District of Columbia v. Wesby: Some Problems with a Fixed-Probability Approach to Probable Cause, with Potential Implications for Partial Marijuana Legalization

In response to my request for comments on the draft I recently posted on SSRN, Probable Cause to Believe What? Partial Marijuana Legalization and the Role of State Law in Federal Constitutional Doctrine, Wayne Logan (Florida State) brought to my attention a pending Supreme Court case, District of Columbia v. Wesby, scheduled for argument on October 4. Raising as it does issues of qualified immunity, the case may be resolved in ways that provide no clear guidance regarding an important underlying question—what level of suspicion is required regarding facts that would need to be established at trial but might be hard to assess by police officers at the time a decision must be made whether to arrest. This underlying question is important generally, and will be of particular importance as more people are covered by state laws legalizing marijuana use.

              Wesby began with a complaint regarding possible illegal activity at a home in Washington, D.C. When police arrived, they heard loud music and observed “several scantily clad women with money tucked into garter belts, in addition to ‘spectators . . . drinking alcoholic beverages and holding [U.S.] currency in their hands.’” Some occupants told police they had been invited to a birthday party; others that they had been invited to a bachelor party. The invitations seemed traceable, either directly or indirectly, to a person named “Peaches,” who was not present. Reached by phone, Peaches apparently confirmed issuing invitations that were subsequently extended by others and said that she had permission from the owner of the house. But when the owner was reached, he said that he was “trying to work out a lease arrangement with Peaches but had yet to do so.” He also said that the people in the house did not have his permission to be there.

              The case focuses primarily on the subsequent arrest of partygoers for unlawful entry. Were the arrests supported by probable cause, given the evidence surrounding the issue of the partygoers’ mens rea regarding whether their entry had been authorized? The case provides a window through which one can examine the problems caused by a fixed-probability approach to probable cause, just as the marijuana legalization cases do.

              The Court has been less than clear about whether a fixed or variable approach to probable cause is appropriate. If a fixed approach is appropriate (let’s say for simplicity a 40-percent likelihood, though we know that the Court has declined precisely to quantify the standard), a premium is placed on elaborating rules about what Christopher Slobogin usefully identified as the “object” of the probable cause inquiry. If one believes that police should be able to search or arrest, for example, when a reasonable officer would be confident that a suspect killed a person but also confident that the killing was in self defense, it is necessary to supplement a fixed-approach to probable cause with rules specifying why self defense is not part of the object of the probable-cause assessment, since the reasonable officer would assess the likelihood of the suspect’s guilt as less than 40 percent if self defense were taken into account.

              In marijuana legalization settings and more generally, many cases can be found in which courts have flatly stated that affirmative defenses are irrelevant to probable cause determinations. Others say that affirmative defenses must be considered when they are clearly established. Others seem to regard facts relevant to defenses no differently from the facts that establish prima facie social harm.

Apart from these efforts to derive guidance from the formal structure of provisions criminalizing conduct, courts also have tried to address the problems caused by a fixed-approach to probable cause in other ways. They have developed doctrine about how much investigation an officer must engage in prior to making the probable cause determination, for example. They have addressed how conflicting evidence should be assessed, perhaps motivated by the view that officers in only rare cases should be asked to decide between conflicting accounts of a dispute—not because they couldn’t think that only one witness could reasonably be credited, but because a reasonable system might prefer those decisions to be made elsewhere.

In Wesby, we see some of these problems play out. In concluding that police lacked probable cause to effect the arrests, the majority tries to work its way around the approach that would give dispositive weight to the form of the underlying criminal provision. Responding to the civil defendants’ argument that plaintiffs’ alleged “bona fide belief in their right to enter the house ‘simply raises a defense for the criminal trial’” and is hence “irrelevant to the determination of probable cause,” the majority implies that the “defense” is not a true defense, stating that good-faith belief in permission to enter is a valid defense because it “vitiates the necessary element of Plaintiffs’ intent to enter against the will of the lawful owner.”  (Those who remember the Court’s burden-shifting line of cases—like Patterson v. New York, 432 U.S. 197 (1977)—will recognize this move.) The dissent, on the other hand, focuses on practicalities. “The officers did not ignore Plaintiffs potentially exculpatory claims of invitation. . . .  Instead, during the course of a fast-moving investigation, officers considered and investigated Plaintiffs' statements, and rendered a determination that their claims of bona fide good faith were insufficiently credible to overcome the surrounding facts and circumstances.”

In marijuana-legalization states, these questions arise too. Some of the legalization statutes have been construed or could be construed as creating an affirmative defense for those whose possession of marijuana is medically approved, or comes within quantity limitations for recreational use. And the cases can require cops to assess the credibility of those who claim that their possession is in accord with legal requirements. On the investigation question, how should an officer respond if told that a person who possesses marijuana has medical authorization? In some states such people are required to be registered with the state. Must the cop check a database before searching or arresting? In California, registration is voluntary, making matters even more complicated.

A variable approach to probable cause—which may essentially devolve into a general reasonableness approach to search and seizure—avoids the need to construct a myriad of rules to define the object of the probable cause inquiry. It is not a costless cure, of course. The ambiguity of such an approach may be a bigger problem than the wooden rules otherwise required to implement a fixed, probabilistic approach.

It may be that the Court will not resolve these questions when it tackles Wesby. In his dissent from denial of rehearing en banc, Judge Kavanaugh opined that Wesby is a “fairly easy case for qualified immunity.” The Court could do in Wesby something similar to what it did in Messerschmidt v. Millender, 565 U.S. 535 (2012). But at some point, the question will not be what a reasonable officer might have thought the Fourth Amendment means, but what it actually does mean.

KC