cooperating.)
The case, ACLU v. Clapper, is one of three cases challenging the program now pending in the circuit courts; the other two are Smith v. Obama (in the Ninth Circuit) and Klayman v. Obama (in the D.C. Circuit). The Electronic Frontier Foundation has a backgrounder here, with links to case materials; the ACLU has a backgrounder on Section 215 here; the ACLU's page on ACLU v. Clapper is here.
Challengers in the cases argue that Section 215 violates the First and Fourth Amendments, but face justiciability questions before the courts will get to the merits. That's because Section 215 prohibits a telecommunication company subject to a 215 order from telling its customers about it, so without more a customer wouldn't know. Still, the district courts in Smith and Klayman ruled that the plaintiffs had standing based on the sheer breadth of the program.
September 3, 2014 in Cases and Case Materials, Courts and Judging, First Amendment, Fourth Amendment, Fundamental Rights, Jurisdiction of Federal Courts, News | Permalink | Comments (0) | TrackBack (0)
Wednesday, June 25, 2014
A unanimous Supreme Court today ruled in Riley v. California that officers must obtain a warrant before searching an arrrestee's cell phone incident to arrest. The ruling deals a blow to law enforcement, to be sure. But it only means that law enforcement must obtain a warrant before searching a cell phone, or satisfy some other exception to the Fourth Amendment's warrant requirement (like exigent circumstances), before conducting a search of the phone. In general, this should not be overly difficult, assuming that an officer can meet the requirements for a warrant: an arresting officer need only drop a seized cell phone into a Faraday bag and obtain a warrant for a later search. Again: the ruling still preserves other exceptions to the warrant requirement, so that officers can search a phone without a warrant if there are exigent circumstances, for example.
The ruling breaks little new ground on Fourth Amendment analysis. Instead, it applies a familiar framework to a relatively new technology, cell phones. (The ruling applies to both smart phones and flip phones.)
The Court applied the familiar balancing test, "assessing, on the one hand, the degree to which [the search] intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests." Wyoming v. Houghton. As to government interests, the Court looked to the two recognized interests in a search incident to arrest in Chimel: to remove weapons that threaten officer safety or could be used for escape, and to prevent the destruction of evidence.
The Court said that the government lacked an interest in protecting officer safety or preventing escape, because "a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee's escape." It said that the government lacked an interest in protecting evidence, because officers can easily protect evidence on a seized cell phone (by turning it off, or putting it in a Faraday bag, to prevent remote wiping, for example). (The Court said that there was little evidence that destruction of evidence was even a problem.)
On the other side of the balance, the Court recognized the massive storage capacity and vast personal information contained in cell phones, and contained remotely but accessible by cell phones, and said that the search was a significant invasion of privacy, even if diminished in the context of an arrest.
On the government interest side, Robinson concluded that the two risks identified in Chimel--harm to officers and destruction of evidence--are present in all custodial arrests. There are no comparable risks when the search is of digital data. In addition, Robinson regarded any privacy interests retained by an individual after arrest as significantly diminished by the fact of the arrest itself. Cell phones, however, place vast quantities of personal information literally in the hands of individuals. As search of the information on a cell phone bears little resemblance to the type of brief physical search considered in Robinson.
Justice Alito wrote a concurrence (for himself alone), arguing that the search-incident-to-arrest rule should be based on the government's interest in "the need to obtain probative evidence," and not the two Chimel interests. He also called on Congress and state legislatures "to assess and respond to to [technological advances] that have already occurred and those that almost certainly will take place in the future."